Administrative Law

 

PLA 7092/94

 

Her Majesty the Queen in Right of Canada

v.

1. Sheldon G. Edelson

2. Rivka Reinhold

3. Aaron Reinhold

4. Reuven Reif, Receiver-General

5. Katriel Be’eri, Receiver-General

6. Abn Amro Bank N.V.

The Supreme Court Sitting as the Court of Civil Appeals

[June 3, 1997]

President A. Barak and Justices E. Mazza, T. Strasberg-Cohen

 

Appeal by leave from the decision of the Tel-Aviv/Jaffa District Court, docket numbers 581/91 and 613/93, handed down on July 11,1994, which denied an appeal from the decision of the Herziliya Magistrate Court, docket number 411/91, handed down on April 15 1991, and which also accepted an appeal from the decision of the Bat-Yam Magistrate Court, docket number 908/92, handed down on March 3 1993.

 

Facts: Respondents leased a house to the appellant, a foreign sovereign. The house was to serve as the residence of the Canadian ambassador to Israel. The parties disputed the right of the appellant to exercise his option to extend the lease. The magistrate court, in a declaratory judgment, rejected the appellant's claim of absolute immunity, held that the lease had ended, and ordered the appellant to vacate the property. The district court upheld the decision of the magistrate court. Appellant appealed to the Supreme Court.

 

Held: The Supreme Court held that a foreign sovereign enjoys only relative immunity, and not absolute immunity, from the jurisdiction of Israeli courts. As such, in matters of private commercial law, a foreign sovereign is subject to the jurisdiction of Israeli courts. The Court also held that, in any specific case, whether Israeli courts had jurisdiction would be decided by looking to the legal nature of the transaction, rather than its underlying purpose. As the lease contract was of a private, commercial nature, Canada could not assert immunity from Israeli jurisdiction. The Court also distinguished between the sovereign immunity of the foreign state and the diplomatic immunity of its ambassador. The Court held that the ambassador could not assert diplomatic immunity in this case, as the house was rented by Canada, and the Canadian ambassador was not a party to the lease. 

 

Israeli Supreme Court Cases Cited:

[1]      C.A. 347/71 Sensor v. Consul-General of Greece, IsrSC 26(2) 328.

[2]      HCJ 785/ 87 Afu  v. Commander of IDF Forces in the Gaza Strip, IsrSC 42(2) 4.

[3]      Cont. 41/49 Shimshon v. Attorney-General,  IsrSC 4 143.

[4]      Crim. App. 5/51 Steinberg v. Attorney-General, IsrSC 5 1061.

[5]      Crim. App. 174/54 Stampeper v. Attorney-General, IsrSC 10 5.

[6]      Crim. App. 336/61 Eichman v. Attorney-General, IsrSC 17 2033.

[7]      HCJ 606/78 Awib v. Minister of Defense, IsrSC 33(2) 113.

[8]      HCJ 698/80 Kawasmeh v. Minister of Defense, IsrSC 35(1) 617.

[9]      HCJ 393/82 Jamayat Askan Almalmoun Altaounia Almahdouda Almsaoulia, Registered Cooperative in the Judea and Samaria Region v. Commander of IDF Forces in the Region of Judea and Samaria,   IsrSC 37(4)  785.

[10]    HCJ 294/89 National Insurance Institute v. (Appeals) Committee Established by Virtue of the Law bestowing Benefits for Victims of Terrorism, IsrSC 45(5)  445.

 

Israeli District Court Cases Cited:

[11]    Cont. (Jerusalem) 1013/78, DC (Jerusalem) 300/76 Karmi v. Dolberg  2000 IsrDC (2) 265.

[12]    DC (Jerusalem) 157/53 Shababo  Estate v. Heilan, IsrDC 9 502.

 

Israeli Magistrate Court Cases Cited:

[13]    MC (Petach Tikva) 2310/93 (unreported case).

 

Israeli National Labour Court Cases Cited:

[14]    LCJ 32-3/81 Weiss v. German Embassy in Israel (unreported case).

[15]    LCJ 3-213/61 Navot v.  South African Airlines (unreported case).

[16]    LCJ 3-147/88 Leah v.  The Republic of South Africa, IsrLC 19 557.

 

Austrian Cases Cited:

[17]    Collision with Foreign Government-Owned Motor Car (Austria) Case, 40 I.L.R. 73 (1961).

 

Italian Cases Cited:

[18]    United States Government  v. Bracale Bicchierai, 65 I.L.R. 273 (1968).

[19]    Embassy of the Kindgdom of Morocco v. Societa’ Immobiliare Forte Barchetto, 65 I.L.R. 331 (1979).

 

American Cases Cited:

[20]    The Exchange, 11 U.S. 116 (1812).

[21]    Berizzi Bros. Co. v. S.S. The Pesaro, 271 U.S. 562  (1926).

[22]    Victory Transport Inc. v. Comisaria General, 336 F. 2d 354 (2d Cir. 1964).

[23]    Alfred Dunhill of London Inc. v. The Republic of Cuba, 425 U.S. 682 (1976).

[24]    Joseph v. Office of Consulate General of Nigeria, 830 F. 2d 1018 (9th Cir. 1987).

[25]    2 Tudor City Pl. v. Libyan Arab Republic Mission to U.N., 470 N.Y.S. 2d 301 (N.Y. Civ. Ct. 1983).

[26]    767 Third Ave. Association v. Permanent Mission of the Republic of Zaire to the United Nations, 787 F. Supp. 389 (S.D.N.Y. 1992).

 

English Cases Cited:

[27]    Alcom Ltd. v. Republic of Columbia [1984] 2 All E.R. 6 (H.L.).

[28]    The Parlement Belge (1880) 5 P.D. 197 (C.A.).

[29]    Compania Naviera Vascongado v. S.S. Cristina [1938] A.C. 485.

[30]    Rahimtoola v. The Nizam of Hyderabad [1958] A.C. 379.

[31]    Thai-Europe Ltd. v. Pakistan government  [1975] 1 W.L.R. 1485 (C.A.).

[32]    The Philippine Admiral [1977] A.C. 373 (P.C.).

[33]    Trendex Trading v. Bank of Nigeria [1977] Q.B. 529 (C.A.).

[34]    Hispano v. Central Bank [1979] 2 L1.L. Rep. 277 (C.A.).

[35]    The “I Congreso” [1980] 1 L1.L. Rep. 23 (C.A.).

[36]    I Congreso [1983] 1 A.C. 244; [1981] 2 All E.R. 1064 (H.L.).

[37]    Planmount Ltd. v. Zaire [1981] 1 All E.R. 1110 (Q.B.).

 

German Cases Cited:

[38]    Philippine Embassy Bank Account Case, 65 I.L.R. 146 (1977).

[39]    Claim Against the Empire of Iran Case, 45 I.L.R. 57 (1963).

[40]    Land Purchase Broker’s Commission Case, 65 I.L.R. 125 (1974).

 

Greek Cases Cited:

[41]    Purchase of Embassy Staff Residence Case 65 I.L.R. 255 (1967).

 

Jordanian Cases Cited:

[42]    Nashashibi v. The Consul-General of France in Jerusalem 26 I.L.R. 190 (1958).

 

Canadian Cases Cited:

[43]    Zodiak Int’l Product Inc. v. Polish People’s Republic, [1978] D.L.R. 3d. 656.

[44]    Allan Construction Ltd. v. Le Gouvernment du Venezuela, [1968] Que. P.R. 145.

[45]    Venne v. Democratic Republic of the Congo, [1969] 5 D.L.R. 3d. 128.

[46]    Smith v. Canadian Javelin, [1976] 68 D.L.R. 3d. 428.

[47]    Corriveau v. Republic of Cuba, [1980] D.L.R. 3d. 520.

[48]    Flota Maritima Browning de Cuba S.A. v. Steamship Canadian Conqueror, [1962] 34 D.L.R. 2d. 628.

[49]    Republic of Congo v. Venne, [1972] 22 D.L.R. 3d. 669.

[50]    Lorac Transport v. The Atra, [1987] 1 F.C. 108.

[51]    Re Canada Labour Code, [1992] 91 D.L.R. 4th 449.

 

Swiss Cases Cited:

[52]    United Arab Republic v. Mrs. X , 65 I.L.R. 385 (1960).

 

Israeli Literature Cited:

[53]    Y. Dinstein, InternationalLaw and the State (1971).

[54]    Y. Dinstein, The State’s Internal Authority (1972).

 

Israeli Books Cited:

[55]    Ruth Lapidoth, The Place of Public International Law in Israeli Law, 19 Mishpatim 807 (1989-90).

[56]    Y. Silberschatz, The Absorption of International Law into Israeli Law—Reality and Ideal, 24 Mishpatim  317 (1994-95).

[57]    E. Benevisti, The Influence of Security and Foreign Relations Considerations on the Applicability of Treaties to Local Law, 21 Mishpatim 221 (1991-92).

[58]    E. Benevisti, The Influence of International Human Rights Law on the Israeli Legal System: Present and Future, 28 Isr. L. Rev. 136 (1994).

[59]    Y. Dinstein, Diplomatic Immunity in England and in Israel, 22 Hapraklit 5 (1966).

[60]    A. Barak, The Israeli Legal System its History and its Culture, 40 Hapraklit 197 (1991-93).

[61]    Y. Moritz, Cracks in the Principle of Diplomatic Immunity, 28 Hapraklit 317 (1972-73).

 

Foreign Literature Cited:

[62]    C.J. Lewis, State and Diplomatic Immunity (3rd ed., 1990).

[63]    P.W. Hogg, Constitutional Law of Canada (3rd ed., 1992).

[64]    G.M. Badr, State Immunity: An Analytical and Prognostic View (1984).

[65]    1 L.F.L. Oppenheim International Law (R. Jennings & A. Watts eds., 1992).

[66]    4 W. Blackstone, Commentaries on the Laws of England.

[67]    I. Brownlie, Principles of Public International Law (4th ed., 1990).

[68]    C.H. Schreuer, State Immunity: Some Recent Developments (1988).

[69]    J.G. Castel, International Law (3rd ed., 1976).

 

Foreign Books Cited:

[70]    H.L. Molot & M.L. Jewett, The State Immunity Act of Canada, 20 Can. Y.I.L. 79 (1982).

[71]    C.M. Schmitthoff, The Claim of Sovereign Immunity in the Law of International Trade, 7 Int. Comp. L.Q. 452 (1958).

[72]    H. Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 28 B.Y.I.L. 220 (1951).

 

Miscellaneous:

[73]    Restatement (Third) of the Foreign Relations Law of the United States.

[74]    Jurisdictional Immunities of States and their Property, II Y.B.I.L.C. 7 (1986).

 

For the appellant—Gad Nashitz, Rasael David Meir

For respondent no. 1—David Leshem

For respondent nos. 2-3—Abraham Sokovolsky, Helen Eisen

 

JUDGMENT

 

 

President A. Barak

A house was rented to a foreign state, which intended to use the premises as a residence for its ambassador to Israel. A dispute arose between the lessor and the lessee regarding the terms of the lease. The Court was asked to issue a declaratory judgment regarding the lessor’s rights. In addition, the Court was asked to determine the appropriate amount of rent to be paid. The issue before the Court is whether or not the lessee has immunity with respect to the dispute’s adjudication before an Israeli court.

The Facts

1.    Rivka and Aaron Reinhold are the owners of a house in Herzliya. As of May 13, 1986, they let the house to Her Majesty, the Queen in Right of Canada.

The Canadian ambassador to Israel acted as the lessee. The house was to serve as the residence of the Canadian ambassador to Israel. The lease was set for five years, ending on May 13, 1991. The lessee was granted the option of extending the lease for three additional periods. The maximum period for which the lease could be extended was set at a total of five years. Exercise of this option and extension of the lease was contingent on securing the consent of Bank Mizrahi, in whose name a mortgage on the house was registered. The Bank Mizrahi notified the Canadian government that it had transferred the mortgage rights to Mr. Edelson, and that the latter—and, as such, Bank Mizrahi itself—did not consent to the lease’s extension. The owners then demanded that the Canadian government vacate the premises at the end of the original five-year period. The Canadian government refused, claiming that it had the option of extending the lease.

Proceedings in the Magistrate Court

2.    Reinhold applied to the Herzliya Magistrate Court, seeking a declaratory judgment stating that the lease had expired with the passage of the original five years, which had elapsed since the beginning of the lease on May 13, 1991. This being the case, they claimed that they were entitled to demand that the Canadian government vacate the premises.

The Canadian government was summoned to the hearing but did not appear in court. Instead, the Canadian ambassador to Israel dispatched a letter to the judge on his government’s behalf. The letter stated that, in accordance with international law, a foreign sovereign is not subject to the jurisdiction of an Israeli court. Instead, it enjoys absolute immunity with respect to all legal proceedings. The Court was therefore requested to dismiss the suit.

The Court summoned the Attorney-General to participate in the hearing. It considered the submission of the Canadian government. In a well-reasoned judgment, which skillfully and comprehensively reviewed both Israeli and international law, Judge Y. Gellin held that the sovereign immunity enjoyed by foreign states is restricted immunity, applying exclusively to the foreign state’s acts in its “sovereign” capacity, not to its acts in a "private” capacity. The latter category also includes the foreign sovereign’s financial and commercial transactions. As per Judge Gellin’s opinion, renting premises to serve as an ambassadorial residence falls into the category of the foreign sovereign’s financial or commercial transactions. Therefore, he concluded, the foreign sovereign’s immunity does not apply to a dispute over a lease of an ambassador’s residence.

Judge Gellin was aware of the Supreme Court’s ruling in CA 347/71 Sensor v. Consul-General of Greece [1]. According to Sensor [1], a diplomat enjoys absolute immunity from the jurisdiction of Israeli courts. This having been said, Judge Gellin deemed the Sensor [1] ruling obiter dictum, which was therefore not binding upon his court.

Judge Gellin accepted the petition and granted the declaratory judgment requested by Reinhold. The Canadian government  appealed to the magistrate court, requesting that it revoke its ruling, by reason of it having been decided in abstentia and without the presentation of a defense. The magistrate court, again per Judge Gellin, rejected this request.

3.    The Canadian ambassador did not vacate the premises upon the expiry of the original lease. As a result, Reinhold filed an additional suit with the magistrate court. This time, they filed the suit in the magistrate court in Bat-Yam, demanding payment of appropriate rent for the period following the lease’s original term, after May 13, 1991. Moreover, they requested an interlocutory decision, obligating the Canadian government to pay the sum, which it admitted to owing under the terms of the original lease. In response, the Canadian government repeated its claim of sovereign immunity. The magistrate court, per Judge M. Tranto, accepted the Canadian government’s argument and dismissed the suit outright. While Judge Tranto agreed that sovereign immunity is relative, rather than absolute, he nonetheless ruled that renting premises to serve as an ambassadorial residence falls within the scope of the foreign sovereign’s relative immunity. Indeed, he held, renting premises to serve as an ambassadorial residence is necessary for discharging a foreign sovereign’s functions. Its purpose is not for profit. Nor is it a commercial transaction to which the restricted sovereign immunity would not apply.

The Appeal to the District Court

4.    Her Majesty the Queen, as the guardian of Canada’s rights, appealed the Herzliya Magistrate Court’s decision before the district court. See CA 581/91. Reinhold, for his part, independently appealed the Bat-Yam Magistrate Court’s ruling. See CA 613/93. These appeals were combined and heard jointly. The Attorney-General was summoned and, when asked to present his position, supported Judge Gellin’s decision. Mr. Edelson—to whom the mortgage rights were transferred by the Mizrahi Bank—was joined as an additional respondent to the appeal.

Once again, the Canadian government claimed immunity with respect to all suits filed against it. Indeed, it claimed both sovereign and diplomatic immunity. For their part, Reinhold and Edelson argued that the contractual agreement was with the sovereign, and that, as such, diplomatic immunity was not an issue in this case. The District Court (per Judges Gross, Ben-Shlomo and Shalev) accepted this position.

 Judge Gross, who delivered a comprehensive and erudite judgment, held that the suit was both filed and conducted against the sovereign—not against the ambassador. Hence, the issue at bar involves the scope of sovereign immunity. No discussion of the scope of diplomatic immunity is required. Judge Gross discussed the issue of sovereign immunity comprehensively and in depth. He indicated that the trend in a significant number of states is to recognize restricted sovereign immunity of foreign states, and to reject absolute immunity. This is the law in England, America, Germany, Italy, France, Belgium and in many other states. Modern legislation in many other countries adopts a similar position. This is also the approach of international law scholars. Judge Gross also analyzed the Israeli law governing sovereign immunity. He held that Justice Sussman’s comments in Sensor [1] were obiter dicta and are therefore not binding. In applying the rules of restricted immunity to the facts of the case before him, Judge Gross ruled that the transaction in dispute was of a commercial-private nature, and that the issue of whether or not the transaction was carried out for profit was irrelevant. Rather, the applicable criterion is the character of the legal sphere in which the foreign sovereign acts, namely, whether it is private or public. The determining factor is not the purpose of or the motivation underlying the act, but its nature and the legal relationships it creates. Judge Gross proposed a test for classifying sovereign acts. According to this test, the court should ask itself whether the relevant act could have been carried out by a private individual, or whether it requires the exercise of sovereign power and authority that a state alone wields.

Applying these criteria to the case at bar, the district court saw the case as a dispute over a private lease and its interpretation. This being the case, the Canadian government could not be said to have exercised its sovereign powers in entering into the lease. As such, the dispute was entirely within the realm of private law, to which sovereign immunity does not apply. Consequently, the district court rejected Canada’s appeal of Judge Gellin’s decision and accepted Reinhold’s appeal of Judge Tranto’s judgment. It returned the case to the magistrate court, which was to adjudicate the claim.

The Appeal to the Supreme Court

5.    Her Majesty the Queen, to whom Canada’s rights are entrusted, applied for leave to appeal the district court’s decision. Permission was granted. I summoned the parties to a preliminary hearing, with the intention of arriving at an out-of-court settlement. This solution appeared particularly appropriate, as I had been informed that Canada had in fact vacated the premises on April 30, 1995. I suggested that the monetary dispute between the parties be resolved by arbitration. The Canadian government  agreed. Nevertheless, this arrangement was never carried out, due to the civil disputes between Reinhold and Edelson. These cases are pending before this Court. See PLA 2419/92; PLA 3095/94; PLA 4841/94; PLA 4914/94.

6.  Mr. Naschitz, who represented Canada, stressed that the district and magistrate courts were bound to rule in accordance with the Sensor [1] precedent, and were not authorized to deviate from it. This is true, he argued, irrespective of the subsequent changes in public international law since then. Regarding the substantive dispute, he argued that a distinction must be drawn between the foreign sovereign’s immunity and that of its diplomatic representative. According to the appellant, the adjudication of a dispute over property being rented to serve as an ambassadorial residence is precluded both by diplomatic immunity, according to the provisions of the Vienna Convention on Diplomatic Relations (1961) and by sovereign immunity, which the appellant claims is absolute. The trend towards restricted immunity, according to appellant, applies only to the commercial realm. Rental of premises to serve as an ambassador’s residence, he submits, does not fall within the sphere of the sovereign’s commercial acts. Instead, it is part of its sovereign activity: the nature of an act should be determined from the sovereign’s perspective.

7. The respondents support the rulings of Judge Gellin and Judge Gross. They claim that the rules of diplomatic immunity do not apply, as the ambassador is not a party to the proceedings. The immunity of the litigant, Her Majesty the Queen in Right of Canada, is relative immunity.  Moreover, they submit, the Sensor [1] precedent is obiter dictum and does not reflect modern international law. Nor does it extend to the circumstances of this case—the lease of a property for use as an ambassadorial residence. Whether the act is for profit is not a deciding factor. The criterion is defined by the nature of the legal relationships raised between the parties. Edelson also argued that, in light of Canada’s behavior, it should be deemed to have relinquished its immunity.

Sovereign Immunity or Diplomatic Immunity

8.    There are various sorts of international immunity: We can distinguish, inter alia, between state immunity and diplomatic immunity. Both immunities find their origin in the sovereign’s personal immunity. See C.J. Lewis, State and Diplomatic Immunity 1 (1990) [62].

Despite their common historical origin, a distinction should be drawn between them. Thus, while state immunity refers to the immunity granted to a foreign state with respect to (civil) legal proceedings, diplomatic immunity signifies the immunity granted diplomatic representatives. The personal immunity of a head of state may be considered as belonging to either category. The dividing line between sovereign immunity and diplomatic immunity is often blurred. Conceivably, both kinds of immunity may apply to the same set of facts. Thus, for example, if soveriegn immunity regarding a specific case of “seizure” of an embassy’s bank account, pursuant to a civil ruling against that country, is not recognized, the case could still fall under the category of diplomatic immunity. It is possible that state immunity does not apply to the facts of the case, whereas diplomatic immunity may apply to the same facts. See Philippine Embassy Bank Account Case 65 I.L.R. 146 (1977) [38]; Alcom Ltd. v. Republic of Columbia, 2 All E.R. 6 (H.L. 1984) [27]).

9.    Does the dispute over the interpretation of the lease agreement, (the subject of this appeal) fall under the category of “state immunity” or that of “diplomatic immunity”? The lease’s preamble states:

Made in Tel Aviv, Israel, this thirteenth day of May, 1986 between HER MAJESTY THE QUEEN in Right of Canada, represented by Mr. James K. Barteman, Canadian ambassador to Israel (hereinafter referred to as the ‘Lessee’) of the one part and RIVKA REINHOLD [hereinafter referred to as ‘the Lessor’] of the other part.

The contract itself sets out the conditions of the lease. It stipulates that the premises shall serve as the residence of the Canadian ambassador and his family. They are “to use the Premises only for residential purposes of the Canadian ambassador and members of his family.” Among the lease’s conditions, section 25 stipulates as follows:

Notwithstanding any provisions of this agreement, Her Majesty the Queen in Right of Canada shall not have been deemed by any provisions hereof to have waived any of the privileges and immunities enjoyed by her officers, agents, or employees, under international law or under the laws of Israel.

What then is the nature of this lease? Is the dispute over it to be classified as involving state immunity, as claimed by the respondents, or diplomatic immunity, as appellant argues?

10. In my opinion, the dispute, in its entirety, falls within the realm of state immunity. The lease was drafted between Canada and Reinhold. The legal entity party to the lease is Canada. The lessee of the property is Her Majesty the Queen in Right of Canada. The reference to the Queen is symbolic as, in Canada, the Queen symbolizes the State. Hogg pointed this out in the following remarks:

The legal system of Canada recognizes the state as a legal entity, capable of acquiring rights and liabilities…

…the state (or government) is commonly referred to as "the Crown"ֹ... the Crown continues to be used as a convenient symbol for the State.

P.W. Hogg, Constitutional Law of Canada 258 (1992) [63]. The expression “the Queen in Right of Canada” indicates that the Queen acts in her capacity as Canada’s symbol, rather than that of the United Kingdom or Australia. It further signifies that the Queen’s actions are taken on behalf of Canada as a federation, rather than on behalf of one of its provinces. To this effect, Hogg, Id., at 259, writes:

In order to reflect this strange notion of a single Queen recognized by many separate jurisdictions, it is usual to speak of the Crown "in right of" a particular jurisdiction. Thus, the government of the United Kingdom is described as the Crown in Right of the United Kingdom; the federal government of Canada is the Crown in Right of Canada (or the Dominion); And each of the provincial governments is the Crown in Right of British Columbia or whichever province it may be.

This being the case, the rental agreement is not the Queen’s “personal” lease. It is the Canadian government’s lease. The Canadian ambassador was not a party to the lease; he merely acted in his capacity as the Queen’s representative, this is to say, as Canada’s representative. The case before us therefore involves a dispute over an option granted in the lease to Canada, and over Canada’s obligation to pay appropriate rent. The respondent before the magistrate court and the Appellant in this Court is Canada. The ambassador is not a party to these proceedings. Neither his personal immunity, nor the “immunity” granted to the property is at issue before this Court. The dispute between the parties relates to the scope of the contractual right created by a lease contracted with Canada, to exercise the option of extending the rental period and of Canada’s obligation to pay appropriate rent for the extra-contractual period. Canada, as a party to the lease, claims that it enjoys immunity from adjudication of this dispute in an Israeli court of law. This is a claim premised on state immunity, not diplomatic immunity.

State Immunity in Israeli Law

11. Does a foreign country have immunity from being sued in an Israeli civil court?

A significant number of countries have enacted specific legislation concerning this issue. This is the case in England, see the State Immunity Act, 1978, in the United States, see the Foreign Sovereign Immunities Act, codified at 28 U.S.C. § l330 (1997) et seq., in Canada, see The Sovereign Immunity Act, R.S.C. 1985, c. S-18, in Australia, see the Foreign Sovereign Immunities Act, 1985, and many other countries. See G.M. Badr, State Immunity: An Analytical and Prognostic View (1984) [64]. Israel, for its part, does not have any specific legislation concerning the immunity of foreign states. What, then, is the law in this case?

12.  The answer is that the rules of sovereign immunity are part of customary international law. See 1 L.F.L. Oppenheim, International Law (R. Jennings & A Watts eds., 1982) [65]. Customary international law is part and parcel of the law of the State of Israel. President Shamgar acknowledged this upon remarking:

This Court has consistently held that customary international law is part of the Law of the Land, subject to Israeli legislation providing otherwise

HCJ 785/87 Afu  v. Commander of IDF Forces in the Gaza Strip [2] at 35. This approach was endorsed in a long series of decisions. See Crim. App. 41/49 “Shimshon". v. The Attorney-General [3] at 146; Cr. App. 5/51 Steinberg v. The Attorney-General [4]; Crim. App. 174/54 Stampeper v. The Attorney-General [5] at 14; Crim. App. 336/61 Eichman v. The Attorney-General [6] at 2040; HCJ 606/78 Ayoub v. Minister of Defense; Matuah v. Minister of Defence [7] at 120; HCJ 698/80, Kawasmeh  v. Minister of Defense  [8] at 627; HCJ 393/82 Jamayat Askan Almalmoun Altaounia Almahdouda Almsaoulia, Registered Cooperative in the Judea and Samaria Region v. Commander of IDF Forces in the Region of Judea and Samaria [9] at 793.

Professor Dinstein summarized this point well:

The law is that the rules of customary international law are automatically incorporated into Israeli law and comprise a part thereof, except in the case of direct contradiction between them and the written legislation, in which case the latter prevails

See Y. Dinstein International Law and the State 146 (1971) [53].

It is undisputed that this rule is firmly established in our legal system, although its analytical foundation is not free from doubt. See Dinstein [53], at 144; Ruth Lapidot, The Place of Public International Law in Israeli Law [55] 19 Mishpatim 807 (1990); Y. Silberschatz, The Absorption of International Law into Israeli Law—Reality and Ideals, [56] 24 Mishpatim 317 (1994); E. Benvenisti, The Influence of Security and Foreign Relations Considerations on the Applicability of Treaties to Israeli Law [57], 21 Mishpatim 221 (1991); E. Benvenisti, The Influence of International Human Rights Law on the Israeli Legal System: Present and Future [58], 28 Isr. L. Rev. 136 (1994).

Two chief explanations have been advanced to clarify the position of customary international law in Israeli law. The first perspective sees customary international law as part and parcel of English common law. This is based upon Blackstone’s well-known statement regarding customary law:

The law of nations… is held to be a part of the law of the land.

See 4 William Blackstone, Commentaries *67 [66]. This principle, namely that customary international law is part of the internal law of the land, was absorbed into our own national law by virtue of sec. 46 of His Majesty’s Order in Council-1922. See Y. Dinstein, Diplomatic Immunity in England and in Israel [59], 22 HaPraklit 5 (1966). The validity of the absorption was retained even subsequent to the repeal of sec. 46 of His Majesty’s Order in Council, in accordance with section 2(b) of the Foundations of Law Act-1980. According to this view, the absorption of customary international law into Israeli law does not constitute the absorption of any external international custom or convention. Instead, according to this perspective, customary international law forms an integral part of the foundations of Israeli law, and a specific legislative act is not required to include it. See Dinstein, supra, [53], at 144.

Another perspective holds that customary international law is one of the sources of Israeli law. These sources—pending their incorporation into the Basic Laws of the country—are derived from the general structure of the Israeli legal system. Our legal structure, which is a product of our legal history, is one of mixed jurisdiction. See A. Barak, The Israeli Legal System—Its History and Culture, 40 HaPraklit 197 (1991-93) [60]. Within this system of mixed jurisdiction, we find the influence of the basic doctrines of the common law on our legal sources. One of these basic doctrines recognizes customary international law as a source of law in Israel. A similar approach is also practiced regarding private law in Israel. See Oppenheim, supra. [65], at 63. The status of customary international law is equivalent to that of our own common law.  This is to say that its legal status is below that of legislation.

Having established, based on our own legal sources, that customary international law is a source of Israeli law, we have paved the way for its absorption into Israeli law. We can therefore concur with Acting President S. Z. Cheshin, who held:

We are obligated to rule that the said principle has become an integral part of the law of the land by virtue of the fact that Israel is a sovereign state, existing in its own right. The Declaration of Independence created an opening for the new state to absorb those international laws and customs, practiced by all states by virtue of their sovereignty, and which have enriched their legal systems with the customary principles of international law

Stampeper [5], at  15. Within the framework of this appeal, however, it is not necessary to select among these explanations.

13. What does customary international law, within the scope of its validity in Israel, provide with respect to state immunity? The National Labor Court has addressed this question. See LCJ 3-32/81 Weiss v. German Embassy in Israel [14]; LCJ 3-213/61 Navot v. South African Airlines [15]; LCJ 3-148/88 Leah v. Republic of South Africa [16], at 559. The matter has also been addressed by the district courts, see DC (Jerusalem) 300/76 Karmi v. Dolberg [11], as well as by the magistrate courts, see MC (Petach-Tikva) 2310/93 The Ivory Coast v. Zilka [13]. The issue has yet to be addressed by the Supreme Court. The case most closely related to ours—discussed at length in the judgments issued by the lower courts in this case—is Sensor [1]. In that case, the magistrate court delivered a judgment in absentia against the Consul-General of Greece. The judgment ordered the Greek Consulate, by reason of default on rent payments, to vacate the property in question, which served as the residence of the head of the Greek diplomatic mission. Sensor, in whose favor the judgment was rendered, filed for execution of judgment. A warning notice was sent. The Attorney-General, however, appeared before the head of the Office of the Execution of Judgments and objected to the execution of the judgment, asserting arguments of immunity. It was unclear whether he asserted arguments of diplomatic immunity or state immunity.

Sensor objected to the Attorney-General’s participation in proceedings before the head of the Office of the Execution of Judgments. His objection was dismissed. The District Court rejected Sensor’s appeal. The Supreme Court also rejected his objection. The major part of the judgment, as per Acting President Sussman, deals with the issue of whether the Attorney-General is entitled to appear before the head of the Office of the Execution of Judgments. On the subject of immunity, Justice Sussman remarked: “we have not yet reached the stage of ruling whether this claim is legally well-founded or not.” Nevertheless, for the purposes of deciding the issue of the Attorney General’s standing vis-a-vis the head of the Office of the Execution of Judgments, Justice Sussman wrote:

A judgment rendered against a diplomatic representative is void, as the defendant’s immunity precludes the jurisdiction of Israeli courts. It is, quite simply, a matter of lack of jurisdiction. An Israeli court can only assume jurisdiction after having secured the foreign sovereign’s consent. Absent such consent, no recourse involving legal remedies in the courts of this country are open to the creditor; his solution is to approach the foreign sovereign via diplomatic channels

Id., at 335. It is clear that Justice Sussman’s remarks were obiter dicta. For a critical analysis of that decision, see Y. Moritz, Cracks in the Wall of Diplomatic Immunity, 28 HaPraklit 317 (1973) [61].

Furthermore, Justice Sussman’s obiter dictum referred to diplomatic immunity. Indeed, all the English cases cited by Justice Sussman dealt with the issue of foreign diplomats’ immunity. The issue before this Court, as we have noted, is not one of diplomatic immunity, but of state immunity. Compare Navot [15]. Moreover, the issue before the Supreme Court in the Sensor [1] case concerned the execution of a judgment, a sui generis matter. See Alcom [27], at 10. Even when a foreign state does not enjoy state immunity, its arguments against executions of judgment and seizures involving its property may nonetheless stand up in court. This subject was summarized by Oppenheim, supra. [65], at  350-51:

Even where a foreign state is properly subject to the jurisdiction of the courts, execution of any judgment against the state may not as a rule be levied against its property. Execution or other forms of attachment are sometimes permitted when the property is not dedicated to public purposes of the state and the proceedings relate to state acts jure gestionis.

In the matter before this Court, execution of judgment against Canada is not an issue. Our case concerns a dispute over Canada’s obligation to vacate rented premises at the end of the original five year lease, and its obligation to pay appropriate rent for the subsequent additional period. This dispute, according to the hearings’ procedural form, does not raise any issue of execution. Finally, the Sensor [1] case, is a specific instance of execution of judgment. It does not involve the execution of judgment against a foreign state’s general property—such as property owned by that state, regarding which there arose a dispute—but rather execution of judgment against property, which, according to Justice Sussman’s premise, served as the residence of the diplomatic representative of the foreign state. In that situation, a transition from the issue of state immunity to that of diplomatic immunity is indeed possible. It is one thing to declare that a foreign country is in unlawful possession of property serving its diplomatic representative. It is quite another to enable the state, via its execution office, to evict that diplomatic representative from his residence. As we mentioned above, the case at bar is in no way connected with an execution of judgment of any kind against the Canadian ambassador. I therefore prefer not to discuss the issue of immunity from execution of judgment or seizure of property. This issue should be left open, pending further consideration. See I. Brownlie, Principles of Public International Law (4th ed. 1990) [67].

14. The laws of immunity arising from the Sensor [1] case are obiter dicta. Moreover, they have no bearing whatsoever on the case before us. The discussion of state immunity there relates to specific instance of execution of judgment, concerning which state immunity may apply. The case at bar does not raise any issues of execution of judgment. Consequently, Sensor [1] does not apply to the case at bar. The Supreme Court has not rendered any other judgments on the subject of sovereign immunity. As we have seen, there have been decisions by the magistrate, district and National Labor Court. I will refer to these judgments in the course of my examination of the customary international law applicable to the case at bar. Thus, I now turn my attention to customary international law, in an attempt to establish its implications for the case before us.

Foreign State Immunity in Customary International Law

15.  Customary international law recognizes the immunity granted to foreign states against civil legal proceedings. This immunity is "procedural.” The foreign state may waive it, either explicitly or implicitly. It is not based upon an extra-territorial approach, but rather on the concept of a “protective umbrella.” See Y. Dinstein The State’s Internal Authority 105 (1972) [54]. Although the grounds for this immunity are not free from doubt, the recognition of state immunity reflects the current state of customary international law. Oppenheim writes:

State practice is sufficiently established and generally consistent to allow the conclusion that, whatever the doctrinal basis may be, customary international law admits a general rule, to which there are important exceptions, that foreign states cannot be sued.

Oppenheim, supra [65] at 343. In a similar vein, the American Restatement provides:

The immunity of a state from the jurisdiction of the courts of another state is an undisputed principle of customary international law.

Restatement (Third) of the Foreign Relations Law of the United States 390 [73]. This basic approach is generally accepted in international custom as it is practiced both in common law and civil law countries. In principle, both recognize state immunity.

16.  What is the scope of state immunity? There has been a transition in customary international law in this regard. Originally, state immunity was recognized as applying to all state acts, regardless of their nature. Later, towards the end of the 19th century, a distinction emerged between those states which followed the common law and those which followed the continental approach. While the former continued to recognize comprehensive and “absolute” state immunity, their continental counterparts, on the other hand, recognized only restricted and “relative” state immunity. See Badr supra. [64], at 21.

In the 20th century, this gap began to narrow. Indeed, most states in which absolute immunity had previously been practiced adopted “relative” immunity in one form or another. The theory of restricted immunity is based on the premise that state immunity does not apply when the foreign state acts in a commercial capacity in the private law sphere (jure gestioni). Immunity will apply only when the state exercises sovereign authority in the public law sphere (jure imperii). In this vein, Schreuer writes:

From a general perspective it can be said that the doctrine of restricted immunity has been strengthened to a point where practically all countries from which any substantive material is available have embraced it

C.H. Schreuer State Immunity: Some Recent Developments 168 (1988) [68]. Likewise, Lewis remarks:

The restrictive theory, with variations, had by the 1950’s been adopted by most civilized countries

Lewis supra. [62], at  11. Similarly, in this case, President Shamgar so noted upon granting leave to appeal:

New conventions, as well as recent legislation, indicate a transition in customary international law from absolute immunity to restricted immunity.

This transition in customary international law stems, inter alia, from the evolution of state acts. Indeed, the state increasingly performs acts, which are of a commercial, rather than sovereign, nature. In many cases, the modern state began to act as an individual would. This change in behavior gave rise to a need—in both the common law and continental traditions—to limit state immunity, and restrict it to its sovereign aspect. To this effect, Justice Nathan noted in the Karmi case [11], Id., at 281:

The law of absolute immunity developed primarily towards the end of the nineteenth century, when the scope of state activity was limited and related to the very narrow realms of protection of borders, protection of public order and maintenance of the judiciary. However, in modern times, since the end of the First World War, states have acted in an increasingly broad spectrum of activities, not limited to strictly sovereign acts. As such, many states reached the conclusion that the rule of absolute immunity has become untenable.

Indeed, a foreign state that chooses to function in the “marketplace” of private law should be subject to the laws of that marketplace. If a foreign state wishes to do business with the man in the street it must observe the rules of the market. We will now turn to examine this development in several countries.

17.  English common law began from a stance of absolute state immunity. See The Parlement Belge 5 P.D. 197, 207 (C.A. 1880) [28]; Compania Naviera Vascongada v. S.S. Cristina, 1 All E.R. 719 (1938) [29]. A transition in the English understanding of immunity began to emerge by the end of the 1950’s. The change was heralded by Lord Denning’s ruling in Rahimtoola v. The Nizam of Hyderabad, 3 W.L.R. 884 (1958) [30].

Lord Denning proposed that state immunity be restricted. In his opinion, state immunity should not apply when a foreign state has performed a commercial transaction entirely within the jurisdiction of English law. The other judges did not concur with this approach. Lord Denning repeated his position in Thai-Europe Ltd. v. Government  of Pakistan, 1 W.L.R. 1485 (C.A. 1975) [31].

A further development occurred in the case of The Philippine Admiral, A.C. 373, 397 (P.C. 1977) [32]. There, the Privy Council, hearing an appeal of a ruling rendered by the Supreme Court of Hong Kong, held that sovereign immunity is restricted and relative, and does not apply to in rem claims against ships of foreign states. Lord Cross of Chelsea wrote:

There is no doubt … that since the Second World War there has been both in the decisions of courts outside this country and in the views expressed by writers on international law, a movement away from the theory of absolute sovereign immunity towards a more restrictive version. This restrictive theory of sovereign immunity seeks to draw a distinction between acts of state which are done jure imperii and acts done by it jure gestioni.

He adds, Id., at 402:

the trend of opinion in the world outside the Commonwealth since the last war has been increasingly against the application of the doctrine of sovereign immunity to ordinary business transactions. Their Lordships themselves think that it is wrong that it should be so applied.

And further, Id., at 403:

Thinking as they do that the restrictive theory is more consonant with justice they do not think that they should be deterred from applying it so far as they can.

A further development took place in the case of Trendex Trading v. Bank of Nigeria, 1 Q.B. 529 (1977) [33]. The Court of Civil Appeals remarked that State immunity does not apply to in personam claims. Lord Denning stressed that customary international law recognizes relative state immunity. This approach was endorsed in later legislation. See Hispano Americana Mercantile SA v. Central Bank of Nigeria, 2 Lloyd's Reports 277 (1979) [34].

In another case, decided soon after, Lord Denning held as follows:

The restrictive theory holds the field in international law: and by reason of the doctrine of incorporation it should be applied by the English courts, not only in actions in rem but also in actions in personam.

The “I Congreso”, 1 Lloyd's Reports 23, 29 (C.A. 1980) [35]. His position was upheld in an appeal to the House of Lords in I Congreso, 2 All E.R. 1064 (H.L. 1983) [36].

 In another case, adjudicated a year later, see Alcom [27], at 9, Lord Diplock summarized the position of English common law, which hadׂincorporated the rules of customary international law, in the following words:

[A]s respects the immunity of foreign states from the jurisdiction of national courts the critical distinction drawn by the existing law, English common law and public international law alike, was between what a state did in the exercise of its sovereign authority and what it did in the course of commercial or trading activities. The former enjoyed immunity, the latter did not.

In 1978, the legislature intervened, passing the State Immunity Act (1978). This statute recognized restricted state immunity. Section 3 therein states that immunity does not apply toׂ“a commercial transaction” or a state's obligation arising from a contract, the performance of which is wholly or partly in the United Kingdom. The law provides that a “commercial transaction” means any contract for the provision of goods or services, any loan, and likewise, any transaction or act in which the state functions without the exercise of sovereign authority.

18.  Originally, American jurisprudence favored absolute state immunity. This approach was expressed by United States Supreme Court Chief Justice Marshall in The Exchange, 11 U.S. 116 (1812) [20], and was followed by American courts until the second half of the 20th century. See Berrizi Bros. Co. v. S.S. The Pesaro, 271 U.S. 562 (1926) [21]. The shift in the American position occurred in 1952. In the Tate Memorandum, the State Department declared that the American position favored restricted state immunity, based on the distinction between acts of the sovereign and those of a commercial nature. United States courts attached decisive significance to this position statement. Consequently, the relative State immunity came to be the accepted approach in American Common Law. See Restatement, supra [73], at 392; Lewis, supra [62] at 107; see also Victory Transport Inc. v. Comisaria General, 336 F.2d 354 (2d Cir. 1964) [22]). In the case of Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682, 703 (1976) [23], Justice White, speaking for the United States Supreme Court, writes:

Nothing in our national policy calls on us to recognize as an act of state a repudiation by Cuba of an obligation adjudicated in our courts and arising out of the operation of a commercial business by one of its instrumentalities. For all the reasons which led the Executive Branch to adopt the restrictive theory of sovereign immunity, we hold that the mere assertion of sovereignty as a defense to a claim arising out of purely commercial acts by a foreign sovereign is no more effective given the label "Act of State" than if it is given the label “sovereign immunity."

The Foreign Sovereign Immunities Act, which adopted the restrictive approach to state immunity, was enacted in 1976. It provided that state immunity does not apply to “commercial activity.”

19. Of particular interest in this case is the conceptual development of the Canadian approach to state immunity, Canada being the state claiming immunity in the case at bar. Canadian law originally shared the practice of English law of recognizing absolute state immunity. See J.G. Castel, International Law 649 (3rd ed. 1976) [69]. Over the years, however, a shift towards relative immunity occurred. This was most apparent in the rulings coming from the province of Quebec. These decisions endorsed the distinction between the foreign state’s so called state acts, and its commercial activity. State immunity was solely recognized in cases involving state acts. See Zodiak Int’l Product Inc. v. Polish People's Republic [1978] 81 D.L.R. 3d 656 [43]. Thus, for example, a court held that Venezuela was not entitled to claim state immunity in a case involving a monetary dispute respecting the contract for the construction of the Venezuela Pavilion for the Expo ‘67 exhibit. See Allan Construction v. Le Gouvernement du Venezuela, [1968] Que. P.R. 145 [44]. Similarly the Congo's claim of immunity in a dispute involving payment to a plaintiff who had drafted plans for the Congo pavilion at Expo ‘67 was denied. See Venne v. Democratic Republic of the Congo [1969] 5 D.L.R. 3d 128 [45]).

A similar approach was adopted by the courts of Ontario. See Smith v. Canadian Javelin [1976] 68 D.L.R. 3d 428 [46]. Thus, for example, an Ontario court refused to dismiss a statement of claim filed against a foreign state, on the grounds of negligence in the upkeep of an ambassador's residence that had been rented by the plaintiff to the ambassador of that state. See Corriveau v. Republic of Cuba, [1980] 103 D.L.R. 3d 520 [47]. The Canadian Supreme Court, for its part, did not take a clear stand regarding this issue, see Flota Maritima Browning de Cuba S.A. v. Steamship Canadian Conqueror [1962] 34 D.L.R. 3d 669 [48]; Republic of Congo v. Venne [1972] 22 D.L.R. 3d 669 [49]. Nevertheless, the developing trend led to the recognition of restricted immunity in the Federal Court. See Lorac Transport v. The Atra [1987] 1 F.C. 108 [50]. In 1982, the State Immunity Act (1982) was enacted. This statute specifically adopted state immunity in its restricted form. The Act states categorically, in section 5, that immunity does not apply to a foreign state’s commercial activity. Commercial activity is defined as any transaction or act “that by reason of its nature is of a commercial character.” See H.L. Molot & M.L. Jewett, The State Immunity Act of Canada, 20 Can. Y.I.L. 79 (1982) [70].

20.  The concept of relative state immunity has been equally accepted in continental countries. See Lewis supra. [62], at 112; see also C.M. Schmitthoff, The Claim of Sovereign Immunity in the Law of International Trade, 7 Int. Comp. L.Q. 452, 560 (1958) [71]. This is reflected by the European Convention on State Immunity (1972).  This convention illustrates, for the most part, the approach as reflected in the practice of various states regarding the issue of state immunity. See Oppenheim supra. [65], at 343. Similarly, in 1986, the International Law Commission drafted the Convention on Jurisdictional Immunities of States and their Property [74], which provided that state immunity is restricted. It therefore does not apply in cases of commercial contracts, labor contracts, injury to persons or to property, claims of ownership, possessory rights and use of properties, or intellectual property.

State Immunity in Israeli Law—Restricted and Relative Immunity

21.  What conclusions are dictated by this comparative survey? The conclusion is that customary international law recognizes foreign state immunity, in its relative and restricted, rather than absolute form. Customary international law comprises part of the law of the State of Israel.

Thus, Israeli law too recognizes foreign state immunity in its limited, restricted form. The first indications of this were already apparent in Judge Vitkon’s District Court judgment in DC (Jerusalem) 157/53 Shababo  Estate v. Heilan [12] at 503. There, Justice Vitkon made reference to the concept of absolute state immunity, as it was practiced in England at the time, adding:

There is growing opposition to this practice, at least in actions of jure gestionis and not in acts of jure imperii.

This approach was adopted in Judge Nathan’s decision in Karmi [11] at 281. Judge Nathan examined the issue comprehensively, remarking:

It would seem that the tendency of most States today is towards a restricted form of State immunity. This is also true of the Commonwealth states, including Britain, which until recently adopted absolute state immunity...that has now totally repudiated the doctrine, endorsing the restricted version of state immunity.

The National Labor Court adopted a similar position in Navot [15]. This was also Judges Gellin and Tranto’s view in their respective Magistrate Court rulings regarding the case at bar. Judges Gross, Ben-Shlomo and Shalev of the District Court shared their opinion.

We now delineate the parameters of restricted state immunity. Having done so, we will proceed to study the facts of the case at bar.

The Scope of State Immunity in Israel

22. The assertion that state immunity is restricted under Israeli law requires that we determine this restriction’s parameters. This is not a simple undertaking by any means. Indeed, while it is one thing to reject the absolute application of immunity, it is quite another to determine restricted immunity’s scope. The difficulty in delineating the scope of restricted immunity stems from the lack of clarity surrounding the very rationale underlying the doctrine of State immunity. How can we define the parameters of the doctrine of State immunity if its underlying rationale is unknown?

 It has been argued that immunity is based upon the equality between states. This assumption of equality dictates that one country not judge another: par in parem non habet imperium. It has further been argued that the foreign state’s independence and dignity provide ample justification for granting it immunity.

These arguments are far from convincing. See Dinstein supra. [54], at 105; Oppenheim supra. [65], at 341; Schmitthoff supra. [71]. Equality between states, as well as their dignity and independence are not violated in the least when one state is subject to the internal jurisdiction of another. The subjection of a foreign state to the rule of law cannot possibly violate that state's dignity. On the contrary, the foreign state’s dignity lies in its being subject to justice. Lord Denning made this point admirably in Rahimtoola [30], at 418:

It is more in keeping with the dignity of a foreign sovereign to submit himself to the rule of law than to be above it, and his independence is better ensured by accepting the decision of a court of acknowledged impartiality than by arbitrarily rejecting their jurisdiction.

Indeed, just as the state is subject to the jurisdiction of its own judiciary, it is appropriate that it be subject to the jurisdiction of foreign courts. It is only logical to adopt the position that the scope of a foreign country's immunity from proceedings in foreign courts should be no greater than the extent of its immunity before its own courts. See H. LauterpachtׂThe Problem of Jurisdictional Immunities of Foreign States, 28 B.Y.I.L. 220 (1951) [72].

The rule of law demands that it be so. And, indeed, the rule of law is violated by the notion of state immunity. Where there is no judge there is no justice, and might becomes right. Equality between states necessitates placing the foreign state within the jurisdiction of a court of law. Justice demands that a right be upheld by way of adjudication, rather than allowing brute force to flaunt it. The protection of individual rights from violation by the authorities—any authorities, domestic or foreign—demands the negation of foreign state immunity.

Indeed, harsh criticism has been voiced with respect to absolute state immunity. Professor Lauterpacht, supra [72], at 226, writes:

[T]he objections to the doctrine of absolute immunity are, it is believed, decisive. It has been abandoned in most countries. It is productive of inconvenience, injustice, and resentment which may be more inimical to friendly international intercourse than assumption of jurisdiction.

This Court fully concurs with this criticism.

23. Indeed, if the decision respecting the issue of state immunity was subject to my own personal discretion, I would consider the possibility of establishing a rule—subject to very few exceptions, see Lauterpacht, Id., [72]—that the doctrine of state immunity does not apply in Israel, and that the relationship between the foreign state and the Israeli judiciary is identical to that of the State of Israel to its own judiciary. We are, however, not at liberty to rule as such. Rather, in all matters that touch upon customary international law, the courts must rule in accordance with the rules of customary international law, and we cannot invent our own laws. The rule of law means that the judge too is subject to it. We must therefore act in accordance with the rules of customary international law, which recognize the restricted immunity of foreign states with respect to affairs of state. However, from the various possible alternatives offered by customary international law, we may choose the alternative most consistent with the basic principles of international law, on the one hand, and the basic values of Israeli law on the other. Within this framework, we can choose the option, which most restricts state immunity and consequently broadens the scope of the rule of law.

24. The accepted approach to state immunity in customary international law differentiates between two categories of acts of state. The first deals with the foreign state’s acts in its sovereign capacity acta jure imperii. This category includes, for example, the confiscation of property for national needs, or the revoking of licenses on grounds of public welfare. For a  list of sources, see Scheuer, supra. [68], at 54. The foreign state enjoys immunity with respect to all these acts.  The second category includes the foreign state’s “private acts.” This includes a contractual agreement whereby, for example, a foreign state agrees to sell its shares in a government owned company. Regarding the latter, the foreign state does not enjoy immunity. The difficulty, of course, is in drawing the line between these two categories. The dividing line must be drawn in a way which maintains a proper balance between two sets of opposing interests. The first relates to the individual’s civil rights, the principle of equality under the law and to ensuring the rule of law. The other regards the foreign state's interest in fulfilling its political goals without being subject to another state’s judicial supervision. See Victory Transport [22].

25. The accepted criterion used in customary international law for the purpose of determining State immunity distinguishes between acts of state and private (or commercial) acts. An important question in this context is the following: In determining whether an act is of a sovereign or private nature, do we consider the nature of the act—that is to say, its legal structure—or its purpose?

If the criterion is the legal nature of the act, then the exercise of statutory authority would place the activity within the category of acts of state, which enjoy state immunity. Acts of nationalization or confiscation would therefore be understood as state acts, posed by the state by virtue of its sovereign authority. On the other hand, if an act consisted of the sovereign power's utilization of a legal tool of private law—e.g., a contract or will—the act would fall into the category of private acts, and the foreign state would not enjoy immunity. Thus, a contractual agreement by the state for the purchase of goods—regardless of the purpose of the purchase—would, therefore, not be considered an act of state.

On the other hand, if the criterion considers that act’s purpose, irrespective of its legal structure, it is possible that an act of the foreign state would be considered an act of state, even if the legal tool employed is one of private law, such as contracts. A well-known example is a foreign state's contract for the purchase of shoes for its army. Using the legal structure criterion, we have before us a contract within the domain of private law; immunity would therefore not apply. However, if purpose is the criterion, the purpose is the outfitting of an army for combat, which is an act of state, and therefore enjoys immunity. See Lauterpacht supra. [72], at 223.

26. The generally, though not universally, accepted approach of customary international law is that the determinant, though not exclusive, criterion is the legal nature of the state’s act rather than its purpose. Succinct expression of this was provided by the German Constitutional Court in the Claim Against the Empire of Iran Case, 45 I.L.R. 57 (1963) [39]. In that case, a claim was filed against Iran over payment due for repairs made to the Iranian Embassy in Germany. Iran claimed State immunity, arguing that the dispute concerned an act of state, as the purpose of the repairs was to enable the ambassador to carry out acts of state on behalf of his country. This argument was rejected. The Constitutional Court held that:

The distinction between sovereign and non-sovereign state activities cannot be drawn according to the purpose of the state transaction and whether it stands in a recognizable relation to the sovereign duties of the state. For, ultimately, activities of state, if not wholly, then to the widest degree, serve sovereign purposes and duties and stand in a still recognizable relationship to them. Neither should the distinction depend on whether the state has acted commercially. Commercial activities of states are not different from other non-sovereign state activities.

As a means for determining the distinction between acts jure imperii and jure gestioni, one should refer to the nature of the state transaction or the resulting legal relationships, and not to the motive or purpose of the state activity. It thus depends on whether the foreign state has acted in exercise of its sovereign authority, that is in public law, or like a private person, that is in private law.

Id., at 80. These words have been favorably cited in many judgments dealing with the scope of state immunity, among them, for example, by the House of Lords in I Congreso, [1983] 2 All E.R. 1064 (H.L.) [36] and by the Federal Court of Canada in Lorac Transport, [1987]1 F.C. 108  [50].

27.  A similar approach was adopted by the Austrian Supreme Court. In one case, the plaintiff’s car was damaged in a collision with the vehicle of the American ambassador to Austria. The plaintiff filed a claim against the United States, which in turn claimed state immunity. The defendant pointed out that at the time of the collision, the American car was carrying mail to the Embassy.

The United States argued that, in light of its purpose, the delivery of the letters constituted an act of state. The Austrian Supreme Court rejected this argument. In so doing, the Court considered the distinction between acta jure imperii and acta jure gestionis. It discussed the definitive criterion for distinguishing between the two. In the Court’s opinion, the applicable criteria was the nature of the act, according to its legal structure—not its underlying purpose. The Court wrote:

[A]n act must be deemed to be a private act where the State acts through its agencies in the same way as a private individual can act. An act must be deemed to be a sovereign act where the State performs an act of legislation or administration (makes a binding decision). Sovereign acts are those in respect of which equality between the parties is lacking and where the place of equality is taken by subordination of one party to the other…

[W]e must always look at the act itself, which is performed by state organs and not at its motives or purpose. We must always investigate the act of the state from which the claim is derived. Whether an act is of a private or sovereign nature must always be deduced from the nature of the legal transaction, viz. the nature of the action taken or the legal relationships arising.

See Collision with Foreign Government-Owned Motor Car (Austria) Case, 45 I.L.R. 73, 75-76 (1961) [17].

A specific provision in this vein is found in the United States Foreign Sovereign Immunities Act of 1976, which constitutes part of American Federal law. Under this Act, state immunity does not apply to “commercial activity”. The law also stipulates, 28 U.S.C § 1603(d) (1997):

A “commercial activity” means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the particular transaction or act, rather than by reference to its purpose.

28. Underlying the idea that the purpose of an act, as distinct from its legal nature, is not an acceptable criterion for distinguishing an act of private law from an act of public law, is the notion that the purpose criterion could well negate the distinction between private and state acts. The reason is that private law acts are often intended for public purposes also, see Schreuer supra. [68], at 15. Furthermore, when the legal nature of an act of state falls within the category of private law, we can safely assume that the adjudication of disputes relating to this framework will not interfere with sensitive acts of state which are of a sovereign nature. Therefore, the question judges must ask themselves is whether a private entity other than the state could have been a party to the act performed by it, even if doing so would require a state-issued permit or license. If the answer is in the affirmative, we have a “private” act of state, which falls outside the scope of state immunity. See I Congreso [36], at 1074; Alfred Dunhill [23], at 1866. It is immaterial whether the act was for profit or not, or whether its purpose was the implementation of a national program. See Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018 (9th 1987) [24]. Lord Wilberforce noted this, reiterating the distinction between acts of state (jure imperii) and private acts (jure gestionis). Further, he added:

[A] private act meaning in this context an act of a private law character, such as a private citizen might have entered into.

I Congreso [36], at 262. It was therefore decided that disputes over contracts entered into by the foreign state for purposes of providing equipment for its army are not encompassed by State immunity. For a list of sources, see Schreuer supra. [68], at 18. Similarly, in a series of judgments in England, Germany and the United States, the Courts held that disputes relating to contracts for the purchase of cement by Nigeria did not fall within the scope of state immunity, even though the purpose of the contracts was the provision of cement to build military bases. Id.

29. The distinction between sovereign and private acts is by no means clear-cut. Thus, different states may adopt different guidelines in this context. It seems to me that, pending the development of a standard international practice regarding this issue, it is inevitable that each state will apply its own locally accepted criteria in accordance with its existing national jurisprudence. The German Constitutional Court noted this in the Claim Against the Empire of Iran Case [39], at 80, noting:

The qualification of state activity as sovereign or non-sovereign must in principle be made by national (municipal) law, since international law, at least usually, contains no criteria for this distinction.

Needless to say, as customary international criteria evolve, we will act accordingly.

30. It is undeniable that the criterion of the nature and essence of an act is essentially formalistic. There are obviously cases in which this criterion would be inappropriate, and which would require us to look for more substantive criteria. Often, the form is but a shell, the essence of the case being the dominant element.

In classifying a particular act, we can occasionally distinguish between its private and sovereign aspects, applying state immunity to its sovereign component, while maintaining the desired balance between the latter and the private aspect. Compare Re Canada Labour Code [1992] 91 D.L. R. 4th [51]. Sometimes the sovereign and private aspects are intertwined to the point of being inseparable, despite the sovereign aspect’s predominance. Indeed, the act’s purpose cannot always be categorically ignored. Often, we cannot understand the legal nature of an act until we understand its purpose. In any case, the question is one of degree. Moreover, the criterion of “the legal nature of the act,” for its part, is also not easily applied. Let us consider a case in which a state, by virtue of special legislation, was authorized to act within private law: for example, to issue government bonds. Is the legal nature of the act sovereign, as the government owes its authority to a specific law, and as private individuals are not authorized to issue such bonds, or is the legal framework “private,” as the issuing of bonds is an act governed by private law? What would be the case if the legal framework were contractual, but the dominant features of the act belonged to public law? The legal nature criterion is certainly a crucial one. We cannot, however, rule out additional criteria. We must always investigate the context, which includes both form and content, in its entirety. We must also remember that the topic as a whole is in its formative stage in many states. The state’s functions, as well as its modes of action, are in constant flux. We must ensure sufficient flexibility to allow for the law to adapt itself to the changing vicissitudes of life.

It is incumbent upon us to formulate a distinction that accounts for basic values such as individual rights, equality before the law and the rule of law. This having been said, we will allow the foreign state to realize its sovereign objectives, without subjecting them to judicial review in a foreign state’s courts.

The balance struck between these conflicting considerations is far from simple and is certainly not immutable. It would seem that, for the time being, it is sufficient to determine that, when in doubt, we must rule in favor of recognizing internal jurisdiction. In any case, the tendency should be towards restricting immunity. This is our practice regarding any domestic matter. See HCJ 294/89 National Insurance Institute v. (Appeals) Committee established by Virtue of the Law bestowing Benefits for Victims of Terrorism [10], at 450. This will also be our policy regarding “external” questions. State immunity should only be recognized in clear-cut cases. Such cases are characterized by state immunity being geared towards preventing judicial proceedings in one particular state concerning the acts of another state, the dominant element of which is of the sovereign nature of the acts in question.

State Immunity and Embassy Leases

31.  The law then is as follows: sovereign immunity should not be recognized in cases of the state’s “private” acts. This is to say, acts that fall within the realm of private law, and the legal essence of which are part of private law—unless those acts involve considerations of public law. It seems to me that according to this approach, we must conclude that, as a rule, state immunity should not be recognized with respect to the purchase of buildings for ambassadorial residences, nor the rental of premises for this purpose. An agreement for the lease or purchase of a building is a contract, within the sphere of private law. Not only states, but any individual can also enter into such a contract. Drafting the contract is not accompanied by sovereign considerations. It does not involve public law considerations. There is no essential difference between a contract for leasing a building for use as an embassy and a contract for the purchase of food for the ambassador’s consumption. They both relate to the ambassador’s physical needs, and in neither case is there any expression of the foreign state’s sovereignty.

32.  This is the accepted approach in comparative law. Thus, in most countries in which problems such as these arose, it was decided that state immunity does not apply to civil disputes over the purchase, construction or leasing of property to embassies and consulates. In this vein, Schreuer, supra. [68], at  19, writes:

Perhaps the most obvious cases are those that concern the purchase, building, and leasing of property for diplomatic or consular premises. The official nature of the intended use is beyond doubt. Nevertheless, there are numerous decisions holding such contracts to be simple commercial transactions.

This problem arose in the Hashemite Kingdom of Jordan. It was decided that a Jordanian court was competent to adjudicate a claim for the payment of rent with respect to property let to France, to be used as the Consul-General's residence in Jerusalem. See Nashashibi v. The Consul-General of France in Jerusalem, 26 I.L.R. 190 (1958) [42]. A similar judgment was delivered in Switzerland. That case concerned a lien on a Swiss bank account, by reason of the Egyptian Embassy in Vienna’s default on rent payments. United Arab Republic v. Mrs. X., 65 I.L.R. 385 (1960) [52]. The Court held that the case was within the Swiss Court’s jurisdiction. We have already reviewed the German Constitutional Court’s decision regarding payments for repairs of the Iranian Embassy in Germany. The Court held that the claim was not barred by Iran's immunity. Claim Against the Empire of Iran Case [39]). A German court similarly ruled that a claim against a foreign government concerning the commission owed to a plaintiff who had served as the agent for the rental of a building to house that country’s consulate did not fall under state immunity. See Land Purchase Broker's Commission Case (1974) [40]). Likewise, a Greek court held that a monetary dispute between a plaintiff and a foreign sovereign over a contract for the purchase of a building for the families of the diplomatic staff does not fall under sovereign immunity. Purchase of Embassy Staff Residence Case, 65 I.L.R. 255 (1967) [41]). An Italian court dealt with a claim filed by the United States in a dispute between that country and a plaintiff who sought to invalidate a lease for the rental of premises in Naples as the United States Consul’s residence, arguing that the matter was not under the court’s jurisdiction. The court rejected the American claim of immunity. See United States Government  v. Bracale Bicchierai, 65 I.L.R. 273 (1968) [18]. Another Italian court addressed the question of whether it had jurisdiction to adjudicate a claim for an eviction order filed by a plaintiff against the Kingdom of Morocco, which had rented a property to serve as its embassy. The Court held that this case was not encompassed by state immunity. See Embassy of the Kingdom of Morocco v. Societa’ Immobiliare Forte  Barchetto, 65 I.L.R. 331 (1979) [19]). An English court rejected a claim of immunity concerning a monetary suit for the cost of repairs to the residence of Zaire’s ambassador to London. See Planmount Ltd. v. Zaire, [1981] 1 All E.R. 1110 (Q.B.) [37]. Similarly, in a suit filed in a New York state court against Libya concerning protected tenancy, Libya's claim of state immunity was rejected. See 2 Tudor City Pl. v. Libyan Arab Rep. Mission to the U.N., 470 N.Y.S.2d 301 (N.Y. Civ. Ct. 1983) [25]. An American federal court likewise rejected Zaire's argument, regarding an eviction order from property rented by the Permanent Mission of Zaire to the United Nations, that default on rent payments was not within the court's jurisdiction. See 767 Third Avenue Association v. Permanent Mission of the Republic of Zaire to the United Nations, 787 F. Supp. 389 (S.D.N.Y. 1992) [26].

From the General to the Specific

33.  Does the dispute in the case at bar fall under the category of state immunity, in its restricted and relative sense? The answer is no. The legal nature of the state’s act is that of a rental contract. It is an act, which, according to its nature and character, belongs to the realm of private law. It bears no sovereign aspects, nor is there any exercise of statutory authority. Any private individual could have performed a similar act. On the strength of the facts presented before the magistrate court, there are no special aspects which justify abandoning consideration of the transaction’s form, in favor of considering the purposes it was intended to serve. The fact that Canada, rather than a private individual, is a party to the transaction does not affect our understanding of the transaction or its ramifications in any way. The magistrate court correctly remarked that the lease for the residence for the ambassador and his family boasts no “sovereign” indication. State immunity simply does not apply.

34.  Consequently, I have decided that, in this case, Canada does not have state immunity. Under these circumstances, Judge Gellin was correct in granting the requested declaratory judgment. The claim of lack of defense and absenteeism are not sufficient cause for overturning the lower court’s decision. The district court was right in dismissing the appeal of Judge Gellin’s decision. For the same reasons, it is my opinion that Judge Tranto erred. As I remarked above, leasing a building to serve as an ambassador's residence is a private law act, to which sovereign immunity does not apply. The fact that the transaction was not carried out for profit has no bearing on the case. The district court correctly granted the appeal of Judge Tranto’s decision.

35. Prior to concluding, I would like to call the Justice Ministry’s attention to the need for enacting a law regarding state immunity, as England, the United States, Australia, and Canada have already done.  All these countries and others followed customary international law, which was replaced by specific legislation governing the matter. State immunity raises difficult questions, which should be answered by statute. My present judgment concerns a contract for the lease of an apartment to serve as an ambassador’s residence. Intricate issues are raised by tort claims. It seems that the time has come, particularly since enactment of the Basic Laws concerning human rights, to consider regulating state immunity, as well as the issue of diplomatic immunity, via statutory means.

The appeal is rejected. The appellant will reimburse the first respondent’s court costs, at a total of 15,000 NIS, and the expenses of respondents number two and three, totaling 15,000 NIS.

Justice E. Mazza

I concur.

Justice T. Strasberg-Cohen

I concur with my colleague’s comprehensive and insightful judgment, and with his call to the legislature to regulate this important and sensitive issue in a statute.

 

Decided in accordance with President Barak’s opinion.

Rendered today, June 3, 1997.

 

 

HCJ 4293/01

 

1. New Family

2.         Dr. Ruth Zimmerman-Shahar

3.         Dr. Ron Shahar

4.         A Minor

5.         David Ben Nahum

 

v.

 

Minister of Labor and Welfare

 

 

The Supreme Court sitting as the High Court of Justice

[24 March 2009]

 

Before President D. Beinisch, Vice President E. Rivlin and

Justice A. Procaccia

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts:     The institution of intercountry adoption of children in Israel, i.e. the adoption in Israel of children from abroad, is regulated by the Adoption of Children (Amendment no. 2) Law, 5756-1996.  By virtue of his authority under this Law, the Minister of Labor and Welfare has issued “Rules and Professional Guidelines for the Operation of a Recognized Non-Profit Organization”, rule 4(b)(1) of which states that a person wishing to adopt a child in the framework of an intercountry adoption will not be deemed eligible to do so if the age difference between himself and the child exceeds 48 years on the date of submission of the application to adopt. According to the petitioners, this maximum age difference rule is unlawful and must be struck down, in that it is incompatible both with fundamental constitutional principles, and with proper administration. Alternatively, the petitioners are asking the Court to order that the rule be amended to the effect that the recognized non-profit organization – the adoption association – is granted discretion to approve eligibility for adoption even when the age difference between the prospective adopter and the child exceeds 48 years, when special circumstances justify so doing; and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the excessive age difference.

The High Court (per President Beinisch, Vice-President Rivlin concurring and Justice Procaccia dissenting), granted the petition in part.

Held: On the constitutional plane, the Court considered the question of whether people seeking to adopt a child had a constitutional right to do so; if so, what were the nature and origins of this right and did the state have a correlative duty to enable realization of such a right. Although the Justices in the majority were of the opinion that no such constitutional right exists, President Beinisch, writing the majority opinion, held that in the circumstances of the case, no ruling was required on this question, and in view of its sensitivity and complexity, it is best left with no firm determination.

On the administrative plane, the Court held that the rule is reasonable and does not discriminate unlawfully against prospective intercountry adopters vis-à-vis other groups such as persons adopting domestically, biological parents and people entering into embryo carrying agreements. Nevertheless, the majority Justices held that the negation of discretion to depart from the rule in special, justified circumstances was not reasonable.  This conclusion does not, however, dictate that the private adoption associations be granted discretion in respect of the rule; rather, according to President Beinisch, the correct interpretation of s. 36A of the Adoption of Children Law, 5741-1981, is that the statutory appeals tribunal established by virtue of the Law is authorized to consider requests to depart from the rule in intercountry adoptions, in special circumstances. In this sense, the Court granted the petition in part by recognizing the possibility of departure from the rule. The Court dismissed the concern of the respondent that allowing exceptions to the rule would deflect the focus of attention from the best interests of the child to the interests of the prospective adopters, stating that no major breach of the bounds of the rule was entailed by the existence of a statutory mechanism for considering exceptional cases, and that suitable criteria would be formulated by the appeals tribunal for this purpose.

 

Legislation cited:

Adoption of Children Law, 5741-1981, and ss. 3, 4, 5, 6, 36a, 25, 28H, 28N

Adoption of Children (Amendment no. 2) Law, 5756-1996

Basic Law: Human Dignity and Liberty 1992; and s. 1A, 2, 4

Embryo Carrying Agreements (Approval of the Agreement and the Status of the Child) Law, 5756-1996

National Health Insurance Law, 5754-1994 (Second appendix)

National Health (IVF) Regulations, 5747-1987

Youth (Care and Supervision) Law, 5720-1960

 

Israeli Supreme Court cases cited:

[1]     HCJ 243/88 Consellos v. Turgeman [1991] IsrSC 45(2) 626.

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

[3]     CA 2266/93 Anon. v. Anon. [1995] IsrSC 49(1) 221.

[4]     CA 3009/02 Anon. v. Anon. [2002] 56(4) 872.

[5]     HCJ 2245/06 MK Neta Dobrin v. Prisons Service (2006) (not yet reported).

[6]     LFA 377/05 Anon. & Anon., Designated Adoptive Parents of the Minor v. Biological Parents (2005) (not yet reported).

[7]     CFH 2401/95 Nahmani v Nahmani [1996] IsrSC 50(4) 661.

[8]     HCJ 2458/01 New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [2003] IsrSC 57(1) 419.

[9]     HCJ 294/91 Chevra Kadisha “Kehillat Yerushalayim” v. Kestenbaum [1992] IsrSC 46(2) 464.

[10]   CA 7155/96 Anon. v. Attorney General [1997] IsrSC 51(1) 160.

[11]   CA 5587/93 Nahmani v. Nahmani [1995] IsrSC 49(1) 485.

[12]   CLA 3145/99 Bank Leumi Leyisrael Ltd. v. Hazan [2003] IsrSC 57(5) 385.

[13]   CFH 7015/94 Attorney General v. Anon. [1996] IsrSC 50(1) 48).

[14]   HCJ 415/89 Alon v. Child Services [1989] IsrSC 43(2) 786.

[15]   CA 10280/01 Yarus-Hakkak v. Attorney General [2005] IsrSC 59(5) 64.

[16]   CA 577/83 Attorney General v. Anon. [1984] IsrSC 38(1) 461.

[17]   LFA 6930/04 Anon. and Anon. Prospective Adoptive Parents of the Minor v. Biological Father [2005] IsrSC 59(1) 596.

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

[19]   HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1.

[20]   HCJ 953/86 Poraz v. Mayor of Tel Aviv-Jaffa [1988] IsrSC 42(2) 309.

[21]   HCJ 217/80 Segal v. Minister of the Interior [1980] IsrSC 34(4) 429.

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

[23]   HCJ 558/79 Jamal v. Jewish Agency [1980] IsrSC 34(1) 424.

[24]   CA 492/73 Speizer v. Council for the Regulation of Gambling in Sport [1975] IsrSC 29(1) 22.

[25]   HCJ 702/81 Mintzer v. Central Committee of the Israel Bar Association [1982] IsrSC 36(2) 1.

[26]   CA 438/88 Barak v. Registration Committee for the Registry of Psychologists [1990] IsrSC 44(1) 661.

[27]   HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [1992] IsrSC 46(1) 191.

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

[29]   HCJ 678/88 Kfar Veradim v. Minister of Finance [1989] IsrSC 43(2) 501.

[30]   HCJ 6051/95 Recanat v. National Labor Court [1997] IsrSC 51(3) 289.

[31]   HCJFH 4191/97 Recanat v. National Labor Court [2000] IsrSC 54(5) 330.

[32]   HCJ 59/88 Zaban v. Minister of Finance  [1988] IsrSC 42(4) 705.

[33]   HCJ 6778/97 Association for Civil Rights v. Minister for Internal Security [1994] IsrSC 58(2) 358.

[34]   HCJ 366/81 Bureau of Tourist Bus Operators v. Minister of Finance [1983] IsrSC 37(2) 115.

[35]   HCJ 1703/92 C.A.L. Cargo Air Lines v. Prime Minister [1998] IsrSC 52(4) 193.

[36]   HCJ 20594 Nof v. State of Israel – Ministry of Defense [1996] IsrSC 50(5) 449.

[37]   FH 10/69 Boronowsky v. Chief Rabbi of Israel [1971] IsrSC 25(1) 7.

[38]   LFA 5082/05 Attorney General v. Anon. (2005) (unreported).

[39]   CrA 3439/04 Bazak (Buzaglo) v. Attorney General [2004] IsrSC 59(4) 294.

[40]   HCJ 3648/97 Stamka v. Minister of the Interior [1999] IsrSC 53(2) 728.

[41]   CA 1165/01 Anon. v Attorney General [2002]  IsrSC 57(1) 69.

 

 

For the petitioners – S. Oren; I. Rosenblum.

For the respondent – E. Golomb.

 

 

JUDGMENT

 

Justice A. Procaccia

1.    The Adoption of Children (Amendment no. 2) Law, 5756-1966 (hereinafter: “the amending Law”) regulated, for the first time in Israel, the institution of intercountry adoption. It established that intercountry adoptions will be carried out by means of non-profit organizations whose sole purpose is to operate in the area of these adoptions (hereinafter: “adoption associations”); these adoption associations were granted recognized status for this purpose. Section 28[37] of the amending Law authorizes the Minister of Labor to lay down rules and professional guidelines for the operation of a recognized adoption association. By virtue of this authorization, in 1998 the Minister of Labor and Welfare issued “Rules and Professional Regulations for the Operation of a Recognized Adoption Association”. These Rules lay down the following provision in relation to the maximum permissible age difference between adoptive parents and the child who is a candidate for an intercountry adoption:

4(b)            An adoption association will not certify that an applicant is eligible to adopt a child, if, on the date of submission of the application, one of the following applies to him:

(1)  The age difference between the applicant and the child exceeds 48 years; if the applicants are a couple, the age difference between each of the applicants and the child exceeds 48 (Official Gazette 5758, at p. 1580) (hereinafter:  “the maximum age difference rule”).

This provision, amongst the other rules, prescribes how the recognized adoption association must examine the application of prospective adopters, and in what circumstances the application to adopt cannot be approved due to the age difference between the prospective adopter and the child, which exceeds the maximum permissible difference.

2.    The petition is primarily concerned with review of the constitutionality of the rule that sets a maximum age difference between the person seeking to adopt and between the child as a preliminary condition of adoption. According to the petitioners, a conclusive determination concerning the maximum age difference as aforesaid is unlawful, and it must be struck down, both because it is contradictory to fundamental constitutional principles, and because it does not comply with the criteria for proper administration. Alternatively, the petitioners request that the Court order that the maximum age difference rule be changed so as to reduce the damage that it may cause; their suggestion is that a recognized adoption association be granted discretion to approve adoption even when the age difference between the prospective adopter and the child exceeds 48 years, in cases in which special circumstances prevail, and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the age difference exceeding the maximum.

The parties

3.    Petitioner no. 1 is an organization that operates for the advancement of the rights of families in Israel, and to promote recognition of the family as a constitutional unit. Petitioners nos. 2 and 3 are a couple who have one minor child, whom they adopted in Guatemala (petitioner no. 4). Petitioner no. 5 is a widower and father of two minor children, who were adopted by him and his late wife in the United States. Petitioners nos. 2 and 3 and petitioner no. 5 all applied to adopt another child from abroad, since their age prevents them from  adopting a child locally. Each sought to adopt a new-born child in order to raise him from the time of his birth. Pursuant to the maximum age difference rule, the adoption of a new-born child was not approved, due to their age on the date of submission of the application, which exceeded the maximum allowable age difference. Petitioner no. 2 was born in 1950, petition no. 3 was born in 1949, and petitioner no. 5 was born in 1948. At the same time, intercountry adoption of children was approved for these petitioners, whose ages at the time of the applications complied with the maximum age difference rule.

The respondent is the Minister of Labor and Welfare, who is the competent authority in relation to setting the rules that are the subject of this petition.

The arguments of the petitioners

4.    The petitioners claim that the maximum age difference rule is unlawful both from a constitutional and from an administrative point of view. Regarding the constitutional plane, it was contended that the right to a family is a constitutional right that embraces the right to parenthood, which may be realized in any manner whatsoever – be it by way of natural parenthood or by way of adoption. As such, the right to adopt is a constitutional right protected by Basic Law: Human Dignity and Liberty 1992. The maximum age difference rule violates the basic right of prospective adopters to a family, by setting a rigid, inappropriate ceiling, and it does not allow for deviation even in special circumstances.  According to the argument, this violation of the basic right to a family and to parenthood does not comply with the limitations clause in the Basic Law. The rule is not derived from explicit authorization in the Law, it does not befit the values of the State, it is not intended for a proper purpose, it is not proportional, particularly in view of the fact that it was introduced as a categorical provision allowing no discretion, and without any room whatsoever for special exceptions. According to the petitioners, the said rule is deeply damaging not only to people who seek to adopt, but also to the best interests of the child who is a candidate for intercountry adoption, since handing him over for adoption to a couple in Israel, even if the parents are older, is preferable on his part to leaving him to grow up in difficult circumstances in his country of origin.

5.    On the administrative plane, the petitioners argue that the maximum age difference rule suffers from extreme unreasonableness in setting a rigid allowable age difference, without proper factual or scientific basis; moreover, it creates grave discrimination and a violation of equality between, on the one hand, the petitioners and others like them who wish to adopt, and between other population groups – such as natural parents who may bring children into the world with whatever age difference without state interference; similarly, the state does not interfere in the decision of couples to bring a child into the world by means of a surrogate mother by virtue of the Embryo Carrying Agreements (Approval of the Agreement and the Status of the Child) Law, 5756-1996 (hereinafter: “Embryo Carrying Agreements Law”) or by other artificial means of reproduction undertaken by the mother that lead to natural birth. Moreover, discrimination exists between the domestic arrangement governing adoption, in respect of which a flexible age difference rule, allowing for deviation, has been set, and intercountry adoption, in respect of which the rule is rigid and has no allowance for special circumstances.

The arguments of the respondent

6.    The respondent rejects the basic point of departure of the petitioners’ arguments, whereby they have a constitutional right to adopt a child. In his view, the right to adopt is not recognized by either Israeli law or International law as a basic constitutional right.  The right to natural parenthood is, indeed, recognized as a basic right, as a component of respect for the autonomy of the individual in society, and the conception of non-intervention of the state in a person’s intimate decisions concerning the establishment of a family blends into this. The institution of adoption, on the other hand, focuses on the welfare of the child, and the interest of those seeking to adopt in realizing their parenthood is ancillary and secondary to the principle of the best interests of the child.  People who wish to adopt do not have a right to adopt; a fortiori they do not have a constitutional right to adopt. Their desire to adopt will be realized only to the extent that it is compatible with the principle of the best interests of the child who stands before them at the center of the laws of adoption. Adoption is a subject of a public nature, which involves the formulation of rules and their application in all that concerns handing children over for adoption in order to promote their welfare. It is not like the right to natural parenthood, the essence of which is the freedom to bear children without the intervention of the state. The respondent further argues that even if a constitutional right of the petitioners to adopt were recognized, and even on the assumption that this right was breached as a result of the maximum age difference rule – even then this would be a proportional violation that was intended for a proper purpose, i.e., protection of the best interests of children adopted in intercountry adoptions.

7.    With respect to the administrative plane, it was argued that the maximum age difference rule conforms to the criteria of propriety according to the rules of administrative law. The rule was adopted in light of purely professional considerations, in accordance with the recommendations of the Advisory Committee to the Minister. The contents of the rule are reasonable, it was intended to promote the best interests of the child, and it does not discriminate between the petitioners and others like them who wish to adopt, and between other groups.

Before embarking on an in-depth analysis of the arguments of the parties, we will describe the background to the institution of intercountry adoption and the rationale underlying the Israeli legislation. What we say has direct ramifications for the question under discussion in this case.

Intercountry adoption – general background

8.    The amending Law, passed by the Knesset on 1 May 1996, regulates, for the first time, the question of intercountry adoption in Israeli law. The amendment was conceived against the background of a legislative procedure that originated in a government bill (Adoption (Amendment) (Intercountry Adoption) Bill, 5754-1994 451) and private bills that were consolidated into one bill (Adoption of Children (Intercountry Adoption) Bill, 5756-1995, Draft Laws. 5756, 238). The Bills were discussed together in the Knesset Law and Constitution Committee, which drafted the bill that was eventually brought for the approval of the Knesset. The Amendment was enacted against the background of a reality in which the number of Israelis who applied to adopt children from outside of Israel had grown, due to the scarcity of children available for adoption in Israel in relation to the large number of people seeking to adopt, which resulted in many people having to enduring long waiting periods. This scarcity created a widespread phenomenon of adoption by Israeli couples through non-conventional, non-regulated channels, sometimes without the children even being registered in the local registry. Some Israelis were even involved in illegal acts of abduction of and trade in children (for example, HCJ 243/88 Consellos v. Turgeman [1]). The sad plight of many Israelis who sought to adopt a child abroad after they failed to adopt in Israel, and the many difficulties that accompanied such adoptions due to concern for the status of the child in Israel, led to legislative initiatives in the Knesset to resolve this difficult situation (see for example, the comments of MK Limor Livnat, Knesset Proceedings 24.5.94, at p. 7494; and MK Avi Yehezkel, ibid., at p. 7487).

9.    This distressing situation led, in the end, to the amendment of the Adoption of Children Law, 5741-1981 (hereinafter: “Adoption Law”), by means of the creation of a detailed statutory arrangement for the intercountry adoption of children in Israel. Intercountry adoption is not exclusive to Israel. The need to regulate intercountry adoption intensified in many states in light of the development of criminal activities involving the abduction of and traffic in children in connection with adoption (N. Maimon, Child Adoption Law (1994), at pp. 597-599). Against this background, the Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (hereinafter: “Convention on Intercountry Adoption”) was signed in The Hague in 1993. The aim of the Convention is to create a system of cooperation between different states in order to ensure the welfare and best interests of children who are handed over for foreign adoption, and to prevent trafficking in children (art. 1 of the Convention). Israel signed the Convention on 2.11.1993 and ratified it on 28.12.1998 (Kitvei Amana 1258, vol. 41). The government bill is a result of Israel’s adoption of this Convention, which required extensive deployment, including changes in internal legislation and the establishment of bodies to deal with intercountry adoption in Israel.

10.    This arrangement of intercountry adoption was intended to provide a response to childless Israelis who encountered difficulties in adopting children in Israel, and to facilitate the process of adoption for them by means of adoption of a child from abroad. It was intended to ensure that the process of intercountry adoption would be carried out in a proper manner and by a legal process. The arrangement was also intended to confer recognition on the status of children who were adopted in intercountry adoptions before this subject was regulated by law. At the same time, it is important to emphasize that although the background to the legislation was the intention to alleviate the plight of those seeking to adopt, and to open up to them new avenues that would answer their yearning for parenthood, the arrangement of intercountry adoption should not be understood as deflecting the focus of adoption from the best interests of the adopted child to the wellbeing of those seeking to adopt. The purpose of the arrangement is to find an appropriate response for children who cannot be raised by their natural families for one reason or another, and who are in need of a home with an adoptive family. The best interests of the child was and remains the central axis around which the laws of adoption, including intercountry adoption, are built (this found expression in the words of MK Zandberg during the deliberations on the first reading of the amending Law in the Knesset (Knesset Proceedings 24.5.94, at p. 7500).

11.    This protection of the best interests of children adopted in intercountry adoptions is manifest in s. 28D of the amending Law, which states that a recognized adoption association is obliged to act “in such manner as to safeguard the best interests of the child and with respect for his basic rights, including those that are recognized in International law; the recognized adoption association will also have a fiduciary obligation in relation to any person who has applied to it to adopt a child . . ., as long as this is not detrimental to the fiduciary obligation vis-à-vis the child” [emphasis added]. This provision was explained by the Chairman of the Law and Constitution Committee during the deliberations on the draft law at the second and third readings:

‘We hereby establish that the adoption association has an absolute fiduciary obligation to the principle of the welfare of the child, and a fiduciary obligation to the adopter – again, as long as the principle of the welfare of the child is not affected. The principle of the welfare of the child overrides all other interests, including the fiduciary duty to the adopter’ (Knesset Proceedings 11.3.1996, at p. 5151) [emphasis added].

12.    On the international level, too, intercountry adoption arrangements are founded on the concept of concern for the best interests of the adopted child. The adoptive parents are not at the focus of attention of this law. The aspiration to safeguard the best interests of the adopted child as a central purpose of the intercountry adoption arrangement is evident in the Convention on Intercountry Adoption, the Preamble to which declares that the states signatory to the Convention [are] “[C]onvinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children.”  Protection of the best interests of the child is included in the objectives of the Convention as follows: 

Article 1: The objects of the present Convention are -

a)  to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law [emphasis added].”

Two additional international documents that emphasize the need for special protection of the child in an intercountry adoption are the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally, and the Convention on the Rights of the Child, adopted by the United Nations in 1989, which Israel joined in 1991 (Kitvei Amana 1038, vol. 31, at p. 221).  These two international documents also state the need to compare the criteria governing internal and intercountry adoptions.  Art. 20 of the Declaration states:

‘In intercountry adoption, placements should, as a rule, be made through competent authorities or agencies with application of safeguards and standards equivalent to those existing in respect of national adoption. In no case should the placement result in financial gain for those involved in it.’

Art. 21 of the Convention on the Rights of the Child, which deals with adoption, states:

‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

. . .

(b)        Recognize that intercountry adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;

(c)        Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it’ [emphasis added].

13.    Precisely because the motivation for intercountry adoption is the distress of prospective adopters who do not manage to adopt in Israel, particular importance is attributed to the emphasis placed – in intercountry adoption as in domestic adoption – on the obligation to position the best interests of the child as the paramount consideration in all situations. In the real world, there is liable to be some discrepancy between the criteria for domestic adoption and intercountry adoption, if only due to the significant difference in the number of children available for adoption in each of these spheres. Experience demonstrates that as the number of candidates for adoption decreases, so the criteria for adoption become more rigid and stricter. The institution of intercountry adoption arouses concern for a conceptual obfuscation between the interests of the adopters and the best interests of the child. This obfuscation creates difficult moral dilemmas, as noted by N. Maimon in her book:

‘The supporters believe that encouragement should be given to such [intercountry – A.P.] adoption, which saves children and babies from life in institutions, from poverty, homelessness and even death . . . The supporters point out that intercountry adoption attests to the desire to save homeless children and it may well bring down barriers between western states and the states of origin of the children. They also cite studies that demonstrate success in intercountry adoption. The opponents of intercountry adoption, on the other hand, claim that such adoption cuts the children off from their heritage and their culture, and integrates them into a culture that is alien to them. This is liable to create problems of identity in the children when they are older. They further claim that the children taken for adoption are white children who are sought after by childless couples . . . and that there is no demand for children who roam the streets. The opponents point out that intercountry adoption is designed to serve the purposes of childless couples from the West, and it is not the best interests of the child that are foremost in their concerns, and that the one-sided transfer of children from poor to rich countries, from their culture to a culture that is alien to them, will not break down cultural and political barriers. The best interests of the children, so say the opponents, requires that states in the West aid the poor states and the families who struggle to raise their children, and that they supply funds and help in establishing proper welfare systems, so that the children remain in the states with their own culture and tradition. The opponents further argue that intercountry adoption causes crime, trafficking in children, placement of children with couples who have been rejected as adoptive families by the welfare authorities in their own countries’ (Maimon, supra, at pp. 593-594).

The moral difficulty inherent in the blurring the boundaries between the interests of those seeking to adopt and the best interests of the child was addressed by MK Yitzhak Levy during the debate in the Knesset, as follows:

‘. . . Israeli society applies pressure, and because Israeli society applies pressure, the Knesset proceeds to enact a law for bringing children from abroad. When children are brought from abroad, the concern is not for the children [but] for the parents (Knesset Proceedings 11.3.96, at p. 5155; emphasis added).

These concerns are not baseless. They obligate the state to be particularly careful in safeguarding the interests of children adopted in intercountry adoptions, and to take special care not to become a tool whose main purpose is to enable realization, come what may, of the aspirations of those seeking to adopt a child.

14.    Finally, to conclude these preliminary remarks, it is important to point out the significant innovation in the new statutory arrangement, namely, that intercountry adoption will be carried out through recognized adoption associations, the supervision of which is the responsibility of the Ministry of Labor and Welfare. In this, intercountry adoption differs from domestic adoption, which is in the hands of the Child Services under the supervision of state authorities and the Ministry of Labor and Welfare. Regulation of intercountry adoption by means of the recognized adoption associations has both advantages and disadvantages. On the one hand, action through the adoption associations is particularly efficient with respect to the connection with the foreign states, and it provides an effective response to the needs in this area; on the other hand, placing the determination of the eligibility to adopt in the hands of private organizations, with all the implications thereof, is a complex matter that naturally requires strict, meticulous supervision on the part of the state authorities. The balance between these advantages and disadvantages is achieved by conferring various powers on the adoption associations, including the determination of eligibility of a person seeking to adopt; and parallel to this, establishing various criteria for recognizing these associations, imposing various obligations on them, and supervising their activities by means of a central intercountry adoption authority, in the person of a chief welfare officer, to be appointed by the Minister of Labor and Welfare (s. 28B of the Law). The appropriate balance for the proper and effective operation of the adoption associations is also achieved by means of rules and guidelines for their operation, which the Minister of Labor and Welfare is authorized to prescribe by virtue of s. 28 [37] of the amending Law, pursuant to which the rule at issue in this petition was introduced. Matters were presented as follows in the debate on the amending Law at the second and third readings:

In the bill presented by the Government of Israel, it was proposed that intercountry adoption be supervised and administered by the Government, by the Ministry of Labor and Welfare. On the other hand, several private bills were tabled . . . We decided that intercountry adoption will be carried out by adoption associations, for whom we set very rigid, very strict rules of recognition. We must struggle and fight and take precautions at all times against erring, and being in a position –which is familiar to many, or some foreign states – in which there is in fact traffic in children. The assumption is that these adoption associations [will be] under very rigid supervision – and this will be the task of the Ministry of Labor and Welfare . . . And because they will have a proven record and proven professional capabilities, they will perform this task better than the Government. They have greater freedom to do this work in the Ukraine or Brazil or Rumania, and they will raise the total number of child adoptions. As we have said, extremely strict conditions’ (Chairman of the Law and Constitution Committee, Knesset Proceedings 11.3.96, at p. 5150; for the different positions on this subject, see: the two bills above and the debate on the first reading, ibid., 24.5.94, at p.7485 ff.).

Decision

15.    The petitioners’ arguments challenge the maximum age difference rule on two fronts: the constitutional front and the administrative front. On the constitutional front, the petitioners seek to convince us that the right to adopt is a constitutional right that inheres in the right to a family and to parenthood. The maximum age difference rule violates this right in a manner that is incompatible with the limitations clause, and it must therefore be set aside.

Parallel to this, the petitioners argue against the validity of the rule on the administrative level, and focus on it being – according to them –unreasonable and discriminatory. The two parallel lines of argument drawn by the petitioners give material expression to the borderline between the constitutional and the administrative examination of the act of secondary legislation of the competent authority, as well as their interface.

Let us begin with the constitutional examination.

The constitutional examination – is the right to adopt a constitutional right?

16.    On the level of the constitutional argument, the questions to be considered are these: Does a legal right to adopt a child exist? Does this right enjoy the status of a constitutional right, as a derivative of the right to a family and to parenthood anchored in Basic Right: Human Dignity and Liberty? If the answer is positive – does the maximum age difference rule comply with the criteria of the limitations clause in the Basic Law? These are the questions that we will endeavor to answer.

The right to family and parenthood

17.    Basic Law: Human Dignity and Liberty entrenches a person’s right to dignity and liberty, thus embracing the values of the State of Israel as a Jewish and democratic state (s. 1A of the Basic Law). It states that there shall be no violation of the life, body or dignity of any person as such, and that all persons are entitled to protection of their dignity (ss. 2, 4). Within the parameters of the right to human dignity is the right of a person to a family (HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of the Interior [2]). From the right of a person to dignity stems his right to a family, and it therefore constitutes a constitutional right protected by the Basic Law (CA 2266/93 Anon. v. Anon [3], at p. 235; CA 3009/02 Anon. v. Anon. [4], at p. 894). The right to a family is one of the central foundations of human existence. “It reflects the existential essence of a person, and the manifestation of his realization of self” (Adalah v. Minister of the Interior [2], at para. 6 of my judgment). From the right to a family is derived the right to parenthood on the one hand, and the right of the child to grow up in the bosom of his natural parents on the other. Within the framework of the right to family, the natural right of parents to raise their children and the right of the child to grow up in the bosom of his family are recognized. The right to parenthood and the right of a child to grow up with his natural parents are interwoven rights, and together they establish the right of the family to autonomy:

‘The depth and intensity of the parental bond, which incorporates the natural right of a parent and child to a living bond between themselves, made of familial autonomy a value enjoying a legal status of the highest degree, violation of which is tolerated only in the most extraordinary situations’ (Anon. v. Anon.[4], at p. 894).

18.    The right to a family is derived from the right to privacy and from the realization of the principle of the autonomy of individual will, located at the very kernel of the concept of human dignity. “The family and parenthood are the realization of the natural inclination to propogation of the generations and realization of the individual in society” (HCJ 2245/06 MK Neta Dobrin v. Prisons Service [5]; LFA 377/05 Anon. & Anon., Designated Adoptive Parents of the Minor v. Biological Parents [6]; CFH 2401/95 Nahmani v Nahmani [7], at p. 719; HCJ 2458/01 New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], at p. 447). Amongst the constitutional human rights, the right to parenthood and family ranks highly, following protection of the right to privacy and physical integrity: “The right to physical integrity is designed to protect life; the right to a family is what imbues life with significance and purpose” (MK Neta Dobrin v. Prisons Service [5], para. 12). “These rights are fundamental to human existence, and it is difficult to imagine human rights which equal them in their importance and their impact” (Anon. & Anon. v. Biological Parents [6], at para. 6 of my opinion).

19.    The right to establish a family is also recognized under international law. Article 16 of the Declaration of Human Rights establishes the right of a person to marry and raise a family, as does art. 23 of the Covenant on Civil and Political Rights. Article 12 of the Declaration of Human Rights and art. 17(1) of the Covenant on Civil and Political Rights establish the right to privacy and to protection from arbitrary interference in family life. The European Convention on Human Rights establishes, in art. 8, a person’s right to respect for his private and family life, and in art. 12, the right to marry and to found a family.

20.    The right to family and parenthood is related to the concept of a person’s personal autonomy, and to his right to privacy. It is understood as a freedom that may not be violated by interference on the part of the government or other factors. This is a right which does not have a correlative duty of the government to take positive action in order to effect its realization. And indeed, “a free society imposes minimal limitations on the voluntary choices of the individual” (HCJ 294/91 Chevra Kadisha “Kehillat Yerushalayim” v. Kestenbaum [9], at p. 481; CA 7155/96 Anon. v. Attorney General [10], at p. 175). This is particularly true with respect to the aspirations of a person to realize his personality and personal experience by means of establishing a family and bringing children into the world.

In Nahmani v Nahmani [7], Justice Dorner discussed the negative character of the right to a family as a right that restricts state interference in a person’s freedom of choice to a minimum:

‘Freedom in the full sense is not only freedom from outside interference of the state or of others. It also includes a person’s ability to control his way of life, to fulfil his basic aspirations and to choose between a range of possibilities through the exercise of discretion. In human society, one of the forceful expressions of the aspiration which if not satisfied will cause many people not to regard themselves as free in the full sense of the word is the aspiration to parenthood. This is not a purely natural-biological need. We are dealing with a freedom which in human society symbolizes the particularity of a person. “Any person who does not have children is considered as dead” said R Joshua b. Levi (Nedarim 49b). Indeed, most people – men and women alike – see propagation as an existential need that gives meaning to their lives’ (at p. 719).

In the words of Justice Strasberg-Cohen (ibid., at p. 682):

‘The right to be a parent is, by its nature, its essence and its characteristics, a natural, inherent right, embedded in the person. This is a right which has no correlative legal obligation, neither in the relations between the state and its citizens nor in the relations between the spouses themselves’ [emphasis added].

(See also the first proceedings in the Nahmani case: CA 5587/93 Nahmani v. Nahmani [11], at p. 499; P. Shifman, Family Law in Israel (5749-1989, vol. 2), at p. 139.)

The conception of the right to parenthood in the international conventions, too,  is that of a negative right, the principal thrust of which is protection from arbitrary interference of the state in the private lives of a person, his family and his house (on this point, cf: D. Barak-Erez, “Symmetry and Neutrality: Reflections on the Nahmani Case”, (1996) 20 Iyyunei Mishpat 197, 199-200 [Heb.]).

21.    The right to a family and to parenthood as a constitutional right does not achieve full expression in all circumstances. Like other constitutional rights, the right to a family as a freedom that is protected from interference is not absolute. In exceptional circumstances, the law and the authorities are likely to intervene in this right, and to restrict the extent of constitutional protection afforded it, when it is confronted by another important, conflicting value. The legitimacy of violating the right to a family and to parenthood is conditional upon compliance with the criteria of the limitations clause. These criteria reflect the required balance between the import of the basic rights and that of conflicting rights, needs and values, whether of the individual or of society. If a violation of a human right is to meet the constitutional test, its place must be in an appropriate arena of balances, in which the weight of the right is balanced against that of the conflicting right (CLA 3145/99 Bank Leumi Leyisrael Ltd. v. Hazan [12]; MK Neta Dobrin v. Prisons Service [5], at para. 12).

Thus, for example, in certain circumstances, when realization of family life causes serious harm to the child, the state intervenes in order to protect his wellbeing, and exceptional situations may arise in which natural parenthood will be temporarily or permanently negated by virtue of the Youth (Care and Supervision) Law, 5720-1960 (hereinafter: “Youth (Care and Supervision) Law”) (Anon. v. Anon. [4]), or by virtue of the Adoption Law. Conditions may arise which will require the state to exercise its authority to remove a child from his parents in order to protect his safety and wellbeing, and also to hand him over to another family for adoption, thus separating him temporarily or permanently from his natural family. Regulation of these powers and their practical application are subject to the conditions of the limitations clause, since what is involved is a violation of a human right to realization of the family bond and parenthood. Other situations of intervention in the right to family may arise where the realization of this right of a resident of Israel who wishes to unite with a spouse from the Area of Judaea and Samaria clashes with considerations of state security (Adalah v. Minister of the Interior [2]).

The right to adopt

22.  Alongside the right to a family as a “passive” right, the essence of which is protection of a person’s personal autonomy from unconstitutional violation, stands the question of the status of the right to parenthood, which the individual seeks to realize by way of adoption of a child born to different biological parents, whether because he is not able to bring a child into the world, or whether because he wishes to forge a parental bond with an adopted child for some other reason. Does the constitutional right to a family extend to the right to adopt a child, where limitation of this right is possible only in accordance with the principles of the limitations clause, or shall we say that the constitutional right to parenthood does not embrace a right to sue the state to intervene in order to make possible its realization by one means or another, including by way of adoption. The question from another angle is whether the constitutional right to a family and to parenthood, which is granted to every person per se, engenders a right to obligate the state to act in order to make family or parenthood possible in the event that a person is not able, or does not want, to realize them in a natural way, e.g., by way of adoption, or through surrogacy, or by IVF. Does a lack of action on the part of the state amount to a “violation”, the constitutionality of which is subject to the limitations clause? These questions are complex and multi-faceted. They touch on the connection between a constitutional right and the means available to a person for realizing the right. They involve issues with extensive normative, moral, social and other ramifications. The approaches to their solution are subject to the influences of time, place and circumstance.

23.    At the same time, for our purposes, it may be said that according to the constitutional conception prevailing in our system, recognition of a constitutional right to parenthood and to family rests on the assumption that the right is protective in nature, and it does not give rise to a correlative obligation of the government to act. It is concerned primarily with protection from government interference, as opposed to fulfilment by the government of a duty to take positive action to provide various means aimed at enabling realization of the right. The right to parenthood extends over the autonomy of the individual will. It does not spill over into an area in which intervention of the state is required for its realization. Intervention of the state in areas such as adoption, surrogacy and artificial reproduction, which constitute different means of realizing parenthood, occurs in the framework of its governmental activity, and it is subject to administrative judicial review; but it is not the expression of a duty that exists as a response to a person’s constitutional right to realization of parenthood by alternative means to natural birth. It is not out of the range of possibility that changing times, social dynamics and human needs will bring with them, over time, changes in the constitutional conception regarding the role of the state in providing the means for realization of a person’s right to family and parenthood. On this matter, the considerations pertinent to the different means are not necessarily identical, and the adoption of a child, who is an independent entity and the subject of rights, is unlike means that are designed to enable childbirth, such as surrogacy and IVF. The question of the extent to which the state must help the individual by making available the means for assisted reproduction through artificial reproductive techniques is difficult and complex. The greater the intervention required from factors external to the reproductive processes, the further removed we become from the inner core of the right to parenthood, which is based on the autonomy of the individual and his independent right to make decisions that determine his fate without external interference. The extent of the state’s obligation to take positive action to help the individual to realize his natural parenthood by artificial means is a difficult and multi-faceted issue. In this context, various questions arise concerning the obligation to establish a system for the purpose of IVF and surrogacy (see National Health Insurance Law, 5754-1994 (Second appendix); National Health (IVF) Regulations, 5747-1987; and Surrogacy Agreement Law). The relationship between the conception of the right to a family and parenthood as a right of a protective nature, and between the extent of the legitimate expectation of the individual that the state will help him, actively, in realizing his right to parenthood by different means, raises complicated and difficult questions (M. Corinaldi, “The Question of Surrogacy in Israel – Comments on the Embryo Carrying Agreement Law, 5756-1996; Aloni Committee Report”, Hamishpat 3 (5756), 63, 67, 69).

Professor Shifman relates to the issue as follows:

‘From the point of view of possible intervention of society, the characteristic components of the substance of the right to be a parent, which are not hewn from the one block, should be noted. The primary component is the right to biological parenthood . . . . Particular attention should be paid to the distinction between the negative and the positive aspects, i.e. between restriction of the freedom of a person to take action to realize his right to parenthood in a way that he considers appropriate, and between negation of the assistance of society. The parameters of the positive assistance of the state are determined, inter alia, by means of the changes in the definition of legal parenthood that society is prepared to make in order to fulfil and confirm the desires of the individual (Shifman, ibid., at p. 169-170).

These questions greatly exceed the bounds of the discussion in this case insofar as they concern the various means of realizing parenthood other than by way of adoption. This is because the predominant conception in the area of adoption is built on the assumption that the adoption arrangement is designed first and foremost to provide a suitable response to the needs of needy children in cases in which the natural environment into which they were born and in which they were  being raised was not capable of providing their basic needs. Handing a child over for adoption, and realization of the parenthood of the adoptive parents are an important by-product to which great moral value is attributed by society, but realization of parenthood by way of adoption is not the major purpose of the institution of adoption.

25.    Adoption provides a response to the yearning of people to realize parenthood of children. Its importance from this aspect is obvious. At the same time, the state adoption arrangements are not part of a prospective adopter’s constitutional right to a family and to parenthood, and it does not establish a derivative constitutional right of that person to demand that the state enable realization of parenthood by means of adoption. As a citizen, he has a right to expect that the adoption arrangements will be applied by the state in a proper manner that comports with the criteria of public law, but this does not give rise to rights on the constitutional plane.

The focus of the child adoption arrangements under the Adoption Law is the best interests of the child whose natural environment and biological family cannot supply his basic physical and psychological needs. They confer on the state the power and authority to intervene in the natural family unit in order to safeguard the welfare of the minor child where the essential conditions for his growth are unavailable to him. The crux of the institution of adoption in the modern era is the wellbeing of the child, whose physical and psychological needs require attention (H.E. Still-Caris, “Legislative Reform: Redefining the Parent-Child Relationship in Cases of Adoption”, 71 Iowa L. Rev. (1985-6), 265).

The Adoption Law, in its basic conception, is directed at the wellbeing of the child. Section 1(b) of the Law, which constitutes the basis and corner-stone for an adoption order, states:

“An adoption order and every other decision by virtue of this Law will be issued if the Court deems them to be in the best interests of the adoptee.”

The arrangement in the Adoption Law is built on the basis of concern for the welfare of the child, recognition being accorded to the status and the constitutional rights of the biological parents to a family relationship and to realization of their parenthood, and subject to the provisions of the Law. The Adoption Law does not presume the existence of a right to adopt; it presumes the possibility of the existence of the ability to adopt when certain conditions of eligibility are fulfilled (sec. 3 of the Law): age and religion (secs. 4 and 5), and a successful trial period (sec. 6).

Indeed, a person’s decision to realize his parenthood by way of adoption belongs in the area of personal autonomy, which is protected from external state intervention. However, actualization of this decision goes beyond the bounds of personal autonomy, and it is subject to the adoption arrangements determined by the state, the main purpose of which is to promote the interests of the child, with those seeking to adopt fitting into the process of adoption in furtherance of the purpose of the welfare of the child, which will always be the central interest and concern of the institution of adoption (CFH 7015/94 Attorney General v. Anon. [13]).

26.    The centrality of the principle of the best interests of the child in adoption proceedings is also a leading theme in the Convention on the Rights of the Child (which Israel signed and ratified) which states:

‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration . . .’ (art. 21).

The child enjoys an independent legal status, he is the subject of rights and obligations, and the accepted law is that in every decision that is taken in his regard, consideration must be given, first and foremost, to his best interests:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’ (art. 3(1)).

The Committee for Examining Basic Principles in the Area of the Child and the Law and their Application in Legislation, chaired by Judge Saviona Rotlevy (December 2003), related to this matter in the following terms:

‘The Convention creates a broad duty on the part of states in all concerning the application of the principle of the best interests of the child. First, in determining that in relation to every action or decision undertaken in relation to children by the various state authorities, the best interests of the child will be the paramount consideration. In this way the Convention introduces the criterion of the best interests of the child into every public enterprise concerning the child, and into each action undertaken by private entities in the area of welfare. The significance of this determination . . . is that the whole body of rights, needs and interests of children enjoys a certain substantive priority over other considerations when a decision involving them is being made. This priority stems from the fact that the decision or action under discussion involves the child himself, and it is therefore natural that the determination in the framework of such decision or action will concentrate on the child himself’ (General Part of the Report of the Committee, at pp. 128-129).

(On the implementation in Israel of the Convention on the Rights of the Child see also: Israel Report of the Implementation of the Convention on the Rights of the Child, Ministry of Justice and the Ministry of Foreign Affairs, submitted to the United Nations Committee for the Rights of the Child in February, 2001, esp. pp. 154-160, which discuss adoption. On the historical development of the concept of “the best interests of the child” see: J. Ben-Or, “On the Meaning of the Concept ‘Best Interests of the Child’”, 29 (5734) Hapraklit, 608. On the transition from the “best interests of the child” to the theory of “the rights of the child” see: Y.S. Kaplan, “Children’s Rights in Israel Case Law – First Stage of Transition from Paternalism to Autonomy”, Hamishpat 7 (2002), 303; and Anon. v. Anon [3]).

27.  The best interests of the child in terms of the Adoption Law are incompatible with the existence of a recognized legal right of a person seeking to adopt. The assumption regarding such a right distances the best interests of the child from the focus of interest of the institution of adoption, and it cannot be reconciled with the idea that the state has a humanitarian duty to care for needy children as an absolute aim which is not subject to the rights of others. Consideration of the aspirations of those seeking to adopt at the level of realization of this right would combine external considerations with those of the interests of the child, and detract from the realization of this central principle. This approach finds expression in the case law and the legal literature: they contain no legal recognition of the right of a person to demand that the state hands him a child for adoption, the child being an independent entity, with rights and existence of its own, unless this is essential for the purpose of protecting his welfare and best interests, and for that purpose alone. The duty of the state to safeguard the welfare of children in the hands of adoptive parents who are fit for that rule, in a situation in which the biological nuclear unit to which the child belongs cannot provide an appropriate response (cf. HCJ 415/89 Alon v. Child Services [14], at p. 791). The focus of the duty is on the best interests of the child. It does not encompass the aspirations of the prospective adopter to the extent of conferring upon him a legal right.

‘No person has the right to adopt a child. The argument that every citizen has the right to adopt rests upon a conception that has long disappeared from the enlightened world’ (per Vice-President Mazza in CA 10280/01 Yarus-Hakkak v. Attorney General [15], at p. 93).

This was discussed by C. Goldschmidt in his article “Adoption, Common Law Marriage and Homosexuality” (Hamishpat 7 (2002), 217), who said, inter alia (at p. 238):

‘It is not my intention to argue that a person has a “right” to adopt a child: there is no “right” here opposite which stands a duty of the state. The argument concerning the “right to adopt” of every citizen is an argument that rests on the proprietary conception of children, an argument which has long disappeared from the enlightened world . . . . Moreover, the right is that of the child, the right to grow up in a regular family unit, which will provide him with all that he needs for his development and growth until he is an adult who can take care of himself. The state bears a duty to provide the basic conditions so that the right of the child is not violated, particularly in situations in which the family unit itself does not succeed in providing these . . .’

28.    Under comparative law, systems that are similar in their approach to the Israeli legal system, have not recognized a basic constitutional right to adopt a child in the broad sense.

In the United States, the existence of a right to adopt as a constitutional right has not been recognized:

‘It is manifestly clear that not every prospective adoptive parent has an expectation or entitlement sufficient for the recognition of a constitutional liberty interest in the right to adopt a child’ (2 AM. Hur. 2d Adoption §14 (1994)).

In the American case law presented to us by counsel for the state in the supplementary summation, a series of judicial rulings were cited to the effect adoption is not to be regarded as a constitutional right, and that such recognition would be liable to upset the correct balance between the various considerations and interests involved in the process of adoption.

Owing to their importance, we will quote at length from these cases (all emphases added). In Griffith v. Johnston 899 F. 2d 1427 (1990), the Court said as follows:

‘Although the Supreme Court has rendered decisions defining various elements of family relationships as “fundamental interests” none of those cases announced a “fundamental interest” in adopting children. What consequences would flow from the recognition of such an interest are unclear. The adoption process is now heavily regulated by states for the protection of all parties involved . . . . If the right to adopt is “fundamental”, must the courts review whether states may require that adoptive parents be sane, honest, financially capable or otherwise qualified to be good parents? When does the “fundamental right” to adopt overcome the right of privacy of the birth parents? May the state decide that certain kinds of children, contrary to the wishes of particular prospective parents, may not be adopted? To assert that such an individualized “fundamental right” exists is sloganistic and oxymoronic, since society must balance the interests of at least three parties – birth parents, child, adoptive parents – when legitimating adoptions.’

See also the judgment in Lofton v. Secretary of the Department of Children and Family Services, 356 F. 3d 804 (2004), as follows:

‘Neither party disputes that there is no fundamental right to adopt, nor any fundamental right to be adopted . . . see also Mullins v. Oregon, 57 F. 3d 789 (9th Cir. 1995) (“Whatever claim a prospective adoptive parent may have to a child, we are certain that it does not rise to the level of a fundamental liberty interest.”), Lindley 889 F. 2d at 131 (We are constrained to conclude that there is no fundamental right to adopt"). Both parties likewise agree that adoption is a privilege created by statue and not by common law . . . Because there is no right to adopt or to be adopted, it follows that there can be no fundamental right to apply for adoption.’

In addition, see the decision in Behrens v. Regier, Secretary of the Florida Department of Children and Families, 422 F. 3d 1255 (2005): here too, the ruling was that there is no recognized right of adoption, and that at the center of the process of adoption is the rights of the child, as opposed to those of the prospective adopter:

‘Beherns has failed to point to any provisions of Florida law that grants prospective parents, like him and his wife, the right to adopt an unrelated child. In fact, Florida courts have held that no such right exists. . . . .

Additionally, Behrens cannot establish that, under Florida law, he has any legal claim of entitlement to have his adoption application approved. . . . Florida adoption laws – like the adoption laws of most states – provide that the decision to place a child in a prospective home is a discretionary one, where “the best interests of the child” always govern. . . . Hence, adoption is not viewed from the perspective of what rights prospective parents may possess; rather the “intended beneficiary of [an adoption] proceeding is the child to be adopted.”’

The State also referred to the analysis of the American case law on this matter in L.D. Wardle, “Preference for Marital Couple Adoption – Constitutional and Policy Reflections”, 5 Journal of Law and Family Studies (2003) 345.

In explicit provisions in the Adoption Law of the State of New South Wales, 2000, Australian law clearly states that a person does not have a right to adopt a child. Section 8 of the NSW Law prescribes:

‘8(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as practicable or appropriate) to the following principles:

(a) the best interests of the child, both in childhood and later life, must be the paramount consideration.

(b) adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child.

(c) no adult has a right to adopt the child. . . .’

The Adoption Law, 1994 of the State of Western Australia states, in the Second Appendix to the Law, that there is no right to adopt:

‘1(3) There is no right to adopt a child. The adoptive or prospective adoptive parent with whom the child is placed with a view to the child’s adoption has the right to bond to the child.’

The State in our case also cited case law of the European Court of Human Rights. The European Council for Human Rights determined, on a number of occasions, that no right to adopt arises by virtue of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On this subject, the court in the case of X and Y v. United Kingdom, (977) 12 DR 32 said as follows:

‘Whilst it is implicit in Article 12 that it guarantees a right to procreate children, it does not as such guarantee a right to adopt or otherwise integrate into a family a child which is not the natural child of the couple concerned".

See on this matter also the ruling in Dallilla Di Lazzaro v. Italy Eur. Commn. HR, App. No. 31924/96, admissibility decision of 10 July 1997, 90 DR. 13:

‘The right to adopt is not, as such, included among the rights guaranteed by the convention and . . . Article 8 does not oblige States to grant to a person the status of adoptive parent or adopted child.’  

See also X. v. Belgium and the Netherlands, (1975) 7 DR 75; X v. Netherlands, (1981) 24 DR 176.

In Frette v. France, 36515/97 [2002] ECHR 156, the European Court for Human Rights ruled that the decision of the French authorities to reject the application of an unmarried man with homosexual tendencies to adopt a child does not in contradict art. 8 of the European Convention on Human Rights. The court said as follows:

‘The court notes that the Convention does not guarantee the right to adopt as such. Moreover, the right to respect for family life presupposes the existence of a family and does not safeguard the mere desire to found a family. . . .’

And further on it stated:

‘Adoption means “providing a child with a family, not a family with a child” and that the state must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect. The court points out in that connection that is has already been found that where a family tie is established between a parent and a child, “Particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. . .”.’ 

See also the ruling of the European Court in Pini v. Romania [2004] ECHR 780/01.

Similar rulings were handed down in England, where it was held that a person does not have a right to adopt a child, and that in circumstances in which the adoption had not been completed or where there were no de facto family ties, there is no protected meta-right: Thomson & Ors, R o the application of) v. The Minister of State for Children [2005] EWHC 1378 (Admin) (04 July 2005).

It is important to note –  and the State addressed this in its pleadings –   that regarding the existence of a right to adopt, there may well be a distinction between a normal situation in which the adoption of a child is sought in a regular adoption process in which the prospective adopter has no prior connection with a particular child, and a situation in which adoption is sought when in reality a de facto family exists for all intents and purposes, i.e., when full and complete family ties have already been established in practice between the prospective parents and a particular child. Foreign case law has considered such a possible distinction, negating the existence of such a right in the first case and tending to recognize the right in the second (see the decision of the constitutional court in South Africa in Du Toit and Another v. Minister for Welfare and Population Development and Others, (2002) 13 BHRC 187.

It should be emphasized that we are not dealing here with the special situation of an application for adoption aimed at conferring recognized legal status upon an actual familial parent-child relationship that hs developed: such a situation which may well support a claim to an existing constitutional right to formalize the existing family relationship in the framework of adoption, within the parameters of the wider constitutional right to a family. Rather, our concern is with the question of the existence of a constitutional right to adopt a child in general, in the absence of any prior connection between the person seeking to adopt and a particular child.

29.    Even though a right of prospective adopters is not recognized, they may have a legal interest that must be considered before the adoption order is issued. This is not a legal right, but a legitimate expectation that must be taken into acount when exercising administrative and judicial discretion. In the course of the adoption process, and prior to issuing an adoption order, the dominant consideration is the best interests of the adoptee. Alongside this consideration, the court considers the rights of the natural parents. It also considers the interests of the prospective adoptive parents, when they are raising the child in their home:

‘. . . It is also appropriate to consider the interests of those seeking to adopt the minor child. They do not have a right to custody of the child, but they do have an interest that must be considered. Even though this interest does not have the weight of the right of the natural parents, it too is a factor that must be taken into account’ (per President A. Barak in CA 577/83 Attorney General v. Anon. [16] at p. 471).

Neither do those to seek to adopt have direct standing in the preliminary stages of adoption proceedings. This standing is accorded to the biological parents and the Attorney General as representing the public interest. The prospective adopters do not stand in the forefront of the proceedings, but only behind the scenes (LFA 6930/04 Anon. and Anon. Prospective Adoptive Parents of the Minor v. Biological Father [17]; and see Maimon, supra, at pp. 30-34.)

30.  In its basic concepts, the institution of adoption rests on the humanitarian duty of the state to pursue the best interests of children whose biological families cannot respond to the basic requirements of raising them, and to integrate these children into life in adoptive families in which they will be able to grow and develop in conditions of physical and psychological wellbeing. This primary aim of the adoption arrangements also provides a response, as a by-product, to the desparation of childless couples to adopt a child, or to the desire of parents of biological children who wish to adopt another child. These prospective parents have a legitimate expectation that a suitable arrangement will exist, the criteria and means of implementation of which are conducted in a proper manner. They do have the right that their application for adoption be treated fairly, in good faith, out of relevant considerations and without discrimination. This right does not amount to a right to adopt; a fortiori it does not amount to a constitutional right to adopt, derived from the right to a family and to parenthood. Prof Shifman explained this in his abovementioned work, at pp. 145-150:

‘This institution [of adoption – A.P.] is clearly almost the absolute opposite of the previous model, which was characterized by the autonomy of the individual in natural reproduction. In the adoption of children, we have a selective distribution, controlled totally by the state, that operates through the welfare authorities . . . what is the justification for the selective distribution of children for adoption, which is controlled totally by the welfare authorities? . . . A number of answers and explanations can be offered for the phenomenon of intervention in adoption. The preliminary explanation is: the scarcity . . . as a result of a scarcity in supply, and of the constant rise in the number of those applying to adopt, the adoption authorities are forced to tighten the criteria of “entitlement” to receive a child, and the waiting periods until the child is handed over stretch out . . . But we must point out that considerations of scarcity, per se, are not the only consideration supporting the need for state intervention. The other, and possibly determinant consideration, is the welfare of the child. In truth, the preliminary orientation of the institution of adoption is the solution of the problem of homeless children, and only indirectly, and as a secondary goal, is the anguish of childless people who wish to adopt a child likely to be relieved. It must be stressed:  A person does not have the right to adopt a child. His right is not to suffer adverse discrimination relative to other applicants, and that he be treated fairly, and without superfluous bureaucracy; but the point of departure is the best interests of the child. . .

In any case, we may sum up and say that in the adoption at hand, there are several cumulative factors that create the model of intervention: first, the scarcity of children; second, the desire to safeguard the best interests of the child who has already been born; third, the effective ability to intervene in light of the need for the involvement of other people, other than the couple themselves; fourth, the intervention does not affect the intimate decisions of the couple themselves, nor their freedom over their bodies; and finally, in adoption, society is providing positive assistance to the will of the couple to become parents. These factors do not operate in the natural reproduction of a child, at the stage at which his parents decide whether to bring a child into the world’ (and see also at pp 52-53; emphasis added).

31.    Even though prospective adopters have no recognized legal right to adopt, the state must take into consideration and respect their expectation to do so as a natural and legitimate one, and as an important factor in finding a fitting solution to the main purpose of adoption – to promote the best interests of the child in need. And indeed, among the criteria for adoption set by the state institutions (the Child Services in relation to domestic adoption, and the Minister of Labor and Welfare in intercountry adoption) may be found a type of merger between considerations of the “best interests of the child” that are not detached from general social considerations, and the desire to establish a fair administrative arrangement in relation to those who seek to adopt (Shifman, supra, at p. 148). 

32.    In summary, we cannot accept the argument of the petitioners whereby those who seek to adopt have a constitutional right to do so, and that the state must provide a response to this right for otherwise, it would be violating a constitutional right that is subject to the principles of the limitations clause. During the course of the adoption process and prior to the adoption order, those seeking to adopt have a natural expectation and a recognized interest. A legal right, and a fortiori a constitutional right to adopt, are not recognized. This does not detract from the fact that upon completion of the adoption process with the issuing of an adoption order, a relationship of full duties and rights that characterizes parent-child relationships is created between the adopted and the adoptee, replacing the biological blood ties of the child with his original family, and a new family unit, bearing constitutional rights, is created.     

The argument of the petitioners on the constitutional level must, therefore, be dismissed. Their arguments on the administrative level ought now to be examined, insofar as they relate to the administrative acceptability of the maximum age difference rule according to the criteria of public law.

The administrative level

33.    On the administrative level, it was argued that the maximum age difference rule does not meet the criteria of public law, and that it harms the petitioners in two respects: the first – in the unreasonableness of the age difference that was set in the rules and in the creation of a rigid rule, that fixes an age difference between the adopter and the adoptee in relation to the process of intercountry adoption with no allowance made for special circumstances; the second – in that the petitioners’ group suffers discrimination vis-à-vis groups who seek to adopt in a domestic process, in relation to whom no similar rigid rule exists. In analyzing the administrative arguments, we will concentrate on the area of judicial review of administrative rules that by their nature constitute secondary legislation that was submitted to the Knesset for approval, as is the case with the rules in question (Y. Zamir, Administrative Authority vol. 1 (5756-1996), at pp. 75-85; HCJ 4769/90 Zidan v. Minister of Labor [18], at p. 172).

The background to the formulation of the maximum age difference rule

34.  The Rules and Professional Guidelines for the Activity of a Recognized Non-Profit Organization, 5758-1998, which are the relevant rules here and which include the maximum age difference rule, were issued by the Minister of Labor and Welfare on the basis of the recommendation of the Advisory Committee by virtue of sec 28F of the Adoption Law. The members of the Committee include an expert in the field of social work, the chief welfare officer for the purpose of the Child Adoption Law and the Central Authority for Intercountry Adoption under the Law, the national inspector for intercountry adoption in the Ministry of Labor and Welfare, head of the advisory department in the Ministry of Justice, and a rabbi. This Committee was established for the purpose of advising the Minister “on matters of intercountry adoption, including recognition of an adoption association, withdrawal or suspension of recognition of an adoption association, the establishment of professional guidelines and rules for the mode of operation of a recognized adoption association and its supervision  (sec. 28F(a) of the Law). This is a professional body whose considerations are professional. The said rule concerning the maximum age difference, too, was laid down on the basis of professional considerations relating to the welfare of the child that were weighed by the Advisory Committee and submitted as recommendations to the Minister. Accordingly, the petitioners’ argument whereby the rules were fixed without the requisite factual and professional basis must be dismissed. In the framework of his considerations, the Minister initially decided that the maximum age difference would be 45 years. On 23 December 1997, a proposal was submitted to the Law and Constitution Committee of the Knesset with additional regulations on the matter of intercountry adoption. Following deliberations in the Committee, which related, inter alia, to the question of the age difference, the proposal was amended and the age difference was extended to 48 years. It was also decided that the determining date for calculating the difference would be the date of submission of the request to adopt. After these changes were made, the Committee approved the rules (Protocol no 136, Session of the Law and Constitution Committee of 23 December 1997, R/2 – Response of the respondent to the original petition). The rules, therefore, were approved by the Law and Constitution Committee, as required by s. 36(a) of the Adoption Law.

Reasonableness

35.    An examination of the reasonableness of an administrative act, including secondary legislation, requires a suitable balancing of relevant considerations:

‘The reasonableness of a decision is determined by balancing the values competing for supremacy, according to their weight, and deciding between them at the point of friction. Our concern, therefore, is with the doctrine of balancing in our public law.  This is invoked where there is governmental authority, the exercise of which grants discretion that must take into account conflicting values and interests (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [19], at p. 37; see also HCJ 953/86 Poraz v. Mayor of Tel Aviv-Jaffa [20]; HCJ 217/80 Segal v. Minister of the Interior [21]; HCJ 935/89 Ganor v. Attorney General [22], at pp. 513-514).

The balancing is effected by attributing relative weight to the various interests. “The act of ‘weighing’ is a normative act. It is designed to allocate to the various factors their place in the legal system, and their social value within the entirety of social values (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [19], at p. 41).

36.    Unreasonableness of secondary legislation constitutes independent grounds for an administrative challenge (HCJ 4769/90 Zidan v. Minister of Labor [18]), at p. 172). Judicial policy in reviewing the reasonableness of secondary legislation is guided from a point of departure that seeks to protect the statutory norms laid down by an administrative body, as well as the expectation created by that legislation amongst the public. Accordingly, the court, as a rule, will not intervene in the discretion of the administrative body in relation to the secondary legislation that it formulated, unless the unreasonableness of that legislation goes to the heart of the matter “and it is almost certain that, according to the correct degree of reasonableness, the authority would not have been able to reach a decision of that sort” (Justice Elon in HCJ 558/79 Jamal v. Jewish Agency [23], at p. 429).

‘In such a case, the court is bound to act with restraint and forbearance, so that it should not be found to replace the discretion of the administrative authority with its own discretion. It has therefore been held that only unreasonableness of a high degree – “extremely radical” . . . or “exaggerated” . . . is likely to justify judicial intervention in the validity of secondary legislation. Moreover, the court must exercise special caution before intervening in secondary legislation that has obtained the approval of one of the Knesset committees’ (HCJ 4769/90 Zidan v. Minister of Labor [18]), at p. 172; and see CA 492/73 Speizer v. Council for the Regulation of Gambling in Sport [24], at p. 26).

The reasonableness of secondary legislation is assessed, inter alia, in light of its general purpose, even if in the specific case it may cause injustice (HCJ 702/81 Mintzer v. Central Committee of the Israel Bar Association [25], at p. 13; CA 438/88 Barak v. Registration Committee for the Registry of Psychologists [26], at pp. 671-672). The criteria for judicial review of an act of secondary legislation from the aspect of reasonableness focuses on the parameters of reasonableness within which various options are possible, each of which may meet the criteria of proper administration. It is sufficient that the legislative act fall within these parameters in order for it to meet the criteria of administrative reasonableness.

From the general to the specific

37.  The first basic assumption in determining the reasonableness of the maximum age difference rule is that setting specific criteria for the eligibility of prospective adopters is dictated by necessity, in order to establish a system of clear, organized norms in a field that is so sensitive and fateful in a person’s life. The Court related to this when it said:

‘The area of the processes for preparing the lists of adopters or selecting the prospective adoptees, including screening and examining them, ought not to be conducted other than on a clear normative basis; it should be subject to the defined responsibility of a governmental body, whose decisions and modes of operation are subject to review in light of clear criteria. In other words, the authority to deal with these pre-judicial areas should be fixed by law, in order to define, inter alia, who will determine the principles of operation and what are the means for challenging or appealing the various decisions at the said stage, at which there is not yet the possibility of recourse to legal processes according to the above law. It is very possible that it would indeed be reasonable if provisions such as these were to find their place in the Adoption of Children Law, and this may be effected by authorizing the Minister of Justice, in consultation with the Minister of Welfare, to make regulations, inter alia, in all concerning the means for determining prospective adoptees, the means for determining eligibility, appeals and objections and other such provisions. At present the matter is not regulated by law, and this must be corrected’ (HCJ 415/89 Alon v. Child Services [14], at pp. 790-791).

38.    A second basic assumption is that criteria are set solely in pursuit of the child’s best interests. In the framework of this principle, it is only natural to regulate, as well, the suitable and reasonable age difference between the adopters and the adoptee. Such determinations are accepted in many states world-wide. Already at the time of the debate on the Adoption Bill in 1959, it was proposed to set a maximum age for adoptive parents, since “the child’s best interests require not a grandfather’s house, but father’s house” (Knesset Proceedings 25, at pp. 934-935). This proposal was not adopted in the Law, but the maximum age limit was set by the Child Services, which is the organ responsible for determining eligibility of prospective adopters (Maimon, supra, at pp. 111-112). As opposed to this, the Law prescribed a minimum age difference between adopter and adoptee, which stands at 18 years. There is an exception: the court has the authority to deviate from this rule where it is in the best interests of the adoptee to do so (ss. 4, 25 of the Adoption Law).

39.  The third basic assumption is that the factor of the suitable age difference, including the maximum age difference between the adoptive parent and the adoptee, is a matter for professionals, and belongs in the fields of social, psychological and educational science. The purpose of setting an age difference is focused entirely on the best interests of the adoptee: this is the guiding principle underlying adoption, and the entire system of adoption is built upon it. The question of whether the best interests of the child are indeed affected, inter alia, by the difference in age between himself and his adoptive parents, and what ought to be the maximum and minimum age differences for this purpose, is a professional question, and as such it is clearly a matter for the discretion of the authorized body, which for this purpose has recourse to the opinions of professional bodies from the various relevant fields.

40.    As transpires from the response of the respondent, and from the deliberations in the Knesset Constitution Committee, the Advisory Committee held many discussions on the subject of the appropriate age difference for the purpose of intercountry adoption, and the rule that was formulated relies on a professional conception, as evident from the “Summary of the Position on the Matter of Deviation from the Maximum Age Difference” of 20 August 2002, which was drawn up by the Chairman of the Advisory Committee, Prof. Joseph Tamir, and submitted to the Court (hereinafter: “Advisory Committee Position Summary”). In this document, inter alia the rationale behind determination of the maximum age difference rule was explained:

‘The Committee commenced with a discussion of the subject of parenthood and the skills it required. It noted that parenthood is not a one-off event, but a process that requires changing skills according to the age and development of the child . . . . The parent of an adolescent must have the capacity for flexibility, concession, responsiveness to the emotional needs – which are sometimes confusing – of the youth . . . . Such (adoptive) parenthood must incorporate the skills required from biological parenthood, and in addition, special awareness of the complexity of the subject of adoption. Adoptive parenthood is, therefore, a more challenging parenthood, requiring a wider range of skills and greater parental capacity to deal with complex situations,  and constant learning of the subject of adoption. Therefore, the Advisory Committee gave its support to the existing age constraint, since the professional knowledge indicates that the capacity for flexibility and learning declines with an increase in age. The Committee envisaged an adolescent of 15 with one parent aged almost 65 and the second parent much older than that. Thus the generation gap between the adopter and the youth is not a gap of one generation but of at least two generations, with all the implications thereof. Experience in the Child Services teaches that the generation gap increases the sense of otherness of the adopted child, who feels that he is not growing up in a normative family, and that his parents are different from other parents.’

Similar thinking emerged during the discussions in the Constitution Committee, in the words of Nechama Tal, the social worker in the Ministry of Welfare:

‘To be a parent is a difficult job. To be an adoptive parent, is ten times more difficult. Today we are in the situation in which people who were adopted both as babies and as children come back . . . First of all, the age of the parents is extremely significant– most of the children who were given to older couples complain a lot about this. In what sense? In the sense that an adopted child, because he has “built-in” problems of identity from the fact of being adopted, at the age of adolescence has much greater difficulty in undergoing the experience of his adoption, of adolescence and of his identity, than a regular child . . . I am talking about my experience, I have been in the Service for twenty years . . . therefore, for parents to go through such a stormy age of adolescence, when they themselves are 65 years old, is a difficult thing . . .’ (Protocol of the session in the Law and Constitution Committee, 23.12.97, pp. 25-26).

41.    The foundation of the rule, therefore, is the conception that an suitable age gap between the adoptee and the adopter is an important element in achieving a good and proper parental connection in adoption relationships. Too great an age difference between the adopter and adoptee is liable to make it difficult to create a close, understanding and sensitive relationship between parents and child, and to be detrimental to his welfare. The requirement that the age gap not exceed a certain difference is extremely important for the creation of good communications within the family and to the building of a healthy set of relationships within the family unit in order to achieve the aims of the adoption.

It should be added that setting a maximum age different is stems from the outlook that adoption relationships look to the future, and continue over the years, throughout all the stages of the life and development of the adoptee. Attainment of the purpose of the child’s wellbeing does not focus on one point of time close to the time of adoption, but it spreads over a span of many years, beginning with the first years of the child’s life, and extending to the years of his growing up until he is an adult. Too large an age difference is liable to make it difficult for adoptive parents to cope with the special needs of educating an adopted child. They are liable to entail other difficulties when the child is growing up, involving difficulties of communication and in providing a response to the needs of the maturing child. One should also not underrate the importance of ensuring the prospects of a  reasonable lifespan and the good health of the adoptive parent – which decrease with age – in order to ensure, insofar as possible, that the adoptee has a warm family unity and a complete, protected framework for the duration of his childhood and his youth. Primarily, the maximum age difference rule strives to conform to the average accepted age difference in natural parenthood, leaving wider margins in the intercountry adoption process. The approach whereby the model found in nature is the marker that in general reflects the ideal natural situation is a desirable approach, not only from the point of view of physical suitability, but also from the point of view of psychological suitability. Setting the maximum difference at 48 years constitutes a significant extension of the age difference familiar in nature, and it is difficult to say that an additional extension is required in order to meet the criterion of reasonableness.

42.    Regarding the age difference that was set in relation to intercountry adoption, it is important to note that in this area in particular, the secondary legislator acted leniently with respect to adoptive parents, when he set a maximum gap at 48 years. In domestic adoption, the age difference is set at 43 years, pursuant to the amended “Procedure Approving Prospective Parents for Adoption” of the Child Services, which is the body responsible for handing over children for the purpose of adoption. From this aspect, the Committee assigned weight also to the expectations of those seeking to adopt, and permitted a larger age gap in relation to intercountry adoption than in domestic  adoption.

‘It should be noted that the Committee gave serious consideration to the subject of the desire of the prospective adopters, and views its task, inter alia, as helping people to realize this desire, taking into account the quality of family life. The said rule does not negate the right of the candidates to fulfill themselves as parents, but it limits the age difference in such a way that a candidate who is fifty, for example, will be able to adopt a child of two and thus realize his desire for parenthood. The right to parenthood is not only for a baby. Representatives of the Child Services pointed out to the Committee that in their experience, the adoption of a child (not a baby) can be handled well and lead to satisfaction of the yearning for parenthood on the one hand and great benefit for homeless children on the other’ (Advisory Committee Position Summary, ibid.)

43.    Several additional aspects relating to the maximum age difference rule should be mentioned:

(a)   The meaning of the rule is that exceeding the maximum age difference does not totally negate the possibility of adoption. The rule works in such a way as to enable adoption, as long as there is compliance with the maximum age difference. Thus, an adoptive parent who is over the age of 48 can adopt a child whose age comports with the maximum difference or less. In these circumstances, the possibility of adopting is preserved, and the adopter is required to compromise in relation to the factor of the age of the child at the time of adoption. An examination of the existing statistics on adoption that arise from the respondent’s response reveals that the adoption of new-born babies is only a very small part of the total adoptions by Israeli parents. Only 14% of child adoptions relate to babies up to 6 months old; 40% of the adoptions are of babies up to the age of one year, and 25% relate to babies till the age of 18 months.

(b)   Even though the formulation of the rule on this matter is not sufficiently clear, it would appear that the requirement for a maximum age difference of 48 years between the adopter and the adoptee relates to only one of the couple. The requirement does not apply to both partners. One partner may well be older and exceed the maximum age difference, and this will not prevent the adoption by the couple (respondent’s interpretation of the rule in s. 14(b) of the State’s response to the amended petition).

(c)   The maximum age difference relates to the day of submission of the application for adoption, and not to the actual date of adoption. Hence, a prospective adoptee will not suffer, from the aspect of the maximum age difference rule, from the adoption proceedings being drawn out.

(d)   It was argued that the maximum age difference rule is tainted with unreasonableness, since it is presented as an inflexible rule that does not allow the competent authority discretion to depart from it in appropriate circumstances. In the course of the hearings on the petition, the State was asked to consider whether the maximum age difference rule could be relaxed by allowing discretion. After further deliberation, the State announced that the introduction of such flexibility was not warranted. Its reasons were as follows: first, there is a concern that allowing exceptions to the maximum age difference rule would lead to a natural positioning of the focus on those seeking to adopt, in departure from the principal purpose of the norm, which is concerned with the best interests of the child. Secondly, deviation from the maximum age differences places a question mark over the effect of the age gap in the years to come, the impact of which is difficult to foresee at the time of the adoption proceedings. Thirdly, the maximum age difference in intercountry adoption is greater than the norm in domestic adoption, and this already reflects a significant relaxation of the appropriate and reasonable gap. Any further relaxation, by way of creating exceptions, upsets the appropriate balance. And fourthly, the existence of clear rules relating to the eligibility of adopters in the framework of the professional activities of the adoption associations is important. The process of intercountry adoption is executed by private bodies with the oversight of the state. The existence of clear, uniform criteria will facilitate the operation of the adoption associations, and it will ensure equal, non-discriminatory treatment and that the wellbeing of the child is seen as the principal aim.

The cumulative weight of the above reasons leads to the conclusion that the maximum age difference rule falls within the bounds of reasonableness. This rule focuses on the best interests of the child as required, and it is compatible with the purpose of the institution of adoption. The limitation on the age difference between the adopter and the adoptee is directed at the welfare of the adopted child at various points in time along the axis of the years of his life in the course of his childhood, his adolescence and his youth. It is designed to help in creating relationships textured with warmth, sensitivity and understanding within the new family unit that is built around the adoption. At the same time, the rule is more lenient in relation to adopters in intercountry adoptions than domestic adoptions in that it allows for a greater age gap. The limiting rule does not negate adoption by older parents, as long as the age of the adoptee at the time of the adoption is not outside of the maximum permitted gap. This is a commendable, balanced, relevant and professional arrangement that answers the purpose of the institution of adoption. There is no cause to intervene since the arrangement is not defective due to unreasonableness.

The claim of discrimination

44.    The petitioners claim that the maximum age difference rule is tainted by discrimination that distinguishes them vis-à-vis other population groups, as follows: first, in relation to parents who bring children into the world through natural birth, with respect to whom there is no state intervention even when the birth takes place at a late age, and when the age difference between the parents and the new-born is more than 48 years. Secondly, it was argued, that in relation to couples who wish to have a child by way of a surrogate, pursuant to the Embryo Carrying Agreements Law, there is no provision limiting the age difference, and therefore, in this sense too, there is a discriminatory situation in relation to the age provisions in intercountry adoption. This argument extends also to state assistance for those who resort to fertility treatments in order to give birth. Thirdly, it is argued, that there is discrimination between those seeking to adopt by way of intercountry adoption and those who seek to adopt by way of domestic adoption: in relation to the latter, the internal procedural directive grants discretion to deviate from the rule.

45.    One of the main functions of judicial review of the policies of the competent authority is to examine whether that authority acts in an equal manner and without discrimination towards different sectors of the population. The principle of equality is one of the basic principles of the constitutional regime, and it is a foundational value in public law and in judicial review of administrative acts (HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [27], at p. 201; HCJ 98/69 Bergman v. Minister of Finance [28], at p. 698). Unlawful discrimination that is contrary to the value of equality involves different treatment of equals and unequal and unfair treatment of those deserving of equal treatment. Inequality is engendered by creating distinctions between individuals or between matters for irrelevant reasons. At the same time, the existence of a material difference may justify a distinction, provided that the basis for the distinction has a relevant foundation (HCJ 678/88 Kfar Veradim v. Minister of Finance [29], at pp. 507-508; HCJ 6051/95 Recanat v. National Labor Court [30], at p. 312; HCJFH 4191/97 Recanat v. National Labor Court [31]; Y. Zamir and M. Sobel, “Equality Before the Law”, 5 Law and Government (2000), 165; HCJ 59/88 Zaban v. Minister of Finance  [32], at p. 706-707). Sometimes, it is precisely the aspiration to apply the value of material equality that justifies differential, differentiating treatment of different sectors, according preference to the weak and needy and detracting from the strong and able (HCJ 6778/97 Association for Civil Rights v. Minister for Internal Security [33], at pp. 365-366; HCJ 366/81 Bureau of Tourist Bus Operators v. Minister of Finance [34], at p. 117). Sometimes, affirmative action is required in order to correct deep gaps and unfairness that has increased over the years (see also HCJ 1703/92 C.A.L. Cargo Air Lines v. Prime Minister  [35]; HCJ 20594 Nof v. State of Israel – Ministry of Defense [36]).  Equality does not require identity. It requires equal treatment of people whose basic particulars are similar and are relevant for the same purpose, and as expressed by Justice Agranat:

‘The concept of “equality” in this context means, therefore, relevant equality, and this requires, for the purpose under discussion, “equality of treatment” of those who are characterized by the said situation. As opposed to this, it would be a permissible distinction, if the difference in treatment of different people was the outcome of their being, in consideration of the aim of the treatment, in a situation of relevant inequality, just as it would be discrimination if it was the outcome of their being in a situation of inequality which was not relevant to the aim of the treatment’ (FH 10/69 Boronowsky v. Chief Rabbi of Israel [37], at p. 35).

In our case, a clear relevant difference exists between the group seeking to adopt – to which the petitioners belong – and the other groups to which they referred in their pleadings.

46.    As for the group that includes biological parents who bring children into the world the natural way: as we mentioned at the beginning of our words, the right to a family and to realization of parenthood in a natural manner is a basic constitutional right that derives from human dignity. This right is by its nature a “liberty” that does not involve the correlative obligation of another, and the state is not entitled to intervene in the autonomy of the individual that it represents, other than in unusual and exceptional circumstances. As a result, the state is not entitled to intervene in an act of natural childbirth on the part of parents, even where the age difference between them and the child exceeds the maximum age difference under discussion here. At the same time, situations of such an age gap are rare and very exceptional, and they do not reflect the natural reality in relation to the majority of the population. Things are different in relation to adoption. The state controls the institution of adoption, which is its exclusive responsibility. The focus of the system is on the best interests of the child as a principal aim, and determination of the maximum age is an important element in promoting these interests. Prospective adopters can expect, at most, consideration on the part of the state. Against the background of this structure, the role and the obligation of the competent authority is to set criteria of eligibility for those seeking to adopt, which will provide the greatest possible benefit to the child, whose interests are the focus of the system.

There is, therefore, no equality between that sector of the population that includes the natural parents, whose decision whether and when to have a child is a matter of their personal autonomy and is beyond the sphere of intervention of the state, and between the group of prospective adopters, who require the assistance of the state in order to realize their goals. The state, as the factor responsible for the wellbeing of the child is permitted, and even has a public obligation, to set the conditions of eligibility for adoptive parenthood. The maximum age difference is a required condition. Setting the maximum age difference at 48 years is actually being very kind to those pursuing intercountry adoptions, in that it is based on a difference that substantially exceeds the accepted and common difference in natural parenthood, which normally fluctuates between 20-35 years. It must also be recalled that in domestic adoptions, the accepted age difference according to the rules is also lower than the rule under discussion here. In light of the above, the argument in this context must be dismissed.

47.    As for the group that has recourse to embryo carrying agreements, an amending announcement of the respondent clarified that in the past, the age of the prospective mother for the purpose of a surrogacy agreement was at most 48 years old. On this matter there was a change, and the competent authority decided that for the purpose of approving their candidacy for surrogacy, the Committee for the Approval of Embryo Carrying Agreements would take into account the age of the prospective parents, the starting point being the accepted age of natural parenthood. Age does not constitute a prerequisite, but a consideration when determining suitability, and for this purpose, the natural age of parenthood constitutes a starting point.

On this issue, too, we are not dealing with groups whose particulars are equal, but rather, with groups that are distinguished by substantive differences, which explains the difference in the arrangements concerning the required age differences.

First and foremost, cancellation of the age difference requirement in embryo carrying agreements does not, in these circumstances, make things easier for the applicants; on the contrary, it should be seen as making things more difficult for them vis-à-vis those seeking intercountry adoptions. Whereas beforehand, there was a precondition setting the age difference at 48 years, now it is a matter for the competent committee, and the relevant age is the accepted age of natural parenthood, which is the starting point for the appropriate difference. This condition means that in an embryo carrying agreement, the maximum age is significantly lower than that of intercountry adoption, at least as a starting point. In these circumstances, it could well be argued that there has been an increase in stringency in relation to those wishing to enter an embryo carrying agreement, vis-à-vis prospective intercountry adopters.

Secondly, there is a material difference between the process of surrogacy and that of adoption. Surrogacy is closer to natural parenthood, and its goal is to help couples to bring a child into the world, the child being related genetically to one of them. The closer the process of birth is to natural parenthood, the less justification there is for state intervention in the autonomy of private will, as stated by the Court:

 ‘. . . The process of adoption is similar to the process of surrogacy: both of them were intended to realize and satisfy the need of parenthood, and in both processes, the authorities are involved in one way or another. However, the process of surrogacy – unlike adoption, is very close to natural parenthood, which expresses the autonomy of the individual  . . . the difference between the process of adoption and that of surrogacy negates the analogy from the former to the latter  . . .’ (New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [8], at p. 448, per Justice Cheshin).

This difference is also evident in relation to the funding of fertility treatments, an area that is even closer to natural childbirth, and therefore, the arguments of the petitioners regarding discrimination vis-à-vis those who are helped by fertility treatments must be dismissed. In this context, the words of Prof. Shifman concerning the difference between the process of adoption and new reproductive techniques are apt:

‘. . . It would appear that most of the considerations for intervention in handing children over for adoption do not apply to the new techniques of reproduction. This is not a matter of a scarcity of children, nor of the desire to ensure the optimal welbeing of the child who has already been born. This is a matter of planning to bring a child into the world, which is close to natural childbirth’ (Shifman, supra, at p.151).

Thirdly, another difference between the process of surrogacy and that of child adoption lies in the authorities who are responsible for approving the sought-after process. Whereas the approval of an embryo carrying agreement is issued by a professional public committee that was established by virtue of the Law, approval of intercountry adoptions was placed in the hands of private adoption associations; public policy in this area aspires to establish norms of eligibility that are as clear and detailed as possible, which will dictate the mode of operation of the adoption associations while creating clarity, certainty and stability.

In light of the above, the argument, insofar as it concerns the relationship between intercountry adoption and embryo carrying agreements and state aid in funding fertility treatments, must be dismissed.

48.  Finally, it was argued that there is discrimination between those applying for intercountry adoption and those seeking domestic adoption. This argument, too, must be dismissed, even if only for the reason that the maximum age difference under the present procedure in domestic adoption is 43 years for the older one of the couple seeking to adopt (Rule 3.7 of the Procedure for Approval of Prospective Adoptive Parents, as amended on 1 June 2000). It was not made clear in the response of the State whether there is discretion to deviate from the rule, but even so, the internal rule is still more stringent, and does not create a basis for a claim of discrimination. In these circumstances, the argument of discrimination raised by the petitioners is unfounded, and must be dismissed.

Comparative law

49.    Both the petitioners and the respondent presented to us numerous examples from states worldwide, and each clung to its examples to strengthen its arguments. One side brought examples of states in which there is no set maximum age difference for the purpose of adoption; the other side brought examples of states which have set a more stringent age difference than that set in Israel.

Indeed, a survey of the situation in various states reveals that there is no universal legal policy on the question of the age difference between adoptive parents and their child. On the one hand, there are those states that set a level for the maximum age difference. In these states, the decision is usually more stringent than that in Israel. Thus, for example, in Denmark, Italy and Ethiopia, the maximum age difference is 40 years. In Germany, the law does not set a maximum age difference, but in the rules set by the administrative authority, a maximum difference of 40 years was prescribed. In Iceland the rule is that the adopter will be between 25-45 years old, and in South Korea, the age of an adopter may not exceed 45 years.  In other states, there is a maximum age for adoption, which is usually below 48 years. Thus, in Hungary, Holland and Hong Kong, the maximum age for adoption is 45. On the other hand, there are states in which there is no set maximum age difference or maximum age for the purpose of adoption. This is the situation in the United States and in England, in which age is indeed a factor that is considered in determining eligibility for adoption, but no defined, compulsory age has been set for this purpose. The petitioners did not provide any information concerning the actual practice in these states, and how the discretion given to the adoption authorities is implemented in practice. Without such information, it is difficult to know whether the absence of a rigid rule regarding the age of adoption or the maximum age difference is to the benefit or the detriment of those seeking to adopt in those states. Thus, for example, in England it was stated:

‘Although there is no prescribed maximum age, it should be appreciated that in practice, adoption agencies are unlikely to consider applicants over 40 (and often over 35) at any rate as potential adopters for healthy babies’ (N. Lowe & G. Douglas Bromley’s Family Law (9^th ed., 1998), p. 628).

Similarly, special arrangements exist in some states, such as Australia, in which the age requirement as a condition of adoption was cancelled, but it was decided that the applicants for adoption must comply with the age requirements of the state that is handing over the child for adoption.  

Looking at the law overseas does not, therefore, strengthen the arguments of the petitioners. Setting an age difference is accepted practice in many states. In some of them, there is a more stringent age difference, and in relation to states in which there is no binding rule, we do not have information on how the discretion of the adopting authorities is exercised in the application of the age requirements in practice.

A final word

50.    The rule regarding the maximum age difference between the adopter and the adoptee in intercountry adoptions does not violate constitutional principles. It complies with the criteria of proper conduct according to public law. It reflects an appropriate criterion, amongst the other conditions of eligibility of people seeking to adopt, which is designed to secure the best interests of the child by ensuring that the age difference between him and his adoptive parents will not exceed the reasonable norm. A balanced age difference between parents and children makes it easier to create harmony in relations between parents and children within the family unit, and it is important for the healthy growth and development of the adopted child. This consideration of the best interests and the wellbeing of the child is the cornerstone on which the institution of both internal and intercountry is built. The maximum age difference rule is fair, reasonable and non-discriminatory, and conforms to the basic purpose of the institution of adoption.

51.    In view of all the above, the petition in all its parts should be dismissed. In the circumstances, I would recommend that no order for costs be issued.

 

President D. Beinisch

Before me is the reasoned opinion of my colleague Justice A. Procaccia. The petition before us centers on rule 4(b)(1) of the Rules and Professional Guidelines for the Activities of a Recognized Non-Profit Organization, enacted by the Minister of Labor and Welfare in 1998. This rule, called the “maximum age difference rule”, states that a person wishing to adopt a child in the framework of intercountry adoption, will not be eligible to adopt if the age difference between himself and the child on the date of submission of the application for adoption exceeds 48 years. As was explained in the opinion of my colleague, the petitioners challenge the said rule on both the constitutional and the administrative levels. On the constitutional level, the petitioners argue that the maximum age difference rule violates realization of the constitutional right to family life and to parenthood, and that the said violation is unlawful in that it does not meet the criteria of the limitations clause. On the administrative level, the petitioners contend that the said rule is unreasonable and discriminatory. The main request of the petitions is that we order that the rule be changed in such a way as to allow departures from it in special cases justifying such departure, even when the age difference between the prospective adopter and the child exceeds 48 years. It will be noted that in the hearing held in this Court on 25 February 2007, the State agreed that the petition be heard as if an order nisi had been issued.

My colleague, Justice Procaccia, discussed the arguments of the petitioners one by one, and dismissed them for the reasons elucidated in her opinion. I agree with many of the normative rulings on which Justice Procaccia’s opinion is based.  Nevertheless, I wish to add my say on a number of aspects in which I differ from the path taken by my colleague. On the constitutional level, Justice Procaccia ruled that people seeking to adopt a child do not have a recognized legal right, and in her view, such a right ought not to be recognized on the meta-legal constitutional plane. As I will explain below, in my view, the matter is sensitive and complex, and I would therefore prefer to refrain from a firm ruling in the matter, for such a ruling is not necessary in the circumstances of the case before us. As for the administrative plane – my colleague’s conclusion was that the maximum age difference rule is fair, reasonable and non-discriminatory. My colleague’s words imply that this conclusion stands even if the existing legislation does not permit discretion to deviate from the said rule in exceptional, justified circumstances. For reasons that I shall discuss below, I am of the opinion that s. 36A of the Adoption of Children Law, 5741-1981 (hereinafter:  “Adoption Law”) must be interpreted in such a way that the statutory appeals committee that it established is authorized to consider applications for a departure from the maximum age difference rule in intercountry adoptions, in special, exceptional circumstances that justify such a departure. Taking this into account, I am of the view that the petition should be granted in part, in the sense that the possibility of considering a deviation from the maximum age difference rule is not a matter for the private adoption associations as requested by the petitioners, but it can be entertained by the statutory appeals committee under the Adoption Law.  I will clarify.

The constitutional plane

1.    As stated, the main argument of the petitioners on the constitutional plane is that the right to become a parent by means of adopting a child enjoys a constitutional, meta-legal status in our legal system, and the maximum age difference rule violates this right, contrary to the conditions of the limitations clause.

In relating to these arguments, Justice Procaccia ruled that that prospective adopters have a natural and legitimate expectation that their said desire be taken into account in the framework of the exercise of administrative and judicial discretion, and even a right to expect that adoption arrangements will be implemented by the state lawfully in accordance with the criteria of public law. At the same time, according to my colleague’s approach, none of these give rise to a recognized legal right (“a right by law”) to adopt a child, and in any case, there is no cause to recognize a constitutional right as aforesaid. Justice Procaccia based her view on two main reasons: first, according to my colleague, recognition of a legal right to adopt children will lead to a conceptual confusion between the best interests of the child and the interests of those seeking to adopt, in a way that is liable to distance the main goal of the institution of adoption, which is the commitment to the meta-principal of the wellbeing of the child, from the center of interest. Secondly, according to my colleague, the constitutional right to family life and to parenthood – which stems from the constitutional right of a person to human dignity and privacy – is a right in the category of a “liberty”, the aim of which is to provide protection from unjustified external intervention of the state in the intimate decisions of the individual. Under this approach, the right to family life and to parenthood is of a negative character, and it cannot impose upon the state a duty to take positive action in order to promote the aspirations of the individual to establish a family and to become a parent. Justice Procaccia’s view is that a person does not have a constitutional right to realize his yearning for a child by alternative means to natural childbirth, and the state is under no active duty to make such alternative means available to him. In this context, my colleague commented that “it is not beyond the realm of possibility that changing times, social dynamics and human needs will bring with them, eventually, changes in the constitutional conception of the place of the state in providing the means for realization of a person’s right to a family and to parenthood. On this matter, the considerations need not be identical in relation to the different means, and adoption of a child, who is an independent entity and the subject of rights, is unlike other means that are designed to make it possible to bring a child into the world, such as surrogacy and IVF” (para. 23 above).

2.    Regarding my colleague’s position, I will comment that in my view, definition of the internal scope of the constitutional right to family life and to parenthood is a sensitive, complex and multi-faceted question. The case law of this Court has recognized, in the past, a right to family life and to parenthood as a constitutional right that derives from human dignity, and also from realization of the right to personal autonomy and self-fulfillment (see Adalah v. Minister of the Interior [2], per President Barak at para. 32 ff., per Vice President Cheshin at paras. 46-47, my opinion at para. 6, per Justice S. Joubran at para. 8 ff, per Justice Procaccia at paras. 1, 6, per Justice Naor at para. 4, and per Justice Rivlin at para. 8; see also Neta Dobrin v. Prisons Service [5], per Justice Procaccia at para. 12).

At the heart of the constitutional right to family life and to parenthood is the natural and preliminary right of every person to bring children into the world, and by so doing to realize his existential instinct to establish the next generation bearing the genes of the parents. The kernel of the right to family life and parenthood also contains the right of the biological parent to custody of his children and to raise them, as well as the right of the child to grow up within the bosom of his biological parents by virtue of the blood ties between them. This is the “hard nut” of the constitutional right to family life and parenthood, about which there would seem to be no argument (see e.g. Nahmani v Nahmani [7], at pp. 680-681, per Justice T. Strasbourg-Cohen; Anon. & Anon. v. Biological Parents [6], at pp. 184-188, per Justice A. Procaccia; and LFA 5082/05 Attorney General v. Anon. [38], at para. 5).

The question that is more difficult to answer concerns the definition of the internal scope of the constitutional right to family life and to parenthood in contexts other than natural childbirth and biological parenthood. This subject has not yet been dealt with in depth in our case law. Thus, for example, in New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], this Court refrained from ruling on the question of whether the internal scope of the constitutional right to family life and parenthood includes the aspiration to bring a child into the world by means of an embryo carrying agreement, which is based on a division between the genetic code (originating in one or both of the parents party to the agreement) and the physiological aspect (which is realized by means of the surrogate mother who undergoes the pregnancy and the birth). As for realization of the yearning for a child by means of the institution of adoption – to date, the case law has tended to recognize the rights of prospective adopters only in circumstances in which actual family ties existed between the prospective adopter and the prospective adoptee, in a way that affected the examination of the best interests of the adoptee (see what I wrote in Anon. v. Attorney General [10], at pp. 175-176, on the matter of the adoption of an adult by a person who married his biological brother and raised him since he was a baby; see and compare: Yarus-Hakkak v. Attorney General [15], per President A. Barak, concerning a female couple who live together, and each applied to adopt the biological children of her partner; see also the recent decision of the House of Lords, which granted the petition of an Irish man who sought to adopt the biological child of his female partner with whom he lived out of wedlock: Re P and others (adoption: unmarried couple) [2008] 4 HRC 650). As opposed to these cases, in the case before us the argument of the petitioners is that constitutional status should be granted to their aspiration to become parents by means of the institution of adoption, at the preliminary stage of the process of adoption, in the absence of any reality of de facto family life with the concrete child.

3.    As stated, Justice Procaccia discussed the reasons against constitutional recognition of the right to become a parent through the institution of adoption. However, as against these weighty considerations discussed by my colleague, one can muster counter-considerations that support according a constitutional status to the said right. Prima facie, it is plausible to argue that the yearning for a child is a deep, fundamental human need, and that this existential need is equally intense in the case of natural childbirth and where the couple are not able to bring children into the world by natural means and they wish to realize their yearning for a child by means of the adoption. According to this approach, a relatively broad definition of the internal scope of the constitutional right to family life and to parenthood ought to be recognized, while adapting the scope and intensity of the constitutional protection that will be afforded to the said right in different contexts, where it conflicts with opposing rights and interests. Inter alia, the degree of protection of realization of the right to family life and parenthood will be affected by the positioning of the case in the hub of the constitutional right or at its margins (see and compare: Adalah v. Minister of the Interior [2], per (then) Justice Rivlin, at para. 8).

In accordance with the said approach, the right to become a parent through the institution of adoption is situated on a more exterior circle vis-à-vis natural childbirth (which, as we have said, is included in the “hard kernel” of the right to family life and to parenthood), and even vis-à-vis artificial reproductive techniques and embryo carrying agreements, which involve external involvement of the state but which are based on planning the birth of a child who will bear the genetic code of one or both of his parents (see and compare: New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [8], per (then) Justice Cheshin, at p. 448). According to the approach of the petitioners, positioning of the right that they claim on a circle further from the core of the constitutional right is liable to affect the intensity of the protection afforded to those who seek to become parents by means of adoption of a born child who does not bear the genetic code of either of them. At the same time, according to the argument, this alone is not enough to negate the actual constitutional recognition of the right to become a parent by means of the institution of adoption, considering that realization of the yearning for a child is a basic and inseparable part of human dignity, of the realization of a person’s self-hood and his internal “I”.

It will be stressed that the petitioners to not presume to argue that the right of those seeking to adopt is an absolute right or that it should be granted maximal constitutional protection. Like all rights, the right claimed by the petitioners, too, is a “relative” right, and at times it must yield to competing rights and interests. In their pleadings, the petitioners did not dispute that the best interests of the child constitutes an overarching principle in our legal system and in international conventions that deal with child adoption, and that it is the principle of the best interests of the child that is the basis of the laws of adoption, as elucidated in the opinion of my colleague. It is clear, therefore, that even according to the petitioners, the constitutional right to become a parent through the institution of adoption cannot be discussed independent of questions of parental capability and the best interests of minors who have already been born. Moreover, there was no disagreement between the parties to this petition on the need to protect the rights of biological parents, and on their preferred status vis-à-vis people seeking to adopt – certainly at the early stages of adoption proceedings. No one disputes, therefore, that in the triangle of interests of the wellbeing of the child – rights of the biological parents – rights of those seeking to adopt, the status of the last group is relatively weak, and the constitutional protection they will be given will be less in scope and intensity, in view of the elevated status that must be assigned to the best interests of the child and to the blood ties between the child and his biological parents. At the same time, so goes the argument, one cannot ignore the fact that the institution of adoption – both domestic and intercountry – also satisfies the needs of childless people, who wish to realize their desire for a child even if the child will not be a biological descendent (see and compare: Shifman, Family Law in Israel, supra, at p. 148). According to that argument, the need to place the best interests of the child at the center of adoption law and the need to protect the rights of the biological parents do not mean that there is no room for recognizing the existence of a constitutional-legal right of those who seek to become parents through the institution of adoption, even though, as stated, this would be a relatively “weak” right from the point of view of the intensity of the protection it receives.

I would point out that an additional possible justification for an approach that supports constitutional recognition of the right to become a parent by way of adoption may be based on the close dependency of those seeking to adopt on state institutions. The state representative confirmed in her response before us that adoption in its very essence is “public”. Intervention and external arrangement on the part of the state are required for the purpose of handing children over for adoption. An individual seeking to adopt is unable to create the legal status of parenthood on his own – certainly when it is not a case of natural birth –and he requires the external validation of the state and its institutions in order to create the status of adoptive parent vis-à-vis the whole world. In view of this, it may be argued that there ought to be constitutional recognition of the right claimed by the petitioners, in order to balance the great power of the state in the said context. According to this approach, the constitutional right to human dignity – from which the right to family life and parenthood is derived – is not based only on negative content, and in suitable (although limited) cases, the said right is liable to impose positive duties on state authorities in order to protect individual rights and to provide a real possibility of realizing them (for a supportive view, see: Sigal Davidow-Motola, “Feminist Decision? Another Aspect of the Nahmani Case”, 20(1) Iyunei Mishpat 221, 227-228 (1996)). In this context, it will be noted that the State referred in its pleadings to statements in Nahmani v Nahmani [7] from which it transpires that the right to parenthood is a negative liberty which is not capable of imposing positive duties on the legal level (see ibid., at p. 682, 780-781, 790). On this matter, it is doubtful whether these statements apply in our case with the same intensity as in the Nahmani case, since that case dealt with the relationship between two individuals (former spouses), and not with the relations between the individual and the state. In the words of Justice E. Goldberg (ibid., at p. 726): “The question of whether the state bears an obligation to assist the individual in realizing his desire to be a parent does not arise in any way in this case.”

4. Thus, the fundamental issue concerning the question of constitutional recognition to become a parent by means of the institution of adoption is complex and sensitive. It is inextricably linked to the definition of the internal scope of the constitutional right to family life and to parenthood. It gives rise to questions concerning the essence of the institution of adoption and the relationship between the best interest of the child, the rights of biological parents and the desires of those seeking to adopt a child. It raises broad questions concerning the extent of active duties that ought to be imposed on the state by virtue of constitutional rights. The said matter is also likely to have ramifications for the legal-constitutional definition of concepts such as “legal parenthood” and “family unit” in the Israeli legal system (see P. Shifman, “On the New Family: Opening Lines for Discussion” 28(3) Iyunei Mishpat 643, 670 (2005)). It should be noted that in view of all the above-mentioned problems,        other states have refrained to date from granting constitutional status to the right to adopt a child. Even the European Court of Human Rights ruled that a right to adoption cannot be derived from the right to privacy and to family life as stated in art. 8 of the European Convention on Human Rights (see Frette v. France (2002) 38 EHRR 438; but see recently the minority opinion of Justice Mukaroni of the European Court of Human Rights, who calls for a change in the interpretation of the said art. 8 of the Convention, such that this article will protect the possibility of submitting an application to adopt a child in the framework of the domestic law of each state: E.B. v. France (Grand Chamber judgment of 22 January 2008, Application no, 43546/02).

5.    As we said, in the circumstances of the case before us, the constitutional issue does not require a decision, as the matter of the petition according to the remedy that is sought can be resolved on the administrative plane. In view of the sensitivity of the constitutional issue and its complexity, and in the absence of a need to decide on this issue in the circumstances of the case before us, I prefer to leave it for future consideration.

In conclusion, I would comment that even if we recognize a constitutional right to realization of the aspiration for parenthood by means of the institution of adoption, as requested by the petitioners, in the circumstances of the said case, the violation of this right does not go to the heart of a clear, recognized constitutional right, and the severity of the violation is not great in view of the fact that the maximum age difference rule does not prevent the petitioners from adopting a child, but only prevents them from adopting a new-born child. (Thus, for example, if a couple who are fifty years old look for succour from the institution of adoption, the maximum age difference rule enables them to adopt a two-year-old child.) In all events, in view of the conclusion that will be elucidated below, whereby the existing legislation contains a mechanism for considering exceptional cases in which it is possible to deviate from the said rule, I am of the opinion that even had a violation of a basic right been proven – and I am not ruling on this – it would conform to the limitations clause, including the requirement of proportionality.

Furthermore – and this is the most important thing in my eyes – the difficult question that arises under the approach of the petitioners concerns the contents of the constitutional right that they claim, and the nature of the corresponding duty. In their pleadings in this Court, the petitioners agreed that no-one has a vested right to adopt a child, and that the state does not bear a duty to “provide” a child for those who wish to have recourse to the institution of adoption; this is in view of the necessity of protecting the best interests of children who are prospective adoptees as well as the rights of the biological parents. It will be noted that in their amended petition, the petitioners stated that they do not insist on voiding the secondary legislation on which this petition turns, and that the remedy they are seeking is the moderation of the maximum age difference rule by recognizing the possibility of deviating from the rule in exceptional cases that justify so doing.

Thus, a careful reading of the arguments of the petitioners and the remedy they seek reveals that their main contention on the constitutional plane is that the state has a duty to create a proper legal mechanism for examining the applications of those interested in realizing their right to parenthood by means of the institution of adoption; this, subject to the overriding principle of the best interests of the child, the rights of the biological parents, examination of the parental capabilities of the prospective adopters, and the other interests that are relevant to the matter. Apparently, the state fulfilled the duty as claimed by the petitioners, in view of the fact that the Adoption Law and the secondary legislation enacted by virtue thereof establish regular mechanisms for examining applications for child adoptions, both in domestic adoption and in intercountry adoptions. At the same time, as we have said, the argument of the petitioners in this context is that the maximum age difference rule unlawfully infringes their rights, in that it does not allow for a mechanism for departing from the rule in exceptional cases, on the basis of a substantive examination of the suitability of the applicants to adopt a new-born baby when the age difference exceeds 48 years. On this matter, I am of the opinion that the existing legislation contains a mechanism for considering exceptional cases as requested by the petitioners, and the question confronting the respondents is whether this mechanism can also be implemented in relation to the matter of the maximum age difference. To clarify my position as stated, I will address the arguments that were raised on the level of administrative law.

The administrative level

6.    On the administrative level, the petitioners raised three main arguments against the maximum age difference rule: first, it was argued that the said rule is not reasonable in that it has not been proved that the wellbeing of the child suffers when the age difference between the prospective adopters and adoptee exceeds 48 years. Secondly, it was argued that the maximum age difference rule creates unlawful discrimination against those who seek to adopt a child in an intercountry adoption vis-à-vis other groups who seek to realize their right to parenthood, and particularly in relation to those applying for a domestic adoption. Thirdly, it was argued that the said rule is neither fair nor proportional in view of its rigid nature that does not allow for an individual examination of the circumstances in exceptional cases which justify so doing.

My colleague Justice Procaccia discussed the reasons for dismissing the arguments of the petitioners relating to the lack of reasonableness of the said rule, and I agree with all she said in this regard. As related in the opinion of my colleague, the Minister initially prescribed a 45 year maximum age difference in intercountry adoption However, after deliberation in the Knesset Law and Constitution Committee, the proposal was changed: the age difference was fixed at 48 years, and the relevant date for determining the maximum age difference would be the date of submission of the application to adopt, and not the actual date of adoption. It was further decided that it will be sufficient if one of the prospective adopting couple fulfils the maximum age difference requirement of 48 years between himself and the adoptee, even if the other partner exceeds the maximum age difference requirement. On this matter, I am of the opinion that the question of the extent to which the best interests of the child are affected by the age difference between himself and his adoptive parents, and what ought to be the maximum age difference between them, is a professional question, clearly subject to the discretion of the competent authority, assisted by the expert opinions of professionals. In the particular circumstances, the decision to set the maximum age difference at 48 years was made in accordance with professional evaluations of what the child’s best interests require, not only when he is a child but also as he grows and matures over the years, and in light of the accepted social conceptions that are influenced, inter alia, by the maximum age difference in natural birth, which is significantly lower than that anchored in the rule. A glance at comparative law reveals also that fixing the maximum age difference at 48 years does not deviate significantly from what is accepted in other states, as discussed by my colleague discussed in para. 48 of her opinion. Taking all the above into account, it cannot be said that the rule is unreasonable to an extent that requires striking down secondary legislation that has been approved by the Constitution Committee of the Knesset.

It will be noted that fixing the maximum age difference at 48 years may well involve a certain degree of arbitrariness which typifies every norm that fixes a set measure, certainly in relation to a limitation based on age. Our case law has already stated that “. . . this is what happens with times, with measurements, with weights, with distances and other such measurable concepts, that they are somewhat arbitrary at their boundaries. This is well known” (per (then) Justice Cheshin in CrA 3439/04 Bazak (Buzaglo) v. Attorney General [39], at p. 307). A certain alleviation of the problem of arbitrariness may be attained by granting discretion to depart from the maximum age difference rule in special circumstances that justify so doing, and I will discuss this below.

As for the argument of unlawful discrimination – on this too I am in agreement with Justice Procaccia that there is a relevant difference between those seeking to adopt a child in an intercountry adoption and the other groups to which the petitioners referred in their pleadings. The reasons for this position were elucidated by my colleague (para. 45 ff.) and I see no reason to repeat what was said there.

7.    From the whole array of arguments raised by the petitioners on the administrative plane, the argument that most disturbed me relates to the question of whether a possibility exists of deviating from the maximum age difference rule in intercountry adoption in special, exceptional circumstances that justify so doing. From the material submitted to us it transpires, apparently, that in domestic adoption, it is possible in exceptional circumstances to deviate from the procedure that requires a maximum age difference of 43 years between prospective adopters and the child to be adopted. In intercountry adoption, however, the position of the State is that there is no justification for allowing a deviation from the maximum age difference rule, which stands at 48 years. It will be mentioned that this alone is not sufficient to create unlawful discrimination between prospective adopters in domestic and in intercountry adoptions. This is because the age difference in the case of domestic adoption is lower than that in intercountry adoptions (43 and not 48 years), and therefore, prima facie, in relation to domestic adoption there is greater justification for allowing discretion to deviate from the rule.

The aspect that disturbed me in the said context does not stem, therefore, from the prohibition on unlawful discrimination, but from the competent authority being bound by fitting administrative norms that are based on fairness, reasonableness and proportionality. As mentioned above, even according to the approach whereby prospective adopters have no legal right recognized by law, there is no dispute that they have a legitimate expectation and interest that consideration will be accorded to their desire to adopt a child, and that limitation of the possibility of realizing this desire will be effected in a fair, reasonable and proportional manner in keeping with the accepted criteria of administrative law. The question that arises is whether the State’s position negating the existence of discretion to deviate from the maximum age difference rule in intercountry adoption fulfills the said criteria. I fear that this question must be answered in the negative.  It has already been ruled in our case law that “policy that has no exceptions is like a ball-bearing machine without lubricant. Just as the machine will not work and will burn out quickly, so too will the policy” (HCJ 3648/97 Stamka v. Minister of the Interior [40], at p. 794, per (then) Justice Cheshin). In another case, the Court said that “. . . it is the obligation of every administrative authority to apply his discretion from case to case, and to recognize exceptions to the rules and the set guidelines when circumstances justify so doing” (Adalah v. Minister of the Interior [2], per President Barak, at para. 72).

The requirement of fairness and proportionality in the actions of the administrative authority – including secondary legislation – supports limiting rigid arrangements to circumstances in which the establishment of an all-encompassing arrangement is unavoidable. As a general rule, the exercise of administrative discretion will permit flexibility in cases in which there is justification for deviating from the rule without thereby harming the principle of equality. In the words of Justice Cheshin: “Law is designed for that which is accepted, middling, average, and the need for flexibility is obvious, even if only so as to avoid trampling on the minority and the exception . . . hence, the flexibility that is required, to adapt the rules – which in their essence were created for the middling and the average – to whosoever is not middling or average” (CA 1165/01 Anon. v Attorney General [41], at p. 79).

In the case at hand, the State presented a number of reasons for its approach whereby no departure from the maximum age difference rule should be allowed in intercountry adoption. I examined these reasons, and I was not convinced that they justify the existence of a rigid rule that allows no deviation, even in cases that are special and exceptional. The argument of the State whereby the existence of such discretion will divert the focus of attention to the prospective adopters instead of the best interests of the child is not convincing in my view, for it is clear that the existence of exceptional circumstances will be examined subject to the overriding principle of the best interests of the children waiting to be adopted. Neither is the argument that it is difficult to anticipate the ramifications of the age difference between the adopter and adoptee convincing, for the process of adoption is constructed entirely on future-directed anticipation, which is naturally characterized by uncertainty. The State further argued that since the process of intercountry adoption is executed by private adoption associations which operate under state supervision, the existence of clear rules of eligibility of adopters is of great importance; this is so in view of the concern for undesirable consequences of competition between the private adoption associations, which harm the interests of the children awaiting adoption, as well s concern for the lack of equal treatment of those who seek to adopt them. Prima facie, this last argument is significant. Nevertheless, it appears that the concern expressed by the State should be answered not by setting a rigid rule regarding the maximum age difference, but rather, by a suitable choice of the entity that will exercise discretion to deviate from the rule. I will discuss this below.

8.    The obvious conclusion from what has been said so far is that the absence of discretion to conduct an individualized examination of exceptional cases in which departure from the maximum age difference rule is justified – even if only in exceptional circumstances of limited scope – would have engendered genuine questions about the reasonableness and proportionality of the rule. In actual practice, I am of the opinion that the said difficulty does not arise, in that the mechanism fixed in s. 36A of the Adoption Law has the capacity to include a process of review which allows for a departure from the maximum age difference rule  in suitable cases. Section 36A of the Adoption Law prescribes as follows:  

Appeals Tribunal

(a)        A person who considers himself harmed by a decision of the Welfare Officer regarding the determination of his eligibility to become an adopter or by a decision of a recognized adoption association concerning his eligibility to adopt a child in an intercountry adoption, may appeal the decision to an Appeals Tribunal comprising five members, who will be appointed by the Minister of Labour and Welfare in consultation with the Minister of Justice [emphasis added – D.B.].

(b)        The members of the appeals tribunal will be a judge of the family court, who will preside, two social workers, a clinical psychologist and an expert psychiatrist, provided that at least two of the members will not be state employees.

(c)        A decision of the appeals tribunal is not subject to further appeal.

Section 36A of the Adoption Law prescribes that the appeals tribunal it establishes will be competent to hear, inter alia, appeals on the decision of a recognized adoption association concerning eligibility to adopt a child in an intercountry adoption. Correct interpretation of s. 36A, in light of the abovementioned principles, leads to the conclusion that a person who seeks to adopt a child in an intercountry adoption and is deemed to be ineligible to do so – possibly, inter alia, because he does not fulfil the maximum age difference requirement – is entitled to appeal this decision to the appeals tribunal in a way that makes it possible to conduct an individualized examination of the circumstances of the case. In this context, I would like to stress two points: first, in the existing legal situation, the authority to depart from the rule is not granted to the private adoption associations, and the reasons for this were articulated by the State in its pleadings. At the same time, in keeping with the said interpretation of s. 36A of the Adoption Law, discretion to deviate from the maximum age difference rule in intercountry adoption will be exercised by the statutory appeals tribunal, which constitutes a public body with mixed administrative and quasi-judicial characteristics. This would seem to provide a response for the main fears raised by the State in its pleadings concerning the exercise of the said discretion by private bodies that compete amongst themselves. Secondly, the existence of a statutory mechanism for examining exceptional cases does not constitute an extensive breach of the bounds of the maximum age difference rule. It may be assumed that the appeals tribunal will formulate criteria for departing from the rule under discussion, and will limit these departures to special and unusual cases that justify the deviation. Moreover, since a maximum age difference of 43 years has been fixed for domestic adoption, whereas the difference was fixed at 48 years for intercountry adoption, it may be assumed that the number of exceptional cases in which justification will be found for departing from the maximum age difference in intercountry adoptions will be smaller than the number of exceptions – small in any case – in which justification is found for departing from the rule in domestic adoptions.

9.    Thus, the Adoption Law establishes a mechanism which, according to the interpretation that seems to me to be reasonable and appropriate, allows for departure from the maximum age difference rule in special cases that justify so doing. In this sense, the existing legislation provides a response to the main relief sought by the petitioners, i.e., to allow exceptions to the said rule and to the norm that was set in its framework. In light of this, and subject to the possibility of the appeals tribunal having discretion, according to my approach, the petition should be granted partially only, in the sense that the possibility of considering a departure from the maximum age difference rule in exceptional, unusual cases is not in the hands of the private adoption associations, as requested by the petitioners, but rather, in the hands of the statutory appeals tribunal the operates according to the Adoption Law.

 

Vice President E. Rivlin

1.    The legal question that lies at the heart of the case before us is not simple, and my two colleagues, President D. Beinisch and Justice A. Procaccia, each arrived at a different conclusion. After reading both the opinions, I have reached the conclusion that my position is closer to that of President Beinisch in relation to most of the issues, and I would even go further than she did had her ruling not provided an appropriate response to the question at issue. Rule 4(b)(1) of the Professional Rules and Guidelines for the Operation of a Recognized Non-Profit Organization under the Adoption of Children Law, 5741-1981 (hereinafter: the maximum age difference rule), enacted by the Minister for Welfare in 1998, raises questions on the constitutional and administrative planes. I concur in the position of my colleague, the President, that for the purpose of ruling on the petition, it is not necessary to decide on the constitutional questions that arise, and similar to her opinion, my position too is based on the administrative arguments raised by the petitioners. Nevertheless, I would like to briefly discuss the constitutional question at issue, addressed by my colleagues in their opinions.

The parameters of the constitutional right to parenthood

2.    My colleague Justice Procaccia ruled that the right to adopt a child is not a recognized legal right, and a fortiori, it is not a meta-legal constitutional right. She points out that the right to parenthood is in essence a “negative” right and it does not have the capacity to impose on the state a positive obligation to assist individuals in its realization. According to Justice Procaccia, the right to adopt, which is derived from the right to parenthood, involves active assistance on the part of the state in realizing the aspiration to parenthood, and consequently, it should not be recognized as a constitutional right. Another reason for not recognizing a constitutional right to adopt is attributed by Justice Procaccia to the fact that recognition of such a right might detract from the main purpose for which the institution of adoption was created – concern for the best interests of the adopted child. The President, on the other hand, preferred not to rule definitively on the constitutional question confronting us. Nevertheless, she pointed out that the right to parenthood by way of adoption is found “on a more exterior circle vis-à-vis natural childbirth (which . . .  is included in the ‘hard kernel’ of the right to family life and parenthood), and even vis-à-vis artificial reproductive techniques and embryo carrying agreements, which involve external involvement of the state but which are based on planning the birth of a child who will bear the genetic code of one or both of his parents.” The President is of the opinion that because of the remove of the right to adoption from the hard core of the right to parenthood, the degree of protection it enjoys is less.

3.    I would like to add a few words relating to the positions expressed by my colleagues on the constitutional question. I am not convinced that there is such a significant gap between realization of the right to natural parenthood and realization of the right by way of adoption, to the extent that it can be said definitively that one is situated within the kernel of the right to parenthood and the other on its margins. Indeed, ideal parenthood is by natural childbirth, and the assumption is justified that bearing a child who carries the genetic code of his parents creates a bond and responds to a stronger need than parenthood that is realized by way of adoption (para. 3 of the opinion of my colleague, the President; New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], at p. 448). It may also be assumed that many of those who apply to adopt do so as the default option after their desire to bring children into the world naturally has not been realized. Nevertheless, the underlying need is similar in essence in both cases – the desire for a child, for continuity. As noted by my colleague President Beinisch, “[]prima facie, it is plausible to argue that the yearning for a child is a deep, fundamental human need, and that this existential need is equally intense in the case of natural childbirth and where the couple are not able to bring children into the world by natural means.” The sound words appearing in the opinion of my colleague, Justice Procaccia, concerning the status and the great importance of the right to family life, are applicable, in my view, to both natural parenthood and to parenthood that is realized by way of adoption.

Moreover, it often happens that the yearning for a child is strongest in those who are not able to realize it in a simple manner. The cry of the childless for help has been heard since ancient times. In New Family v. Committee for the Approval of Surrogacy Agreements [8], Vice-President Cheshin described one of these cases:

‘Who does not remember the desperate cry of the barren Rachel in calling to her husband Jacob: “Give me children or else I die” (Gen. 30:1). (Neither will we forget Jacob’s harsh, irritated reply: “And Jacob’s anger was kindled against Rachel; and he said: Am I in God’s stead, who hath withheld from thee the fruit of the womb?”) This cry is the cry of the living being’s will to survive, a will which, with the birth of a child, will fulfill the “voice of blood” between parents and their children (as per Deputy President Sh.Z. Cheshin, in CA 50/55 Hershkovitz v. Greenberger [1955] IsrSC 9(2) 791, at p. 799, para. 30).

Rachel’s pain, and that of Hannah, who wandered around the Tabernacle when “she was in bitterness of soul, and prayed unto the Lord, and wept sore,” resound down the generations and express the great void created by the absence of a child. This, in many cases, is the situation of those who seek to adopt. Thus, for example, Rachel at the end of the day adopts a solution that is to a certain degree related to adoption, and she realizes her desire for continuity through the children of her handmaiden Bilhah. After the birth of the son of Bilhah and Jacob, Rachel declares: “God hath judged me, and hath also heard my voice, and hath given me a son,” and her cry is no longer heard.

4.    The legal status of the relationship that is created between the adoptee and the adopters after the adoption supports the position that the difference between biological parenthood and parenthood by way of adoption should not be seen as creating a difference of substantial normative significance. My colleague Justice Procaccia addressed this relationship, and noted that non-recognition of a constitutional right to adopt does not “detract from the fact that upon completion of the adoption process with the issuing of an adoption order, a relationship of full rights and obligations typical of the relations between parents and children is created between the adopter and the adoptee, replacing the biological blood ties of the child with the family of origin, and a new family unit is established that constitutes a subject of constitutional rights.” It is hard to believe that pursuant to the difference between biological parenthood and parenthood by way of adoption, a certain level of constitutional protection would be granted to the relations between a child and his parents in the case of a biological family, and inferior protection granted in the case of an adopted child (after the adoption). In light of all this, it appears that the difficulty in defending the right to parenthood in the case of adoption does not stem from a substantive difference between biological parenthood and parenthood by way of adoption, but from two other difficulties – the difference between a right which is of a “negative” nature and a right of a “positive” nature, and primarily, the great importance of the wellbeing of the adopted child.

5.    My colleague Justice Procaccia is of the opinion that the right to parenthood that is recognized in Israeli law is in essence a “negative” right, one that was designed to protect the individual from state intervention, and it contains nothing which would impose a positive duty on the authorities to enable the individual to adopt. Personally, even if I were to accept the distinction made by my colleague between “negative” rights and “positive” rights in Israeli law, I am not convinced that this distinction necessarily reflects the situation in our case. Justice Procaccia assumes that adoption necessarily involves a positive act on the part of the state that helps the adopters to come to complete the process. However, it is possible to look at the matter from a somewhat different angle. In an unconstrained world, adoption would be likely take place by means of agreements between prospective adopters and third parties. These agreements would make the adoptions actually happen with no intervention of the authorities. And indeed, prior to enactment of the Adoption of Children (Amendment no. 2) Law, 5756-1996, as described in the opinion of my colleague Justice Procaccia, there was a “wide-spread phenomenon of adoption of children with no oversight, sometimes without the children even being registered in the local register.” Accordingly, limiting the possibilities of adoption by means of statutory regulation can be seen as a violation of the right to parenthood in the “negative” sense. It will be stressed immediately that statutory restriction of the possibilities regarding adoption is legitimate as well as essential, in view of the need to protect the child’s interests; this however, does not change the fact of the violation of the right, but only affects the degree of protection that it is accorded.

Particularly apt here are the words of Vice President M. Cheshin in New Family v. Committee for the Approval of Surrogacy Agreements [8], written as a response to a similar argument that was raised in relation to the constitutionality of limitations that were imposed on people seeking to realize their right to parenthood by way of surrogacy:

‘The State further argues thus: the right to parenthood is indeed a right, but a right to surrogacy cannot be derived from the right to parenthood. The reason is that the right to natural parenthood means only a prohibition on the state to intervene in the life of the individual and in his autonomous will, whereas the right to surrogacy implies . . . a duty imposed on society to help the individual to realize the need throbbing in him for parenthood. We will not accept this argument either. Indeed, the right to parenthood is a right in the category of a liberty – it is a right that has no correlative duty imposed on another – whereas surrogacy necessitates the intervention of third parties. As stated in the Aloni Report  . . . “It is accepted, in the United States, that extension of the right [to bear a child – M.C.] to reproductive technologies does not obligate society to cover costs and expenses, just as it does not obligate the doctor or the technician to perform the procedure. The accepted explanation is that the right [to bear a child – M.C.] has a negative character – it has the power to prevent interference in procreation – and not a positive nature – to impose a duty on another body in order to assist in procreation.” However, I do not understand how this distinction bears on our case. We are not dealing with the imposition of any sort of duties on the state (or on any third party), but with a request of the petitioner that she not be prohibited from embarking on the process of surrogacy. A prohibition imposed on her by the state to resort to the process of surrogacy, so claims the petitioner, is what violates her right to parenthood, and the response of the State, which relies on the distinction between a liberty-type right and between a right that has a correlative duty is in any case not an answer’ (ibid., at pp. 448-449).

The Adoption Law, like the Embryo Carrying Agreement (Approval of Agreements and the Status of the Child) Law, 5756-1996, create a comprehensive system for realizing the right of parenthood in a certain manner, and even though most of the arrangements in these Laws fulfill the criteria of the limitations clause, it cannot be said that they involve no violation of the right to parenthood.

6.    The major problem attaching to the right to parenthood, in the context of adoption, concerns the great importance of the best interests of the child. On this matter, I agree with my colleague the President that the question of the best interests of the child ought not to be examined at the stage of actual recognition of the constitutional right, but rather, when we turn to the task of balancing and we examine the degree of protection afforded to this right. No one disputes that the best interests of the child is the crux of the legal adoption arrangement. A consequence of this is, as stated, that most of the statutory arrangements will fulfill the constitutional balancing criteria.  But it must again be stressed that the upholding of values, interests and competing rights, however strong they may be, should not affect the upholding per se of a distinct constitutional right, but only the degree of protection it is afforded. As I pointed out in another matter:

‘The actual definition of the right to establish a family should not be restricted. Even if it is not possible, due to permitted constraints, to enable the full realization of the right, this does not detract from recognition of the right. My colleague the Vice President notes that the constraints that are imposed on the constitutional right here do not touch upon the “kernel” of the right; rather, they are at its periphery. He therefore would define the disputed right in a more focused manner. My view is different. Even if this is a matter of a “peripheral” aspect of the right – as he assumes – this does not affect the definition of the right. The starting point must assume a generous definition. The restriction – which is likely to take into account the position of the matter on the periphery of the right or at is heart – must be taken into account in the framework of application of the limitations clause. The balance between the rights of the individual and the public interests, or between [these interests] themselves, must be effected in the framework of the limitations clause (Adalah v. Minister of the Interior [2], at para. 8 of my opinion).

As stated, the petition before us is not the appropriate forum in which to decide on the constitutional questions that were raised, and the ruling on the substance of the petition below will focus on the arguments on the administrative plane.

The administrative plane

7.    I, like my colleague the President, believe that the main problem with the maximum age difference rule lies in it being a rigid rule that does not allow for discretion to depart from it in appropriate cases. My colleague the President is of the opinion that negation of the possibility of deviating from the maximum age difference rule is incompatible with the accepted criteria of administrative law, and she dismisses the arguments of the State on this point one by one. I concur fully with the President’s position on this matter, and adopt her words completely.

As the President stressed, the lack of flexibility in the arrangements established by the Authority make one wonder about the reasonableness and the proportionality of these arrangements. This is generally the case, and all the more so when the arrangement causes real harm to a person’s basic legal right. In our case, the arrangement established by the State is substantively detrimental to the aspiration for parenthood of those seeking to adopt, and in these circumstances, the competent authority must point to reasons bearing substantial weight in order that the arrangement pass the tests of reasonableness and proportionality.

8.    Another matter is the relationship between the individual examination and the comprehensive arrangement. As a rule of thumb, it may be assumed that in cases such as that under discussion here, an individual examination will in most cases lead to a more precise, correct result than a comprehensive arrangement. Comprehensive arrangements, by their nature, are not adapted to all the possible circumstances, but are based on a general assessment, on a presumption concerning the appropriate rule. This is all the more true when we are dealing with the assessment of people, each of whom bears traits and characteristics peculiar to him. In the case of adoption, we find ourselves in a framework of an extremely complex task, the aim of which is to bring together separate people and make them into a family. There is, therefore, more than reasonable basis to assume that a meticulous individual examination, that weighs up all the relevant data, including, of course, the age of the applicant, will lead to a more correct answer in each individual case – more correct not only in relation to the applicants, but also, and primarily, in relation to the best interests of the child, for whom the most suitable arrangement will be found.

Indeed, sometimes the establishment of a sweeping arrangement, of which arbitrariness is an inseparable component, is unavoidable. But when is this so? When there is a clear advantage to such a sweeping arrangement – an advantage that outweighs the price it exacts. Thus, for example, it seems that there is a clear advantage to setting a minimum age for obtaining a driving license, which exceeds the advantage of individual examination. At other times, there are weighty reasons for recognizing the legitimacy of a sweeping arrangement. This is the case, for example, when the argument that it is impossible to conduct efficient individual examinations is justified (Adalah v. Minister of the Interior [2], per President Barak, at para. 89; per Vice President Cheshin, at para. 109). However, the case before us is one in which a meticulous, comprehensive and individual examination of each adopter actually takes place, reflecting and confirming the position that there is a clear advantage to individual examinations on the question of the suitability of the prospective adopter. Thus, in any case, there is an examination, inter alia, of the “eligibility and suitability of the person seeking to be an adoptive parent . . . the family background of the applicant and his present position . . . his social environment . . . [and] other matters to be determined by the Minister of Labor and Welfare, including a psychological assessment of the applicant and his family” (s. 28H of the Adoption Law). Similarly, in every case of an application to adopt, determination of the eligibility of the applicant is made in light of an individual report drawn up by a social worker (s. 28N of the Adoption Law). This examination places the emphasis on the concrete adopter and his suitability to adopt; it comprises many criteria that are all weighed, and in light of the result, the decision is made as to whether the applicant is indeed suitable to be an adoptive parent. In these circumstances, there must be special justification for deviating from the individual examination that already exists, justification which, as elucidated in the opinion of President Beinisch, apparently is not present in our case.

My colleague Justice Procaccia holds that the question of the age difference between the adopter and the adoptee is a question for professionals, subject “the clear discretion of the competent authority”. Indeed, the question of the effect of the age difference on the adoptee is a relevant question, which falls, as one of the considerations, within the discretion of the Authority. We are not denying the importance of the age difference, but we disagree with setting an age difference as a sweeping arrangement from which there can be no deviation in appropriate cases. A study of the expert positions presented by the respondents reveals that they recognize the importance of the age difference to the wellbeing of the child, but they do not address the position of the age difference within the whole set of relevant considerations relating to the child’s best interests. Calculation of all the data sometimes raises complex questions. For example, is it better for the prospective adoptee that he be handed over to a family in which one of the couple is 47 years old and the other is 70 years old, or to a family in which the couple are both aged 49? Would it be justified to hand over a child for adoption to adopters who are immeasurably superior to other candidates in all other criteria (such as socio-economic position, and personality structure) but they are just over the maximum age limit? No satisfactory answer to these difficult questions has been provided by the respondents. Nor has a satisfactory answer been given to the possibility of exceptions in domestic adoption as opposed to their absence in intercountry adoption, or to the fact that the ideal age difference is not the same for domestic and intercountry adoption, and even in intercountry adoption itself, the age difference was changed from 45 to 48. These matters seem to hint that there is no unequivocal justification for setting a comprehensive, sweeping arrangement on the question of the age difference from the point of view of both the best interests of the child and the interests of the applicants. The number of different arrangements in comparative law regarding the desirable age difference, as cited at length in the pleadings of both the petitioners and the respondents, is another indication that there is no one accepted age difference that crosses boundaries and experts. The only professional reference on the part of the respondents to the question of the possibility of exceptions to the rule is found in the summary of the position of the relevant committee that was drawn up by Professor Joseph Tamir, part of which was quoted in the opinion of my colleague Justice Procaccia. The opinion of my colleague the President contains a clear and incisive response to these arguments, and I can only concur with her on the matter.

10.    My colleague the President attributed weight to the argument of the respondents whereby in view of the fact that the process of intercountry adoption is implemented primarily by private adoption associations, and due to the concern that the competition between the adoption associations may be detrimental to the child’s interests, the existence of rigid rules for checking the eligibility of prospective adopters is justified. In my view, this argument cannot change significantly the answer to the question of the reasonableness and the proportionality of the maximum age difference rule. As stated, when an adoption association examines an application for adoption, it must check many parameters, some of which were mentioned above. This examination is conducted for each case individually, and weighing up of all the parameters is done with recourse to the report of the social worker. The process as a whole is subject by law to close oversight by the authorities. The concern expressed by the respondents is relevant to the process of adoption in general, but a sweeping, unequivocal rule that does not take into account other parameters for checking the eligibility of the adopter, exists – according to the material before us – only with respect to the question of the age difference. I have not found a good reason for the fact that according to the respondents, the private adoption associations can be relied on to weigh up the information regarding the applicants in an appropriate fashion, but they cannot be relied on to depart from the maximum age difference rule in suitable cases only. Similarly, I am not convinced that the regular oversight, which is designed to ensure that the individual examination be conducted in proper fashion, cannot ensure a similar result on the question of the significance of age for the eligibility of the adopter.

In view of all the above, I struggled hard with the question of whether there is no choice but to declare the nullity of Rule 4(b)(1) of the Rules and Professional Guidelines for the Operation of Recognized Non-profit Organizations by virtue of the Adoption Law. However, as stated, broad validation of the position of my colleague the President may obviate the need to totally nullify the rule. Indeed, empowerment of the appeals tribunal assumes necessarily that the rule itself is not absolute, for otherwise the tribunal would not be authorized to depart from it. One way or the other, whether the rule in its strict interpretation cannot stand or whether it stands because of the interpretation proposed by my colleague the President – the result is the same: it is possible, in appropriate circumstances, to approve adoption at the stage of the final examination even if the age difference exceeds that set in the rule, as proposed by my colleague the President.  

 

Decided by majority opinion, as stated in the judgment of President Beinisch, Vice President E. Rivlin concurring, Justice A. Procaccia dissenting.

 

No order was issued for costs.

 

28 Adar 5769

24 March 2009

       

 

 

 

 

 

       

 

HCJ 10356/02

1.       Yoav Hass

2.       MK Musi Raz

3.       ‘Yesh Gevul’ Movement

v.

1.       IDF Commander in West Bank

2.       State of Israel

 

HCJ 10497/02

Hebron Municipality and others

v.

1. Major-General Moshe Kaplinsky, IDF Commander in Judaea and Samaria

2.       Civilian Administration for Judaea and Samaria

3.       Government of Israel

 

 

The Supreme Court sitting as the High Court of Justice

[4 March 2004]

Before President A. Barak and Justices M. Cheshin, A. Procaccia

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts: The Machpela Cave is believed to be the burial site of Abraham and Sarah, Isaac and Rebecca, Jacob and Leah. As such, it is holy to Jews and Moslems. Over the years, the site has seen acts of violence by members of one religion against the other, resulting in casualties.

On Sabbaths and festivals, large numbers of Jews, sometimes in the thousands, go from the nearby town of Kiryat Arba to the Machpela Cave on foot, since the use of vehicles is prohibited by Judaism on these days. They go to the Cave  by means of the ‘worshippers’ route,’ a narrow passage that is not wide enough for security or rescue vehicles to pass in case of a terrorist attack.

The IDF commander in Judaea and Samaria decided to widen the worshippers’ route, and for this purpose he made an order to requisition private land and to demolish certain buildings along the route. The petitioners challenged the constitutionality of this order.

 

Held: In view of the constitutional importance of the freedom of religion and the freedom of worship, a certain violation of property rights may be allowed to facilitate the freedom of worship. The buildings scheduled for demolition are uninhabited, and the widening of the route was kept to the absolute minimum, to allow only unidirectional traffic. In these circumstances, the requisition order satisfies the test of constitutionality.

 

Petitions denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 3, 8.

Palestine Order in Council, 1922, art. 83.

Protection of Holy Places Law, 5727-1967, s. 1.

 

Israeli Supreme Court cases cited:

[1]      HCJ 4212/02 Gussin v. IDF Commander [2002] IsrSC 56(4) 608.

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

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

[4]      HCJ 6860/01 Hamada v. Israel Insurance Pool [2003] IsrSC 57(3) 8.

[5]      HCJ 3286/00 Association for Civil Rights in Israel v. IDF Commander in Judaea and Samaria (unreported).

[6]      HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria (unreported).

[7]      HCJ 591/88 Taha v. Minister of Defence [1991] IsrSC 45(2) 45.

[8]      HCJ 2717/96 Wafa v. Minister of Defence [1996] IsrSC 50(2) 848.

[9]      HCJ 69/81 Abu Ita v. Commander of Judaea and Samaria [1983] IsrSC 37(2) 197.

[10]    HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [1991] IsrSC 45(2) 325.

[11]    HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [1988] IsrSC 42(2) 767.

[12]    HCJ 834/78 Salama v. Minister of Defence [1979] IsrSC 33(1) 471.

[13]    HCJ 302/72 Hilo v. Government of Israel [1973] IsrSC 27(2) 169.

[14]    HCJ 619/78 El Talia Weekly v. Minister of Defence [1979] IsrSC 33(3) 505.

[15]    HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [1990] IsrSC 44(1) 536.

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

[17]    HCJ 390/79 Dawikat v. Government of Israel [1980] IsrSC 34(1) 1.

[18]    HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[19]    HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

[20]    HCJ 72/86 Zaloom v. IDF Commander for Judaea and Samaria [1987] IsrSC 41(1) 528.

[21]    HCJ 469/83 Hebron National United Bus Co. Ltd v. Minister of Defence (unreported).

[22]    HCJ 4363/02 Zindah v. IDF Commander in Gaza Strip (unreported).

[23]    HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.

[24]    HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[25]    HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267.

[26]    HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [1988] IsrSC 42(3) 377.

[27]    HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.

[28]    HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [1984] IsrSC 38(2) 449.

[29]    HCJ 7128/96 Temple Mount Faithful v. Government of Israel [1997] IsrSC 51(2) 509.

[30]    HCJ 2390/96 Karasik v. State of Israel [2001] IsrSC 55(2) 625.

[31]    CA 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman [2001] IsrSC 55(4) 629.

[32]    LCA 214/88 Tawil v. Deutch [1990] IsrSC 44(3) 752.

[33]    HCJ 270/87 Kando v. Minister of Defence [1989] IsrSC 43(1) 738.

[34]    HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

 

For the petitioners in HCJ 10356/02 — Y. Arnon, Y. Niv.

For the petitioners in HCJ 10497/02 — S. Licker.

For the respondents — Y. Gnessin.

 

 

JUDGMENT

 

 

Justice A. Procaccia

The question

1.    The Jewish inhabitants of Kiryat Arba wish to realize their right to pray at the Machpela cave, which is regarded as a holy site by Judaism and Islam. Pedestrian access from Kiryat Arba to the Machpela Cave passes along a route that is approximately 730 metres long (hereafter — ‘the worshippers’ route’). A large number of pedestrians — men, women and children — pass along this route every Sabbath and festival on their way to pray at the Machpela Cave. In the area adjacent to the worshippers’ route, murderous attacks were made in recent years by terror organizations. Because of the security risk that threatens the pedestrians on the route, the IDF Commander in Judaea and Samaria (hereafter — ‘the area commander’) wishes to adopt various measures to improve the security of those passing along the route. For this purpose, he wishes, inter alia, to widen the path in the northern part of the route and to protect it in various ways. He also wishes to widen the path at the southern part by the Machpela Cave in order to allow security and rescue vehicles to pass, something which is currently impossible because of the narrowness of the path. In order to widen the path along the route, it is necessary to requisition areas of land along the route, and to carry out a partial demolition of two buildings and part of an additional building that are situated in the southern part of the route and are uninhabited. In order to give effect to these measures, the area commander issued a requisition and demolition order. The legality of this action by the area commander is subject to judicial review in this proceeding. We will examine the scope of his authority to issue the order, and we will consider in this regard the question of the relationship between the worshippers’ right of movement and worship  and the property right of the owners of the land situated in the area of the order.

Background

2.    On Friday evening, 15 November 2002, shots were fired by a terrorist cell at the security forces and worshippers who were walking along the worshippers’ route from Sabbath prayers at the Machpela Cave to their homes in Kiryat Arba. In the battle that ensued between the terrorists and the security forces at the site, twelve security personnel from the IDF, the Border Police and the Kiryat Arba Duty Unit were killed. As a result of this event, and against the background of several previous terror incidents that occurred near that place, the area commander decided to adopt measures to increase the level of security on the worshippers’ route in order to protect the safety and lives of those using it on the way to prayers. The main steps were widening the path and carrying out actions required for this purpose. In order to carry out this plan, on 29 November 2003 the area commander issued an ‘Order for the Requisition of Land’ (hereafter — ‘the requisition order’), in which he ordered the requisition of parcels of land lying adjacent to the route, and the destruction of several buildings along the path. Originally, the order was intended to allow the following measures to be carried out: in the northern part of the route (which extends from the ‘Pishpesh’ route to the crossroads of the ‘Zion,’ ‘Erez’ and ‘Goren’ routes) — building a concrete defence wall to protect the worshippers against flat-trajectory shooting from the east and also widening the road for the purpose of paving a walkway for pedestrians that will be protected by a concrete barrier whose purpose is to prevent pedestrians from being trampled by a vehicle travelling on the road. At the junction itself, a change is planned in the level of the routes crossing it, in order to prevent an obstruction of vehicles at the junction, which in itself creates a security risk. The southern part of the route is a very narrow passage that passes mainly by the houses of the eastern casba of Hebron, and it leads to the Machpela Cave. This passage, because of its narrowness, does not allow vehicles to transverse it. Along it there are abandoned buildings that may be used as a refuge for terrorists and may endanger the lives of pedestrians that pass by, sometimes in their thousands, on their way to prayers. Here the original order planned a widening of the passage to a total width of eight metres, in order to allow the passage of military vehicles and rescue vehicles for the purpose of accompanying and protecting the worshippers, and for the purpose of rescue in case of an attack. In order to allow such a widening, it planned the destruction of approximately 13 abandoned buildings that are situated alongside the route. The order was for a limited time.

The petitions

3.    Before us are two petitions against the requisition order. In one petition the petitioners are the ‘Yesh Gevul’ Movement and some of its activists, and in the other petition the petitioners are the Hebron Municipality, the Hebron Buildings Renovation Association, and a group of owners of rights in the land included in the requisition order. The petitions attack the legality of the requisition order and allege that it is unreasonable in the extreme and disproportionate in view of the purpose for which it was made, in view of the severe harm to the property of the owners of rights in the land along the route and in view of the planned harm to the buildings which have an unique archaeological value. It is alleged that the order was issued by the area commander for improper reasons, and the security reason that was given for making the order is a smokescreen for a predominantly political motive whose main purpose is to create territorial continuity between Kiryat Arba and the Machpela Cave by means of establishing a promenade that will, in the future, allow the expansion of Jewish settlement in the area. In this regard, it was alleged that there is no real objective connection between the attacks that occurred in the area and the measures planned within the framework of the requisition order, including the demolition of the houses, and since the area governed by the order was previously declared a closed military area and was emptied of its inhabitants, it is not required for security purposes. The petitioners from among the inhabitants of Hebron emphasized in their arguments that the implementation of the order is likely to lead to the destruction of an important part of the historical city of Hebron, which includes buildings from the Mamluk period and other houses intended for conservation, and that the antiquities law that applies in the area does not allow such activities for archaeological reasons. This claim was supported in a professional opinion given by persons involved in the conservation of ancient buildings and in an expert architectural opinion.

It was also argued by the petitioners that the requisition of the land and the demolition of the buildings governed by the order is contrary to international law that requires the area commander to exercise his authority to ensure order and security in the occupied area within the framework of article 43 of the Hague Convention of 1907 (hereafter — the ‘Hague Convention’) and is contrary to article 53 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter — the ‘Geneva Convention’) which prohibits the destruction of the real estate assets of civilians in an occupied area unless this action is essential and required for military operations. The requisition order is also contrary to the international law that governs the conservation of archaeological assets. According to their position, the order also does not satisfy Israeli constitutional law, because it results in an unbalanced result when weighing the right of the worshippers to realize their freedom of religion and worship against the right of the landowners along the route, who are entitled to protection of their property. The owners of the property rights among the petitioners also argue that their right to be heard and to challenge the legality of the order before the area commander was not upheld.

The original position of the State

4.    In the original response of the State to the petitions, it was argued that the sole purpose of the requisition order was security-oriented, and it did not serve as a disguise for achieving any other purpose. It was made in direct response to the continuing risk of terrorist acts, which consistently threatened the Jewish inhabitants who used the worshippers’ route, and in view of the responsibility of the IDF commander to ensure their safety. In order to increase security measures along the route, discretion was exercised carefully and various alternative ways were considered for the pedestrian passage of worshippers to the Machpela Cave on Sabbaths and festivals, and the most strenuous efforts were made to minimize, in so far as possible, the harm to the local inhabitants and the owners of rights in the land adjoining it. Eventually it was found that using the route was the most appropriate solution, as compared with the other options, in view of security needs on the one hand, and the need to restrict the extent of the harm to the local inhabitants on the other.

In response to the petitioners’ claim that their right to challenge the order before the area commander was not upheld, it was argued that the proper steps were taken to make the requisition order known to the owners of rights concerned. A reasonable period of time was allowed for submitting objections, but no such objections were submitted during the time allocated for this before the filing of the petitions.

In the normative sphere, it was argued that the authority of the military commander to requisition land in the occupied area is based on article 43 of the Hague Convention, which establishes a duty to maintain security in the occupied area, and on the proviso in article 23(g) of the Convention which provides a qualification to the prohibition against the demolition of enemy property when this is required for combat purposes. Article 52 of the Hague Convention allows land to be requisitioned for the purpose of ensuring order and public security even when there is no combat, and this also serves as a basis for the action that was carried out. The duty to conserve cultural assets that is enshrined in international law does not preclude recognition of urgent security needs that in certain circumstances override the duty to conserve cultural assets as aforesaid. By virtue of these sources, the area commander is authorized, and even obliged, to protect the security of the pedestrians on the worshippers’ route, and the making of the requisition order falls within this authority and responsibility. This order satisfies the constitutional test in view of the security needs required along the route within the framework of the worshippers’ right of worship, and the inevitable harm to the property of the petitioners as a result is proportionate in view of the fact that we are concerned with buildings that were abandoned some time ago, and in view of the existence of a right to financial compensation for this injury. The action of the IDF commander reflects a proper balance between the various values involved in this case, and it is essential to the public interest, it is reasonable and proportionate, and there are no grounds for intervention in order to change it.

The sequence of proceedings

5.    On 18 December 2002, an order nisi was made in the petitions, whereas an interim order that prohibited the demolition of buildings in accordance with the requisition order was restricted so that it would not apply to the northern part of the route up to the crossroads. Within this framework, additional time was given to the owners of the rights to object to the requisition order. Of the 13 owners of rights in the houses that were schedules for demolition under the original order objections were filed with regard to six buildings. One building that was found to be inhabited was excluded from the requisition order.

Before a decision was made with regard to the petitions, the area commander was asked by the court to reconsider other possibilities for the plan of action under the original order, in order to minimize the harm that it was expected to cause the inhabitants of the neighbourhood, such as sealing houses instead of demolishing them, stationing soldiers in order to protect the route when pedestrians pass, directing worshippers to an alternative route, and the like.

Approximately six months after the decision of the court in this respect, the State gave notice, first, that other possibilities for the pedestrian route of worshippers to the Machpela Cave that do not use the worshippers’ route were reconsidered. These were found to be unsuitable, either because they involve too great a risk to the pedestrians, or because preparing the route requires greater harm to the property owners, or because they involve a risk of increasing friction between the Jewish worshippers and the Muslims who come to pray in the Cave. The great risk involved in such friction was discussed in the Report of the Commission of Inquiry on the Massacre at the Machpela Cave in Hebron (hereafter — ‘the Shamgar Commission Report’). In the opinion of the area commander, these defects make the other possibilities for the pedestrian route of the worshippers to the Machpela Cave on Sabbaths and festivals unsuitable, and the worshippers’ route remains the most reasonable option from the viewpoint of the conditions of the terrain and the scope of the measures required in order to safeguard the area.

In such conditions, the area commander decided that there was no alternative to increasing the security of the worshippers’ route itself as the pedestrian route for large numbers of pedestrians, and that for this purpose the requisition order was needed. He also decided, after a reconsideration, that the stationing of soldiers at security positions or the sealing of houses was insufficient, and the widening of the route and the unavoidable demolition of a small number of buildings were required. Notwithstanding, after a reconsideration, it was decided to reduce significantly the scope of the harm to the owners of the property in the area, as compared with the original requisition order. While the original order refers to the widening of the route to a total width of eight metres, according to the revised position a widening of the route to a total width of only 4 metres is sufficient. This width provides the minimum required to allow the passage of security vehicles in one direction. Even though, in the opinion of the area commander, such a minimal widening of the route involves a certain security risk in that it does not allow two-directional traffic of vehicles along the route, he is currently prepared to be satisfied with a more limited widening of the route that will allow only unidirectional traffic, in order to minimize the damage to the owners of the lands adjacent to the route. The reduction of the width of the route also involves a significant reduction in the number of structures that are scheduled for demolition. Whereas the original plan spoke of the demolition of 13 buildings, today the plan calls for a partial demolition of two buildings and a part of a third building that are situated at the ends of the route and are abandoned. The demolition will be carried out under professional supervision to protect, in so far as possible, important archaeological foundations and to restrict the extent of the harm to the buildings to a minimum. It is also planned to seal entrances to additional uninhabited buildings along the route, to install nets in inhabited buildings, to pave a part of a path that has not yet been paved in order to safeguard against the laying of mines, and to place lamp posts and guard posts along the route. With regard to the northern part of the route, the State undertook not to extend the route to more than two metres from the two sides of the road (court record of 23 November 2003). In order to make the aforesaid revisions to the original plan, an appropriate amendment of the requisition order was required.

The essence of the order in its limited format as it is brought before us for review is, therefore, the following: in the northern part of the route — widening of the road to an amount of two metres from each side; in the southern part of the route — widening the road to a total width of four metres; a partial demolition of two buildings and a part of an additional building; the requisition of parcels of land alongside the route, as required for the purpose of widening it.

Decision

Right to be heard

6.    The owners of the rights in the land claim that their right to challenge the validity of the requisition order before the military commander, before they filed their petition, was not upheld.

No-one disputes the existence of a right to be heard that is available to anyone who may be harmed by an executive act. There is no need to expand upon the importance of this right, which is firmly rooted in Israeli administrative law. However, in the circumstances of this case, the right of the petitioners to be heard was not violated. The order, according to its wording, regulates the details of how it should be published and the ways in which it should be delivered to the owners of the rights who may be harmed by its provisions. The provisions of the order were carried out in this respect. The requisition order was distributed in the area designated for the requisition, and it was affixed to each of the buildings scheduled for demolition. It was delivered to the mayor of Hebron and the legal adviser of the municipality. Copies of the order were deposited at the Hebron liaison office and at the other offices of the competent Israeli and Palestinian authorities in the area. The fact that the order had been made was announced in the media. In addition, a tour of the route in the order was made, with the participation of military personnel and representatives of the owners of the rights in the land, and time was given to those persons who were likely to be harmed to challenge the order before the area commander. Before filing the petitions, no challenges were filed within the time period fixed for this. Within the framework of the hearing of the petitions, additional time was given to the petitioners to file their challenges. At this stage of the proceedings, challenges were filed with regard to some of the buildings scheduled for demolition under the original plan. These challenges were examined by the State. In view of the aforesaid facts, the petitioners’ right to be heard and to file objections was satisfied within the framework of this proceeding.

Legality of the requisition order

7.    The requisition order that was made involves the requisition of private land and the demolition of buildings, and it constitutes a legal act that harms the petitioners’ property rights. The legality of this act should be examined within the framework of international law, local law and Israeli law that all apply to the actions of the area commander (HCJ 4212/02 Gussin v. IDF Commander [1], at p. 609; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2], at p. 382 {117-118}).

The question that must be answered is whether the requisition order, in its reduced version, satisfies the criteria required for its legality, or whether it suffers from a defect that justifies judicial intervention to set it aside or amend it. In considering this question, we will examine the source and scope of the area commander’s authority to make the order under discussion; we will consider whether there is a basis for the petitioners’ suspicion that irrelevant motives led to the making of the order; and we will scrutinize the various values and rights that conflict in this case — freedom of worship and the right of movement, the protection of human life, the protection of private property rights — in order to determine whether these were balanced against each other properly within the framework of the order, and whether the order satisfies the rules of constitutional law.

The area commander’s responsibility and scope of authority

8.    The executive powers of the area commander derive from several sources: the rules of public international law that concern belligerent occupation; the local law that prevails in the area, which is composed of the law prior to the military occupation and new local legislation that was enacted by the military administration; and the principles of Israeli law (HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 10; HCJ 6860/01 Hamada v. Israel Car Insurance Pool [4], at paras. 6-7). Within the sphere of international law, his actions are subject to the laws of war that determine what is permitted and what is prohibited for the commander of a military force who is responsible for an area under belligerent occupation (Ajuri v. IDF Commander in West Bank [2], at p. 358 {87}; HCJ 3286/00 Association for Civil Rights in Israel v. IDF Commander in Judaea and Samaria [5]; HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria [6]; Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at p. 793). Within the framework of Israeli law, he is subject, inter alia, to the rules of public law, including the rules of natural justice and administrative reasonableness (HCJ 591/88 Taha v. Minister of Defence [7], at p. 52).

Israel’s belligerent occupation of the occupied territories is subject to the main norms of customary international law that are enshrined in the Hague Convention. The question to what extent the Geneva Convention applies in this sphere has not yet been finally determined, but the humanitarian principles have been adopted de facto by the State and the area commander, and therefore we will assume that they apply in our case (cf. Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 11).

The Hague Convention authorizes the area commander to act in two main spheres: the first is to ensure the legitimate security interest of the occupier, and the second is the ensure the needs of the local population in the area under belligerent occupation. The local population for this purpose includes both the Arab and Israeli inhabitants. The first need is a military need and the second is a civilian-humanitarian need. The first focuses on concern for the security of the military force that is occupying the area, and the second concerns the responsibility for preserving the welfare of the inhabitants. Within the latter sphere, the area commander is responsible not only for maintaining order and ensuring the security of the inhabitants but also for protecting their rights, especially their constitutional human rights. The concern for human rights lies at the heart of the humanitarian considerations that the area commander must consider. According to art. 43 of the Hague Convention, the force in control of the occupied area has the responsibility to take all the steps that it can to re-establish and guarantee, in so far as possible, public order and security in the area, while respecting the law in force in the area, in so far as possible. In carrying out his duty to maintain order and security, the area commander must therefore ensure the essential security interests on the one hand, and protect the interests of the civilian population in the area on the other (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at p. 794). A proper balance is required between these two focal points of responsibility. Indeed, ‘the laws of war usually create a delicate balance between two magnetic poles: military needs on the one hand, and humanitarian considerations on the other’ (Y. Dinstein, ‘Legislative Authority in the Administered Territories,’ 2 Iyunei Mishpat (1973) 505, at p. 509). In his considerations, the commander must concentrate on the needs of the area; he should not take into account the concerns of the country that holds the area under belligerent occupation, as a result of which he is exercising his authority.

The authority of the area commander to make orders for security needs, including an order concerning the requisition of land, is established both in international law and in Israeli law. These orders are law in Judaea and Samaria (HCJ 2717/96 Wafa v. Minister of Defence [8], at p. 851; HCJ 69/81 Abu Ita v. Commander of Judaea and Samaria [9], at pp. 228-230).

Requisition of land

9.    The requisition of land may be an essential step in the realization of the area commander’s powers and responsibility. It may be required both in order to realize military and security concerns, and in order to realize the duty of the commander to protect the interests of the civilian population in the area.

The laws of war in international law prohibit the requisition or demolition of private property in an area under belligerent occupation unless it is essential for combat purposes. According to article 23(g) of the Hague Convention, the occupying power is forbidden:

‘To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’ (emphasis supplied).

Article 52 of the Hague Convention provides that no requisition of land shall be made in an occupied area, except for military purposes. This article has been interpreted broadly in case law as applying also to the need to requisition land in order to establish military positions and outposts, and also in order to pave roads for the purpose of protecting Israeli inhabitants living in the area (HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [10]; Wafa v. Minister of Defence [8], at p. 856; HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [11]).

Article 53 of the Geneva Convention prohibits the destruction of any real estate or movable property that belongs to an individual or to the State by the occupying force, subject to the following exception:

‘except where such destruction is rendered absolutely necessary by military operations.’

In J. Pictet’s commentary on the Geneva Convention (1958, at p. 302), he explains the nature of the aforesaid reservation as follows:

‘The prohibition of destruction of property situated in occupied territory is subject to an important reservation: it does not apply in cases “where such destruction is rendered absolutely necessary by military operations.” The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand. Furthermore, it will be for the occupying power to judge the importance of such military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the occupying power to circumvent the prohibition set forth in the convention. The occupying power must therefore try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done’ (emphases supplied).

In the spirit of the aforesaid commentary, before he decides to requisition or to demolish civilian property in the occupied territory, the military commander is required by international law to exercise very scrupulous consideration. He is entitled to do this where essential military-security needs so demand, and when the requisition balances proportionately between the importance of the military need and the extent of the damage that is likely to be caused to the property owner by the requisition. Within the framework of this balance, he should consider, inter alia, the existence of alternatives that may prevent any harm to individual rights (Timraz v. IDF Commander in Gaza Strip [10], at para. 4; HCJ 834/78 Salama v. Minister of Defence [11]). The requisition of property as aforesaid will also be possible in exceptional cases where it is required in order to provide essential living requirements of the population living in the area; thus, for example, a need was recognized to requisition private land for the purpose of paving roads and access routes to various places in the area. In exceptional cases, a certain harm to private property may be possible for the purpose of providing a proper defence to other constitutional human rights of the population living in the area, where these conflict with the property right of the individual in a specific case. But it is always a condition for the legal validity of such harm that it satisfies the proper balance test which is required in accordance with the criteria determined by constitutional law.

Alongside the rules of international law, the rules of internal Israeli law that apply to the area commander require that the property of the inhabitants of the area may not be harmed unless such harm is intended to achieve a purpose which falls within his powers, and an essential need makes this necessary. This power, both from the viewpoint of international law and from the viewpoint of Israeli public law, should be exercised for a proper purpose, reasonably and proportionately, after a careful and measured balance between the necessity of the purpose that he wishes to achieve and the nature and scope of the harm involved in achieving it.

10. This court exercises judicial review of the legality of the discretion exercised by the area commander as someone who holds a public office by law. In this review, the court does not replace the discretion of the commander with its own discretion, and it does not make itself an expert in security and military matters in the place of the commander (HCJ 302/72 Hilo v. Government of Israel [13]). Even under international law the military commander has broad discretion to decide the scope of the necessity (C.C. Hyde, International Law (second edition, vol. 3, 1947), at p. 1802). The role of judicial review is to stand on guard and ensure compliance with the legal rules that determine the limits of the area commander’s discretion (Ajuri v. IDF Commander in West Bank [2], at para. 30; HCJ 619/78 El Talia Weekly v. Minister of Defence [14], at p. 512). We must be scrupulous when considering the legality of the discretion exercised by the area commander, including whether the considerations underlying his action are relevant, reasonable and proportionate, in view of all of the circumstances of the given case (HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [15], at p. 539).

Levels of scrutiny of the requisition order’s legality

11. The arguments of the petitioners necessitate an examination of the legality of the requisition order in its restricted format on two levels: first, whether the reason underlying the making of the order is a real security concern, or whether the motive for it is intended to achieve another purpose, such as creating territorial continuity between Kiryat Arba and the Machpela Cave for the purpose of strengthening the Jewish settlement in the area of Hebron.

Second, we must examine to what extent, assuming that the requisition order was made for relevant security reasons, the decision of the commander satisfies the constitutional balance test, in permitting harm to the private property of one person in order to allow proportionate security measures to be adopted for the purpose of helping to achieve the right of worship and prayer of another person at a holy place.

Purpose of the order to increase security measures and irrelevant considerations

12. According to the basic principles of administrative law, an administrative authority is obliged to exercise its powers on the basis of relevant considerations only. It must take into account facts and data that are relevant to the case, including relevant values and principles only. It is prohibited from considering an irrelevant consideration (HCJ 5016/96 Horev v. Minister of Transport [16], at p. 34 {183}; I. Zamir, Administrative Authority, 1996, at pp. 741-742). Taking an irrelevant consideration into account may result in the decision being set aside where it can be assumed that, had the irrelevant consideration not been taken into account, the decision of the authority would have been different (HCJ 390/79 Dawikat v. Government of Israel [17], at p. 20). Identifying the relevant considerations for exercising the authority is based on the purpose of the authorizing legislation (HCJ 5688/92 Wechselbaum v. Minister of Defence [18], at p. 824; HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [19], at p. 432).

The area commander denies the existence of a concealed political motive for making the order, and insists that the plan to widen the worshippers’ route, requisition the parcels adjacent to the route and demolish the buildings, all of which is included in the order, is essential for security needs and vital for the protection of the lives of the persons using it.

The action of the military commander in making the requisition order has the presumption of administrative propriety as long as no factual basis has been established to the contrary. In our case, no sufficient factual basis has been established for the claim that the considerations of the area commander in issuing the order in its narrow format were motivated by irrelevant considerations and a concealed purpose that is not really the addition of essential security measures on the worshippers’ route. The right of worshippers to walk from Kiryat Arba to the Machpela Cave on Sabbaths and festivals has not been denied. The commander, as the person responsible for the security of the inhabitants and public order in the area, and as the person responsible for protecting the safety of the inhabitants of the area — both Jews and Arabs — is of the opinion that it is essential to increase security measures along the worshippers’ route in order to protect the pedestrians who use it. This position is explained, inter alia, against the background of the large number of persons who use the route, and the major security risks involved in it in view of its topographic characteristics. This position is not prima facie unfounded and it is supported by bitter experience associated with the terror attacks that have occurred in the area of the route and which have claimed human lives. The position of the commander, prima facie, is reasonable from the viewpoint of logic and clear reasoning. No major effort at persuasion is required to prove the existence of a major security risk created by the passage of thousands of pedestrians in an area infamous for terror attacks, whose alleys are so narrow that a vehicle cannot pass along certain parts of them, and abandoned buildings next to it may serve as hideouts for terrorists. These topographic features justify, prima facie, the adoption of measures to increase the security of the pedestrians in the passage. They do not support the claim that an improper, concealed motive is what led to the making of the order. A separate question is to what extent, assuming that it is indeed a security motive that underlies the order, it satisfies the constitutional test as to the manner in which it balances between the freedom of religion and right of worship of the worshippers on the one hand, and the right of private property of the petitioners on the other.

Constitutional balance: realization of the right of prayer and worship in conditions of relative security against a relative violation of the right of private property

13. The essence of the requisition order is the adoption of security measures along the worshippers’ route in order to protect, albeit in a relative degree, the lives of the pedestrians on Sabbaths and festivals. In order to achieve this purpose, a requisition of land is required alongside the route, as well as a partial demolition of two buildings and a part of an additional building which are uninhabited. Is the military commander authorized to make a requisition order for the purpose of increasing the security of the worshippers who use the route, in order to allow them to realize their right to pray at the holy site under conditions of relative security, where this involves a violation of the right of private property, and does this satisfy the constitutional test?

Responsibility of the military commander for the safety of the inhabitants of the area

14. In addition to the responsibility of the area commander to ensure the security of the military force that he commands, he must ensure the safety, security and welfare of the inhabitants of the area. He owes this duty to all the inhabitants, without any distinction as to their identity — Jews, Arabs or foreigners. The question whether the residency of various parts of the population is legal does not come before us today for a determination. Their very residency in the area leads to the duty of the area commander to protect their lives and their human rights. This is part of the humanitarian sphere for which the military force is responsible in a belligerent occupation (HCJ 72/86 Zaloom v. IDF Commander for Judaea and Samaria [20]; HCJ 469/83 Hebron National United Bus Company Ltd v. Minister of Defence [21]; HCJ 4363/02 Zindah v. IDF Commander in Gaza Strip [22]; Gussin v. IDF Commander [1], at para. 6). The duty of the commander to ensure proper living conditions in the area extends to all spheres of life and goes beyond security matters and immediate existential needs. It applies to the varied living requirements of the inhabitants, including medical needs, sanitation, economic concerns, education, social needs and other needs that people require in modern society. It applies also to measures required to ensure ‘growth, change and development’ (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 26). Within the framework of his responsibility for the welfare of the inhabitants of the area, the commander must also concern himself with providing proper protection for the constitutional human rights of the inhabitants of the area, within the limits that the conditions and circumstances in the area allow. Such protection applies to all the population groups that live there, Jews and Arabs alike. Included among the protected constitutional rights are the rights to freedom of movement, freedom of religion and worship, and property rights. Sometimes this protection requires a decision between conflicting human rights. Such a decision requires a balance that satisfies the constitutional test, namely the existence of a proper purpose and proportionality in the harm to one right in order to allow the relative realization of the other right. In making the requisition order, the area commander is seeking to increase the security measures for pedestrians on the worshippers’ route on their way to the Machpela Cave. Thereby he is seeking to allow the realization of their constitutional right to freedom of religion and worship in conditions that provide protection to life, albeit relatively. In doing so, a relative violation of the petitioners’ private property rights was necessary. Is the balance that was made a proper and proportionate one?

Freedom of movement and freedom of religion and worship

15. The inhabitants of the area have a constitutional right to freedom of religion and worship. This is the case for the Arab inhabitants and it is also the case for the Jewish inhabitants who live there. The inhabitants of the area also have the right of freedom of movement, by means of which it is possible to realize, inter alia, the right of access to holy places. The right of movement and access to holy places is of great constitutional strength (Horev v. Minister of Transport [16], at p. 49 {202-203}; HCJ 448/85 Dahar v. Minister of Interior [23], at p. 708; HCJ 2481/93 Dayan v. Wilk [24], at para. 17 {341}). In this case, the freedom of movement is closely associated with and incorporated in the right to realize freedom of religion and worship. It is a value that is intended to realize the right of Jewish worshippers to go on foot to the Machpela Cave on Sabbaths and festivals.

The freedom of worship as an expression of freedom of religion is one of the basic human rights. It is the freedom of the individual to believe and to act in accordance with his belief, by observing its precepts and customs (HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [25], at p. 277; HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [26], at p. 381; HCJ 3267/97 Rubinstein v. Minister of Defence [27], at p. 528 {200}). This freedom is related to a person’s realization of his own identity. This freedom recognizes the desire of a believer to pray at a holy site. This recognition is a part of the broad constitutional protection given to the right of access of members of the various religions to the places that are holy to them, and the prohibition against injuring their sensibilities with regard to those places (s. 1 of the Protection of Holy Places Law, 5727-1967). The freedom of religion is regarded as a branch of freedom of expression in the sphere of religious belief. It was recognized by the legislator already in art. 83 of the Palestine Order in Council, 1922, and in the Declaration of Independence, which states that freedom of religion and conscience will be guaranteed to every citizen of the State. This freedom has been recognized in case law as a constitutional basic human right (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 454; Israel Movement for Progressive Judaism v. Minister of Religious Affairs [26], at p. 381; HCJ 7128/96 Temple Mount Faithful v. Government of Israel [29], at pp. 522-523; Gur Aryeh v. Second Television and Radio Authority [25], at pp. 276-277).

The freedom of religion and worship is granted as a constitutional right to the population living in the territories, both Jews and Arabs. It is regarded as a constitutional right of supreme status that should be realized in so far as possible in view of the conditions prevailing in the territories, while protecting the safety and lives of the worshippers. Increasing the security measures for the pedestrians along the worshippers’ route is intended to allow Jewish inhabitants to exercise their constitutional right to pray at a holy site.

Prayer at the Machpela Cave: a constitutional right of worship of Jews and Moslems

16. According to Jewish, Christian and Moslem tradition, the Machpela Cave is the site where Abraham and Sarah, Isaac and Rebecca, Jacob and Leah are buried, and according to some non-Jewish traditions, Joseph too is buried there. According to the tradition, the building of the Cave is located on a burial plot that Abraham acquired in order to bury his wife, and there all the other patriarchs and matriarchs, with the exception of Rachel, were buried. Historical and archaeological research has not clearly discovered who built the building of the Machpela Cave, although most researchers attribute it to King Herod and associate it with the Idumeans (for an extensive survey of this subject, see the Shamgar Commission Report, supra, at pp. 95 et seq.).

The Machpela Cave was regarded as a holy site and a place of worship already in the period of the Mishnah, after the destruction of the Temple. Praying by Jews at the Cave is recognized today in decisions of the political echelon. In 1967 the government made several decisions regarding the reinstatement of praying by Jews at the Machpela Cave on Sabbaths, and it made arrangements for coordinating the prayers of Jews and Moslems at the Cave, together with proper security measures for protecting Jewish worshippers (Shamgar Commission Report, at pp. 99 et seq.). Later it was decided that Jews would be entitled to enter the Cave also on Friday evening, for the Sabbath Eve prayers. As of 1972, the areas of prayer in the Cave were determined anew in a decision of the government, and the areas for Jewish prayers were extended. This extension resulted from a growth in the Jewish settlement in the area, and the founding of Kiryat Arba, which increased the number of people wishing to pray at the Cave. On 4 August 1975, the government made a decision regulating the arrangements for entering and leaving the Cave, and the division of prayer times in the various areas, in order to reduce friction between Jewish worshippers and Moslem worshippers.

Over the years, the prayers in the Cave have, from time to time, been accompanied by violent friction between Jews and Arabs, which sometimes resulted in loss of life on both sides. The height of these conflicts occurred in the massacre at the Machpela Cave in 1994, when dozens of Moslem worshippers were murdered. Recognition of the Cave as a holy site for both Jews and Moslems led the government and the army, in coordination with the Moslem representatives, to determine arrangements that would allow those who wished to realize the right of prayer at the Cave to do so, whether Moslems or Jews. In this context, security arrangements were made to split the times and places for prayer between believers of the two religions, with the intention of ensuring that the basic rights of prayer of the two sides would be upheld (Shamgar Commission Report, at pp. 107 et seq.). After the massacre at the Machpela Cave, the Commission of Inquiry recommended that the arrangements for prayers at the Cave for members of the two religions should be maintained, with particular care to separate Jews and Moslems physically for security reasons, and with a reinforcement of security measures that were intended to protect the worshippers of the two religions against attacks of one group against the other.

The main conclusions of the Shamgar Commission concerned the prayer and security arrangements required in the precincts of the Cave itself. This case involves similar issues in the sense that it concerns aspects of the security of the Jewish worshippers on their way to the Cave, as a part of the realization of their right to freedom of worship at a holy site. But the premise is that freedom of religion and worship is not an absolute freedom but only a relative one. A balance must be found between it and other rights and values that are worthy of protection, including the value of private property (per President Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 455; A. Barak, Legal Interpretation, vol. 3, at p. 225). Against this background, the question before us is whether the need to ensure the safety of the worshippers justifies taking measures that include the requisition of land and the demolition of houses that are privately owned.

Property rights

17. The right of private property in the land and buildings that are the subject of the requisition order is a protected constitutional right. It is recognized in international law, including in the Hague Convention and Geneva Convention. It has achieved a constitutional status in Israel in s. 3 of the Basic Law: Human Dignity and Liberty (HCJ 2390/96 Karasik v. State of Israel [30] at pp. 712, 716; CA 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman [31], at p. 641). The individual’s property right does not cease to exist even in wartime (Gussin v. IDF Commander [1], at para. 4). The right of property has additional weight when it concerns a person’s home (LCA 214/88 Tawil v. Deutch [32], at p. 754). In this case, we are not dealing with homes that are inhabited, since the buildings that are scheduled for demolition were abandoned years ago. We are dealing with buildings with an archaeological value whose historical value should be protected (HCJ 270/87 Kando v. Minister of Defence [33], at p. 742). The area commander has a duty, under the rules of international law, including the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, to protect the cultural treasures in an occupied territory, including assets of archaeological value. He must act in this matter in accordance with the basic principles of administrative law.

            A person’s right to property is not an absolute right. It is a relative right. It may be violated where other desirable social purposes need to be promoted, and these include the advancement of different constitutional basic rights of others (Ajuri v. IDF Commander in West Bank [2], at p. 365 {97}). What is the scope of the violation that is permitted to the property right as a constitutional right in such a conflict of rights?

            Two-stage balance: first stage — freedom of religion and worship versus the value of protecting human life; second stage — the freedom of worship versus the value of protecting private property

            18. A confrontation between conflicting constitutional rights is usually a direct and frontal confrontation that requires balancing and weighing in one stage. But sometimes the conflict is more complex, and it may involve not only a conflict between constitutional human rights but also a conflict between them and between another general social value — such as the value of preserving public safety and security, which, in the circumstances of the case, enters into the required balancing process. In such a case, a need may arise for a two-stage balancing between the rights and values in order to decide the question whether the administrative act satisfies the constitutional criteria. The case before us is an example of the latter possibility. It first raises the question as to what is the proper method of balancing the right of the worshippers to realize the freedom of prayer at a holy site against the value of protecting human life which the area commander is responsible to protect. If, within the framework of this balance, it transpires that in the circumstances of a given case there is no possible proper balance between the freedom of worship and the value of protecting life, then the latter value prevails and the right of worship gives way on account of the importance of the value of life. However, if it transpires that it is possible in the circumstances of a certain case to find a balance between the aforesaid constitutional right and the value of protecting human life by adopting increased security measures, then a second question arises as to whether the violation of another constitutional right such as the right of private property, which is necessitated within the framework of those measures, satisfies the rules of constitutional balancing in its conflict with the right of prayer at a holy site.

            The first stage of the balancing: the right of worship versus the value of protecting human life

            19. Realization of a constitutional right may involve a danger to public safety and security. This risk also includes a risk to the safety and security of someone who wishes to realize the constitutional right. There exists an obvious public interest in maintaining order and security in society. This as an essential condition for protecting life and human existence. The protection of human life is a condition for realizing individual rights and therefore this protection is of greater importance than the constitutional right, where there exists a real probability, in the sense of a ‘near certainty,’ that realizing the right will lead to serious harm to public safety (per President Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 454). The public interest in protecting human life affects the scope of the constitutional right and its relative importance vis-à-vis other values. Where the realization of the constitutional right will lead to a near certainty of serious harm to public safety, the constitutional right will give way to public safety (Dayan v. Wilk [24], at p. 472 {341-342}). This has been held for many years with regard to the right of Jews to pray on the Temple Mount in Jerusalem, when it was found that realization of the right de facto would almost certainly lead to an eruption of large-scale disturbances, which might become uncontrollable, both in Israel and abroad.

            But the existence of a risk to public order and security that can be anticipated from the realization of the constitutional right does not justify, in every case, the absolute denial of its realization. We should aim, in so far as possible, to achieve a proper balance between the needs of protecting public safety and the value inherent in the realization of the constitutional right, by creating an infrastructure of measures that will reduce the likelihood of the harm. The need and ability to make such a balance derive, on the one hand, from the strength of the constitutional right of the individual, and, on the other hand, from the range of measures available to the competent authority to satisfy the needs of public order and security, which are required as a precondition for realizing the constitutional right.

            The freedom of religion is a constitutional basic right of the individual, with a preferred status even in relation to other constitutional human rights. The freedom of worship constitutes an expression of freedom of religion, and it is an offshoot of freedom of expression. ‘A person expresses himself within the sphere of religious belief by means of religious worship’ (per Justice Zamir in Temple Mount Faithful v. Government of Israel [29], at pp. 522-523). The constitutional protection given to freedom of worship is therefore similar, in principle, to the protection given to freedom of speech, and the constitutional balancing formula that befits the one is also applicable to the other (Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 456). We are concerned with a constitutional right of great strength whose weight is great when it is balanced against conflicting social values.

            Where the realization of the right of worship creates a near certainty of the occurrence of serious and grave damage to public safety and there is no solution to such a collision by means of the use of reasonable measures that will make the danger more remote, then the value of public safety will prevail and the constitutional right will yield to it (Barak, Legal Interpretation, vol. 3, pp. 225-226). But where there are reasonable measures that can reduce the danger of the harm, the authorities can and should resort to these, especially where they are confronted with a constitutional right of special weight. Thus, the greater the constitutional right on the scale of rights, the greater is the need to exhaust all available reasonable measures by means of which it is possible to reduce the danger to public safety.

            The worshippers who wish to go to the Machpela Cave by foot on Sabbaths and festivals wish to realize a constitutional right of freedom of worship in a holy place. This right is of special importance and weight on the scale of constitutional rights. But the public interest to ensure the security and safety of the worshippers, when passing along the worshippers’ route, against the danger of attacks that directly threatens them conflicts with the realization of the right of worship. It is the responsibility of the area commander to protect the route and those using it against danger to human life. In order to satisfy the security interest as aforesaid, the area commander considered two alternatives: to prohibit the use of the route by worshippers on foot from Kiryat Arba to the Cave on Sabbaths and festivals, or to allow this use and to take various measures that will increase the security of the area. In view of the constitutional importance of the right of prayer in a holy place, the commander saw fit to allow the use of the route and to adopt increased security measures. This balance, prima facie, satisfies the test of reasonableness. Whether the measure of harming private property in order to achieve the aforesaid purpose satisfies the constitutional test is another question.

Second stage of the balancing: the right of religion and worship versus the right of private property

20. There may be situations in which a relative harm to one constitutional right is possible in order to realize another constitutional right, in conditions that will ensure relative protection of human life. This is conditional upon the relative balancing of these constitutional rights against one another, as dictated by the circumstances of the case. This balance sometimes requires a conceptual definition of the constitutional rights in accordance with a scale of importance and strength in order to examine whether one right has preference and superiority to the other, or whether they are of equal importance and standing. Sometimes this conceptual examination will become redundant whether it is found that a balance that was made de facto also satisfies the constitutional criteria required for the purpose of a balance between constitutional rights that are of equal standing and rank to one another.

In the special circumstances of this case, there is no need to adopt a decisive position with regard to the conceptual ranking of the right of worship and the right of property in order to decide the question of how to balance between them in a case of a conflict. In view of the facts of the concrete case, the balance between them satisfies the test of constitutionality (HCJ 153/83 Levy v. Southern District Commissioner of Police [34], at p. 400 {115-116}). Even if we assume, for the purposes of this case, that we are concerned with constitutional rights of equal standing and importance, even so, in the horizontal balance between them, sometimes a certain reduction of one will be possible to allow the relative realization of the other. This reduction satisfies the test of constitutionality if it befits accepted social values, is intended for a proper purpose and is not excessive in its scope, in the spirit of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty. These principles today form a link between the Basic Law and all the rules of public law (Horev v. Minister of Transport [16], at pp. 41-43 {193-195}). They reflect a general balancing formula that assumes that where constitutional rights of an equal standing are concerned, complete protection should not be given to one right at the expense of a complete violation of the other right, but we should seek to uphold them jointly by allowing a reciprocal reduction of each of them.

From the general to the specific

21. The area commander has the responsibility for the security of the military force in the area under his command, as well as for maintaining order and ensuring the security and welfare of the inhabitants living there. Of paramount importance in the responsibility for the population of the area is the duty to ensure the safety and security of the inhabitants’ lives. The responsibility of the commander includes not only the duty to ensure that the inhabitants’ lives are secure, but also the responsibility to protect the human rights of all the inhabitants of the area, whether Arabs or Jews. One of the constitutional human rights that deserves protection is the right of freedom of religion and worship. Within the scope of this right, the Jewish inhabitants wish to give expression to their faith by praying at the Machpela Cave, which is a Jewish holy place. The realization of this right on Sabbaths and festivals requires walking from Kiryat Arba to the Machpela Cave. The risk of terror attacks and the topographic conditions require, as a condition for making this journey on foot, the existence of minimum security conditions to protect the worshippers against attacks. These conditions require the adoption of special measures to achieve this. Realization of such measures involves harm to the right of private property of the Arab inhabitants of the area, whose land is situated along the route. The property right of these inhabitants also has a recognized constitutional standing.

In making the requisition order, the area commander sought to make a proportionate balance between the conflicting constitutional rights, in order to allow the realization of the right of prayer at a holy place in conditions of relative security for those persons passing along the route.

All the possibilities for a pedestrian route of the worshippers were considered, and it was found that, with the exception of the worshippers’ route, every other alternative was far more costly in terms of the security risks to the worshippers and the harm and damage anticipated to the inhabitants of the area. When the worshippers’ route was found to be the preferable route, the area commander reduced to a minimum the harm to private property along the route. In the northern part, he reduced the width of the route to two metres from each side. In the southern part of the route he reduced the widening of the route to a total width of four metres. This widening will allow only the unidirectional passage of rescue vehicles, as opposed to the possibility of bidirectional traffic that was previously considered. This reduction diminishes the harm to property, on the one hand, and allows only a minimum of security measures for the worshippers, on the other. All the buildings that are the subject of the requisition order are abandoned and uninhabited. One house that was found to be inhabited was excluded from the requisition order and the route of the passage was changed accordingly. The reduction of the area of widening the southern route currently requires a partial demolition of two buildings and a part of an additional building, which have not been inhabited for many years. The demolition does not involve the eviction of persons from their homes. The aforesaid demolition is supposed to be supervised by professionals in the fields of conservation of buildings and archaeology, in order to protect the cultural-historical values of the area, in so far as possible. The owners of the property have a right to payment for the use thereof and compensation for the requisition and the demolition. The requisition order is limited in time. When the security position changes and calm prevails in the area, the presumption is that the order will not be extended and property that has been requisitioned and can be returned will be returned to its owner.

The balance between the conflicting constitutional rights is not easy or self-evident in the circumstances of this case. It involves aspects of rights of human expression by means of realizing religious belief and worship, which conflict with rights and values concerning a connection to land and property; in addition to all of these, there is a general value of responsibility for protecting human life. The point of equilibrium between all of these factors is hard to find. Nonetheless, in the final analysis it would appear that the requisition order in its narrow format satisfies the test of constitutionality, by finding a relative balance between the constitutional rights. It allows the right of worship to be realized while providing relative protection to the security of the worshippers, which is made possible by harm to the conflicting right of private property in a limited degree, which is accompanied by financial compensation. It does not conflict with accepted social values, it is done for a proper purpose and it is not excessive. If the area commander were to refrain from causing the relative harm to property rights, this would mean failing to adopt essential security measures for the protection of the persons walking along the route. If this were the case, it would make it necessary to deny the right of the worshippers to go to the Cave on Sabbaths and festivals absolutely, because of the lack of adequate security measures to protect their safety. Such a denial would constitute an absolute and improper violation of the freedom of worship to pray at a holy site and a serious violation of the freedom of movement and access required in order to realize freedom of religion. Alternatively, it would lead to allowing the passage of the worshippers along the route without the special security measures that are required in the circumstances of the case, thus increasing the immediate risk to the safety and lives of men, women and children using the route, sometimes in their thousands. These alternatives create considerable difficulty in themselves. Against this background, the upholding of the right of worship in conditions of relative protection for the security of the worshippers, by means of relative harm — which has been reduced to a minimum — to the property rights of the owners of the rights along the route, satisfies, in the special circumstances of this case, the conditions for the constitutional balance in a way that is not unreasonable.

Consequently I find no ground for intervention in the discretion of the area commander in making the requisition order in its narrow format, in accordance with which the order is going to be amended.

Outcome

22. On the basis of the aforesaid, I propose to my colleagues that we deny the petitions and recognize the validity of the requisition order in its narrow form, as set out in the written notice of the State dated 7 August 2003, and in the statements of counsel for the respondents during the hearing in the court on 23 November 2003, with regard to the scope of the widening of the route in its northern part. We have made a note of the respondent’s statement that an amending order will be made to the original requisition order in the spirit of the aforesaid notices of the State.

 

 

President A. Barak

I agree.

 

 

            Justice M. Cheshin

I agree.

 

Petitions denied.

11 Adar 5764.

4 March 2004.

HCJ  10203/03

 

"Hamifkad Haleumi" Ltd.

v

1.         Attorney General

2.         Broadcasting Authority

3.         Second Authority for Television and Radio

4.         National Labour Court                                           

 

 

The Supreme Court sitting as the High Court of Justice

[20 August 2008]

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

 M. Naor, S. Joubran, E. Hayut

 

Petition for order nisi to the Supreme Court sitting as the Supreme Court of Justice.

 

Facts: The petitioner is a private company working for the promotion of political program to solve the Israeli-Arab conflict. It applied to the respondents for permission to expose the public to the central principles of its political program by way of advertisements on television and radio. Due to the political contents of the advertisements the Authorities rejected the applications, relying on, respectively, Broadcasting Authority’s Rules - (Advertisements and Notifications on Radio) and the  Second Authority Rules (Ethics in Advertising in Radio Broadcast)  and (Ethics in Television Advertising) (hereinafter-the Rules).

The petitioner contested this refusal in the High Court of Justice, claiming that the Rules unconstitutionally infringed his right to freedom of political expression, which is a part of his right to human dignity, and was thus unconstitutional and invalid. The infringement did not comply with the conditions of the limitation clause because neither the Broadcasting Authority Law nor the Second Authority Law authorize any infringement of the freedom of expression, and a prohibition on broadcasting a political advertisement would not serve any legitimate public interest, because there are no grounds for distinguishing between other media avenues in which political content is permitted, and the advertising media in which it is prohibited. Moreover, the Rules are disproportionate, in terms of its various subtests, specifically in terms of their ability to attain their purpose and of being the least harmful means of achieving the purpose of the violation.

\

The respondents claimed that the right to freedom of speech does not impose an obligation on the Broadcasting Authority to broadcast the political messages of the petitioners at the time, place, and manner requested by the petitioner, and the petitioner has no vested right to transfer information specifically by way of advertisements. The regular broadcasting framework is the appropriate framework for exercising freedom of speech, because the broadcasts must comply with the duty of balancing between different viewpoints, as opposed to the advertising framework which could be unfairly exploited by those with financial power. The law contains an express general authorization for prohibitions and restrictions on the broadcast of advertisements, leaving the specification of particular restrictions to the discretion of the administrative authority. Furthermore, channeling political speech into the appropriate framework of regular broadcasts, which is subject to the fairness doctrine and the duty of balancing, protects the equality of opportunity to present political opinions, and prevents a situation in which extensive dissemination of opinions is granted to those with financial means. Invalidation of the rules would undermine this doctrine which does not apply to the advertising framework, and enable the financially powerful bodies to purchase advertising time and be more effective in influencing social and political discourse without being subject to the restrictions attendant to the duty of balance prescribed by the Law. Moreover, imposing a blanket restriction is the most effective way of achieving the purpose, because invalidating the existing rules and imposing specific regulation would drag the regulator into the realm of political censorship.

 

Held: In a majority opinion, the petition against the legality and constitutionality of the Rules of the Broadcasting Authority and the Second Authority for Television and Radio, prohibiting broadcast of advertisement carrying political contents, was dismissed.

Per Justice Naor: The constitutionality of the Rules in this case must be decided based on the two stage examination: the first stage examines whether the Rules prohibiting political content in advertisements violate a right protected in the Basic law, and the second stage examines whether the Rules satisfy the requirements of the limitations clause.

In the case at hand, the Rules violate the freedom of political expression, which constitutes a violation of the constitutionally protected value of human dignity.  With respect to the second stage however the Rules satisfy the requirements of the limitation clause, insofar as the authorizing sections of the relevant legislation authorize the regulator to restrict the contents of the advertising broadcasts by conferring the authority to establish content based “restrictions” and “prohibitions” on the broadcasting of advertisements. Despite the absence of primary legislation determining the limits of its powers,  the legislative provisions establish requirements to ensure fair and balanced expression of all views to the public, and as such justify regulation of the communication marketplace and the Rules are consistent with that overall purpose and the fairness doctrine, that has been adopted in Israeli law, and they effectively achieve that purpose in a proportionate manner.

Per Justice Levy, The opposition to political advertisements is also and primarily supported by the fundamental consideration of the maintenance or at least the prevention of further deterioration, of the character of public discourse in Israel. Opening the broadcasting realm to political content poses a substantive danger to the quality of political discourse in Israel, and the relevant rules of the broadcasting authorities should be interpreted first and foremost with the goal of distinguishing between political expression and its commercial aspect. This form of analysis enables a synthesis between the purpose and the means adopted to achieve the appropriate purpose in a proportionate manner are satisfied by the ban on political advertising.

Per Justice Joubran, concurred with Justice M. Naor and held that  enabling the broadcast of political expressions on disputed  matters in the framework of paid advertisements would, in practice, spell the demise of the fairness doctrine in Israel, and given that the fairness doctrine is thoroughly anchored in the primary legislation, the rules satisfy the requirement of “explicit authorization”.

Per Justice Procaccia – Having reference to the two stage examination for purposes of constitutional review, held that in the case at hand, the prohibition on political advertisements does not violate the constitutional right to freedom of speech, including the freedom of political expression. The existence of a constitutional right to freedom of speech, including political expression does not necessarily mean that every possible means of expression is included in the right. According to its purpose, the scope of the right to political expression does not extend to expression in the form of paid advertisements by way of public media authorities. Political expression is given an extensive platform in the framework of the programs themselves, without special payment. Commercial and neutral expression was allocated a paid advertisements track, which does not affect or distort public discourse through the monetary purchase of the power to disseminate information. It is difficult to argue that this approach, with its particular distinctions, provides grounds for a claim of inequality and unlawful discrimination, in either the constitutional or the administrative realm, that warrants judicial intervention

Per President Beinisch (dissenting view) - The authorization to establish limitations on the contents of advertising broadcast in the Broadcasting Authority Law and the Second Authority Law are general. The immense importance of freedom of political expression for the individual and for society and its contribution to the democratic process affects not only its constitutional status, but also the scope and degree of the protection given to such expression, and given that the absolute violation under the Rules significantly and severely violates the freedom of political expression, the general authorization does not suffice. The establishment of that kind of prohibition requires an explicit authorization that determines the fundamental principles governing the particular prohibition, even if only in general terms. As such, the absolute ban on the broadcast of political advertisements in the Rules was established without the appropriate statutory authorization, and as such in contravention of the first condition of the limitations clause.

Per Justice Hayut – Concurs with the President’s position that in the absence of an explicit authorization in primary legislation, rules restricting freedom of expression cannot stand, but in the case in point, section 86 (a) of the Second Authority Law satisfies the requirement of explicitness, and provides a statutory anchor for the Second Authority to prohibit political advertisements. The asymmetry thus caused between the Broadcast Authority and the Second Authority with respect to the same politically based advertisements is undesirable and points to the need for a standard statutory arrangement.

 

Petition rejected

Legislation Cited

Broadcasting Authority Law, 5725-1965, ss. 2,3,4,7(2) 25A (a)(1), 25A (b)2, 33, 85,

Broadcasting Authority (Amendment No. 8) Law 5753-1993,

Second Authority for Television and Radio Law, 5750-1990, 5, 5 (b)(7),5 (b) (10),  22, 24(a)(6). 46(a),46(a)(3), 47, 81, 86, 86(1), 88,

Basic Law: Human Dignity and Liberty, s.8

Basic Law: The Judiciary, s. 15 (d)(2)

Basic Law: Freedom of Occupation

Israeli Cases Cited

[1]     HCJ 259/84 M.I.L Israeli Institute for the Choice Product and Business Ltd v. Broadcasting Authority [1984], IsrSC 38(2) 673.

[2]     HCJ 1858/96 Assam, Investments Ltd v. Broadcasting Authority 1999], (not reported).

[3]     HCJ 6032/94 Reshet Communications and Productions Company (1992) v. Broadcasting Authority [1997], IsrSC 51(2) 790.

[4]     HCJ 226/04 Neto M.A Food Trade Ltd v. Second Authority for Television and Radio (2004), IsrSC 59(2) 519.

[5]     HCJ 7012/93 Shammai v. Second Authority for Television and Radio [2004] IsrSC 48(3) 25.

[6]     HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee [2001], IsrSC 46(2) 701.

[7]     HCJ 15/96 Thermokir Horshim v. Second Authority for Television and Radio [1996] IsrSC 50(3) 379.

[8]     HCJ 4644/00 Jaffora Tabori Ltd v. Second Authority for Television [2000] IsrSC 54(4) 178.

[9]     HCJ 7200/02 D.B.C. Satellite Services (1998) Ltd v. Committee for Cable Broadcasts and Satellite Broadcasts [2005], IsrSC 59(6) 21.

[10]   HCJ 951/06 Stein v. Commissioner of Israel Police [2006] (not reported). 

[11]   HCJ 4541/94 Miller v.Minister of Defense [1995] IsrSC 49(4) 94; [1995-6] IsrLR  178

[12 ]  HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior  [2004] (unreported)

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

[14]   HCJ 6427/02 Movement for Quality of Government in Israel v. Knesset [2006] (not yet reported).

[15]   CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 431; [1995] (2) IsrLR 1

[16]   HCJ 2194/06 Shinui- The Center Party v. the Chairman of the Central Elections Committee [2006] (not yet reported).

[17]   HCJ 4804/94 Station Film Co. Ltd. v. Film Review Boar [1997], IsrSC 50(5) 661.[1997] IsrLR 23

[18]   HCJ 6962/03 Media Most Company Ltd v. Council for Cable and Satellite Broadcast [2004], IsrSC 59(3) 14.

[19]   HCJ 806/88 Universal City Studios Inc v. Films and Plays Censorship Board [1989], IsrSC 43(2) 22; IsrSJ X 229

[20]  HCJ 2245/06 Dobrin v. Prisons Service  [2006] ( not reported).

[21]  HCJ 4593/05 United Bank Mizrahi Ltd v. Prime Minister

[2006] (not yet reported).

[22]   HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority (1981)[1993], (IsrSC 48(2) 1.

[23]  HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting (2004), IsrSC 58(3) 65.

[24]   CA 723/74  Ha'aretz Daily Newspaper Ltd. and Others v. The Israel Electric Corporation Ltd. and Another [1977], IsrSC  31(2) 281.

[25]   PPA 4463/94 Golan v. Prisons Service Authority [1996]136, [1995-6] IsrLR 489

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

 [27] HCJ 6396/93 Zakin v. Mayor of Be’er Sheva 1999], IsrSC 53(3) 289.

 [27]  HCJ 11225/03 Bishara v. Attorney General -[2006] (1) IsrLR 43

[28]  HCJ 6226/01 Indoor v. Jerusalem Mayor  [2003], IsrSC 57(2) 157.

[29]   CA 4534/02 Shoken Network Ltd. v. Herzkowitz [2004], IsrSC 58(3) 558.

[30]   CA 105/92 Re’em Engineers Contractors Ltd v. Upper Nazareth Municipality [1993], IsrSC 47(5) 189.

[31]   HCJ 2481/93 Dayan v. Wilk  [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324

[32]   HCJ  2557/05 Mateh Harov v. Israel Police [not reported].

[33]   LCA 10520/03 Ben-Gvir v. Dankner [2006].

[34]   LCA 2687/92 Geva v. Walt Disney Company [1993], IsrSC 48(1) 251.

[35]   HCJ 6126/94 Szenes v. Broadcasting Authority [1999], IsrSC 53(3) 817, [1998-9] IsrLR 339

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

[37]   HCJ 8988/06 Meshi Zahav v. Jerusalem District Commander [2006] (not yet reported).

[38]   HCJ 953/01 Solodkin v. Beth Shemesh Municipality [2004], IsrSC 58(5) 595.

[39]   HCJ 5118/95 Maio Simon Advertising Marketing and Public Relations Ltd v. Second Authority for Television and Radio [1996] IsrSc 49(5) 751.

[40]   HCJ 4520/95 Tempo Beer Industries Ltd v. Second Authority (1995) (not published).

[41]   HCJ 7144/01 Education for Peace v Broadcasting Authority (2002), IsrSC 56(2), 887. Peace Block v. Broadcasting Authority

 [42]  HCJ 213/03 Herut National Movement v. Chairman of Central Elections Committee for Twelfth Knesset [2003], IsrSC 57(1) 750.2117

[43]   HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security  [2004], IsrSC 58(2) 741.

[44]   HCJ 5936/97 Dr. Oren Lam v. Director General, Ministry of Education and Sport [1999], IsrSC 53(4) 673.

[45]   HCJ 3267/97 Rubinstein v. Minister of Defenseשגיאה! הסימניה אינה מוגדרת. [1998], IsrSC 52(5) 481, [1998-9] IsrLR 139

[46]  HCJ 6971/98 Paritzky v. Government of Israel [1999], IsrSC 53(1) 763.

[47]   HCJ 11163 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel [2006] (not yet reported) [2006] (1) IsrLR 105.

[48]   HCJ 10338/03 Wesh Telecanal Ltd v. Minister of Communications [2006].

[49]   HCJ 7052/03 Adalah Legal Center for Rights of Arab Minority v. Minister of the Interior Adalah [2006] (not yet reported) [2006] (1) IsrLR 443

[50]   HCJ 4769/95 Menahem v. Minister of T0ransport [2002] IsrSC 57(1) 235.

[51]   HCJ 2888/97 Novik v. Second Authority for Television [1997], IsrSC 51(5) 193.

[52]   HCJ 6218/93 Cohen v. Israel Bar Association  [1995], IsrSC 49(2) 529.

[53]   HCJ 1/81 Shiran v. Broadcasting Authority [1981], IsrSc 38(3), 365.

[54]   HCJ 399/85 Kahane v. Managing Committee of the Broadcasting Authority [1987], IsrSC 41(3) 255. 

[55]   HCJ 4915/00 Reshet Communications and Production Company v. Gov’t of Israel [2000], IsrSC 54(5) 451.

[56]   HCJ 5933/98 Documentary Creators Forum v. President of the State (2000) IsrSC  54(3) 496.

[57]   AAA 3307/04 Kol Acher BeGalil v. Misgav Local Council [2005],

[58]   CrA 71/93 Flatto Sharon  v. State of Israel [1984], IsrSC 38(2)757.

[59]   HCJ 7833/96 Melnik v. Second Authority for Television and Radio [1998], IsrSC 52(3) 586.

[60]   HCJ 73/53 Kol Ha’Am Ltd. V. Minister of the Interior [1953], IsrSC 7, 871.

[61]   HCJ 316/03 Bakri v. Film Censorship Board [2003] IsrSC 58(1) 249 [2002-2003] IsrLR 487

[62]   HCJ 5277/07 Marzel v. Commander of Jerusalem Regional Police [2007] (unreported).

[63]   HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v Director of Sabbath Work Permits [2005], (unreported).

[64]   HCJ 1715/97 Israeli Office of Investments Managers v. Minister of Finance [1997], IsrSC 51(4), 367.

[65]   HCJ 1893/92 Reshef v. Broadcasting Authority [1992], IsrSC 46(4) 816.

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

[67]   HCJ 8035/07 Eliyahu v. Government of Israel [2008], (not yet reported) IsrLR 2008

[68]   HCJ 757/84 HCJ 3420/90 The Daily Newspaper Union in Israel v. The Minister of Education and Culture [1987], IsrSC 337.

[69]   CA 723/74 Ha’aretz Daily Newspaper Ltd. v. The Israel Electric Corporation Ltd  (1977), IsrSC 31(2) 281.

[70]   HCJ 9596/02 Pitzui Nimratz, Experts for Realization of Medical Rights and Insurances v. Minister of Justice (2004), 792.

[71]   CA 506/88 Shefer v. State of Israel (1993), 87.

[72]   HCJ 337/81 Miterani v. Minister of Transportשגיאה! הסימניה אינה מוגדרת. (1983), IsrSC 37(3), 337.

[73]   CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers S   Settlement Ltd [1991] IsrSC 48(4) 529.

[74]   HCJ 144/72 Lipevski-Halipi v. Minister of Justice [1973], IsrSC 27(1) 719.

[75]   CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006], (not yet reported). [2006] (1) IsrLR 320

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

[77]   HCJ 11163/03  Supreme Monitoring Committee for Arab Affairs in Israel et al. v. Prime Minister of Israel [2006] [2006] (1) IsrLR 105.

[78]   HCJ 256/88 Medinvest Herzliya Medical Center v. CEO of. Minister of Health [1989]  IsrSC 44(1) 19.

[79]   HCJ 2740/96 Chancy v. Supervisor of Diamonds [1997]), IsrSC 51(4) 481

 [80] HCJ 7083/95 Sagi Tzemach v. Minister of Defense [1999], IsrSC 53(5) 241, [1998-9] IsrLR 635

[81]   HCJ 8276/05 Adalah – The Legal Center for Arab Minority Rights in Israel  v. Minister of Defense [2006] (not yet reported

[82]   HCJ 3648/97  Stemkeh . v. Minister of the Interior [1999] IsrSC 53(2) 728.

[83]   HCJ 5503/94 Segel v. Knesset Speaker [1997] IsrSC 51(4) 529.

[84]   LAA 696/06 Alkanov  v. Supervisory Court for Custody of Illegal Residents [2006] (not yet reported)

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

[86]   CrimA 2831/95 Alba v. State of Israel [1996] IsrSC 50(5) 221.

[87]   HCJ 1435/03. A v. Haifa Civil Servants Disciplinary Tribunal [2003] IsrSC 58(1) 529

[88]   HCJ  326/00 Municipality of Holon v N.M.C. Music Ltd [2003], IsrSC 57(3) 658.

[89]   HCJ 3420/90 The Daily Newspaper Union in Israel v. The Minister of Education and Culture [1991], IsrSC 48(2) 24.

[90]  HCJ 1/49 Bajerno v. Minister of Polic [1949], 2 IsrSC 80,82)

[90]   HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [2002] IsrSC 56(5) 393.

[91]   HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309

[92]  HCJ 7111/95 Local Government Centre v. Knesset [1996] IsrSC 50(3) 485.

[93]  HCJ 5394/92 Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority (1994) IsrSC 48(3) 353

[94]   HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [1998] IsrSC 52(2) 193

[95]   HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [1998], IsrSC 52(4) (1998).

[96]   HCJ 2223/04 Levi v. State of Israel [2006] (not yet reported).

[97]   HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel (2006) (not yet reported).

[98]   HCJ 8487/03 IDF Invalids Organization v. Defence Minister (2006) (not yet reported).

[99]   HCJ 11956/05 Suhad Bishara. v. The Ministry of Construction and Housing (2006) (not yet reported).

[100] HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [1998], IsrSC 52(4) (1998).

[101]     HCJ 10076/02 Rozenbaum v. Prison Authority Commissioner (2006) (not yet reported). [2006] (2) IsrLR 331

[102]   HCJFH 4191/97 Recanat v. National Labour Court [2000] IsrSC 54(5) 330

 

 

For the Petitioner –                 Motti Arad, Hila Goldberg

For Respondents 1 – 2                         Avi Licht

For Respondent 3 –                  Yair Eshael, Liat Benmelekh, Nachi Ben-Or

 

JUDGMENT

 

Justice M. Naor

Are the prohibitions on the broadcast of an advertisement with a political subject, as prescribed in the Broadcasting Authority (Radio Advertisements and Announcements) Rules 5753-1993, and in the Second Authority for Television and Radio (Ethics in Radio Advertisements) Rules 5759-1999,  void in that they are an unconstitutional violation of freedom of speech? This is the question confronting us in this petition.

The facts

1.    The petitioner is a private company that incorporated in Israel in 2002.  It promotes an initiative for a permanent solution to the Israeli-Palestinian conflict. In the framework of this initiative, Mr. Ami Ayalon, who until 6.12.2004 served as the chairman of the petitioner’s directorate, together with Mr. Sari Nusseibeh formulated a document entitled the “Declaration of Principles” (hereinafter: "the Document"). The petitioner sought to expose the Israeli public to the contents of the Document and to encourage the public to sign it. To that end, the petitioner prepared advertisements for radio. The advertisements directed the listeners to the petitioner’s Internet site and to a telephone number from which they could obtain further details concerning the initiative (hereinafter: "the advertisements"). The wording of the six advertisements, all sharing a similar conception, was attached to the petition.  One reads as follows:

‘Ami Ayalon

I say to you: the political reality in this region can be changed.

               A declaration of principles has been signed between Israeli and Palestinian citizens.

               It preserves our red lines, which are a Jewish democratic state without the right of return. We have partners on the other side and many of them have signed. Join us now .... Together, you and I can [bring about] change.

Hamifkad Haleumi – Citizens Sign an Agreement.

Telephone: 03-9298888 or Internet www.mifkad.org.il’

Respondent 2 (hereinafter: "the Broadcasting Authority"), which is responsible for broadcasting programs and advertisements on national radio stations, approved broadcast of the advertisements on channels B, C and 88FM from 14 – 28 September 2003. On 19 October 2003, respondent 3 (hereinafter: "the Second Authority"), which is responsible for the broadcast of programs and advertisements on the regional radio stations, announced its refusal to approve the advertisements, in that they dealt with a “political issue which is the subject of public controversy”, and because their entire "purpose was to 'enlist support' for a particular position on an issue which is the subject of public controversy.” The Second Authority directed the attention of the Broadcasting Authority to its decision, in the wake of which the Attorney General, on 29 September 2003, instructed the Broadcasting Authority to discontinue the advertisements because they dealt with “a political-ideological matter which was the subject of public controversy”. On 21 October 2003, the Broadcasting Authority notified the petitioner that it could no longer approve the broadcast of the advertisements on national radio. On 23 October 2003 the petitioner lodged appeals against the decisions of the Broadcasting Authority and Second Authority. On 13 November 2003 the Second Authority dismissed the appeal, and on 16 November 2003 the petitioner received the answer of the Broadcasting Authority Appeals Committee, which likewise dismissed the appeal that had been lodged.

The original petition and the granting of order nisi

2. On 16 November 2003 the petitioner filed a petition (hereinafter: "the original petition") contesting the decisions of the Broadcasting Authority and the Second Authority prohibiting the broadcast of the advertisements, arguing that they were void due to their grave and unconstitutional violation of the petitioner’s freedom of speech. The next day the petition was heard by the Court (President Barak, and Justices Türkel and Hayut) together with an additional petition. As noted by the petitioner (s. 154 of its summations), it was proposed at the hearing to separate the two petitions: HCJ 10182/03 T.L. Education for Peace Ltd. v. Broadcasting Authority (judgment in which was given on 25 November 2004 (hereinafter: HCJ 10182/03 Education for Peace)) would focus on the question of whether the specific advertisement under discussion complied with the Rules; and the hearing of the present petition would concentrate on the question of the constitutionality of the Rules themselves, with the petitioner demanding to disqualify the Rules on the assumption that the specific advertisement does not comply with them as they currently stand.  In the course of the hearing the petitioner therefore requested to limit the remedies sought in the original petition. Following receipt of the response to this request, on 29 July 2004 an order nisi was granted (Justices Cheshin, Rivlin and Hayut) as requested for the three heads of the original petition. The order was directed at the Broadcasting Authority and the Second Authority, ordering them to show cause why the Court should not issue the following declaration:

1. The refusal of respondents 2 and 3 to allow the broadcast of the petitioners’ advertisements, as per the formulation requested in the application attached to this petition as appendix A ... is unlawful in view of its unconstitutional violation of the petitioner’s freedom of speech. Accordingly, the decisions of respondents 2 and 3 should be reversed and the advertisements permitted.

2.            Section 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993, which prohibits the broadcast of advertisements "on a matter which is the subject of public political-ideological controversy”, is invalid, since it unconstitutionally violates freedom of speech.

3. Section 5 of the Second Authority for Television and Radio (Advertising Ethics in Radio Broadcasts) Rules 5759-1999 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules 5754-1994 which prohibit the broadcast of an advertisement “regarding a matter which is the subject of political or ideological controversy” are invalid by reason of their unconstitutional violation of freedom for speech.

            The amended petition and the expansion of the bench

3.         On 6 December 2004 Mr. Ami Ayalon resigned from his position as chairman of the petitioner’s Board of Directors. Following this, the petitioner submitted a request to amend the original petition. On 26 January 2005 the Court (Justices Rivlin, Hayut and Adiel) granted the petitioner’s request and ordered that an amended petition be filed (hereinafter: "the amended petition"). On 27 January 2005 the same panel decided that the hearing should be held before an expanded bench, and on 1 February 2005 the amended petition was filed. On the same day President Barak ruled that the amended petition would be heard by an expanded bench. On 29 November 2005 the amended petition was heard by the expanded bench (President Barak, Deputy President Cheshin, and Justices Beinisch, Procaccia, Naor, Hayut and Adiel). The parties persisted in their request that the Court decide on the fundamental question of the constitutionality of the Rules. Following the retirement of President Barak and Deputy President Cheshin, and in view of the petitioner’s request, on 29 April 2007 the petition was heard by a new bench (President Beinisch, and Justices Procaccia, Levy, Grunis, Naor, Joubran and Hayut). The petitioner again requested that a ruling be given on the fundamental issue of the constitutionality of the rules. The hearing focused on ss. 2 and 3 of the order nisi (regarding the constitutionality of the Rules). The petitioner no longer insisted on s. 1 of the order nisi (permitting the broadcast of the advertisements as specified in the petition), because the petitioner and the Broadcasting Authority had already agreed, on 25 November 2004, on a new format for the advertisement, which was approved for broadcast on the Voice of Israel.

            This brings us to the decision on the issue of the constitutionality of the Rules, and we will begin with a description of the existing statutory arrangement.

            The normative framework – advertising in broadcasts of the Broadcasting Authority 

            4.         The Broadcasting Authority is a statutory corporation, established by virtue of the Broadcasting Authority Law, 5725-1965 (hereinafter: "Broadcasting Authority Law"). The Broadcasting Authority Law authorized the Broadcasting Authority to broadcast advertisements that are presented to the public as a government service (ss. 2 and 3 of the Law; see HCJ 259/84 M.L.I.N. Israeli Institute for the Choice Product and Business Ltd. v. Broadcasting Authority [1], at p. 673). As elucidated below, the Law explicitly authorized the Broadcasting Authority to broadcast advertisements on the Voice of Israel radio station; with respect to television advertising, the Law permitted only sponsorship advertisements, subject to certain limitations (see Yuval Karniel, The Law of Commercial Communication, at p. 162 (2003)).

            Regarding television broadcasts it has been held that “the Broadcasting Authority Law contains no provision, explicit or implied, authorizing the Broadcasting Authority to broadcast commercial advertisements, and according to the nature and the purpose of the Law, no such authority may be attributed to it. Nonetheless, this Court is not prepared to vacate the Broadcasting Authority’s decision to broadcast service advertisements aimed at increasing public awareness on various national, public subjects, and  sponsorship advertisements intended as an acknowledgement on the Authority’s part of the assistance given by a particular commercial company in the production of the program, provided that it involves no direct advertising message” (see HCJ 1858/96 Osem Investments Ltd. v. Broadcasting Authority [2], para. 6).

            Regarding radio broadcasts, the Broadcasting Authority (Amendment No. 8) Law 5753-1993 added Chapter Four A to the Broadcasting Authority Law. When that amendment came into force, Basic Law: Human Dignity and Liberty was already in force, though in fact, the petitioner did not challenge the amendment, but rather the rules of the Broadcasting Authority that were made by virtue thereof. In the said chapter, the Broadcasting Authority was granted explicit statutory authorization to broadcast advertisements and announcements on radio (only) for payment. Section 25A(a)(1) of the Broadcasting Authority Law provides as follows: 

‘The Authority may broadcast on radio advertisements and announcements for consideration (hereinafter: “advertisements and announcements”), and commission them, prepare them or produce them by itself or through one or more other people, as determined by tender.’

Accordingly, s. 25A(b)(2) of the Broadcasting Authority Law (hereinafter: "the Broadcasting Authority authorization section", and see also s. 33 of the Broadcasting Authority Law) authorized the Management Committee of the Broadcasting Authority to prescribe rules regarding prohibitions and restrictions on the broadcast of advertisements and announcements on radio:

‘25A. Advertisements and Announcements on Radio

              ….

(b) The management committee shall determine, in consultation with the Director General, rules concerning - 

         …

(2) prohibitions and restrictions on the broadcast of advertisements and announcements’.

            This distinction authorizing the Broadcasting Authority to broadcast advertisements on radio but not on television has ramifications for the sources of funding of the Broadcasting Authority as a public broadcasting agency, since “broadcasts on Channel One are funded primarily by the television fees paid by all citizens of the State who own a television set” (HCJ 6032/94 Reshet Communications and Productions Company (1992) v. Broadcasting Authority [3], at p. 808; see also “Report of the Committee for Examining the Structure of Public Broadcasting in Israel and its Legal and Public Status” (1997) at p. 59 (hereinafter: "Structure of Public Broadcasting Report")). Accordingly, it was determined that to the extent that the Broadcasting Authority seeks to expand its funding sources through advertisements on radio and television, it must do so by way of legislation (see Reshet Communications and Productions Company (1992) v. Broadcasting Authority [3], at p. 809). Indeed, the authority to broadcast advertisements on radio and television is, as stated, grounded in legislation, and the prohibition on radio broadcasts of advertisements also has its source in legislation, i.e. in s. 25A(b)(2) of the Broadcasting Authority Law.

            5. By virtue of s. 25A(b)(2) of the Broadcasting Authority Law, the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993 (hereinafter: "Broadcasting Authority Rules" or "the Rules") were laid down.  Section 1 of the Broadcasting Authority Rules provides the following definitions of “advertisement” and “announcement”:

‘“Advertisement” – an advertising broadcast, sponsorship broadcast, or an announcement, broadcast on radio in consideration for payment to the Authority.

“Announcement” - the relaying of information to the public.’

            Section 4 of the Broadcasting Authority Rules specifies those advertisements the broadcast of which is prohibited:

‘The Director General will not approve the broadcast of an advertisement prohibited under Chapter C. In addition to the provisions of Chapter C, he is authorized to deny approval for the broadcast of an advertisement that is publicly or morally reprehensible or offensive to good taste or to public order, or damaging to the public.’

            The relevant section in Chapter 3 of the  Rules, referred to in s. 4 above, is s. 7(2) which establishes the prohibition on the broadcast of party propaganda or a matter that is the subject of public political or ideological controversy:

‘7.It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

                                    …..

Party propaganda or a broadcast on a matter that is the subject of public political or ideological controversy, including a call for a change in the legislation concerning these matters.’

By virtue of the section of this rule relating to a broadcast on a matter that is the subject of public political or ideological controversy, the Broadcasting Authority disallowed the petitioner’s radio advertisements, in accordance with the instructions of the Attorney General (see also s. 8 of the Broadcasting Authority Rules, which relates to sponsorship advertisements on radio).

In this context it is also important to mention s. 4 of the Broadcasting Authority Law, which establishes the principle of balance in programs of the Broadcasting Authority:

‘4.  Ensuring Reliable Programs

The Authority shall ensure that programs accommodate the appropriate expression of different approaches and points of view current among the public, and that reliable information is transmitted.’

The Normative Framework – Advertising in Broadcasts of the Second Authority

            6. The Second Authority is a statutory corporation, established by virtue of the Second Authority for Television and Radio Law, 5750-1990 (hereinafter: "Second Authority Law"). Its role is the presentation and oversight of broadcasts in accordance with the provisions of the Second Authority Law (s. 5; see also I. Zamir, Administrative Authority, vol. 1  (1996) 395; and see HCJ 226/04 Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4], at p. 522).

It will be stressed that as public corporations, both the Broadcasting Authority and the Second Authority are “subject to full judicial review, similar to any other administrative authority. As a body fulfilling a public function under law, in the words of s. 15(d)(2) of Basic Law: The Judiciary,  the public corporation is subject to the review of the High Court of Justice and to the laws of public administration” (Zamir, Administrative Authority, at pp. 400-401). "The public media – television and radio - operate in Israel by virtue of legislation. From the perspective of Israeli law they are governmental bodies"(Aharon Barak, "The Tradition of Freedom of Speech and its Problems”, Mishpatim 27 (1997), 223, 237).    

Unlike the Broadcasting Authority, the broadcasts of the Second Authority are executed by broadcasting franchisees (hereinafter: “franchisees” and see s. 5 of the Second Authority Law). The franchisees are subject to the oversight of the Second Authority (s. 5 of the Law). The broadcasts themselves are at the franchisees’ expense, and s. 81 of the Second Authority Law provides that the franchisee “is permitted to include advertisements within the framework of its broadcasts in consideration for payment at the rate that it determines” (hereinafter: “the framework of advertisements”). One of the franchisees’ main sources of funding is the broadcast of advertisements (Hanna Katzir, Commercial Advertising (2001) at p. 168).  In accordance with the recommendations of the Report of the Committee for Investigation into a Second Television Channel in Israel (1979), the framework of advertisements was likewise subjected to the statutory arrangement (see Report, at pp. 41-43).

The Second Authority Law states that the Second Authority is authorized to prevent “prohibited programs” (s. 5(b)(10) of the Second Authority Law) as well as prohibited advertisements, as stated in s. 86 of the Second Authority Law, which provides as follows:

‘A franchisee shall not broadcast an advertisement  –

(1)          On subjects the broadcast of which is prohibited under section 46(a);

(2)          On behalf of a body or organization the aims of which, all or in part, involve subjects as aforesaid in paragraph (1) or labor disputes.’

            The relevant sub-section of s. 46(a) of the Second Authority Law, to which the said s. 86(1) refers, lays down prohibitions on broadcasts (that are not advertisements) involving party propaganda, and includes additional prohibitions prescribed by the Second Authority Council in its rules:

‘A franchisee shall not broadcast programs that contain -

   …

   (3)       party propaganda, except for election propaganda that is permitted by law;

   (4)       a breach of a prohibition set by the Council in its Rules, under another provision of this Law.

            Sections 24(a)(6) and 88(2) of the Second Authority Law (hereinafter: “the authorizing provisions of the Second Authority”) authorize the Council of the Second Authority to make rules concerning subjects of advertisements, the broadcast of which prohibited:

24. Establishing Rules

(a)          The Council, on its own initiative or at the request of the Minister and subject to the provisions of the First Schedule, or the Second Schedule where applicable by virtue of the provisions of section 62C, shall make rules concerning broadcasts, their execution, and oversight thereof, as it deems necessary for realizing the purposes of this law, and including in matters of -

…

Prohibited programs as stated in section 46;

…

The subjects, style, content, scope and timing of advertisements that are permitted under this Law;

 

88.  Rules for Advertisements

The Council shall make rules concerning the broadcast of advertisements, and inter alia, concerning the following matters:

The format of advertisements and the mode of their presentation;
  Subjects that are prohibited for broadcast as advertisements in general, or in specific circumstances, or by reason of being offensive to good taste or to public sensitivities.'

7.    Accordingly, the Second Authority Council enacted the Second Authority for Television and Radio (Ethics in Radio Advertisements) Rules, 5759-1999 (hereinafter: “Second Authority Radio Rules”), pursuant to ss. 24 and 88 of the Second Authority Law. Section 5 of the Second Authority Radio Rules establishes the prohibition on advertising that imparts a political, social, public or economic message that is the subject of public controversy:

'A franchisee shall not broadcast an advertisement that imparts a message on a political, social, public, or economic matter that is the subject of public controversy.'

The Second Authority disqualified the petitioner's advertisements under this rule (an identical rule appears in s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertisements) Rules, 5754-1994).  The Second Authority's decision, dated 19 October 2003, noted that indeed, "further to the above, and beyond that which is necessary, we feel that the said advertisement constitutes real party propaganda, which is prohibited under s. 46(a)(3) of the abovementioned Second Authority Law as well."  However, as noted, s. 46(a)(3) was not the reason for the disqualification, and it was added only as an extra precaution (on the sanction against a franchisee who broadcast on a matter that was prohibited, see s. 49(a) of the Second Authority Law).

            In this context it is important to mention s. 47 of the Second Authority Law, which establishes the obligation of balance in the Second Authority's programs:

'47. Providing the Opportunity for Response

(a) The franchisee shall ensure that in programs on current affairs, the contents of which are of public significance, proper expression shall be given to the various views prevailing amongst the public.

(b) The Council will make rules on providing an opportunity to respond in a manner fitting the circumstances, for those who are, or are liable to be, directly harmed by the programs.'

Regarding the duty of balancing, see also s. 5(b)(7) of the Second Authority Law, which determines that in the fulfillment of its obligations, the Second Authority shall act "to broadcast reliable, fair and balanced information"; s. 5(b)(6)  sets one of its obligations as "giving expression to the cultural diversity of Israeli society"; and s. 46(c) of the Second Authority Law states with respect to franchisees that "a franchisee shall not, in its programs, directly, or indirectly, in writing or in any other form, give any expression to its personal views, and if it is a body corporate – the views of its directors or of interested parties therein."

The Question that Arises in the Petition: The Constitutionality of the Rules

            8.         As we have said, the amended petition seeks the invalidation of s. 7(2) of the Broadcasting Authority Rules and of s. 5 of the Second Authority Rules, on grounds of unconstitutionality.  We will quote the Rules once more:

S. 7(2) of the Broadcasting Authority Rules:

‘7.          It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

                                    …..

 Party propaganda or a broadcast on a matter that is the subject of a public political or ideological controversy, including a call for a change in the legislation concerning these matters.'

Section 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules, 5754-1994 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994  are identical in their wording:

'A franchisee shall not broadcast an advertisement that imparts a message on a political, social, public, or economic matter that is the subject of public controversy.'

The parameters of the dispute – two clarifications

At the outset of our discussion, it is important to clarify two matters.

First, the concern of both this petition and the order nisi of 29 October 2004 is the question of principle – the constitutionality of the Rules, and not the applied question – whether and how the advertisements violate the Rules. As we said, in the hearing of 17 November 2003 the petitioner already agreed to a point of departure whereby the advertisements violated the Rules (and it will be noted that on 25 November 2004, the petitioners and the Broadcasting Authority reached an agreement regarding the wording of a new advertisement, which was approved for broadcast on The Voice of Israel).

It will be emphasized that the question of the constitutionality of the Rules was not decided in HCJ 10182/03 Education for Peace (by the panel comprising President A. Barak, and Justices Y. Türkel and E. Hayut), which dealt only with the interpretation and the application of the Rules. As stated there, “our assumption is that the prohibiting provisions that require interpretation were enacted for a proper purpose, and their violation of the freedom of speech does not exceed the proportionate violation that is required to achieve the underlying purpose of the prohibition" (ibid, para. 8). This assumption will be examined in the present petition.

Secondly, in our case the question is not whether an advertisement on a subject of public political controversy as defined in the Rules (hereinafter: “political advertisement”) also constitutes party propaganda as per the opening section of s. 7(2) of the Broadcasting Authority Rules and s. 46(a)(3) of the Second Authority Law. The parties' pleadings focused on the “political” content element of the petitioner’s advertisements and not on the petitioner's prima facie “party” character element.  Furthermore, on the factual level, the Broadcasting Authority’s decision did not rely on the grounds of "party propaganda", whereas reliance upon those grounds in the Second Authority’s decision was only an added precaution. Accordingly, in the framework of the petition we are not required to consider invalidation on the grounds of "party propaganda". Consequently, we are not required to consider the factual aspects of the petitioner’s apparent connections with political parties, nor need we consider the nature and character of “party propaganda” by way of advertisements other than during the pre-election period or in the context of elections (for interpretation of the term “party propaganda”, see HCJ 7012/93 Shammai v. Second Authority [5], at p. 33). In that case the Court did not adopt a position regarding the Second Authority Rules – see para. 7 of the judgment. On the other hand, regarding interpretation of the term “election propaganda”, see HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee [6], at p. 701). Indeed, the subject of propaganda broadcasts is regulated in separate legislation, which  permits the broadcast of propaganda under certain conditions immediately prior to elections (See Elections (Modes of Propaganda) Law, 5719-1959, which inter alia imposes restrictions on radio and television  broadcasts (ss. 5, 15, 15A, and 15B,  and see also s. 16D(b);  see also Elections (Modes of Propaganda) (Propaganda Broadcasts on Regional Radio in the Elections for Local Authorities) Rules, 5758-1998; see further in Katzir, Commercial Advertising, at pp. 257-259). In our case, as noted, the decisions of the Broadcasting Authority and the Second Authority were not based on these grounds of invalidation. In any case, in view of the wording of the order nisi that was issued, the question of the constitutionality or the interpretation of the provisions regarding propaganda does not arise here.

It will be emphasized that in HCJ 10182/03 Education for Peace, too, the Court did not consider the question of whether party propaganda can be attributed to a body that is not a “party” as defined in s. 1 of the Parties Law, 5752-1992, but some of whose members have a party-political identity (see HCJ 10182/03 Education for Peace, para 10).

10. We will therefore consider only those grounds of invalidation relating to "a broadcast on a matter that is the subject of public political or ideological controversy" (as per the wording of the Broadcasting Authority Rules); or a broadcast "imparting a message on a political, social, public, or economic matter that is the subject of public controversy" (as per the wording of the Rules of the Second Authority). This is the focus of the discussion in the petition.

The petitioner’s claims

11. The petitioner claims that the Broadcasting Authority Rules and the Second Authority Rules violate freedom of speech. Freedom of speech is not merely a basic right, but a constitutional right by virtue of Basic Law: Human Dignity and Liberty. It is argued that by virtue of their political character, the advertisements are protected under the rubric of freedom of political, rather commercial expression, even though the means is advertising. The advertisement is a form of political expression, and as such is entitled to the highest possible degree of protection within the scale of protections of freedom of speech.  It was further argued that the respondents are not intended to serve as a platform only for those views that enjoy public consensus; they must serve as a platform for the expression of the full spectrum of views and beliefs in a society, and this too – not only in the framework of the broadcasting of programs but also in the framework of the advertisements that are broadcast. In the words of the petitioner: “Advertising time [which] is a strip of transmission that constitutes, in effect, a free platform for the public, in the framework of which it can acquire “air time” for the airing of its opinions and beliefs…. Advertising time in the media is the modern town square in which any person who so wishes can set up his own soap-box, stand on it, and voice his controversial political opinions in an attempt to win over his audience (paras. 42 and 44 of the petitioner’s summations).

The petitioner maintains that the Rules violate a constitutional right protected by Basic Law: Human Dignity and Liberty, and that they were enacted after the enactment of the Basic Law (in 1993 and 1999); therefore, they must satisfy the conditions of the limitation clause (s. 8 of the Basic Law).

The central argument in this context is that the first condition of the limitation clause is not satisfied, i.e. that the violation be “by law or according to said law by virtue of explicit authorization therein.” The petitioners claim that neither the Broadcasting Authority Law nor the Second Authority Law authorize any violation of the freedom of speech, and that to the extent that such authorization exists, its interpretation must reflect the importance of the constitutional right. The petitioner raised no arguments relating to the second condition.  Regarding the third condition of the limitation clause – that the violation be for a proper purpose – it was argued that the prohibition on the broadcast of a political advertisement would not serve any legitimate public interest.  The public interest that might be relevant – equality of opportunity to present political opinions – does not merit protection. According to the petitioner, there is no presumption that certain types of political views enjoy broader financial support than other views. It was also argued that in any case, economic equality between entities seeking exposure for their political views through other media, such as the printed press, the internet, billboards, notice-boards, and direct mailing to addressees does not exist; nevertheless, there is no prohibition on “political” broadcasts via such avenues. This indicates that a restriction specifically on radio and television advertising requires special justification, which would provide a satisfactory explanation for the distinction between radio and television on the one hand, and the other media mentioned above.  At all events, our concern here is with a vertical balance between the applicant’s freedom to publish a political expression and the interests of those with limited financial means who are not able to do so. Here, the balance tilts in favor of the applicant’s freedom of speech in publishing his political expression. Another public interest that is arguably relevant – the interest of balance and objectivity in the state broadcasting media – does not merit protection either. According to the petitioner, this argument is not valid in relation to the Broadcasting Authority, because the advertisements are included in the broadcasting slot intended for advertisements and can be identified as such, so that the listener knows that the opinion expressed in the advertisement is not that of the Broadcasting Authority. The argument is similarly inapplicable to the Second Authority, because the regional radio stations are not owned by the State (even though they are subject to the oversight of the Second Authority). The petitioner also rejects the argument concerning the “captive audience” that is forcibly exposed to the advertisements, saying that in any case, political opinions are conveyed to the public via all the printed and electronic media, and this is the desirable situation which should be encouraged.  Finally, the petitioner claims that the Rules do not satisfy the fourth condition of the limitation clause, i.e. the condition of proportionality.  In this context it was argued that the Rules are sweeping and absolute to the extent that they disqualify any advertisement on a publicly controversial subject, without determining criteria for such disqualification and without specifying exceptions. The petitioner claims that “in order to protect the interests specified in the respondents’ summations, it would be more correct to establish a framework for and restrictions on the broadcast of political advertisements, and not to ban them absolutely".  There are three ancillary tests for proportionality, and the Rules fail the first and the second of them. Regarding the first test (the test of suitability), it was argued that the means employed by the Rules fail to achieve their purpose, because the political opinions that are barred from broadcast are presented and disseminated to the public via all the other media. Regarding the second test (the test of the lesser harm) it was claimed that the means selected by the Rules do not represent the less harmful solution, since it would have been possible to formulate more specific rules that included criteria for disqualification and exceptions to disqualification, instead of the absolute and sweeping ban on all political advertisements.

The petitioner argues that invalidation of the Rules will enable a person holding a political opinion whose view did not receive exposure (or sufficient exposure) in regular broadcasts to express his views at his own expense in a recognized framework of political advertisements. In its absence, his access to the public is blocked and he is condemned to silence.

As for the concerns expressed by the respondents in their response (as elucidated below), the petitioner’s response is that political advertisements in the overall framework of advertising broadcasts can occupy only a “minute percentage” of the air time of the broadcasting channels relative to total broadcasting time, so that the concerns expressed by the respondents are not as serious as claimed.

Therefore, according to the petitioner, the Rules violate freedom of speech and do not satisfy the conditions of the limitation clause. The obvious remedy is the invalidation of the Rules due to their unconstitutionality.

Arguments of the Broadcasting Authority

12. The Broadcasting Authority concedes that the “petitioner has a right of access to the media, as part of its right to freedom of speech” but argues that the right to freedom of speech does not impose an obligation on the Broadcasting Authority to “broadcast the political messages of the petitioners at the time, the place, and in the manner that the petitioner wishes.” This is because the specific broadcasting slot for advertising (hereinafter: "framework of advertisements") was not intended to serve as a platform for voicing controversial political opinions. To constitute a framework for advertisements is not one of the functions of the Broadcasting Authority.  It is strictly an ancillary power, intended to enable the Broadcasting Authority to enlist additional funding for its programs. "Its purpose is to improve the economic balance" of the Broadcasting Authority. Hence, the Broadcasting Authority is authorized to broadcast advertisements, but is not obligated to do so. This is what distinguishes advertisements from the regular programs of the Broadcasting Authority (hereinafter: "the programs"). The Broadcasting Authority is both authorized and obligated to broadcast programs (see s. 3 of the Broadcasting Authority Law, which prescribes the functions of the Authority).  As such, the programs themselves are the basic framework for realizing the petitioner's freedom of speech. The petitioner's material is actually political speech in the “guise” of commercial advertising, but the framework of advertisements "is totally inappropriate for political speech." Consequently, the petitioner's advertisements cannot be approved within that framework.  As stated in the response: "The petitioner is entitled to have its message heard, but the respondents have the discretion to determine the mode of realization of this right, within the framework allocated for political speech in the programs of the Broadcasting Authority … [and not] in the framework of broadcasts intended primarily for commercial advertising.  … The major avenue for the broadcast of expressions is in the programs of the Broadcasting Authority ... which is the marketplace of ideas and the locus of expression. The ancillary framework of commercial advertising has its own objectives."

Furthermore, the Broadcasting Authority argues that the programs are also the appropriate framework for exercising freedom of speech, because programs must comply with the obligation of achieving balance in the presentation of different viewpoints (see s. 4 of the Broadcasting Authority Law). Permitting the broadcast of advertisements of a political character within the (unique) framework of advertisements alongside the (regular) programs undermines that obligation. It may well transform the framework of advertisements into an alternative platform aimed entirely at circumventing the regular framework of programs, which is subject to the obligation of ensuring balance.  This could confer an unfair advantage upon those with the economic power to advertise over those who are unable to do so: "Commercial advertising … allows the wealthy and the powerful to gain exclusive control of the message: not only the contents of the message but also its mode of presentation, the frequency of transmission, the broadcasting hours and the type of program."  As such, the point of departure for the statutory arrangement as a whole is that "this is not an efficient marketplace of ideas in which all of the opinions vie for the viewer’s heart … . The variety of viewpoints, the complexity of the issues, the time constraint, and the importance of the medium require the establishment of rules that will assist in the creation of a marketplace of opinions that is efficient, reliable and fair." An efficient marketplace of ideas can be attained by way of “an obligation to ensure reliable and balanced broadcasting that reflects the entirety of opinions on a given issue.” In this context it was further argued that the recognized exception to the principle of balance is the law governing the pre-election period, which permits the broadcast of political advertisements directly to the public. However, these party political broadcasts, too, are subject to regulation and oversight by the Chairman of the Central Elections Committee (see Elections (Modes of Propaganda) Law, 5719-1959).

In its summations, the Broadcasting Authority did not adopt a clear position on the question of whether freedom of speech is a constitutional right protected by Basic Law: Human Dignity and Liberty.   Nevertheless, its position is that the Rules meet the conditions of the limitation clause.  Regarding the first condition, it was argued that s. 25A (entitled "Radio Advertisements and Announcements") explicitly authorizes the Management Committee of the Broadcasting Authority to prescribe rules, inter alia on the subject of "prohibitions and restrictions on the broadcast of advertisements and announcements," and by virtue of that explicit authority the Rules were made. In this context it was argued that the contention that the Rules must be established in primary legislation should be rejected. An explicit general authorization that leaves the details of the particular restrictions to the discretion of the Broadcasting Authority as an administrative authority is sufficient.  Regarding the third condition it was argued that the Rules were designed to protect the value of equality of opportunity to present political opinions and to prevent a situation in which a person with financial means could achieve more extensive dissemination of his political views than one who lacked those means.  By the same token, they were designed to protect the value of objectivity of the state broadcasting media by subjecting programs to the obligation of ensuring balance. In this sense, the Rules separate the framework of advertisements from that of programs.  This separation will lead to an efficient and equality-based marketplace of political views. As for the fourth condition, it was asserted that the first ancillary condition (the test of suitability) was fulfilled: the Rules channel the political speech into an appropriate framework, i.e. that of regular programs.  Likewise, the requirement of the second ancillary test (the test of the lesser harm) is met. The imposition of a uniform blanket restriction is the most effective way of achieving the purpose, and there is no way of creating any other effective regulation mechanism. A different mechanism which includes qualifications and exceptions is liable to drag the Broadcasting Authority into the political arena. In this context it was mentioned that other frameworks exist for such expression, whether in the Broadcasting Authority itself (in the programs) or external to it (in the other media, such as the print media etc.).  Similarly, the third ancillary condition is also satisfied (the proportionality test, in the "narrow sense"). The benefit from the restriction exceeds the harm caused by the violation of freedom of speech, for our concern is not with preventing expression but rather with channeling it into the framework of regular broadcasts.  

Arguments of the Second Authority

13.  Naturally, the arguments of the Second Authority resemble those of the Broadcasting Authority. I will dwell briefly on these arguments to the extent that they differ from or add to the line of argument of the Broadcasting Authority.

The Second Authority claims that its Rules are justified and that they satisfy the criterion of constitutionality.  In its summations the Second Authority addressed two main concerns in the event of the Rules being invalidated. The first is that invalidation of the Rules would undermine the obligation of ensuring balance in broadcasts, because it would be the financially powerful elements who would purchase advertising time and who could most effectively influence the social and political discourse, unburdened by the constraint of balance prescribed by the Law (which applies only to programs and not to advertisements). It is the obligation to ensure balance in programs that provides the response to the freedom of political expression. The second concern is that invalidation of the Rules will lead to bias in news coverage, since franchisees are liable to avoid publishing news items that may dissuade certain elements from advertising with them, and elements of this nature are even liable to exert pressure upon them in that context. In other words, an economic incentive may be created for franchisees to alter the contents of the programs themselves so as not to jeopardize potential income from advertisements on behalf of various political elements.  Another concern, shared by the Broadcasting Authority, was that invalidation of the existing Rules and a requirement of detailed regulation of the subject are liable to force the regulator to engage in political censorship. Hence the existing position, under which there is a general and uniform prohibition and which distances the regulator from the area of political censorship, is preferable.

According to the Second Authority, "any restriction on broadcasting violates freedom of speech to some extent."  However, it believes that the principle of freedom of speech in advertising is weaker than in other forms of expression. The reason is that "expression" in the framework of advertisements, which is by nature a commercial framework, is accorded the (weak) protection of commercial expression and not the (strong) protection of political expression.

It was further argued that the electronic media in Israel constitute a limited resource. The advertisements that are broadcast over that media are an even more limited resource, in view of the regulatory restrictions on advertising time (see s. 85 of the Second Authority Law which deals with the scope of advertising broadcasts). This necessitates regulation in accordance with the principles of fairness and balance. In the framework of advertisements, however, it is impossible, on a practical level, to fulfill the obligation of ensuring balance, which is inherently linked to political expression.

The Second Authority further argued that its Rules satisfy the requirements of the limitation clause. Regarding the explicit statutory authorization, the argument is that ss. 24(6) and 88(2) of the Second Authority Law authorizes the Second Authority to impose restrictions on advertisements.  The Second Authority contends that s. 88(2) of the Law (the section is entitled “Rules for Broadcasting Advertisements”) authorizes the Council of the Second Authority to establish rules to regulate various restrictions pertaining to advertisements, inter alia regarding entire subjects in relation to which advertising is prohibited. By virtue of this explicit authorization, the Council of the Second Authority enacted the Second Authority Rules that impose restrictions on the broadcast of advertisements both on radio and on television.  Regarding their purpose, it was asserted that the Rules were intended to protect the obligation to ensure balance and the objectivity of the broadcasts. They were intended to prevent a situation in which “money talks”. The principle of balance is of particular importance in the context of a limited public resource such as radio and television broadcasts which have a limited number of channels.  As for proportionality, it was argued that the Second Authority Rules do not restrict freedom of expression in relation to a controversial matter per se, but rather, they restrict its transmission via the “platform” of commercial advertisements. The petitioner has no vested right to relay information specifically by way of advertisements; it may relay the information to the public in the framework of regular programs (subject to the obligation of balance) or in the framework of advertising in other media (such as the print media).

Deliberation and Decision

The test of constitutionality is also applicable to administrative guidelines

14. The Rules of the Broadcasting Authority and of the Second Authority (hereinafter: “the Rules”) are in fact administrative guidelines (HCJ 15/96 Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 403; cf: Y. Dotan, Administrative Guidelines (1996), at p. 45)).  The Chairman of the Broadcasting Authority is signed on the Broadcasting Authority Rules and his signature is accompanied by the confirming signature of the Minister of Communications. The Rules of the Second Authority are signed by the Chairman of the Second Authority. These Rules too, which guide the exercise of administrative authority, are subject to judicial review of their constitutionality (see Zamir, Administrative Authority, at pp. 115-116; see also Aharon Barak, The Judge in a Democracy (2004) at p. 370). The criteria for judicial review are those set in the limitation clause:

‘The criteria prescribed in the limitation clauses of s. 8 of Basic Law: Human Dignity and Liberty and in s. 4 of Basic Law: Freedom of Occupation also apply to a violation of basic rights by an administrative authority.  In other words, an authority’s violation of rights must be by law, or in accordance with the law by virtue of explicit authorization therein; it must be consistent with the values of the state, for a proper purpose and to an extent that does not exceed that which is required' (HCJ 4644/00 Jafora Tabori Ltd. v. Second Authority for Television [8], at 182A; and see also HCJ 7200/02 D.B.C. Satellite Services (1998) Ltd. v. Committee for Cable Transmissions and Satellite Transmissions [9], para. 26).

Indeed, “it goes without saying that that which is forbidden to the legislator under the limitation clause is likewise forbidden, a fortiori, to an administrative authority” (Zamir, Administrative Authority at p.115) and that “the administrative authorities must exercise those powers that allow them to violate constitutional basic rights -  including powers rooted in laws that preceded the Basic Law – in accordance with the criteria established in the limitation clause” (HCJ 951/06 Stein v. Commissioner of the Israel Police [10]). There are two reasons for this rule: first, basic rights in Israel should be protected on the basis of like criteria, irrespective of whether the legal norm whose validity is being examined is a law or some other legal norm. Secondly, the arrangement set out in the limitation clause — which distinguishes, inter alia, between the purpose of the violation of the right and the extent of the violation — is fundamentally suited to all legal norms, and not only statutes” (HCJ 4541/94 Miller v. Minister of Defense [11], at p. 138, {232}; see also HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior [12]).

The stages of the constitutional test

15.   As we know, constitutionality is examined in three stages (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [13], at 544-549): the first stage examines whether the rules violate a human right enshrined and protected in the Basic Law. If the answer is no, the constitutional examination ends.  If the answer is yes, we proceed to the next stage. The second stage examines the question of whether the violation of the constitutional right is lawful. At this stage, the question is whether the rules that violate human rights satisfy the requirements of the limitation clause. If the answer is yes, the constitutional examination ends. On the other hand, if the answer is no, we proceed to the third stage. This third stage examines the consequences of the unconstitutionality.  Let us therefore proceed to our constitutional examination.

16. The first stage of the constitutional examination: the violation of a constitutional right

The first stage of the constitutional examination examines whether the rule violates a human right protected by a Basic Law.

In our case, two questions present themselves at this first stage (see HCJ 6427/02 Movement for Quality of Government in Israel v. Knesset [14]): the first is whether the Broadcasting Authority Rules and the Second Authority Rules violate freedom of speech. The second is whether the violation of freedom of speech is a violation of freedom of speech only as recognized in our common law, or whether it also constitutes a violation of human dignity as anchored in Basic Law: Human Dignity and Liberty. We will begin with the first question.

Do the Rules violate freedom of speech?

            17. Judicial review will be required only if it is found that the rule substantially violates protected rights. A trivial violation [de minimis] is not sufficient:

‘In principle, it seems to me that any violation or restriction of a basic right should be considered, and that the constitutional examination should move on to the second stage (in which the question of whether the violation or restriction was legal is examined). It should, of course, be assumed that if the violation or restriction is not substantive, it will be easy to show that the conditions of the "limitation clause" are satisfied’ (Aharon Barak, Interpretation in Law, vol. 3: Constitutional Interpretation, 469 (1994); see also CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15], at p. 431 {236-237}).'

            Both parties agreed that the Rules of the Broadcasting Authority and of the Second Authority violate freedom of speech. The petitioner sought to express itself via an advertisement to be broadcast on national and local radio. The respondents prohibited the broadcast of the advertisement on national and local radio. Expression – in the manner sought by the petitioner – was prevented, constituting a violation of freedom of speech. The violation in this case is not a trivial matter. Indeed, freedom of speech is "a right in the form of a ‘liberty’. It includes the right to receive information and to respond to it, to listen and to be heard, to see and to listen… . The scope of freedom of speech extends to all the forms and modes of expression and to all of the contents of expression” (HCJ 2194/06 Shinui - the Center Party v. Chairman of the Central Elections Committee [16]).  “‘Expression’ in this context is any activity seeking to convey a message or meaning. It extends to a political, literary or commercial expression” (HCJ 4804/94 Station Film Co. Ltd. v. Films and Plays Review Council [17], at p. 674 {34-35}. This form of expression was prevented in the case at hand.

    The answer to the first question is therefore in the affirmative.

  Here it should be mentioned that the framework of advertising does not constitute a goal per se. It was created as a financial aid in the framework of distributing the funding sources amongst the media market (HCJ 6962 Media-Most Co. Ltd v. Council for Cable and Satellite Broadcasts [18], at p. 25).  On the other hand, since "freedom of speech does not distinguish between the different means of expression” (HCJ 806/88 City Studios Inc. v. Films and Plays Censorship Board [19], at p. 36, {248} then in addition to the funding aim, the framework of advertisements also provides a means of expression for payment. In our case, the Broadcasting Authority Rules do not, prima facie, designate the framework of advertisements exclusively as a means of imparting a commercial message (“advertisement, sponsorship broadcast or announcement that are broadcast on radio as against payment to the Authority”). By contrast, the Second Authority Law apparently does designate the framework of advertisements for the imparting of an exclusively commercial message (“the broadcast of a commercial advertisement as defined in Chapter 6 of the Law”, which prescribes, in s. 81, that “the franchisee is permitted to include in the framework of its broadcasts, advertisements for consideration at a rate that it determines”). However, the exclusive dedication of the framework of advertisements to the imparting of a purely commercial message is not sufficient in my view to negate the violation of freedom of speech in that framework.

For it to be possible to say that there has been absolutely no violation of the right to expression in the present matter, it must be said that this right does not exist in the case of a funding-related means of imparting a commercial message. However, freedom of speech does not distinguish between the different modes of expression, and “a person does not need a law to grant him freedom of speech. He has that freedom without a law” (Zamir, Administrative Authority, at pp. 50-51). It is the administrative authority that requires statutory authorization in order to restrict a human right and violate it (per Justice A. Procaccia in HCJ 2245/06 Dovrin v. Prisons Authority [20], para. 16). Thus, explicit authorization by law is required for any limitation or violation of freedom of speech, even in the framework of advertisements, which are indeed a means of funding. Therefore, the prima facie exclusive dedication that I referred to above does not suffice as grounds for claiming that freedom of speech was not violated, and at all events there must be an explicit limiting rule, which will be examined in accordance with the criteria of the limitation clause as a condition for its validity and its effect.

19. My conclusion is that the petitioner’s freedom of speech in the framework of advertisements has been violated. Is this a violation of political freedom of speech or rather, commercial freedom of speech? This question is important both at the first stage of the constitutional examination, which has just taken place, involving a demarcation of the constitutional parameters of the right itself, for “political freedom of speech is not the same as commercial freedom of speech” (Station Film Co. Ltd. v. Films and Plays Review Council [17]); Jafora Tabori Ltd. v. Second Authority for Television [8], at p. 181), and at the second stage of the examination which will be undertaken below, involving a demarcation of the extent of protection given to a constitutional right (HCJ 4593/05 United Mizrahi Bank Ltd. v. Prime Minister [21], para. 13; HCJ 606/93 Kiddum Yazamut U-Molut (1981) v. Broadcasting Authority [22], at p. 13; HCJ 5432/03 Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], per Justice Dorner, at  para. 13).  

How then should we classify the “expression” that was violated – is it political or commercial?

20. My view is that the content of the expression that was prevented in this case is political, whereas the framework is commercial. The dominant components for classifying the expression are the contents of the expression (political or commercial), the character of whoever or whatever is making the expression (a political or commercial body), and the aim of the expression (political or commercial).  On the other hand, I would attach lesser importance to the technical means or external framework via which the expression is conveyed.  What must be examined is the dominant effect of the broadcast from the perspective of the viewer (regarding propaganda broadcasts, cf. Zwilli v. Chairman of the Central Elections Committee [6], at pp. 704-705; regarding the distinction between commercial and other forms of expression in which exceptional use was made of the regular format of commercial advertising, see Karniel, The Laws of Commercial Advertising, at pp. 321-323).  In my opinion, the conclusion that arises from weighing up all these components in the present case is that the petitioner sought to broadcast a political expression, not a commercial one. The Second Authority too, agreed that the petitioner requested to broadcast a “political expression in a commercial context.”

21.  Basic Law: Human Dignity and Liberty does not contain a separate and independent right entitled “freedom of political speech”, but it does contain a separate and independent right entitled “human dignity”. The claim is that the freedom of speech violated by the Rules – i.e. freedom of political expression – is part and parcel of human dignity. Is this claim justified? This is the second question confronting us, which we will now examine.

Does a violation of freedom of political expression constitute a violation of human dignity?

22.  Freedom of speech is included among the basic human freedoms in Israel, as a foundational right and a prerequisite for the existence and faithful observation of most of the other basic rights (CA 723/74 Ha'aretz Daily Newspaper Ltd. et al. v. Israel Electric Corporation Ltd. et al. [24]; Zeev Segal, "Freedom of Speech from the Perspective of Meir Shamgar", Shamgar Volume, Pt.1, 111, 114 (2003); Eli Salzberger and Fania Oz-Salzberger, “The Tradition of Freedom of Speech in Israel" in Be Quiet! Someone is Speaking: The Legal Culture of Freedom of Speech in Israel  (ed. Michael Birnhack, 2006), 27). Indeed, "recognition of the status of freedom of speech as a basic right existed in Israel long before the enactment of Basic Law: Human Dignity and Liberty" (PPA 4463/94 Golan v. Prisons Service Authority [25], at p. 157-158). 

There are three reasons underlying freedom of speech: the first reason is based on the desire to expose the truth. The second is based on the need to enable human self-realization. The third reasons bases freedom of speech on the democratic regime (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23]; Aharon Barak, “Freedom of Speech and its Limitations”, HaPraklit 40 (1991), at pp. 5, 6 – 10; Ilana Dayan-Urbach, “The Democratic Model of Freedom of Speech”, Iyunei Mishpat 20 (1996), at p. 377; Guy Pesach, “The Theoretical Basis of the Principle of Freedom of Speech and the Legal Standing of the Press”, Mishpatim 31 (2000) 895, at pp. 897-911). Against the background of these reasons it is possible to characterize different forms of freedom of speech, some of which are located at the very heart of the right, and others in its outer coating. A violation of the very heart of the right is not equivalent to a violation at its periphery (HCJ 5016/96 Horev v. Minister of Transport [26], at p. 49{202}).

23.  Indeed, in our case law it has been ruled that freedom of political expression lies at the heart of the right to freedom of speech (Shinui - the Center Party v. Chairman of the Central Elections Committee [16], per Justice Rivlin, at para. 3). “Freedom of political expression warrants maximum protection, both because of its extreme importance from a social perspective as a basic foundation of the democratic regime, and because it is more exposed than any other form of expression to incursion on the part of the government” (HCJ 6396/93 Zakin v. Mayor of Beer Sheva [27], at p. 303). Indeed, freedom of speech “takes on special meaning in the context of political expression in general and in the context of political expression in the framework of the struggle for rights of the individual in particular …. One of the main reasons justifying freedom of speech is the upholding of the democratic regime. Without freedom of speech the democratic regime loses its soul. In the absence of democracy, freedom of speech is lifeless … freedom of speech guarantees the exchange of opinions between members of society, thus allowing opinions to be formed on issues that are on the national agenda (see Zwilli v. Chairman of the Central Elections Committee [6]; see also per Justice E. Hayut in HCJ 11225/03 Bishara v. Attorney General [27], para. 15). “Of all the various forms of protection, the protection given to political expression – which is an essential condition for the maintenance of a democratic process – is particularly broad (HCJ 6226/01 Indor v. Mayor of Jerusalem  [28]).

This brings us to question of whether a violation of freedom of political expression is a violation of human dignity.

24.  Resolution of this question involves interpretation of the nature of the right to human dignity and its scope. In the Shin case, which was heard by an expanded panel of eleven judges, the question was left pending (“Needless to say, the question of whether freedom of speech is included in the rights specified in Basic Law: Human Dignity and Liberty, regarding which differing views have been expressed by the justices of this Court, does not require a decision or consideration in this proceeding” (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], at p. 83; but see per Justice Rivlin who ruled in that case that freedom of speech is a constitutional right, ibid, p. 96; President Barak concurred with his view, id.).

25.   Several Justices of this Court have expressed their position on the matter explicitly, holding that freedom of speech is part of the constitutional right to human dignity (see the survey in Katzir, Commercial Advertising, at pp. 4-6). This is the position of President Barak (in CA 4534/02 Schocken Chain Ltd. v. Herzkowitz [29], at p. 564; and see his comments in CA 105/92 Re’em Engineers Contractors Ltd. v. Upper Nazareth Municipality [30], at p. 201; HCJ 2481/93 Dayan v. Wilk [31], at p. 468{341}  and recently in HCJ 2557/05 Mateh Harov v. Israel Police [32], para. 12). This is also the position of Justice Rivlin (LCA 10520/03 Ben-Gvir v. Dankner [33] para. 10), of Justice Procaccia (ibid, para. 13) and of Justice Arbel (ibid, para. 3). It is similarly the position of Justice Mazza (Golan v. Prisons Service Authority [25], at p. 156 and of Justice Meltz (LCA 2687/92 Geva v. Walt Disney Company [34], at p. 264),  and finally, although only hinted at, of Justice Cheshin (HCJ 6126/94 Szenes v. Broadcasting Authority [35], at pp. 865-867, but see his comments in Golan v. Prisons Service Authority [25], at p. 187).

On the other hand, some Justices have held that freedom of speech is not necessarily part of the constitutional right to human dignity.  This was the position of Justice Dorner (in Golan v. Prisons Service Authority [25], at p. 191 and of Justice Zamir (in HCJ 453/94 Israel Women's Network v. Minister of Transport [36]; and see Zamir, Administrative Authority, at p. 113).

The picture that emerges from the judgments I cited taken together is that freedom of political speech is included in the constitutional right to human dignity.

26.  Recently, in Movement for Quality Government in Israel v. Knesset [14], it was held, regarding the right to equality, that human dignity includes only those rights which are materially and closely bound (whether at the core or on the periphery) to human dignity:

 ‘The median model does not limit human dignity exclusively to humiliation and desecration, but neither does it extend it to the entirety of human rights. In the category of human dignity it includes all those aspects thereof that figure in different constitutions as specific human rights, but which are characterized by what we regard as close and material connection to human dignity (whether to the core or at the periphery)…. I believe that the appropriate model for structuring the relationship between human dignity as a constitutional right, and equality is the median model…. The appropriate conception of human dignity which accords a central role to the autonomy of individual will, freedom of choice, a person’s physical and spiritual integrity and the entirety of his humanity – justifies the inclusion within the parameters of human dignity of those aspects of equality that ensure this fitting conception of human dignity’ (per President Barak, paras. 38 and 40).

            This criterion, in my opinion, is also in keeping with the relationship between human dignity as a constitutional right, and freedom of political expression. My view is that the right under discussion – freedom of political expression – is, according to our juridical conception, closely and materially bound to human dignity, for –

‘What is human dignity according to the approach of the Supreme Court? … Human dignity is based on the autonomy of individual will, freedom of choice and a person's freedom of action as a free agent. Human dignity rests on the recognition of the individual’s physical and spiritual integrity, on his humanity and on his value as a human being, regardless of the extent of his utility to others (ibid. at para. 35).

This conception of human dignity invites the conclusion that freedom of political expression is part of the constitutional right to human dignity (see also Barak, "The Tradition of Freedom of Speech and its Problems", p. 231; Barak, Interpretation in Law, p. 427). Indeed, freedom of political expression is an essential component of human dignity. And as mentioned, it has already been held that freedom of political expression is “the “core” of the right to freedom of speech (per Justice Rivlin in Shinui - the Center Party v. Chairman of the Central Elections Committee [16], para.3). As for freedom of commercial expression – in my view this issue does not arise in the matter before us, and I will therefore leave it pending.

27.  The conclusion is that a violation of freedom of speech by the Rules entails a violation of human dignity. The Rules violate those rights and values that are the foundation of human dignity as expressing recognition of the autonomy of individual will, freedom of choice and a person’s freedom of action as a free agent (cf. Dan Birnhack, “Constitutional Genetics: The Methodology of the Supreme Court in Value-based Decisions”, Bar Ilan Law Studies19 (2002), 591, 626). Thus a positive answer is also given to the second question that I posed.

We will now proceed to the second stage of the constitutional examination, at which we examine whether the violation of rights protected by Basic Law: Human Dignity and Liberty is lawful. The “geometric location” of this question is in the limitation clause of Basic Law: Human Dignity and Liberty.

The second stage of the constitutional examination: Is the violation of the constitutional right lawful? 

28.  At the second stage of the constitutional examination, the lawfulness of the violation of the constitutional right is considered.  Indeed, a distinction exists between the scope of the right and its lawful realization; this distinction is the basis of a recurring statement in the case law and in the legal literature to the effect that human rights are not absolute, but rather, of a relative nature (see recently in the context of freedom of speech, per President Barak, Shinui - the Center Party v. Chairman of the Central Elections Committee [16], paras. 8 and 9).

29.  The “balancing formula” which is the basis of the parties' claims is that which is found in the limitation clause of s. 8 of Basic Law: Human Dignity and Liberty:

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

            The limitation clause is the accepted criterion today for achieving a balance between conflicting values. This point was made by President Barak:

 ‘In the petition before us, the values of state security and the maintenance of public order are in conflict with the rights of a person to freedom of movement, freedom of occupation, property and dignity as a human being. The military commander must achieve a balance between these conflicting interests. How should he strike this balance? What is the accepted criterion for achieving the balance? The accepted criterion today, in the wake of the enactment of the Basic Law on human rights, is found in the limitation clause (s. 8 of Basic Law: Human Dignity and Liberty)’ (HCJ 6893/05 Levy v. Government of Israel [36a], at p. 887; and see Horev  v. Minister of Transport [26], at p. 41 {192}).

President Beinisch also dwelt on this point in relation to a violation of freedom of speech:

‘Freedom of speech and demonstration are derived from human dignity, and for that reason the application of s. 8 [of Basic Law: Human Dignity and Liberty] to the exercise of administrative authority is direct (HCJ 8988/06 Meshi Zahav v. Jerusalem District Commander [37], at para.10).

The limitation clause aspires to minimize the violation of a human right (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], at p. 87). It reflects on “the proper balance between conflicting values and rights which form the background to the actions of the public administration … and it constitutes the background of the appropriate conception of the process of weighing up conflicting values” (per Justice Procaccia, Ben-Gvir v. Dankner [33], para.13). The limitation clause gives expression “to the notion that human rights do not enjoy full protection. This emphasizes the conception that the individual exists as part of a society, and the needs of society and its national objectives may permit the violation of human rights …. There are, however, limits to the restriction of human rights. These are set in the limitation clause” (Gaza Coast Regional Council v. Knesset [13], at pp. 545-546). The limitation clause is the constitutional balancing formula applicable to the current case and evidently, the parties were not in dispute on this (regarding the limitation clause as a constitutional balancing formula, see: HCJ 953/01 Solodkin v. Beth Shemesh Municipality [38], at p. 612f; Birnhack, “Constitutional Engineering”, pp. 623, 627-629; Gideon Sapir, “Old versus New – Vertical Balancing and Proportionality”, Legal Studies 22 at pp. 471, 476).

The limitation clause contains four conditions, all of which must be met. We will examine the conditions in relation to our case, one by one.

Limitation clause - first condition: by a law or according to a law by virtue of explicit authorization therein

30. The first condition for the constitutionality of a rule that violates a human right protected by Basic Law: Human Dignity and Liberty is that the violation be “… by a law … or according to a law by virtue of explicit authorization therein.”  For the readers’ convenience, we again quote the authorizing provisions as prescribed in the primary legislation.

The authorizing provision for the Broadcasting Authority is s. 25A(b)(2) of the Broadcasting Authority Law: 

‘25A    Advertisements and Announcements on Radio

….

(b) The Management Committee shall determine, in consultation with the Director General, rules concerning  -

     (2) Prohibitions and restrictions on advertisements and announcements.’

The authorizing provision for the Second Authority is s. 88(2) of the Second Authority Law:

‘88          Rules for Advertisements

The Council shall make rules concerning the broadcast of advertisements, inter alia, on the following matters:

 (2) Prohibited advertising subject-matter for broadcast as advertisements, in general, under specific circumstances, or by reason of being offensive to good taste or public sensitivities;’

Are the aforementioned rules made "by virtue of explicit authorization" in primary legislation? My answer is affirmative. Although the legislative provisions pertaining to the Second Authority differ from those relating to the Broadcasting Authority, in both cases authorization appears in primary legislation.

31. Regarding the Second Authority Law: this Law authorizes the Second Authority Council to determine prohibited "advertising subject-matter" for broadcast as advertisements. This phrase was construed as authorizing the Second Authority Council to impose prohibitions on the contents of advertisements: “It is clear that the authority to disqualify 'advertising subject-matter' encompasses both the style and the contents of the advertisements” (HCJ 5118/95 Maio Simon Advertising Marketing and Public Relations Ltd. v. Second Authority for Television and Radio [39], at  p. 755). Indeed –

'[T]he Council’s authority to impose prohibitions applies not only to the advertising subject-matter, but also to the contents of the advertisements, their format and the manner of their presentation. Furthermore, the choice facing the Council, in exercising its authority, is not necessarily between absolutely permitting and absolutely prohibiting advertisements on particular subjects, but also between permitting them in general and prohibiting them in particular circumstances. This emerges explicitly from the language of s. 88(2) of the Law …. The interpretative presumption regarding … the authorizing law … is that it intended to realize and uphold the basic rights' (HCJ 4520/95 Tempo Beer Industries Ltd. v. Second Authority [40]; see also per President Barak in Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4],  at p. 526A).

Here it should be mentioned that the Rules of the Second Authority, as per their previous formulation relating to both television and radio together (Second Authority for Television and Radio (Ethics in Television and Radio Advertising) Rules, 5754-1994, K.T. 640) (hereinafter: "previous Second Authority Rules") have been approved, on the level of statutory authorization, by this Court (see Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 403). However the previous Second Authority Rules did not include provisions regarding “advertisements on controversial subjects”). These provisions appear in the current Rules.

32.  Regarding the Broadcasting Authority Law: this Law authorizes the Broadcasting Authority to set “prohibitions and restrictions” on advertisements. The phrase "advertising subject-matter" does not appear in the Broadcasting Authority Law, but in my view, the above-said authorization, too, empowers the Broadcasting Authority to set prohibitions on the contents of advertisements (see HCJ 7144/01 Gush Shalom Society v. Broadcasting Authority [41], at p. 891g).  This authority is subject to interpretation; interpretation provides a more complete picture of the authority. This point was taken up by Prof. Zamir:

‘A law without interpretation resembles a sketch of a picture. Interpretation adds colour, depth and soul to the law. A statutory provision that confers authority upon an administrative body without being accompanied by an interpretation of the provision does not provide a full picture of the authority.... The law and interpretation are not the same thing. They are two sources of law, a principal source and a complementary source, but they are linked by a close bond of partnership, as though they were spouses who constitute a family. When complementing a law that confers authority, interpretation changes that authority. It may broaden or narrow the scope of the authority that emerges from a plain reading of the law. It may add tools of implementation to the authority, or restrict it to certain conditions, or channel it for certain purposes. In short, the authority after interpretation is different from the authority before interpretation’ (Zamir, Administrative Authority, at pp. 142-143).

On the interpretative level, my opinion is that the language of the authorization in the Broadcasting Authority Law is very similar to the wording of the authorization for the Second Authority, and requires that the interpretation of both be uniform. Admittedly, the arrangement specified in the Second Authority Law is more detailed than that of the Broadcasting Authority Law, but I accept the State’s position that the difference in wording does not, per se, constitute cause for establishing separate arrangements for the Second Authority and the Broadcasting Authority. The fine linguistic difference between the respective wordings relating to “advertising subject-matter” is not of sufficient interpretative importance to preclude a uniform interpretation, in view of the purpose of the authorization, which we will discuss presently. The purpose of the arrangements is identical, and as such the legal arrangements require similar interpretation.  It is not very logical to permit the broadcast of a political advertisement on one radio channel and to prohibit the same broadcast on a second channel (cf. HCJ 213/03 Herut National Movement v. Chairman of Central Elections Committee for the Twelfth Knesset [42], at pp. 763-764, which compared oversight of propaganda broadcasts on radio and on television, despite the differences in the legal arrangements).

In any case, the authority to totally prohibit a particular activity plainly includes the authority to partially prohibit it: “Even had this not been explicitly stated, it would have emerged from the nature of the authority. Is it conceivable to decide that an authority that is authorized to prohibit a particular action is precluded from prohibiting part of it?" (Tempo Beer Industries Ltd. v. Second Authority [40]). For our purposes, the authority to prohibit the broadcast of an advertisement - in its entirety - includes the authority to prohibit the broadcast of a particular component thereof. This applies to the Second Authority Law as well as to the Broadcasting Authority Law.

33. The authorizing sections relating to both the Broadcasting Authority and the Second Authority explicitly authorize the secondary legislator to restrict the contents of advertisements. They confer authority to establish content-based “restrictions” and “prohibitions” on the broadcast of advertisements. This is an explicit authorization to deal with the said matter by way of restriction or prohibition, and not simply a general authorization to make regulations and rules (cf. HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Internal Security [43]); this constitutes explicit authority to prohibit and to restrict (see Oren Gazal, “Violation of Basic Rights ‘By a Law’ or ‘According to a Law'”, Law and Administration  4, 381, at pp. 396 – 412); and cf. Barak, The Judge in a Democracy, 345; Barak, Interpretation in Law, 504).

34. Our interim conclusion is that both laws explicitly authorize the secondary legislator to make rules that prohibit or restrict advertisements. According to the petitioner, however, the Rules regulate matters for which they have no mandate. They establish primary arrangements that properly belong in primary, not secondary legislation. On this issue, the petitioner invokes the principles laid down in settled case law:

‘Violation of human rights, even when it promotes the values of the State, even if for a worthy purpose, and even when not exceeding the required degree, must be established in a law that prescribes primary  arrangements, and the formal vesting of legislative competence in the executive branch is insufficient.’ (HCJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [44], at p. 684b).

The petitioner also refers to HCJ 3267/97 Rubinstein v. Minister of Defence [45], in which the Court stated:

‘The basic rule of public law in Israel provides that where governmental action is anchored in a regulation or an administrative directive, then the general policies and basic criteria pursuant to which the regulation was enacted should be grounded in primary legislation by virtue of which the regulation was enacted or the administrative directive issued. In more “technical" language, under this basic rule, “primary arrangements” that determine general policy and the guiding principles must be fixed in Knesset legislation, whereas regulations or administrative directives should only determine “secondary arrangements” (p. 502) {164}.’

35. I cannot accept the petitioner’s argument that the Rules should be abrogated (to the extent that they apply to the case before us) because they prescribe a primary arrangement that should be established by way of primary legislation.

The argument is appealing, but in my opinion, a reading of the statutory provisions taken together provides its refutation. Indeed, a perusal strictly of those sections of the two Laws concerning advertisements gives no indication of the intention of the primary legislator regarding that which is permitted and that which is forbidden. However, one cannot read the provisions concerning advertisements in isolation from the other provisions of the Law, as if these broadcasts were a limb severed from the body of the Broadcasting Authority or of the Second Authority. We mentioned the provisions of s. 4 of the Broadcasting Authority Law which concerns “ensuring reliable programs” and which directs the Authority to ensure suitable expression of different approaches and points of view current among the public, and the broadcast of reliable information.  Similarly, regarding the Second Authority, we mentioned s. 47 of the Second Authority Law, dealing with the principle of providing the opportunity to respond and which states that in relation to current events which are of public significance, the franchisee must ensure that proper expression is given to the variety of views prevailing amongst the public; s. 5(b)(7) of the Law under which the Authority must ensure the broadcast of “reliable, fair and balanced information"; s. 5(b)(6), under which the functions of the Authority include ensuring that suitable expression be given to the different views current amongst the public, and  s. 46(c) that prohibits the franchisee or the managers from expressing their personal views. (Similar legislative sections also relate to other communications entities in the Israel media world: see s. 34F(7)(5) of the Communications (Bezeq and Broadcasts) Law, 5742-1982 and ss. 10-11 of the Communications (Bezeq and Broadcasts) (Broadcasting Licensee) Rules 5748-1987)). We will elaborate on these matters below, when we explain our position whereby the Rules were enacted for a proper purpose.

In my opinion, these principles, which deal with programs  –  the "hard kernel" of the functions of the  Broadcasting Authority and the Second Authority – are the primary arrangement in the light of which the Rules should be made. The Rules for advertisements must be consistent with the primary arrangement in the primary legislation, and in my opinion – and to the extent that they relate to the matter before us - they are indeed consistent. We are not in a “legislative vacuum” and in my view, the claim regarding the absence of primary legislation in the authorizing law is not relevant here. The subject of advertisements is a subsidiary matter that follows the main matter.

36.  Over and above what is required, I would point out that there can be no sharp and absolute distinction between primary and secondary arrangements. As noted by Vice-President (ret.) M. Cheshin:

‘An absolute separation of this kind between the legislature, which enacts primary legislation, and the executive, which executes and implements, exists only in Utopia, since "the complexity of life in modern society leaves the legislature with no choice other than to transfer some of its powers to the executive branch, mostly by delegating to the government and those who act on its behalf the power to make regulations that contain primary arrangements (praeter legem regulations)" (HCJ 6971/98 Paritzky v. Government of Israel [46], at p. 790) … How do we distinguish between a primary arrangement and a secondary arrangement? The answer to this question is not at all simple, and the line between primary arrangements and secondary arrangements can sometimes be somewhat vague…. Of this it has been said that the substance of the arrangement, its social ramifications and the degree to which it violates individual liberty will all affect the determination as to whether we are dealing with a primary arrangement or a secondary arrangement’ (HCJ 111/63 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israe [47], paras. 30 and 39).

Let us reiterate: advertising is not the principal function of the respondents. Their main function relates to the programs themselves, and the advertisements are simply a means of funding the respondents’ activities.

Furthermore, the media market is a dynamic one (cf. in another context of the communications market, and in relation to cable and satellite broadcasts, HCJ 10338/03 Wesh Telecanal Ltd. v. Minister of Communications [48]).  To require explicit and detailed regulation on the subject of advertisements in primary legislation may well yield cumbersome primary legislation and may occasionally even lead to the regulatory process becoming paralyzed and frozen at a particular point in time, and cause harm to the interests of those active in the area and to the public interest at large due to the inability to regulate all of the activities of the regulator in primary legislation:

‘Indeed, on the one hand, substantial detail in the criteria should not be required, for this would freeze the legal position, and make it impossible to take into consideration the dynamic reality of everyday life. On the other hand, criteria that are so general and abstract that they add nothing will not suffice. According to this line of argument a golden mean must be found which charges the legislature with prescribing criteria that provide sufficient guidance on the one hand, but which are not overly specific to the extent of precluding consideration of the changing realities of life’ (Barak, Constitutional Interpretation, at p. 504).

In summary, the first condition of the limitation clause is satisfied. We now proceed to the second condition.

Limitation clause – second condition: befitting the values of the State of Israel.

37. The second requirement of the limitation clause is that the rule “befits the values of the State of Israel”. It was not argued here that this condition was not satisfied.

38. The third condition (“proper purpose”) and the fourth condition (“to an extent no greater than is required”) are connected. The first establishes the proper purpose, and the second the appropriate means of achieving it. As long as the purpose is not known and as long as it has not been determined that the purpose is proper, we cannot know what the appropriate means for achieving that purpose are (see HCJ 7052/03 Adalah Legal Center for Rights of Arab Minority [49], para. 59 of President Barak’s judgment). We will now address each of these two conditions, beginning with “proper purpose”.

Limitation clause – third condition: proper purpose

39. The third condition in the limitation clause is that a rule that violates a human right anchored in a Basic Law be for a “proper purpose”. It will be recalled that the “proper purpose does not neutralize the possible violation of the right but at the very most, and subject to the fulfilment of the required conditions, renders the violation legal and constitutional” (per Justice Rivlin in Association for Civil Rights in Israel v. Minister for Internal Security [43], para. 3; see also per President Barak in Movement for Quality of Government [14], para. 52; HCJ 4769/95 Menahem v. Minister of Transport  [50]).

The Rules in the case before us represent a balance between freedom of speech and other values that the Broadcasting Authority and the Second Authority must protect (see Gush Shalom Society v. Broadcasting Authority [41], at p. 892). What are the conflicting values in the case before us? What values are the Rules designed to realize? I referred above to the statutory provisions intended to ensure balanced and fair programs. The case law, too, speaks of the importance of fair and balanced programs in keeping with the “doctrine of fairness”. Indeed, the Rules of the Broadcasting Authority and of the Second Authority are “a system of rules that reflects the ‘doctrine of fairness’… which is appropriate for any communication medium worthy of its name” (HCJ 2888/97 Novik v. Second Authority for Television [51], at p. 204d).

The fairness doctrine in Israeli law

40. The fairness doctrine is the underlying justification for the Rules. The doctrine as understood in Israeli law was succinctly described by its “father”, President Shamgar:

‘The fairness doctrine applies to situations in which a number of opinions prevail regarding a public matter that is controversial. If the media, which is subject to this doctrine, provides a platform for those holding a particular view, it is not permitted to discriminate and prevent the expression of other mainstream views. In fact, the fairness doctrine is actually part of the laws of discrimination’ (HCJ 6218/93 Cohen v. Israel Bar Association [52], at p. 541).

            The fairness doctrine has its source in the status of the Broadcasting Authority as a public authority, which is also a platform that is subject to the principle of equality:

‘The regulation of programming on the basis of equality is dictated by the principle of equality (see HCJ 1/81 Shiran v. Broadcasting Authority [53], at p. 386). To be precise: if the broadcast constitutes election propaganda, then at all events it is prohibited. But even if the broadcast does not constitute election propaganda, care must be taken in its transmission to ensure compliance with the principle of equality…. This interpretation-based conclusion is dictated, as stated, by the Elections (Modes of Propaganda) Law itself. It dovetails with the general obligation of the Broadcasting Authority to maintain equality in its programs. It finds expression in the ‘fairness doctrine’ to which this Court has related on a number of occasions…. As such the authority must ensure that its programs – even if they do not contain prohibited election propaganda – must adhere to the principle of equality' (Zwilli v. Chairman of the Central Elections Committee [6], at pp. 705-706).

            The fairness doctrine was extended to include broadcasts of the Second Authority:

‘Our case law contains much discussion of the importance of an independent Broadcasting Authority, which “is not merely a ‘mouthpiece’ but also a ‘platform’ that must guarantee the expression of viewpoints and opinions… [reference has been made to] the Authority’s obligation to guarantee the public’s freedom of speech …. These comments related to the Broadcasting Authority, but whatever holds for the application of freedom of speech to the activity of the Broadcasting Authority also applies by definition to the activity of the operators of the Second Channel and to the Administration of the Second Authority (Novik v. Second Authority for Television [51], at p. 203); and see also Karniel, Laws of Commercial Communication, at p. 70; Barak, "The Tradition of Freedom of Speech and its Problems", at pp. 239-240).

The purpose of the fairness doctrine is to ensure a free “marketplace of ideas” which properly reflects the range of views on the matter under discussion (HCJ 10182/03 Education for Peace, at p. 416c). Indeed, “the rationale of the fairness doctrine is obvious: presentation of the different aspects of a particular issue or event to the community and maintenance of equality or at least a minimal equality, between the different positions, are intended to improve the flow of information and to prevent distortions and entry barriers” (Reichman, at p. 223; and see also Daphne Barak-Erez, “The Individual’s Access to the Media: Balance of Interests and the Freedom of Speech,” 12 Tel-Aviv U. Law Rev. (1987) 183, 196-200 (hereinafter: Barak-Erez)). The fairness doctrine is intrinsically linked to the principle of equality (Shiran v. Broadcasting Authority [53], at p. 373d); Zwilli v. Chairman of the Central Elections Committee [6], at p. 708; HCJ 399/85 Kahane v. Management Committee of Broadcasting Authority [54], at p. 303).

Abandonment of the Fairness Doctrine in the U.S.A.

41. Admittedly, in 1987 the fairness doctrine was abandoned in the U.S.A (Karniel, Laws of Commercial Media, at pp. 67-69; Pesach, “The Theoretical Foundation”, at p. 961; Amnon Reichman, ‘"The Voice of America in Hebrew? The Israeli Court’s Reliance on the American Law of Freedom of Speech" in Be Quiet! Someone Is Speaking: The Legal Culture of Freedom of Speech in Israel (ed. Michael D. Birnhack) 185, at p. 223 (2006 (hereinafter: Reichman)). This development does not, however, alter my view. President Shamgar already ruled on this very matter:

‘I am of course aware that in its native country, the standing of the fairness doctrine has diminished somewhat. I do not think that we are bound to endorse the negative view that has been accepted in the U.S.A.  The fairness of the doctrine exists in its own right, and no change of wind in the U.S.A. need disturb the bounty of its trees. The reality in the U.S.A., with its hundreds of newspapers and thousands of broadcasting stations, and the broad range of choice offered thereby to every individual, differs from the local reality. The question of whether the fairness doctrine is necessary and reasonable must be determined in accordance with prevailing domestic conditions' (Cohen v. Israel Bar Association [52], at p. 542; see also per Justice Strasbourg-Cohen, ibid, at p. 570).

The fairness doctrine in Israel is therefore anchored in a statutory arrangement in primary legislation, both in the Broadcasting Authority Law and in the Second Authority Law (see also the Structure of the Public Broadcast Report, at pp. 40 – 41). It has taken root in Israeli case law, and it has in fact become Israeli-style common law.

42.  It will be mentioned that the principle of equality in programming, whether or not we refer to it as the “fairness doctrine”, operates with even greater force in the statutory arrangements of the European states. For example, Italy recognizes the doctrine of par condicio (equal conditions) whereby in order to conduct the democratic discourse, the media must be equally accessible to all political bodies and must treat them all equally and fairly in terms of the place and time of broadcasting. This Italian legislative arrangement prohibits the broadcast of a political advertisement, other than in specific and exceptional conditions. The par condicio doctrine was anchored in Italian legislation in the year 2000 (in relation to all forms of regular programs that were not within the framework of pre-election propaganda; on political advertising, see s. 3 of Legge 22 Fabbraio 2000). France too has an explicit and total prohibition on the broadcast of political advertisements (see s. 14 of Law no. 86-07 of 30 September 1986, which relates to freedom of the press, and s. 29 of Regulation no. 88-66, of 20 January 1988, which supplements the law and establishes a prohibition on the broadcast of an advertisement that contains elements liable to offend to political, religious and philosophical opinions or beliefs). Below I will relate to the law in Europe, and particularly in England, which is closer to Israel in terms of the media market and its regulation.

The Fairness Doctrine and the Justification for Regulation of Broadcasts

43. The point of departure of the fairness doctrine is that in all that pertains to freedom of speech in the electronic media such as radio and television, the "marketplace of ideas” is not a free and efficient marketplace.

‘The free marketplace may fail. A "constitutional marketplace failure" may eventuate in which a small circle of powerful people dictate and fashion the "marketplace of ideas”’ (Cohen v. Israel Bar Association [52], at p. 540; HCJ 4915/00 Reshet Communications and Production Company v. Government of Israel [55], at p. 471).

This gives rise to the need to “impose limitations on a process that threatens to transform freedom of speech into the special privilege of a minority group, instead of it being a universal right” (Barak-Erez, at p. 186). Limitations are imposed by way of oversight and regulation of programs:

‘In view of the great social importance attaching to the electronic communications media, and against the background of their unique features, the general view is that there is a need for regulation in this area. The aim of governmental oversight is to ensure that the maximum number of opinions and views find expression in the framework of the media and hence protect the “marketplace of ideas”’ (Satellite Services (1998) Ltd. v. Committee for Cable and Satellite Broadcasts [9], paras. 12 -13).

An additional point of departure that justifies regulation in the communication marketplace derives from the conception that “the airwaves are public property and do not belong to any particular individual” (Shiran v. Broadcasting Authority [53], at p. 378), the conception that the electronic media constitute a “public platform” (Cohen v. Israel Bar Association [52], and see Zwilli v. Chairman of the Central Elections Committee [6], at p. 707; HCJ 5933/98 Documentary Creators Forum v. President of the State [56], at p. 515) as well as a “limited resource” (Media Most Company Ltd v. Council for Cable and Satellite Broadcasts [18], at p. 24), and from the conception that the public media – television and radio – “constitute a governmental authority from the perspective of Israeli law” (Barak, "The Tradition of Freedom of Speech and its Problems", p. 237).

It follows that whoever controls the public platform is also subject to obligations. President Barak discussed this point in relation to the affirmative aspect of the freedom of speech:

‘The media is not just a mouthpiece. It is also a platform. It is likely to be perceived as governmental in nature, and as discharging a public function. This is the affirmative aspect of freedom of speech’ (Barak, "The Tradition of Freedom of Speech and its Problems", at pp. 237-240, 247).

Regarding the Broadcasting Authority, Barak stated explicitly:

‘Recognition of the governmental nature of the Broadcasting Authority made it possible … to recognize the obligations of the Broadcasting Authority as a governmental authority. These are the obligation of objectivity in programming, prevention of politicization of the authority, fairness in advertising, equality, reasonability, the absence of conflict of interest, and good faith in its decisions. It is its obligation not to discriminate’ ("The Tradition of Freedom of Speech and its Problems", at p. 238).

For a comprehensive discussion of the possibility - which does not arise in our case - of imposing legal obligations in relation to private newspapers due to their social function, see: Pesach, "Analytical Basis", at pp. 933-962, 975-984, and Aharon Barak, "Private Printed Media", Alei Mishpat, at p. 293 (2002).

44.  In this context I accept the State’s position that the role of regulating freedom of speech for our purposes is to ensure equality in public discourse and to prevent unfair and unequal influence on the listening and viewing public.

Whereas equality is often realized by removing obstacles to expression in fori that are particularly accessible to the public and in which expression is effective (cf: AAA 3307/04 Kol Acher BaGalil v. Misgav Local Council [57]),  sometimes - seemingly paradoxically -  a specifically restrictive act is required to ensure substantive equality between political expressions. On the theoretical level, this approach is based on the democratic theory of the freedom of speech (Dayan-Urbach, at pp. 388-391, 395-404), on the importance of the principle of equality (Guy Pesach, "Resources of Expression – Characterization and Guidelines for their Allocation" in Be Quiet! Someone is Speaking: The Legal Culture of Freedom of Speech in Israel, 299 at pp. 333, 353-354 (ed. Michael Birnhack, 2006)) and on the role of the media as operating in the “public domain” (Pesach, "Analytical Basis", pp. 970-974):

‘The paradigm of discourse … takes a positive view of a certain degree of governmental regulation in the area of communications and expression …. This kind of involvement is regarded as essential in order to ensure proper discourse and a fitting environment for expression in terms of the degree of decentralization, the variety and the multiplicity of opinions and information' (Pesach, "Resources of Expression").

            In this context, where a concern arises that the possibility of purchasing advertising time for the purpose of disseminating political messages may lead to discrimination against those expressions that lack the financial support to enable them to appear in the framework of advertisements, the threat to the preservation of a balance between the different views in society is clear.  In such a situation, the restriction of political expression in the framework of advertisements as prescribed by the Rules, insofar as it is proportionate under the circumstances, is a factor that actually strengthens rather than weakens public discourse. It limits the influence of wealth on processes of choice in society and allays the concern expressed by the State – a concern to which this Court has related in the past:

‘Freedom of election means not only the physical freedom to cast a ballot in the booth, but also, and principally, the complete freedom to experience the voting process as a free person, both psychologically and intellectually. Therefore, any act that could reduce or eliminate, either directly or indirectly, the voter's freedom of thought and his ability express his preferred course of action and his philosophy genuinely, in accordance with his independent judgment – whether due to a benefit that interferes with this freedom or because the opinions of others have been forcibly imposed upon him - violates the basic principle of freedom and independence of choice. Hence, acts such as these are fundamentally improper. A different or more lenient approach to this subject, or acceptance of and succumbing to such acts, would necessarily undermine the democratic process and distort its character, because the inevitable result would be that he who pays the piper would call the tune, in addition to holding the reins of power with all that it implies; there can be no greater perversion of the principle of the democratic system in an enlightened society’ (CrA 71/93 Flatto-Sharon v. State of Israel [58], at p. 766; see also the Report on the Structure of Public Broadcasting, at p. 57).

President Barak also commented on the importance of equality between participants in political discourse and on the persuasive power of capital:

‘Placing a “price tag” on the realization of a right means violating the rights of those who are unable to pay the price' (Mateh Harov v. Israel Police [32], para. 16; this judgment was partially the subject of a Further Hearing, see HCJFH 552/07 Magen David Adom BeYisrael v. Mateh Harov [58a]).

            On the importance of the principle of equality amongst the participants in political discourse and the concern about the undue influence of wealth see below, in para. 53, quotations from the judgment of the House of Lords in 2008, in R (on the application of Animal Defenders International) v. Secretary of State for Culture, Media and Sport, [2008] 3 All ER 193. 

The fairness doctrine in programs and its effect on the framework of advertisements

            45. In the present case, the respondents’ responses to the petition focused largely on their concern that abrogation of the Rules in such a way as to open the framework of political advertisements to political entities and messages, would lead to domination of the framework of advertisements by those powerful elements who are better able than others to express their positions in political advertisements, thus negating all substance of the fairness doctrine in programs.

In the similar, though not identical, context of election propaganda, President Barak noted in the past:

‘The desire to ensure equality between the parties leads to extending the prohibition on election propaganda, due to fear of the governing parties “gaining control”, one way or another, over the media during the election period. The same applies to the desire to prevent “undue influence” on the elector. Ensuring attainment of this desire - which the mandatory legislator had in mind - also led to the extension of the prohibition on election propaganda' (Zwilli v. Chairman of the Central Elections Committee [6], at p. 703; and cf. Shammai v. Second Authority for Television and Radio [5], para.17).

This concern also exists in relation to advertisements:

‘Public bodies with large advertising budgets may try to acquire immunity against oversight through the use or threat of use of their advertising budgets…. Even where nothing explicit is said, a particularly large and inflated advertising budget confers upon the giant companies a certain degree of immunity, or at least protection against damaging publications…. The natural tendency of some of the advertisers and some of the commercial media [is that] they have no interest in falling out with the advertisers who are the source of their livelihood. This is a serious restriction of the flow of information and of the public’s right to know…. It reveals the influence of the advertisers over the contents of the media…. It is the very heart of the discussion regarding commercial media, its character, and its regulation' (Karniel, Laws of Commercial Media, at pp. 133-136).

This concern is amplified in view of the fact that radio and television broadcasts are very powerful communication media:

‘When the target audience of the expression is the general public, the most effective means of realizing freedom of speech is the communications media, particularly radio and television broadcasts, which reach almost every house in Israel’ (Gush Shalom Society v. Broadcasting Authority [41], at p. 891c. And see, regarding commercial advertising, HCJ 7833/96 Melnik v. Second Authority for Television and Radio [59], at p. 595b; Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4], at p. 526).

46. The respondents’ aforementioned concern provides the background for these comments. As noted, the fairness doctrine aims to “neutralize” this concern in relation to regular programs. It was not intended to neutralize the concern in the framework of advertisements. As we held in HCJ 10182/03 Education for Peace, the fairness doctrine is inapplicable within the framework of advertisements:

‘Commercial advertising that realizes the freedom of commercial expression is also subject to rules intended to ensure fairness in advertising from consumer and other perspectives…. However, as noted, the “fairness doctrine” underlying the restrictions and conditions specified in s. 4 of the Broadcasting Law and in s. 47(a) of the Second Authority Law cannot be applied in relation to advertising. As a result, tremendous difficulties arise where advertisements are used for non-commercial purposes (HCJ 10182/03 Education for Peace, at para. 7; cf. in the context of service broadcasts of the Broadcasting Authority, Israeli Association for Prevention of Smoking, at p. 166).

This invites the question of the relationship between the programs, which are subject to the fairness doctrine, and the framework of advertisements, in which the fairness doctrine cannot be applied. In my opinion it is inappropriate to thwart the legislative intention to apply the fairness doctrine in programming by “shattering the boundaries” by means of the framework of advertisements (cf. Zwilli v. Chairman of the Central Elections Committee [6], at p. 707).

47.By its very substance, the framework of advertisements was not intended to provide a platform for the airing of controversial ideological-political views, as decided in Gush Shalom Society v. Broadcasting Authority [41]:

‘The Broadcasting Authority serves inter alia as a forum for the expression of varying positions and views, in the framework of the programs broadcast and the time allotted to them. The Authority is charged with ensuring reliable programming “which provides suitable expression of different approaches and points of view current among the public” (s. 4 of the Law). At the same time, it is clear that by its very essence, the framework of advertisements is not intended as a platform for broadcasting controversial ideological-political views. The broadcast of such opinions in the framework of paid commercials frustrates the preservation of a balance between different views in the framework of the Authority’s programs’ (Gush Shalom Society v. Broadcasting Authority [41], at p. 894).

Indeed, the broadcast of a political advertisement in the framework of advertisements is liable to upset the balance between the different views in the framework of the public programs of the Broadcasting Authority, and undermine the doctrine of fairness in programming. The Rules under discussion are intended to prevent this, and here too, that which is ancillary (the framework of advertisements) is determined by the principal (the programs).

            The comparison between the public platform in the town square in which a person stands on a soapbox and voices his opinions, and between the political advertisement in the media is incomplete. A person who wishes to express his opinion in the town square needs only a megaphone, and perhaps a soapbox, both of which can be used repeatedly, at minimal cost.  The town square is large, and there is usually enough room for all those wishing to have their say. Not so with the broadcast of political matters in the framework of advertisements via the channels of the electronic media. Here funding is required; in other words, this is not really an avenue which is open to all.

48.  In summary: The main purpose of the Rules in our case is to ensure balanced and fair programs. The Rules were intended to prevent erosion of the application of the fairness doctrine in  programs and “the shattering of the framework” by the broadcast of political messages within the framework of advertisements, to which, as stated in Gush Shalom Society v. Broadcasting Authority [41], the fairness doctrine is not applicable. In my view this reason suffices to determine that the Rules satisfy the requirements of the third subtest of the limitation clause, i.e. the condition of a proper purpose.

The means adopted by the Rules to realize this goal is the total prohibition on the broadcast of political messages in the framework of advertisements.  We will now proceed to examine the proportionality of the means adopted.

Limitation clause - fourth condition: proportionality

49. The fourth and final condition for the constitutionality of the violation of a human right protected by the Basic Laws is that the violation be “to a degree no greater than necessary.” This condition comprises three subtests, which will be examined below.

In my view, the State’s argument that the right to freedom of speech does not impose an obligation on the Broadcasting Authority "to broadcast the political messages of the petitioner at the time, place and manner desired by the petitioner” has merit. It has already been held that “freedom of speech is not an absolute value. The mere recognition of an expression as being protected by the freedom of speech does not require that it be granted a platform in every framework …. Not every individual is entitled to realize his freedom of speech through the Authority, with respect to every expression, in every framework, and at any time he wishes” (Gush Shalom Society v. Broadcasting Authority [41], at p. 891). Even the petitioner acknowledges that “certain rules must be set that will permit the publication of political or controversial matters, subject to certain restrictions … including the contents of the message, the manner of its presentation, the frequency of its broadcast, the hours of broadcast etc.”  The petitioner thus recognizes the importance of restricting rules in this area. Hence, the real dispute is only whether the existing, restricting rules are proportionate, or whether different, more lenient rules should be formulated.

A.Limitation clause – proportionality: the rational connection test

50. The first subtest for the proportionality of the violation is that of the rational connection. The means chosen must lead rationally to the realization of the objective. The rational connection is examined by means of the “results test” (per President Barak, Movement for Quality Government in Israel v. Knesset [14], at para. 58), despite the fact that “[i]n most cases it is possible to base the rational connection on experience and common sense. On this basis, it is possible to show that the legislation is not arbitrary, but based on rational considerations” (per President Barak, Adalah v. Minister of the Interior [49], at para. 67).

In our case, a complete prohibition on political advertisements is an effective means for realizing the objective that we discussed above. The conclusion is therefore, that the Rules satisfy the first subtest.

B. Limitation clause - proportionality: the test of the least harmful measure

51.  The second subtest of proportionality of the violation is the test of the least harmful measure. From among the measures available to the legislature, the one chosen must be that which is the least damaging to human rights. The chosen measure need not be the least harmful in an absolute sense, but it must be within the bounds of proportionality:

‘The obligation to choose the least harmful measure does not amount to an obligation to choose the measure that is absolutely the least harmful …. The rational options must therefore be compared, and the option selected must be that which, in the concrete circumstances, is capable of achieving the proper purposes with a minimal violation of human rights’ (per President Barak, Adalah v. Minister of Interior [49], para. 68).

In the case before us, the Rules that were laid down represent the selection of the least harmful measure. We were not shown any other, less harmful measure, capable of effectively achieving the same goal.  Under the circumstances there is no appropriate alternative to a total prohibition. The petitioner proposed an alternative based on “individual examination” of each advertisement in accordance with specific restricting criteria to be laid down in primary or secondary legislation, instead of the total prohibition. For example, it was proposed to set criteria relating to the date of the advertisement and its duration, the number of times it would be broadcast per day, the position of the political advertisement in the cluster of advertisements etc. I have two reasons for rejecting the petitioner’s proposal. First, this kind of "individual examination" already exists by virtue of the binding interpretation of the Rules as determined in HCJ 10182/03 Education for Peace. Secondly, the question is not whether the rules proposed by the petitioner constitute less of a violation of freedom of speech than the blanket prohibition. Rather, the question is whether the same goal, and especially the fairness doctrine, can be achieved using a less harmful measure. After all, “[i]f the less harmful measure is less effective in achieving the proper purpose, it is not a measure that the legislature is obliged to adopt” (per President Barak, Adalah v. Minister of the Interior [49], para. 88). In our case – will the measures proposed by the petitioner realize the goal that we discussed above to the same extent as the full prohibition? In my opinion the answer is negative, and there is therefore no obligation to choose that measure (cf. ibid, para 89). In my opinion the Authority was entitled to choose the complete prohibition for which it in fact opted.

The conclusion is that the Rules also pass the second subtest.

52. Here it should be mentioned that recourse may also be had to comparative law on the subject of the proportionality of a total prohibition on the broadcast of political advertisements. In England a complete prohibition was established in ss. 319 and 321 of the Communications Act, which prohibits the broadcast of political advertisements outside the framework of propaganda broadcasts (see: Ian Walden and John Angel, Telecommunication Law and Regulation 444-447 (2nd Edition, 2005). Following the ruling of the European Court of Human Rights regarding similar prohibitions in other states (in Switzerland, VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI; and in Ireland, Murphy v. Ireland, no. 44179/98, ECHR 2003-IX), the issue recently arose in the context of R (Animal Defenders International) v. Secretary of State for Culture, Media and Sport, [2006] EWHC 3069 (Admin).  Another question that arose was whether English law conformed to the European Convention on Human Rights and Fundamental Freedoms (hereinafter: “the European Convention”). In that case the British Communications Authority disqualified the broadcast of an advertisement of the Organization for the Protection of Animals that protested against the use of monkeys for entertainment purposes in zoos and circuses. The Organization for the Protection of Animals petitioned against this decision in the High Court of Justice - Administrative Court, asking the Court to declare that the total ban "does not comply" with the requirements of the European Convention as incorporated in the Human Rights Act of 1998 in Britain. The Court examined whether the total ban satisfies the requirements of the limitation clause in art. 10(2) of the European Convention, which permits a violation of freedom of speech subject to the fulfilment of three cumulative conditions: the prohibition is established by statute; the prohibition is essential in a democratic society; the prohibition is for purposes of national security or public safety (there are also alternatives relating to additional interests that are not relevant to the present case). The dispute in the Court related to the question of whether the total ban was “essential in a democratic society”. The Court ruled that this condition was satisfied and held that it would not declare that a total ban was in conflict with the European Convention. Some of the rationales that I discussed above are mentioned at length as the basis of the Court’s decision.

Lord Justice Auld ruled that in this context a total ban is justified because a lower-level ban would thwart the general aim of protecting the democratic process:

'79. […] To have attempted to limit the prohibition by a more restricted and more precise definition of such bodies or ends would have defeated the overriding objective of preventing the distortion of political debate, which takes many forms and embraces a vast range of matters of public importance and interest.  Moreover, it would have engendered much uncertainty and scope for litigation, and would have invited evasion by political parties thus disadvantaged to “contract” out their political advertising to other bodies or individuals'.  

Mr. Justice Ousely ruled that the purpose of the total ban was to support the democratic process in a wide sense:

'108.The justification for the view embodied in the legislation is clearly made out.  Does it however demonstrate a pressing social need, to a high level, for this legislation?

109. I take the view that it does.   As I have said, at root the prohibition in s. 321 is aimed at supporting the democratic process in a wide sense, supporting a fair framework for political and public debate and avoiding an undesirable advantage being obtained by those able and willing to pay for advertisements in the most potent and pervasive media.  The prohibition thus achieves a very important aim for a democracy'.

Mr. Justice Ouseley added that a ban at a lower level, limiting political advertisements according to specific criteria, would not achieve its purpose in view of the difficulty of accurately distinguishing between parties, and between types and categories of advertisements:

“103. […] It is also difficult to see what principle underlies an outcome permitting access only to those who have enough to advertise, but not so much as to be over wealthy. I cannot see why under Article 10 those who have money should be denied access to the media accessed by their  opponents - poorer  but not so poor as to be unable to afford access.

…

104. It is clear that part of the justification for the complete ban is the real difficulty of drawing any rational, practicable distinctions between parties, groups and types of advertisements.

…

110. No lesser degree of restriction adequately achieves that aim, by time or group. The democratic process is not confined to election time but extends to all those decisions which Government or the legislature may have to make between times. The existence of parties and groups which would have sought to influence debate through their economic power and willingness to spend money on broadcast advertising is quite clear. The potentially malign effect of over-mighty groups spending in a way which alters the terms of public debate, or of policies, or which alters the votes of legislators and influences electoral outcomes to the disadvantage of those less well-endowed or well-organised is obvious, and at work not only at election times. The power of the broadcast media, pervasive and potent, in that respect is not readily deniable.

111. For the reasons which I have already given, no sound or practicable distinction can be drawn between political parties or groups and social advocacy groups, or between groups by reference to their individual wealth or worth'. 

He further emphasized that the importance of unbiased broadcasting was undisputed, and summed up:

'125. In summary, the necessity for restrictions on political/social advocacy broadcast advertising outside elections periods has been convincingly shown.  It is necessary to protect the rights of others through preventing undue access to the broadcast media based on willingness and ability to pay.  At root it supports the soundness of the framework for democratic public debate.  The broadcast media remain pervasive and potent throughout the period between elections.  The suggested distinction between political parties or groupings and social advocacy groups does not reflect the true political impact of all such advertising.  The completeness of the prohibition avoids arbitrary and anomalous distinctions in practice”.

         On 12 March 2008, the House of Lords, sitting as a panel of five justices, unanimously rejected the appeal filed against the judgment (R (on the application of Animal Defenders International) v. Secretary of State for Culture, Media and Sport [2008] 3 All ER 193).  The leading judgment was written by Lord Bingham of Cornhill, who adopted the basic reasons of Justices Auld and Ouseley. I have chosen to quote a number of comments appearing in the opinion of Baroness Hale of Richmond, which I think are also germane to the case at hand.

            Baroness Hale dwelt upon the fact that the background to the decision was the concern for the tremendous power wielded by television and radio in the molding of public opinion.

'My Lords, there was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times.'

According to Baroness Hale, democracy is based on equality in voting power. Opinions backed by a greater budget must not be allowed to trample on other opinions purely by virtue of financial differences. The total ban thus expresses the proper balance between the right to freedom of speech and the principle of equality in elections.

'[48] In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. 'Within the sphere of democratic politics, we confront each other as moral equals' (see Ackerman and Ayres, Voting with Dollars (2003) p. 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

[49] So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality….

[51] For all the reasons which my noble and learned friend, Lord Bingham of Cornhill, has so eloquently and comprehensively given, I agree that the ban as it operates in this case is not incompatible with the appellants' convention rights.'

In conclusion she clarified that a person seeking to disseminate a political advertisement was entitled to express himself via other means of communication, in which the danger of tilting public opinion was lower. There is no justification for establishing exceptions to a total ban that have no practical application.

'It is a balanced and proportionate response to the problem: they can seek to put their case across in any other way, but not the one which so greatly risks distorting the public debate in favour of the rich. There has to be the same rule for the same kind of advertising, whatever the cause for which it campaigns and whatever the resources of the campaigners. We must not distinguish between causes of which we approve and causes of which we disapprove. Nor in practice can we distinguish between small organisations which have to fight for every penny and rich ones with access to massive sums. Capping or rationing will not work, for the reasons Lord Bingham gives.'

Similar dilemmas arise with respect to political advertisements in the framework of public broadcasting in England. The rationales for justifying the total ban that I referred to above are similar, and as I showed, the discussion of the subject in England, too, is accompanied by an examination of the proportionality of the total ban, as well as an elucidation of the concern about abuse of public broadcasting.

53.  It would seem that in the case law of the European Court of Human Rights, too, there have been developments. 

The case of VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI involved the request of a Swiss association for the protection of animals to publish a response to an advertisement of meat marketers on Swiss television, which would include their opposition to the manner in which pigs were raised. Swiss law prohibits the publication of religious and political advertisements. Based on this law, a private television company banned the advertisement. The matter finally came before the European Court of Human Rights. The Court ruled that this constituted a violation of the association's freedom of speech, and it examined whether the conditions of the limitation clause in the European Convention were fulfilled. The Court ruled that the violation was lawful and that it was for a proper purpose – the provision of equal opportunity for the development of a public platform that was not influenced by wealthy sectors (s. 73 of the judgment). According to the Court, however, the ban was not proportional, and where a 'political expression' - as the particular advertisement was perceived – was concerned, the state had less room for maneuver.

Two years later, however, the same court handed down a decision in Murphy v. Ireland, no. 44179/98, ECHR 2003-IX that concerned a refusal on the part of Irish television to broadcast an advertisement with religious content that was liable to offend public sensibilities. Here too it held that there had been a violation of freedom of speech protected by the European Convention, but this time the Court confirmed the refusal to broadcast the advertisement as complying with the conditions of the limitation clause of the European Convention, distinguishing between the "political" advertisement that was considered in the VgT case and a "religious" advertisement. It held that there was greater latitude when it came to religious advertisements. In its judgment the Court stated that the advertisement was not subject to the rules of equality (in the category of the fairness doctrine that applies to broadcasts) and the fact that the broadcasting time was purchased for consideration operates in an unbalanced manner in favour of religious groups with financial resources. Regarding this, the Court's ruling, similar to the ruling issued in Israel in HCJ 10182/03 Education for Peace, was that there are practical difficulties in the fair and equal implementation of various criteria and distinctions that are made in each and every case, and it is preferable to ban such an advertisement completely:

 '77.  In the first place, the Court would accept that a provision allowing one religion, and not another, to advertise would be difficult to justify and that a provision which allowed the filtering by the State or any organ designated by it, on a case by case basis, of unacceptable or excessive religious advertising would be difficult to apply fairly, objectively and coherently (the above-cited case of United Christian Broadcasters Ltd v. the United Kingdom). There is, in this context, some force in the Government's argument that the exclusion of all religious groupings from broadcasting advertisements generates less discomfort than any filtering of the amount and content of such expression by such groupings.

...

78.  Secondly, the Court considers it reasonable for the State to consider it likely that even a limited freedom to advertise would benefit a dominant religion more than those religions with significantly less adherents and resources. Such a result would jar with the objective of promoting neutrality in broadcasting and, in particular, of ensuring a “level playing field” for all religions in the medium considered to have the most powerful impact.'

54.  My view is that the arrangement for political advertising in Israel is not exceptional in comparison with other arrangements in Europe.  There too it was difficult to find an alternative to a total ban. The rationales specified there to justify a total ban as the least harmful measure, are similar to those I discussed above. As stated, I believe that the balance achieved in the framework of the Israeli legislative arrangement satisfies the second subtest, and it is the least harmful measure. We will now proceed to the third and last subtest.

C.  Limitation clause - proportionality: the proportionality test “in the narrow sense”

55. The third subtest is the proportionality test “in the narrow sense”. “Whereas the rational connection test and the least harmful measure test are essentially determined against the background of the proper purpose, and are derived from the need to realize it, the test of proportionality (in the narrow sense) examines whether the realization of this proper purpose is commensurate with the violation of the human right” (per President Barak, Adalah v. Minister of Interior [49], para. 75; see also  United Bank Mizrahi Ltd. v. Migdal Cooperative Village [15], para. 23).

The third subtest is a “values-based test” (per President Barak, Adalah v. Minister of Interior [49], para.75, and see per Deputy President M. Cheshin, ibid. para. 107).  It is a “test of balancing” between conflicting values and interests according to their weight” (per President Barak, ibid. para. 74). It is an expression of the principle of reasonableness (Levy v. Government of Israel [36a], at p. 890d; see also Horev v. Minister of Transport  [26], at p. 43 {195}). Ultimately, the third subtest requires a reasonable balance between the needs of the public and the harm to the individual:

‘According to [the third subtest] a decision of the governmental authority must maintain a reasonable balance between the needs of the general public and the harm to the individual. The objective of the test is to determine whether the severity of the harm to the individual and the reasons justifying it are duly proportionate (HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [59a]).’

What is required, therefore, is a values-based balance of a “reasonable relation between the damage … and the social benefit engendered by the violation” (HCJ 4769/95 Menahem v. Minister of Transport [50], at p. 279; see also per President Barak in Movement for Quality of Government v. Knesset [14], para. 60; and Gaza Coast Regional Council v. Knesset [13], at p. 550). “This values-based balancing … is not new in Israel. It is common in the case law of the Supreme Court since the founding of the State” (per President Barak, Adalah v. Minister of Interior [49], para. 47; see also Barak, The Judge in a Democracy, at pp. 270-274; Sapir, ‘Old versus New,’ pp. 478 – 480, 487; Birnhack, ‘Constitutional Engineering,’ at pp. 620, 639). The values-based balance is therefore the thread running through the rulings of this Court in relation to freedom of speech as well  (Barak, ‘Tradition of Freedom of Speech and its Problems,’ at p. 226; Salzberger, ‘Tradition of Freedom of Speech in Israel,’; and see inter alia the methods of balancing of values in HCJ 73/53I Kol Ha’Am Ltd. v. Minister of the Interior [60], at p. 892; Miller v. Minister of Defense [11] at p. 138 {232}; Horev  v. Minister of Transport [26], at p. 43 {195}; HCJ 316/03 Bakri v. Film Censorship Board [61],  at p. 263e; Solodkin v. Beth Shemesh Municipality [38], at p. 612; Levy v. Government of Israel [36a], at p. 889; per President D. Beinisch in  Meshi Zahav v. Jerusalem District Commander [37], para.10; per President D. Beinisch in  HCJ 5277/07 Marzel v. Commander of Jerusalem Regional Police [62], para. 2).

56. In the present case, the requirements of the third subtest are similarly satisfied, for there is a reasonable balance between the damage to the individual and the benefit to society stemming from the violation.  The violation of the petitioner’s freedom of political expression is not serious, and it is reasonable in relation to the benefit to society from upholding the fairness doctrine. The benefit from upholding the fairness doctrine is considerable. Above we discussed the importance attaching to the values and interests that the Rules are designed to realize. As opposed to this, the damage occasioned by the violation of the petitioner’s freedom of political expression is not great. Indeed, in the framework of the balance of values, the magnitude of the violation of the right must be taken into consideration as well (per President Barak in Adalah v. Minister of Interior [49], para. 65). Many alternatives are available to the petitioner for the publication of the political expression in frameworks suited for political expression, both in the programs themselves, such as news programs, or in political broadcasts which are aired by the Broadcasting Authority and the Second Authority by virtue of their functions and subject to the fairness doctrine (see Zakin v. Mayor of Beer Sheva [27], at p. 303b), and in other advertising frameworks, such as the print and the electronic press. Under these circumstances, the violation of the constitutional right does not carry great weight (cf. Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 414). The violation affects equally all those with an opinion that they wish to express in the framework of the advertisements, and this fact, too, has implications for the proportionality of the Rules (cf.  HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits [63]). In terms of the “effect” that the Rules have on the constitutional human right, it cannot be said that the recourse to a legislative measure causes a grave violation of a human right while the anticipated benefit for the public is negligible (cf. HCJ 1715/97 Israeli Office of Investments Managers v. Minister of Finance  [64], at p. 385). At the very least there is a reasonable balance between the benefit conferred by the Rules and the damage they entail.

57.  I do not accept the petitioner’s approach whereby abrogation of the Rules will enable a person whose political opinion did not receive sufficient exposure in the regular programs, to express his opinion in the framework of advertisements. The petitioner claims that otherwise, such a person will have no access to the public, and will be condemned to silence. I have two reasons for rejecting this approach. First, the holder of the opinion has numerous means at his disposal for expressing his views, outside the framework of the programs of the Broadcasting Authority and those of the Second Authority, and consequently, he is not condemned to silence. In this context we must not underestimate the growing importance and influence of the Internet, which serves as a kind of modern “town square”, the size of which is that of the entire country (see Pesach, "Sources of Expression", 307, at pp. 312-315; and see also Laura Stein, Speech Rights in America: The First Amendment, Democracy and the Media(2006) 81-112).

Secondly, even within the framework of the broadcasts of the Broadcasting Authority and the Second Authority, the holder of a political opinion is not condemned to silence, because the regular programs are governed by the fairness doctrine. If he so wishes, the holder of a political opinion should apply to the Authority with data that supports his claim (Kahane v. Management Committee of the Broadcasting Authority [54]; Gush Shalom v. Broadcasting Authority [41], at p. 894).

58. The conclusion is that the Rules also satisfy the third subtest, and they embody a reasonable and proper balance between freedom of speech and other values that the Broadcasting Authority and the Second Authority are required to protect in their capacity as public broadcast channels (see Gush Shalom v. Broadcasting Authority [41], at p. 892).

59. Having concluded the examination of proportionality, it will be mentioned that the proportionality of the Rules is reinforced by the interpretation of the Rules in HCJ 10182/03 Education for Peace, which permitted the broadcast of political advertisements provided that the focus be exclusively on the factual message (see also in HCJ 1893/92 Reshef v. Broadcasting Authority [65], at p. 820).  Admittedly, in that case the Court dealt with the application of the Rules, and it was not required to rule on their constitutionality, since the point of departure was that they were constitutional (see ibid, para. 8). Nevertheless, the binding interpretation of the Rules in that case may buttress their constitutionality: as we know, “it is preferable to interpret and not to cancel” (Zakin v. Mayor of Beer Sheva [27], at p. 299c).

In my comments above I mentioned that in HCJ 10182/03 Education for Peace, the petitioner and the Broadcasting Authority came to an agreement regarding the wording of the advertisements that would satisfy the case law requirements. The result was that the petitioner was permitted to broadcast an advertisement in accordance with the existing Rules, in a manner that complied with the case law. This is an additional indication of the proportionality of the existing arrangement as explained in HCJ 10182/03 Education for Peace. This practical solution is equally availableto those holding unorthodox opinions (cf. Kahane v. Management Committee of Broadcasting Authority [54]).

60. I am of the opinion, therefore, that the Rules satisfy the requirements of the limitation clause. They do not raise a “constitutional problem”; consequently, in the case before us there is no need for relief or for a constitutional remedy.

Epilogue

61.  Summing up: I accept that the Rules of the Broadcasting Authority and of the Second Authority violate the petitioner’s freedom of political expression. This is a violation of a constitutional right. However, this violation does not render the Rules unconstitutional. This is because they satisfy the conditions of the limitation clause. The arrangement prescribed in the primary legislation and in the Rules is for a proper purpose – ensuring fair and balanced programs in accordance with the fairness doctrine. The violation of freedom of speech is of a degree that does not exceed that which is necessary. As such the petitioner’s constitutional argument is rejected. The Rules of the Broadcasting Authority and of the Second Authority have “passed” the constitutional examination and there are no grounds for us to interfere with them.

If my opinion is accepted, we should deny the petition without an order for costs.

 

 

 

Justice E.E. Levy

1.  I concur with the result reached by my colleague, Justice M. Naor, but my view is based on an additional consideration, which I will discuss briefly.  Personally, I am not convinced that the fairness principle is the only core issue.  Indeed, the importance of substantive equality between concerned parties should not be underestimated; it was referred to by Justice I. Zamir as the “equality of chances” [of the concerned parties] to convey their message to the public for the purpose of influencing its position (HCJ 3434/96 Hofnung v. Knesset Speaker [66], at p. 67). This principle has found expression in a string of legislative acts: the Second Television and Radio Authority Law, 5725-1965; Political Parties Funding Law, 5723-1973, and the Elections (Modes of Propaganda) Law, 5719-1959, as well as the rulings of this Court.

Indeed, even though we know that the great mass of water that has flowed in the stream of political dealings in Israel since its very beginning has occasionally cast doubt on the actual existence of such equality – so that it sometimes seems that despite legal restrictions, the wealthy have found ways to use their wealth to obtain an advantage in the  struggle over public opinion - nevertheless, the importance of ensuring equal allocation of public resources as far as possible cannot be overstated.

2.  In my view, however, the principle of equality can be realized in a way that involves less of a violation of freedom of speech. Apart from an absolute ban on advertisements with political contents, one can think of several options for the allocation of communications resources in a manner that would promote equality among all those seeking to use the media. If this does not happen, it is only because the reason for the prohibition must be sought elsewhere. My view is that the fundamental consideration underlying  the opposition to political advertisements involves the maintenance, or at least the prevention of further degeneration, of the character of public discourse in Israel.

3.  Opening the field of advertising to political content would radically change the nature of public discourse as we know it. I am particularly perturbed by the element of indoctrination that is liable to accompany the advertising media. Marketing ideological views like sausages on the supermarket shelf, in which the frequency of repetition of the jingle singing their praises influences the willingness of people to endorse them, poses a substantive danger to the quality of political discourse in Israel, which even now is not ideal. It may be that in the particular case at hand, the effect would not be extreme, but one can easily imagine how slippery the slope is and how quickly we might find ourselves at the bottom. If we must resign ourselves to a similar phenomenon on the eve of election campaigns, it is only by virtue of express legislative provision, which in like vein attempts to clearly delineate the times at which it is permitted; it does so on the basis of a  purpose that does not exist on a daily basis, namely the need to influence the voting public before it goes to the polls.

It may be argued that regulation restricting the contents or the spirit of broadcast advertisements would help reduce the dimensions of the difficulty. I do not think so. Not only would the application of this kind of restriction not satisfy the advocates of freedom of expression and freedom of political association, but primarily, it would be the commercial interests -  which usually predominate -  that would dictate the regulatory result in the final analysis.  My colleague Justice Naor rightly ruled that the broadcast of these advertisements stems from the need to find funding sources for the activities of the broadcasting bodies.  From my perspective it is immaterial if the advertiser is charged, or if it is allowed to transmit for free, at the expense of time allotted to paid commercial advertising. A concrete example of this is the ubiquitous complaint of commercial broadcasting franchisees, whenever an election period is just around the corner. It is then that they are required to comply with the requirements of the Elections (Modes of Propaganda) Law, and to broadcast election propaganda at the expense of their programs.

4.  I propose that the relevant rules of the relevant broadcasting authorities be interpreted first and foremost with the aim of distinguishing between political expression and its commercial aspect. This form of analysis makes it possible to reconcile the purpose and the means adopted to achieve it on the one hand, with the conditions of the “limitation clause” of Basic Law: Human Dignity and Liberty, which is the appropriate means of examining any government action that violates a basic right or protected interest of the individual, irrespective of whether the examination is based on the provisions of constitutional law, or whether it is based on the rules of administrative law (HCJ 8035/07 Eliyahu v. Government of Israel [67], at para. 6, and references).

5.  It is clear that in the absence of proof of such a violation there is no point, nor any advantage, in invoking these tests.  Nevertheless, I am unable to concur with the conclusion of my colleague, Justice Procaccia, for I believe that in the case before us,  the restriction of the petitioner’s access to such a central avenue of expression,  that offers exposure to a broad public and draws significant public attention, and even the very act of conditioning such access upon payment, violates the petitioner's freedom of expression. I think that the petitioner has successfully cleared the hurdle of proving a violation, but disposing of the remaining hurdles may prove difficult.  Unlike my colleague, the President, my view is that the authorizing language of the Law is sufficiently clear and explicit to enable the secondary legislator to anchor the violation in regulations. It is abundantly clear that the legislation under discussion, which concerns advertising in the media, impacts directly on freedom of expression. As such, the authorization it grants to impose restrictions on those advertisements would seem to be an explicit authorization to impose restrictions on freedom of expression, even though the Laws do not establish criteria for the regulation of those restrictions.  I believe that the legislative intention is sufficiently clear.  The specific question of its appropriateness is a matter for the other components of the judicial examination, i.e. the question of the propriety of the purpose, and the proportionality of the means adopted for its attainment. As I explained above, and bearing in mind that the use of the mode of expression under discussion has yet to strike roots and that television broadcasts anyway provide an extensive platform for political expression, my view is that the foundations of the proper purpose and proportionality are satisfied by the ban on political advertising.

6.    For these reasons I agree that the petition should be denied.

 

 

President D. Beinisch

I have read the opinion of my colleague Justice M. Naor and I concur with significant parts thereof, but I am unable to remain in step with her along the path to the final result.

Like my colleague, I too think that the prohibition on the broadcast of advertisements on political subjects, prescribed in s. 7(2) of the Broadcasting Authority Rules 5753-1993 (hereinafter: “Broadcasting Authority Rules”),  in s. 5 of the Second Authority for Radio and Television (Advertising Ethics in Radio Broadcasts) Rules, 5759-1999, and in s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994 (hereinafter: "Second Authority Rules"), violates the freedom of political expression that is part of the constitutional right to human dignity. I also agree that this violation must be examined from the perspective of the limitations clause. The first condition of the limitations clause is that the violation must be “by law  … or according to … law by virtue of explicit authorization therein.” According to Justice Naor, this condition was satisfied in the current case, for the reasons set out in her judgment. On this matter, my view is different.  In my view, like all the other substantive conditions of the limitations clause, the requirement of “explicit authorization” should be construed in accordance with the entirety of the circumstances, including the nature of the right being violated, its underlying reasons, and the magnitude of the violation.  Bearing in mind that the prohibition on political advertisements is an absolute one, which constitutes a substantial, and grave, violation of the freedom of political expression that is accorded central status in our legal system, my opinion is that the authorization sections in the existing legislation do not constitute “explicit authorization” by law to establish a prohibition in secondary legislation.  This considered, my view is that the Rules with which this petition is concerned were enacted without the appropriate legal authorization, and for that reason, the petition should be granted.  In this context it will be stressed that granting the petition by reason of that defect should not be understood as the expression of a position on the question of whether a total ban on political advertising is appropriate and proportional. My approach is that the issues of the proper purpose and proportionality do not arise in the current circumstances because of the failure to satisfy the condition of “explicit authorization” by law to violate the aforementioned right.

In my comments below I will elaborate on the reasons for my conclusion that the petition should be granted. At the outset, and before addressing the issue at hand, I will discuss the statutory authority of the Broadcasting Authority and the Second Authority to broadcast advertisements on television and radio. As clarified, the authority to advertise for consideration is not limited to essentially commercial advertisements and in principle is also granted for advertisements intended to take a position on publically disputed political and ideological matters.

Statutory authorization for the broadcast of advertisements for consideration

1.    The Broadcasting Authority and the Second Authority are statutory corporations, established by law, by virtue of which they are authorized to broadcast. Section 25A(a)(1) of the Broadcasting Authority Law (hereinafter:  "Broadcasting Authority Law") authorizes the Broadcasting Authority to broadcast advertisements, as follows:

'25A – Radio Advertisements and Announcements 

 (a)(1) The Authority may broadcast on radio advertisements and announcements for consideration (hereinafter: advertisements and announcements), and commission them, prepare them or produce them by itself or by way of one or more other people, as determined by tender.’

It will be pointed out that the Broadcasting Law contains no provision authorizing the Broadcasting Authority to broadcast advertisements on television, and the authority to broadcast advertisements therefore relates exclusively to radio advertisements (see Osem Investments Ltd. v. Broadcasting Authority [2], para. 6 of the judgment of Justice Strasberg-Cohen).

As for the Second Authority -  s. 81 of the Second Authority for Television Law, 5750-1990 (hereinafter: "Second Authority Law") states that the franchisee may include advertisements in the framework of his broadcasts. This authorization applies to both television and radio broadcasts (see definition of “broadcasts” in s. 1 of the Law). Following is the text of the aforementioned s. 81 of the Law: 

'81. Broadcast Advertisements

(a) The franchisee is permitted to include within the framework of its broadcasts, advertisements for consideration at the rate that it determines.'

What does the term “advertisement” mean in s. 25A(a)(1) of the Broadcasting Law and s. 81(a) of the Second Authority Law? What kinds of advertisements are included in the authorization in principle to broadcast “advertisements” on radio and television?

The Broadcasting Authority Law does not provide a statutory definition of the term “advertisements”. Nevertheless, s.1 of the Broadcasting Authority Rules states that for purpose of the Rules, “advertisement” means “an advertising broadcast, sponsor broadcast, or an announcement, broadcast on the radio for payment to the Authority”. In the same section, “Announcement” is defined as “giving information to the public”. Regarding the Second Authority Law, s. 1 of the Law, entitled “Definitions”, states that a broadcast advertisement is “the broadcast of a commercial advertisement as defined in Chapter F (italics not in original). It is noteworthy that Chapter F of the Second Authority Law is entitled “Advertising”, and it begins with the abovementioned s. 81, which authorizes the franchisee to include “advertisements” in the framework of its broadcasts.

As a rule, the term “advertisement” admits of various meanings in accordance with its context. The meaning of the term “advertisement” in the authorizing sections of the Broadcasting Authority Law and the Second Authority Law is not necessarily identical to its meaning in a different context (cf. per Justice I. Zamir in Zakin v. Mayor of Be’er Sheva [27], at p. 300 ff). On the face of it, the terms “advertisements” and “commercial advertising” in ss. 25A(a)(1) of the Broadcasting Authority Law  and 81(a) of the Second Authority Law may bear more than one literal meaning in accordance with the context. One meaning of “advertisement” is the broadcast of an advertisement for consideration. The person ordering the advertisement pays for the publicity, and acquires the possibility of influencing the wording of the advertisement, its contents and the frequency of its public transmission subject to legal restrictions. According to this meaning, the statutory authorization for advertising on radio and television means sanctioning in principle the commercial vehicle of paid advertising, without limiting, in advance, the contents, the message or the purpose of the advertisement.  Thus, according to this meaning, the "advertisement" that the Broadcasting Authority and the Second Authority are permitted to broadcast is not confined to an advertisement with a commercial purpose and nature; an advertisement may also be intended to convey other messages, including political or ideological messages, provided that the means of imparting the message is commercial/funding-related. Accordingly, to impose restrictions on the message, the contents or the character of advertisements, would require separate statutory provisions.

Alternatively, "advertising" means publicizing a certain product or service, for the commercial purpose of marketing and promoting its sale in public. According to this meaning, the broadcast of advertisements is authorized not only because the means of advertising are commercial, but also because the contents, the character and the purpose of the advertisements are commercial. In other words, according to this meaning, the Broadcasting Authority and the Second Authority are authorized to broadcast  advertisements of a commercial character, intended to promote sales of a product or a particular manufacturer (cf. per Justice M. Elon in Israeli Daily Newspapers Association v. Minister of Education and Culture [68], at p. 389).

It seems that the second meaning of “advertisement” is the common and normal one (see per Justice E. Hayut in HCJ 10182/03 Education for Peace, para.7). Nevertheless, the question confronting us is that of the normative meaning of the word “advertisement” in the authorizing provisions prescribed in s. 25A(a)(1) of the Broadcasting Authority Law, and s. 81(a) of the Second Authority Law.  In their arguments, both the petitioner and the respondents assumed that the term “advertisements” in the aforementioned authorizing provisions bore the first of the two meanings mentioned above.  Both parties refrained from arguing that advertisements dealing with political or ideological matters do not fall within the framework of “advertisements”. The preliminary assumption in court was, therefore, that the term "advertisements" in the abovementioned ss. 25A(a)(1) and 81(a) includes advertisements that are designed to adopt a position on a political matter. This interpretative position is correct.

First, as noted above, the definition of “advertisement” in s. 1 of the Broadcasting Authority Rules also includes an “announcement” which is defined in that section as “giving information to the public.” Linguistically, the definition is a broad one that makes no exceptions with respect to the substance and contents of the information being conveyed.  Section 1 of the Second Authority Law defines advertising as “the broadcast of a commercial advertisement within the meaning of Chapter F”.   This definition, too, is linguistically broad and does not necessarily relate to the contents and purpose of the advertisement. Moreover, s. 25A of the Broadcasting Authority Law and s. 81 of the Second Authority Law stress that the authorization that they grant is for the broadcast of advertisements “for consideration.” This phrase reinforces the conclusion that the authorization was intended specifically to sanction the commercial/funding-related medium, and it is not concerned with imposing limitations on the contents and purpose of the advertisements.   Secondly, regarding their purpose, the authorizing sections are intended to allow the Broadcasting Authority and the Second Authority to recruit additional sources of funding for their broadcasts by means of advertisements.  The aim of the authorization was, therefore, to permit the use of the funding medium of paid advertising, even though the authorizing sections as such did not establish an advance limitation on the contents and the aim of the advertisements. Finally, it will be noted that s. 25A(b) of the Broadcasting Authority Law authorizes the management committee, in consultation with the Director General, to make rules regarding "prohibitions and restrictions on advertisements and announcements."  Section 88(2) of the Second Authority Law states that the Council will make rules on matters concerning the broadcast of advertisements, inter alia relating to “Prohibited advertising subject-matter for broadcast as advertisements ….” These statutory provisions, which will be discussed at length below, support the conclusion that the authorization for the broadcast of “advertisements", as such, does not impose any limitations on the contents and substance of the advertisement, and that in order to impose such restrictions it would be necessary to establish explicit constraints.  In fact, it is one of the restrictions prescribed in the Rules of the Broadcasting Authority and of the Second Authority that is the focus of this hearing, i.e. the restriction whereby advertisements may not be broadcast to impart political or ideological messages that are the subject of public controversy.  It will be noted that if the meaning of the said authorizing sections was that the Broadcasting Authority and the Second Authority are authorized to broadcast, ab initio, only advertisements with a commercial purpose and content, it is doubtful whether a prohibition would have been established on advertisements on political subjects that arouse public controversy.

Thus, the statutory authorization of the Broadcasting Authority and the Second Authority to broadcast advertisements on television and radio is not restricted to advertisements intended to promote the commercial sale of a particular product.  In principle, the Broadcasting Authority and the Second Authority are also authorized to broadcast advertisements intended to convey other messages, including political and ideological messages. Note that this interpretation is compatible with the general principles of our legal system, whereby the application of prohibitions and restrictions on freedom of expression should be limited to the minimum necessary extent (see e.g. per Justice (ret.) M. Shamgar in CA 723/74 Ha’aretz Daily Newspaper Ltd. v. Israel Electric Corporation Ltd [68], at p. 295).  The obvious conclusion is that no restriction on the character, purpose and contents of advertising broadcasts can be derived from the basic authorization provisions in s. 25A(a)(1) of the Broadcasting Authority Law and s. 81(a) of the Second Authority Law. These restrictions were established in the Rules of the Broadcasting Authority and the Second Authority.  One such restriction is the focus of this proceeding.

The prohibition on the broadcast of political advertisements

2.    The dispute between the parties concerns the constitutionality of the prohibition established by the Rules of the Broadcasting Authority and the Second Authority on the broadcast of an advertisement regarding a matter “which is the subject of a public political or ideological controversy” (as per s. 7 of the  Broadcasting Authority Rules) or an advertisement intended for the “imparting of a message on a political, social, public, or economic matter that is the subject of  public controversy” (as per ss. 5 and 11 of the Second Authority Rules).  For the reader’s convenience I will cite the full text of these rules as they were also cited in the judgment of my colleague. Section 7 of the Broadcasting Authority Rules, concerning advertising broadcasts and radio announcements states as follows:

‘7.  Prohibited Advertising

It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

…..

(2) Party propaganda or a broadcast on a matter that is the subject of public political or ideological controversy, including a call for a change in the legislation concerning these matters’ (emphasis not in source – D.B.).

Similarly, s. 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules 5759-1999 states the following regarding advertising broadcasts on radio:

'5.  Advertising on Controversial Subjects

A franchisee shall not broadcast an advertisement that imparts a message on  a political, social, public, or economic matter that is the subject of  public controversy.' 

The wording of s. 11 of the Second Authority Rules for Television and Radio (Ethics in Television Advertising) 5754-1994 is identical to that of the aforementioned s. 5, and concerns the prohibition on television advertising regarding controversial topics:   

‘11.  Advertising on Controversial Subjects

A franchisee shall not broadcast an advertisement that imparts a message regarding a political, social, public, or economic matter that is the subject of   public controversy.' 

The parameters of the prohibition on the broadcast of advertisements on controversial subjects were recently considered in the aforementioned HCJ 10182/03 Education for Peace.  In that case Justice E. Hayut held that in accordance with the most restrictive construction of prohibitions and restrictions upon freedom of expression –

'… the test for classifying a broadcast as being controversial should be that of the "dominant component", which examines whether the broadcast is intended primarily to convey information, with no emphasis nor any adoption of a stand on the substantive issue; or whether the broadcast also features a dominant component of persuasion concerning the advantages of the subject that is the focus of the broadcast…. An advertising broadcast may relate to a subject that is essentially a matter of public dispute, but without being controversial in terms of its text, its contents or form, and hence permitted for broadcast' (ibid,  at para. 8; see also: HCJ 1893/92 Reshef v. Broadcasting Authority [69], at p. 820).

 In that case the parties agreed to changes in the texts of the advertisements so that their focus would be the imparting of information to the public concerning a controversial matter, with no element of persuasion or adoption of a stand. It was held that this kind of broadcast is not included in the prohibition under discussion.

The ruling in HCJ 10182/03 Education for Peace invites the conclusion that the prohibition on advertisements regarding publically controversial issues does not apply to advertisements consisting primarily of the imparting of factual information to the public. In terms of both essence and purpose, advertisements included in the prohibition under discussion take a position on a publically controversial political or ideological issue.  Such advertisements are at the center of this hearing. For the sake of brevity I will refer to advertisements of this kind as “political advertisements”.

3.  It will be emphasized that in the course of these proceedings, the petitioner agreed that the broadcasts constituting the subject of the original petition are political advertisements within the meaning explained above. The dispute between the parties does not, therefore, concern the classification of the broadcasts as political advertisements; the principal focus of the discussion is the question of the legality of prohibiting political advertisements.  It is further emphasized that in view of the reasons on which the Broadcasting Authority and the Second Authority based their original decision to disqualify the petitioner’s advertisements, and in accordance with the wording of the order nisi granted on 29 July 2004, the present petition does not concern a prohibition on an advertisement that contains “party propaganda” as stated in s. 43(a)(3) of the Second Authority Law and in the opening clause of s. 7(2) of the Broadcasting Authority Rules (see para. 9 of Justice Naor’s judgment). The present case focuses, therefore, on the constitutionality of the Rules that prohibit the transmission of political advertisements within the meaning elucidated above, i.e. – advertisements whose dominant component is influence, persuasion or the adoption of a position regarding an issue which is a subject of public, political or ideological controversy.

Political advertising as political expression

4.    Political advertising features mixed aspects. On the one hand the messages of political advertisements are imparted to the public via a commercial avenue in return for payment. The external framework is therefore commercial. On the other hand, the entity requesting publication is not necessarily a commercial or business entity. The purpose and message of the advertisement are not commercial but rather political-ideological. Political advertising does not seek to promote a commercial transaction of the sale of a particular item, but rather to promote a political or ideological position among the public. (see Andrew Scott, "'A Monstrous and Unjustifiable Infringement'? Political Expression and the Broadcasting Ban on Advocacy Advertising", 66 Modern L.R. 224, 225 (2003)). These hybrid features raise the question addressed by Justice Naor in her judgment regarding the classification of political advertising as political or commercial expression.

In principle, the distinction between kinds of expressions is not always clear-cut, given that a particular speech may comprise hybrid features. The decision on whether the expression in this case is political or commercial should be based on the test of the “dominant aspect” of the expression from the perspective of the reasonable viewer, listener, or user (cf. Melnik v. Second Authority for Television and Radio [57], at p. 595, per Justice Y. Zamir). In this regard I agree with my colleague Justice Naor that the contents and the purpose of the expression, the motivation for its publication, its target audience, and the character and identity of the entity expressing itself are components of greater significance than the type of medium or the external framework through which the expression is brought to the public’s knowledge.  Bearing this in mind, I too believe that where an advertisement aims to communicate a political-ideological message to the public, and the publicizing entity functions on a public level as opposed to a commercial-business level,  it should be classified as political expression even if the medium of publication is of a commercial character.

5.    The classification of a political advertisement as political expression is significant in terms of the degree of protection accorded to such expression. Indeed, commercial expression, too, is accorded protection in the framework of freedom of speech. Commercial expression realizes the right of the public to receive information, and guarantees business competition between advertisers in the framework of the market of products and services. Commercial expression also enables the personal fulfillment of the individual issuing the publicity and of the public at whom the advertisement is directed, and it is a part of the freedom of occupation.  At the same time, it seems that commercial expression does not constitute a strong realization of the range of possible rationales for freedom of expression. Commercial expression, whose essence and purpose are to promote a commercial transaction for the sale of products, does not make a direct contribution to public dialogue on the subjects on the national agenda.  Considering all these, it was held that the scope and degree of protection granted to freedom of commercial expression are more limited than the protection of freedom of political, literary or artistic expression (on the kinds of legal restrictions on freedom of commercial expression see: per Justice E. Mazza in Maio Simon Advertising Marketing and Public Relations Ltd. v. Second Authority for Television and Radio [39], at p. 755; per Justice I. Zamir in Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 414; and see  Kiddum Yazamot  v. Broadcasting Authority  [22]).

Political expression, on the other hand, lies at the very core of the right to freedom of speech and it constitutes the highest degree of realization of the reasons underlying that right. Freedom of political expression is an essential condition for the existence and development of the democratic regime, which in turn secures other basic rights. It makes possible the exchange of views between the members of society and thus enables them to consolidate their positions regarding matters on the public agenda. Freedom of political expression is also a tool for the individual's self-realization and the crystallization of his world view. Through freedom of speech in general, and freedom of political expression in particular, the individual is able to formulate independent views, to give expression to his own personal credo, to persuade and be persuaded, and to be involved and influential in matters  of concern to the society of which he is a part (see Kahane v. Broadcasting Authority [52], at p. 270 ff.).  All of these affect the constitutional standing of the said right. On this matter  I agree with those who maintain that that there is a close substantive connection between freedom of political expression and human dignity, which is based on the autonomy of will and the freedom of choice of the individual. Accordingly, I too believe that freedom of political expression falls within the bounds of the constitutional right to human dignity (see my comments in Meshi Zahav v. Jerusalem District Commander [37], at para. 10, regarding freedom of expression and demonstration(.

The great importance of freedom of political expression for the individual and for society, and its contribution to the democratic process, affect not only its constitutional status but also the scope and degree of the protection accorded to such expression. Our case law has already held that among the different categories of expression, the protection afforded to political expression “… is particularly broad” and that political expression deserves “maximum protection”, albeit not absolute (per Justice D. Dorner in Indoor v. Jerusalem Mayor [28], at p. 164; and see also Kahane v. Management Committee [54], at p. 293). The classification of political advertising as political expression therefore affects the scope and degree of protection given to this form of expression, and we will elaborate below.

Violation of freedom of political expression

6.    As mentioned, the Rules of the Broadcasting Authority and of the Second Authority prohibit the broadcast of political advertisements on radio and television.  This is an absolute ban on the broadcast of advertisements whose dominant component is the adoption of a position on a subject that is the subject of public controversy. This ban violates freedom of political expression, and to my mind the magnitude of the violation is significant. As explained above, the authorization on principle for the broadcast of advertisements on radio also applies to advertisements of an essentially political or ideological nature (see para. 1 above). The unqualified prohibition on political advertisements totally excludes the possibility of utilizing the media’s advertising framework for purposes of persuasion and relaying political messages, thereby giving absolute preference to commercial expressions over political expression in the financial framework of paid advertisements (see Eric Barendt, Freedom of Speech 445 (2005). Considering all this,  my view is that the prohibition under discussion involves a significant, and serious, violation of freedom of political epression.

Here it should be mentioned that the respondents did not dispute that the Rules of the Broadcasting Authority and of the Second Authority violate freedom of speech. Their argument, however, was that freedom of political speech can be realized by way of the regular broadcasting framework as distinct from the framework of advertisements on radio and television.  Bearing that in mind, it was argued that the said right was not violated to a significant degree. I cannot accept this argument. Indeed, the existence of another effective avenue for relaying speech may be a relevant consideration when examining the magnitude of the violation of freedom of speech (see: Cohen v. Israel Bar Association [52], per President Shamgar, which was the minority view with respect to the outcome in that case). At the same time, in the present context it cannot be said that the format of news broadcasts or political programs constitutes an effective, equivalent alternative to the relaying of a political message by way of an advertisement, in which the person commissioning the advertisement can significantly influence its content, its manner of presentation and the scope of its public exposure. Neither can it be claimed that other media in which political advertising is permitted, such as the print media or the Internet, have the same value in terms of publicity as the broadcasting media which has such extensive power of communication. The inevitable conclusion is that preclusion of all possibilities for  persuasion and the conveying of political messages by way of advertisements on television and radio constitutes a significant, and serious, violation of freedom of political expression. As will be explained below, this conclusion is significant for purposes of examining whether the conditions of the limitations clause, which include the requirement that the violation be “by a law … or according to a law … by virtue of explicit authorization therein”, have been fulfilled.

It will be mentioned that the Broadcasting Authority emphasized that the broadcast of advertisements is not part of its duties, being no more than an ancillary power intended to enable it to enlist an additional source of funding for its broadcasts by law. The argument is that the Broadcasting Authority is authorized to broadcast advertisements on radio, but it is under no obligation to do so. In view of the fact that advertisements are broadcast by the Broadcasting Authority by virtue of an ancillary power the purpose of which is financial, and considering the respondents’ position whereby the advertising framework is “inappropriate” for political speech – it is argued that the prohibition on the broadcast of political advertisements does not constitute a serious violation of freedom of speech. I am unable to accept these arguments either.  The various communications media are not just a platform for the realization of freedom of speech of those speaking and of the target audience; the media itself enjoys autonomy with respect to its broadcasts as a substantive component of freedom of speech. It has already been held in our case law that “the right of access [to the media] is not a key to all channels of communication …. The holder of the right does not have freedom of speech at all times, in all forms and in all places" (per President M. Shamgar in Cohen v. Israel Bar Association  [52], at p. 552; see also per Justice (previous title) A. Barak in   Kahane v. Management Committee [54], at p. 268 and in Senesh v. Broadcasting Authorit [35], at p. 846).  Nevertheless, since the Broadcasting Authority and the Second Authority chose to exercise their authority to establish a framework for advertisements on television and radio, the preclusion of any possibility of political advertising constitutes a serious violation of freedom of political expression, considering all the above-mentioned reasons.  It is stressed that the question of whether advertisements are a suitable means for conveying political messages is not relevant when examining the scope and degree of violation of the protected right; rather, it arises in the framework of the examination of the constitutionality of the violation according to the criteria of the limitations clause (cf: Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2006 BCCA 529, par. 131. That case concerned the invalidation of a decision of the public bus company to refrain from placing political advertisements on the sides of buses.  An appeal on the judgment is currently pending in the Canadian Supreme Court).

Examination of the constitutionality of the violation – the Limitations clause

7.    Like all human rights, the right to freedom of speech is not absolute, and at times it must give way to other rights or values or competing interests. As explained in the judgment of my colleague Justice Naor, the relevant balancing formula is that which appears in the limitations clause in s. 8 of Basic Law: Human Dignity and Liberty. This is indeed “the criterion accepted at present for balancing conflicting values” (para. 29). On this matter, I would like to add several comments.

First, the Rules of the Broadcasting Authority and of the Second Authority under discussion have the normative status of secondary legislation. The Broadcasting Authority Rules were made by the management committee, in consultation with the Director General by virtue of the authority under ss. 25A (b)(2) and 33 of the Broadcasting Authority Law. The Second Authority Rules were made by the Second Authority Council by virtue of their authority under ss. 24 and 88 of the Second Authority Law. These Rules were enacted with the knowledge of the Knesset Education and Culture Committee. As such they acquire the normative status of secondary legislation (cf: per Deputy President T. Or in HCJ 9596/2 Pitzui Nimratz, Experts for the Realization of Medical Rights and Insurances v. Minister of Justice [70], at p. 797 and the sources cited there regarding the normative status of the Bar Association Rules.   While the principal aim of the limitations clause was to limit the powers of the primary legislator, it is clear that anything forbidden to the primary legislator would certainly be forbidden to the secondary legislator (see I. Zamir, Administrative Authority, vol. 1, pp. 135, 138, 154). Bearing this in mind, I too am of the opinion that the Rules under consideration should be examined through the spectrum of the limitations clause.

Second, the limitations clause in the Basic Laws on human rights is the tool for assessing the constitutionality of a violation of rights enjoying meta-legal status, in that they are included in the inner core of rights specified in the Basic Laws. Nevertheless, the tests of the limitations clause may also be applicable by virtue of general principles governing human rights, which are part of the “Israeli common law”, and which do not have a status that is entrenched directly in the Basic Laws (see per President Barak in Horev v. Minister of Transport [26], at p. 43 {195}).  Accordingly, even on the view that freedom of political expression is not included in the constitutional right to human dignity, the constitutionality of secondary legislation that violates the aforementioned right must still be examined in accordance with the conditions stipulated in the limitations clause. These conditions are essentially similar to the tests applied in the case law relating to protection of human rights prior to the enactment of the Basic Laws (see my comments in Meshi Zahav v. Jerusalem District Commander [37], at para. 10); see also per Justice D. Dorner in Bakri v.  Film Censorship Board [61],  at para. 10).

Finally, it is noteworthy that counsel for the state argued that in the circumstances of the case, the criteria of the limitations clause should not be applied. The argument is that in order to examine the constitutionality of the prohibition on political advertising, the freedom of speech of the person wishing to advertise much be weighed up against the freedom of speech of the entire state citizenry, who are entitled to receive reliable and balanced information from the media.  According to counsel for the state, this is a horizontal balance between two rights of equal status, which should be based on compromise and mutual waiver of both rights. In light of this, it is argued that the balancing formula prescribed by the limitations clause should not be invoked, because this formula is suited only to a vertical balance between a right and a conflicting interest, and not to a horizontal balance between two rights of equal status.  Counsel for the state based his arguments on the comments of Justice D. Dorner in Shin v. Council for Cable Broadcast  [23], (at para. 19).

I do not accept these arguments.  The petitioners’ freedom of political expression to publish political advertisements is not competing with the right of an individual or a defined group of individuals amongst the public, but rather, with the general public interest of the members of society to receive reliable, balanced information from the media.  As such, the absolute ban on the broadcast of political advertisements requires, in essence, a vertical balance between the individual right and the general public interest, and not a horizontal balance between two rights of equal status, as claimed by counsel for the state. In any case, we are not faced with the question of whether the fundamental balancing formula prescribed by the limitations clause applies only to vertical balances between competing rights and interests or whether it can also be applied to horizontal balances between two conflicting human rights. I will just mention that according to my understanding, the requirements of the limitations clause – and especially the requirements of a  proper purpose and proportionality – may under suitable circumstances also be invoked in cases involving horizontal balancing of competing human rights.  I tend to the view that the tests of limitations clause may also serve for striking horizontal balances between rights of equal status, even if the manner of applying these tests may change in accordance with the category of the conflicting values, their relative weight, the nature of the balance, and the overall circumstances. Under the current circumstances this issue does not require further discussion and it may therefore be left for future consideration (cf: per Deputy President M. Elon in Shefer v. State of Israel  [71], at p. 105; regarding the view that the proportionality tests allow for waiver and mutual compromise between conflicting values, see Gideon Sapir, “Old versus New: Vertical Balance and Proportionality,” 22 Bar-Ilan L. Stud. 471 (2006)).

The Requirement that the violation be “by a law … or according to a law by virtue of explicit authorization therein”

8. The limitations clause in s. 8 of Basic Law: Human Dignity and Liberty, the wording of which is essentially identical to that of s. 4 of Basic Law: Freedom of Occupation, provides as follows:

'There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or according to a law as stated by virtue of explicit authorization therein' (italics not in original – D.B.). 

The limitations clause specifies four cumulative conditions that must be satisfied for the violation of a protected right to be lawful and to pass the constitutional examination: the violation must be by a law, or according to a law or by virtue of explicit authorization therein; the violating law must befit the values of the State of Israel; the violation of the protected right must be for a proper purpose; and the violation must be “to an extent no greater than is required.” The last three conditions express the principle of the rule of law in the broad substantive sense. Their concern is with the contents of the normative arrangement that violates a human right. Their purpose is to ensure that the violation of the right of the individual is necessary and justified from a substantive point of view, and that it strikes a proper balance between individual rights and the needs of the public.  On the other hand, the provision requiring that the violation be “by a law …or according to a law as stated by virtue of explicit authorization therein” is not concerned with the contents of the legal norm but rather, with the need for its existence. This provision expresses the principle of the rule of law in the narrow,  formal-substantive sense, as we will now explain.

In the circumstances of this case, my position is that the Rules of the Broadcasting Authority and the Second Authority, which establish a total ban on the broadcast of political advertisements, do not comply with the first condition of the limitations clause.  In order to explain my position, I will first consider the meaning of the requirement that the violation of the protected right be “by a law… or according to a law as stated by virtue of explicit authorization therein.” To that end, we must first consider the interpretation of the term  “by a law”  or “according to a law”. I will then discuss the interpretation of the requirement for "explicit authorization" in the law. It will be stressed that the following discussion will focus on the interpretation of the components of the said provision in the present context,  i.e. secondary legislation that violates a protected human right.

"By a law” or “according to a law …”

9.  The first requirement of the limitations clause according to which the violation of the protected right must be "by a law" means that as a rule, the violation of the right must derive its force from primary legislation. Where the violation is dictated by secondary legislation, the administrative authority must show authorization that originates in a legislative act of the Knesset ("according to a law"). This is an expression of the principle of administrative constitutionality, which is a constituent of the principle of the rule of law in the formal sense, whereby the executive authority may only act in accordance with the powers vested in it by law (see Baruch Bracha, Administrative Law, vol.1, 35, 38-40 (hereinafter: Bracha); Zamir, at p. 60). This principle is particularly applicable to powers that involve a violation of basic human rights.  For such a violation of rights, the secondary legislator must receive "explicit" authorization from the primary legislator.  Below we will discuss the meaning of the requirement of “explicit authorization”. 

It will be noted that the phrase "according to a law …" in reference to the violation of a protected right was not included in the original version of the limitations clause at the time of passage of the two Basic Laws concerning human rights in 1992.  It was added to the limitations clause in 1994, in the framework of an amendment to the two said Basic Laws (see: Basic Law: Freedom of Occupation (Amendment) Bill, H.H. 5754 129, that prescribed an indirect amendment to the limitations clause in Basic Law: Human Dignity and Liberty (hereinafter: "the Amendment").  The explanatory note to the Amendment states that "… the existing requirement whereby any limitation of the freedom of occupation must find expression exclusively in primary legislation and not in secondary legislation – is unnecessarily extreme." This clearly indicates that the phrase relating to a violation "according to a law" was intended to enable the secondary legislator to violate human rights subject to the restrictions that we will now discuss.  In that sense, the requirement that the violation be "by a law" or "according to a law" resembles the requirement of "prescribed by law" appearing in the European Convention of Human Rights and in s. 1 of the Canadian Charter. The European Court of Human Rights and the Canadian Supreme Court interpreted the word "law" in this  requirement as permitting a violation of basic rights not only in primary legislation but also in secondary legislation that complies with the other conditions of the limitations clause (see: Peter W. Hogg, Constitutional Law Of Canada  (5th ed., 2007) 123 (hereinafter: Hogg)).

Further to the above it will be mentioned that the requirement that the violation be "by a law" or "according to a law" is an expression of the rule of law not only in the formal sense, but also in the narrow-substantive sense. Accordingly, in order to pass the test of constitutionality, legislation that violates human rights must comply with all of the elements that are essential for the validity of legislation as binding legal norm, including publicity, accessibility, generality, absence of ambiguity, and absence of arbitrariness (see A. Barak, Interpretation in Law,  vol. 3, Constitutional Interpretation, at pp. 480-490 (1995) (hereinafter: Barak, Constitutional Interpretation). Indeed, this interpretation is also consistent with the interpretation of the requirement “prescribed by law" in the rulings of the European Court of Human Rights and the Canadian Supreme Court. In keeping with this interpretation, a norm that violates human rights must be public, accessible and sufficiently clear so that the aggrieved individual, as well as the authority causing the violation, can plan their course of action and conduct their affairs in accordance therewith (see: The Sunday Times v. United Kingdom, 2 EHRR 245 (1979); Hogg, at pp. 122-123, 125-126). Concluding this section, it is noteworthy that in our legal system, the aforementioned requirements, including the requirement that the offending norm be clear and unequivocal, may also be dictated by the substantive components of the limitations clause, including the requirement of a proper purpose and proportionality.

Violation “according to a law" by virtue of “explicit authorization" therein  

10. The provision under which the violation of human rights must be "by a law… or according to a law as stated by virtue of explicit authorization therein" includes an important additional component.  A violation that is "according to a law" must be by virtue of "explicit authorization" in the primary legislation. This requirement is not included in the limitations clauses of the European Convention of Human Rights or the Canadian Charter.  What is the reason for adding the requirement of “explicit authorization” by a law in the limitations clause of the Basic Laws?  The explanatory note to the Amendment of 1994 reveals that the aim was to restrict the possibility of violating human rights by means of secondary legislation. To that end, three cumulative conditions were set that had to be satisfied in order to affirm the constitutionality of the violation of a human  right by way of secondary legislation. First, authorization for such a violation must be in primary legislation (“by a law”); secondly, the authorization in the primary legislation must be “explicit”; and thirdly, the authorizing law, like the secondary legislation itself, must satisfy the substantive conditions of the limitations clause.

It must be said immediately that the requirement for “explicit authorization” by law for the violation of a protected right by way of secondary legislation is not new to us. Even prior to the enactment of the Basic Laws concerning human rights, the case law of this court established that any violation of human rights by way of secondary legislation requires explicit authorization in primary legislation. It further determined that such authorization would be narrowly and meticulously construed in view of the interpretative presumption whereby the primary legislator did not intend to authorize the secondary legislator to violate central basic rights or values. In order to refute that presumption, it was ruled that there must be  explicit and unequivocal authorization in a law. In the words of President M. Shamgar in the context of violation of freedom of occupation:

 ‘A basic right can be neither revoked nor restricted other than by way of explicit statutory provision of the primary legislator, and also, as long as the Basic Law does not determine otherwise, by the secondary legislator who was authorized to do so by the primary legislator ….

In my view, such authorization means  “explicit authorization”, by which I mean exclusively a case in which the primary legislator  states clearly and explicitly, that he authorizes the secondary legislator to make regulations that establish prohibitions or restrictions on engaging in a particular profession ….

To summarise this point, ... secondary legislation draws its force exclusively from the authorizing act of the primary legislator, and in relation to matters concerning the restriction of fundamental rights, in my view the secondary legislator is not authorized to act in that regard unless the primary legislator granted him clear, overt and explicit authority to deal with the said matter by way of restriction or prohibition, as the case may be’(HCJ 337/81 Miterani v. Minister of Transpor  [71], at p. 360; italics not in original – D.B).

As mentioned, this ruling had already struck roots in our legal system in the period that preceded the Basic Laws concerning human rights (see e.g. per Justice (previous title) Barak in CA 524/88, Pri HaEmek Agricultural Cooperative Society Ltd. v. Sde Yaakov Workers Settlement Ltd. [73]). However, it is noteworthy that in the case law that preceded the Basic Laws, less rigorous approaches may be discerned, whereby basic rights may be violated by way of secondary legislation even in the absence of explicit statutory authorization, provided that the authorization for the violation of human rights was clearly implied by the purpose of the authorizing law. In the words of Justice Berinson:

‘[a basic right – D.B.] … can neither be revoked nor restricted other than by way of a clear and unequivocal legislative provision. This is the case a fortiori when executed by the secondary legislator, who can do only that which the sovereign legislator has authorized him to do, and this authorization must be clearly and expressly stated, or at least it must be implied by the general purpose and intention of the law by virtue of which the secondary legislator presumes to act’

 (HCJ 144/72 Lipevski-Halipi v. Minister of Justice [73], at p. 723. On the different approaches taken by this Court during the period preceding the enactment of the Basic Laws concerning human rights, see Oren Gazal-Ayal, “Restrictions of Basic Rights “By Law” or “According to Law” Mishpat Umimshal - Law and Government in Israel 4, pp. 381, at pp. 385-389 (1998) (hereinafter: Gazal).

11.  The enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation created an opportunity for a fresh interpretative perspective of the requirement of “explicit authorization” currently anchored in the limitations clause. Our case law has already established that in keeping with the status accorded to human rights in the Basic Laws, and in view of their spirit, greater weight is assigned today to the obligation to take into account protected human rights (see CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [75], at para. 46 of my judgment). Indeed, as mentioned, the requirement of “explicit authorization” by law seeks to reduce the damage to basic rights by way of secondary legislation, while giving expression to the principle of the rule of law in its formal and narrow-substantive sense. However, the interpretative question arising in this context is this: when is an authorization in a law considered to be “explicit” as stated in the limitations clause? A variety of interpretative questions may arise in this context: is it sufficient for the primary legislator to authorize the secondary legislator to fix an arrangement in a particular area that by its very nature is liable to involve a violation of human rights, or is clearly-stated authorization to violate the relevant protected human right necessary? Is it sufficient that the law contain a general authorization to violate a human right, without determining the substance and scope of the violation, or must the statutory authorization also determine the fundamental criteria for the offending arrangement, in order to direct and define the secondary legislator’s discretion when fixing an arrangement that restricts human rights?

These questions necessitate a balance between different and even conflicting considerations. Two main approaches present themselves in this context. On the one hand, our case law has established that the principles of the separation of powers, the rule of law, and democracy in both its formal-representative sense and its substantive sense, all require that the principal norms and the fundamental criteria for implementing them  be fixed in primary legislation (“primary arrangements”) (see per Justice (previous title) T. Or in HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructures [76], at p. 56 and references cited).

The considerations underlying this basic rule of public law in Israel were discussed at length by  President Barak in Rubinstein v. Minister of Defence  [45] and by Deputy President Cheshin in HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel et al. v. Prime Minister of Israel [77]. Briefly, this doctrine is based on a conception of representative democracy in which the parliament elected by the people is the principal carrier of the legislative role, enjoying social legitimacy in that capacity. A sweeping conferral of legislative authority on an administrative agency without the fundamental arrangements for exercising such authority being set out in legislation is tantamount to transferring the legislative power granted to the Knesset to the executive branch or one of its offshoots, and may directly contradict the fundamental basis upon which the system of the regime is premised.  According to this conception, it is the Knesset, as opposed to administrative authorities, that must prescribe the fundamental criteria for the violation of basic rights. This is the way to ensure that the Knesset fulfils its constitutional role and that it guides the administrative authorities in their activities that involve violations of human rights. In this way, there will also be a public parliamentary discussion of the relevant constitutional and normative considerations, in a manner that provides a “certain institutional guarantee that basic rights will not be violated except where necessary” (per Justice D. Dorner, Lam v. Director General of the Ministry of Education, Culture and Sport [44], at p. 684; and see further per Justice E. Hayut, Association for Civil Rights in Israel v. Minister of Internal Security [43], at p. 762; per Deputy President E. Rivlin, ibid., at p. 765; Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. 1, pp. 127-128, 159ff (2005) (hereinafter: Rubinstein and Medina)).

It will be noted that this conception also underlies the interpretative presumption operative in our legal system, the status of which was reinforced by the enactment of the Basic Laws concerning human rights, whereby it is not the intention of the primary legislator to authorize the secondary legislator to prescribe primary arrangements in secondary legislation (on this interpretative presumption, see:  New Dialogue Society  v. Minister of National Infrastructures [76], at pp. 56-57, per Justice (previous title) T. Or; Rubinstein v Minister of Defence [45], at p. 523 {193}, per President Barak; A. Barak, Interpretation in Law, vol. 2,  Legislative Interpretation, at pp. 527-530 (1993); Rubinstein and Medina, at p. 166). In accordance with this presumption it was held that as a rule, the secondary legislator should refrain from establishing primary arrangements itself and should focus on determining the means for implementation and enforcement of the substantive arrangements outlined by the primary legislator. This ensures that the “democratic-parliamentary regime” is not replaced by a "formal democratic regime” (per President M. Shamgar in HCJ 256/88 Medinvest Herzliya Medical Center v. Director General, Ministry of Health [78], at p. 45).

In this context it is noteworthy that in parliamentary democracies in which the constitutional system protects human rights, the requirement to specify the manner of limitation of rights in primary legislation is anchored within the system.  Thus, in the German legal system, this concept finds specific constitutional anchorage in s. 80(1) of the Basic Law (Grundgesetz). This section stipulates that the federal and state governments may be authorized by law to establish secondary legislation, but the contents, purpose, and scope of the authorization must [also] be determined by law. A similar conception is evident in the case law of the Supreme Court of the United States. Basing itself on the principle of separation of powers, this court ruled that legislative powers are given to Congress, and that delegation of these powers to administrative authorities is conditional upon Congress setting standards to guide the secondary legislator in exercising his authority. In actual practice, it must be said, the Supreme Court of the United States deems sufficient the establishment of broad and general standards in a law, thus weakening the status and the application of the doctrine in the American legal system (see: Mistretta v. United States, 488 U.S. 361 (1989); and Calvin Massey, American Constitutional Law: Powers and Liberties 394-395 (2nd ed., 2005)).

The constitutional considerations discussed so far are likely to support a strict and precise interpretation of the requirement of “explicit authorization” in the limitations clause. Accordingly, in order for secondary legislation that violates protected human rights to be constitutional, a general, comprehensive  blanket statutory authorization concerning enactment of harmful secondary legislation does not suffice. It is necessary to point to a clearly articulated authorization in the law, specifying the nature of the violation of the protected right and its fundamental criteria in the framework of the authorizing statute.

As opposed to this interpretative approach, it could be argued that in the modern reality, the multitude of matters requiring statutory regulation prevents the primary legislator from dealing personally with all the matters that require legislation. According to this argument, the requirement of a clear, detailed authorization in the law for purposes of violating basic rights by way of secondary legislation is liable to lead to cumbersome and slow primary legislation that does not allow for adaptation to the changing circumstances of life and to the needs of time and place. This situation is liable to paralyze the regulatory enterprise, harming the broad public interest and even the protection of human rights. Moreover, a rigid construction of the requirement of “explicit authorization” may overly limit the power of the administrative authorities to exercise broad discretion in the regulation of matters within their area of expertise. Furthermore, it is difficult to determine a clear guideline for distinguishing between  primary and secondary arrangements, and it is thus doubtful whether it is practically possible to single out the primary legislator as being charged with establishing primary arrangements (see para. 36 of the judgment of Justice Naor and her judgment in Association for Civil Rights v. Minister of Internal Security  [43], at pp. 759-760; also see and compare Bracha, at p. 82; Zamir,  at p. 68).  Indeed, this Court has already said that “the complexity of life has forced us to reconcile ourselves to the existence of primary arrangements in secondary legislation…” even though this is not a desirable situation (per Deputy President Cheshin in HCJ 2740/96 Chancy v. Inspector of Diamonds [79], at p. 505).

These considerations may justify a more moderate approach to the requirement of “explicit authorization”, whereby it would suffice for the authorization for violating a basic right to be dictated by the purpose of the authorizing law, without requiring explicit wording or a specific arrangement in primary legislation regarding the substance and scope of violation of the protected right (cf: Gazal, at p. 416). A similar approach prevails in the English legal system, where it was ruled that not only an explicit provision, but also an intention that is necessarily implied by a parliamentary statute, may rebut the interpretative presumption whereby the secondary legislator is not authorized to make arrangements that violate the basic principles of the system (see: A.W. Bradley & K.D. Ewing, Constitutional and Administrative Law 687-688 (14th ed., 2007); P. Craig, Administrative Law 389-390 (5th ed., 2003)).

12.  How should we balance all of the above considerations? What construction should be given to the requirement of “explicit authorization” in the limitations clause, in view of the variety of considerations as stated? It would seem that our response to these questions must be from a broad perspective that takes in the other components of the limitations clause of the Basic Laws. As explained above, the limitations clause expresses a complex conception of the rule of law, in both the formal and the substantive senses. The conditions of the limitations clause are grounded in a delicate balancing of human rights among themselves, and human rights as against the general good. The balancing task does not admit of precise, fixed advance definition, being the product of evaluation and estimation. The task of balancing eludes precise advance definition, for it is the product of relative calculation and evaluation. It must be sensitive to the context in which it takes place (see: Barak, Constitutional Interpretation, at p. 548).

Considering all the above, we have ruled previously that the interpretation and manner of application of the substantive conditions of the  limitations clause - especially the requirements of a proper purpose and proportionality - should be determined in light of all the parameters, including: the area with which the offending legislation deals; the reasons underlying the protected right and its relative social importance; the nature of the violation and its magnitude in the concrete case; the circumstances and the context of the violation; and finally, the nature of the competing rights or interests (see my comments in Menahem v. Minister of Transport [48], at pp. 258-259). Further to this it was ruled that the nature of the violation of the protected right and its magnitude are likely to impact on the examination of the violation from the perspective of the limitations clause. In the words of Justice I. Zamir:  “In principle, the level of protection accorded to a basic right must be directly proportional to the importance of the right and the magnitude of the violation” ( HCJ 7083/95 Sagi T‘;’/.. v. Minister of Defense [80], at p. 262 {657}; see also Menahem v. Minister of Transport [48], at p. 260; Horev v. Minister of Transport [26], at p. 49 {202}).

In accordance with the above, this court has ruled that the greater the social value of the violated right,  and the more comprehensive and severe the violation, the more important and substantive the purposes must be in order to satisfy the requirement of “proper purpose” in the framework of the limitations clause (see e.g. Movement for Quality of Government in Israel v. Knesset [14] at p. 890, per President A. Barak;  HCJ 8276/05 Adalah – The Legal Center for Arab Minority Rights in Israel  v. Minister of Defense [81],  para. 28, per President Barak).

Similarly, regarding the requirement of proportionality it was ruled that “the magnitude of the violated right or  the magnitude of the violation of that right will determine the extent of our strictness with the authority regarding the grounds of proportionality” (HCJ 3648/97  Stemkeh v. Minister of the Interior [82], at p. 777, per Justice (previous title) M. Cheshin; see also HCJ 5503/94 Segel v. Speaker of the Knesset [83], at p. 544, per Justice A. Goldberg; Tzemach v. Minister of Defence [80], at p. 282, per Justice I. Zamir;  Menahem v. Minister of Transport [48], at p. 280 of my judgment; Israeli Office of Investments v. Minister of Finance [64], at pp. 420-423, per Justice Dorner). It will be mentioned that insofar as the requirement of proportionality is concerned, the examination of the nature and extent of the violation are an integral part of the tests of this requirement, especially of the third subtest, in the framework of which  the relationship between the nature and the extent of the violation and the benefit stemming from it is examined (see e.g. LAA 696/06 Alkanov  v. Supervisory Court for Custody of Illegal Residents   [84],  per Justice Procaccia, at para. 21).

Thus, according to the settled case law of this court, the substance of the violated right, the reasons underlying the right and its relative social importance, the magnitude of the violation, and the context in which it occurred, all have implications for the interpretation and the mode of application of the requirements of proper purpose and proportionality that   constitute an expression of the principle of the rule of law in the broad, substantive sense. In my opinion, the requirement of "explicit authorization" by law, which likewise is a manifestation of the principle of the rule of law, should be interpreted in similar fashion (para. 9 above). Indeed, the requirement of “explicit authorization” by law does not have a single, essential meaning. Its application calls for sensitivity to the context and all the circumstances of the case.  Accordingly, the nature of the violated right and its underlying rationales, the relative social importance of the right, the magnitude of its violation, its social ramifications, the nature of the offending authority and the context – should all affect the mode of interpretation and application of the requirement for “explicit authorization” in the limitations clause.

Bearing this in mind, the closer the substantive connection between the violated right and the dignity and liberty of the person, the greater the social importance of the right, and the more serious and comprehensive the violation, the stricter will be  our interpretation of the requirement of “explicit authorization” in the concrete case.  Accordingly, in cases involving a serious violation of a major basic right, clear statutory authorization in the authorizing law establishing general criteria for the essential features of the violation that is permitted by way of secondary legislation will be required. The level of detail required in the authorization will be a function of the magnitude of the violation of the protected right, the nature of the matter, and the overall context. President Barak dwelt on this issue in his discussion of the basic principle whereby primary arrangements must be fixed by the primary legislator:

 ‘The level of abstraction of the primary arrangement changes from case to case. The greater the violation of individual liberty, the less acceptable is too high a level of abstraction, and an arrangement in primary legislation establishing – even if only in general terms -   the nature or the extent of the violation of liberty is required.  When the object of the arrangement is a complex matter, necessitating great expertise, it is sometimes possible to accept a high level of abstraction ....

Indeed, the nature of the arrangement, its social ramifications, and the degree of violation of individual liberty all affect the scope of the primary arrangement and the degree of detail required thereof’ (Rubinstein v. Minister of Defence [45], at pp. 515-516 {182-184}; see also Supreme Monitoring Committee v. Prime Minister of Israel [47], per Deputy President Cheshin at para. 37-39).

On the other hand, the lower that the underlying rationales of the protected right lie in the scale of social importance, and more minimal the violation of the right in the context and under all the circumstances of the case, the more it becomes possible to interpret the requirement of “explicit authorization” in a flexible and lenient manner.  Under these circumstances the secondary legislation can draw its validity from explicit authorization dictated by the clear purpose of the authorizing law. In other words, where the nature, scope and magnitude of the violation of the protected right are not significant, it is sufficient that the authorization to violate the basic right is an inevitable outcome of the particular purpose of the authorizing law, even in the absence of clear language and of regulation of the main features of the violation in primary legislation (cf: Gazal, at pp. 403-408).

13. This interpretation of the requirement of “explicit authorization”, which is based on the connection to the nature and magnitude of the violation of the protected right, is a suitable one. It creates interpretative coherency and harmony between the various components of the limitations clause, which constitute one integral unit, the purpose of which is to allow a violation of human rights for the purpose of maintaining human rights (see Barak, Constitutional Interpretation, at pp. 486-487). It allows flexibility in accordance with the context and the circumstances, while striking a proper balance between the reasons supporting the establishment of basic criteria in primary legislation for the violation of human rights, and the need for administrative efficiency and for leeway for the secondary legislator as part of the public good and the protection of individual rights (see para. 11 above).

The proposed interpretation also reconciles the varying approaches expressed in the decisions of this court regarding the requirement of “explicit authorization” in the Basic Laws (see para. 10 above).  According to the interpretation discussed above, the requirement of "overt, clear and explicit authorization”, as stated by President M. Shamgar in Miterani v. Minister of Transport [72], at p. 360, applies to secondary legislation that significantly and severely violates fundamental basic rights (cf: Justice Dorner in Lam v. Minister of Sport [44], at para 10, and Association for Civil Rights v. Ministry of the Interior [12], at para. 8). On the other hand, where the violation is insignificant in terms of magnitude and in relation to the relevant right, the requirement of "explicit authorization" is satisfied even if the authorization for violation is "implied by the general purpose and intention of the law," as stated in Lipevski-Halipi v. Minister of Justice [74], at p. 723.

Finally, it will be mentioned that the proposed interpretation is compatible with  the interpretative presumption that we discussed above, according to which the legislature did not intend to authorize the executive branch to establish primary arrangements in secondary legislation.  As we have said, this presumption was reinforced following the enactment of the Basic Laws on human rights (see para. 11 above). And indeed, under the interpretation that we are proposing, secondary legislation that involves a serious violation of major basic rights must draw its validity from a clear authorization in primary legislation that prescribes normative criteria for the regulation of that violation, at least in general terms. This ensures that arrangements involving a significant and severe violation of basic human rights will not be anchored in secondary legislation in the absence of suitable regulation of the matter in a statutory act of the Knesset.

We would also mention that our case law has yet to consider the question of whether after the enactment of the Basic Laws on human rights, the aforementioned interpretative presumption has become a binding constitutional norm that affects the ability of the Knesset to explicitly authorize an administrative authority to determine its own primary arrangements that violate human rights. This question does not arise in the current case, and what I have written in my opinion here does not resolve it (see and compare to other cases in which this question was left pending further examination: Supreme Monitoring Council v. Prime Minister [77], at para. 34, per Deputy President M. Cheshin;  New Dialogue Society v.  Minister of National Infrastructures [76] at p. 58,  per Justice (former title) T. Or; Rubinstein v. Minister of Defence [45], at p. 522-523 {192-194}, per President A. Barak; also see: Rubinstein and Medina, at p. 170).

From the general to the specific

14.  This petition concerns the constitutionality of the prohibition on the broadcast of political advertisements on radio and television. The prohibition appears in the Rules of the Broadcasting Authority and of the Second Authority, which constitute secondary legislation. The statutory authorization for the Broadcasting Authority to make these Rules appears in s. 25A(b)(2) of the Broadcasting Authority Law, which reads as follows:

‘25A. Advertisements and Announcements on Radio

          ….

(b)          The management committee shall determine, in consultation with the Director General, rules concerning - 

              …

(2) prohibitions and restrictions on the broadcast of advertisements and announcements’ (italics not in original – D.B.)

Regarding the Second Authority, the relevant authorization provision appears in s. 88 of the Second Authority Law, which states as follows:

88. Rules for Advertising Broadcasts

The Council shall make rules concerning the broadcast of advertising broadcasts, inter alia, concerning the following matters:

(1) …

(2) Subjects that are prohibited for broadcast as advertisements in general, or in specific circumstances, or by reason of being offensive to good taste or to public sensitivities' (italics not in original – D.B.).

In her judgment, my colleague Justice Naor made the point that the linguistic difference between the two authorizing provisions is not significant and that the Broadcasting Authority and the Second Authority are both authorized to impose restrictions on the contents of advertisements (see pars. 31-32 of her judgment and all the  references there). I agree.  However, the question here is whether the aforementioned statutory authorization constitutes "explicit authorization" by law for purposes of establishing an absolute prohibition on the broadcast of political advertisements. My colleague answered this question in the affirmative. My position on this matter is different.

In both the Broadcasting Authority Law and the Second Authority Law, the authorization to impose restrictions on the contents of advertisements is general. The discretion of the Management Committee of the Broadcasting Authority and the Council of the Second Authority in this context is extremely broad. These authorizing provisions do not specify the particular considerations that the Broadcasting Authority and the Second Authority are permitted to take into account for purposes of setting such restrictions, nor does it specify the nature, the substance and the scope of these restrictions.  Indeed, s. 88(2) of the Second Authority Law provides that the Second Authority is authorized to impose restrictions on the subjects of advertisements "by reason of being offensive to good taste or to public sensitivities," but apart from this the legislature added nothing.

I am prepared to say that the purposes of s. 25A(b)(2) of the Broadcasting Authority Law and s. 88(2)  of the Second Authority Law clearly and even necessarily imply an  intention to authorize the Management Committee of the Broadcasting Authority and the Council of the Second Authority to restrict the applicants’ freedom to advertise on radio or television. In appropriate circumstances, this authorization may even constitute “explicit authorization” by law to violate freedom of speech, even though its language is general and it does not prescribe normative criteria for imposing restrictions on the contents of advertisements.  This is the case, for example, in relation to freedom of commercial expression, for which the level of protection is lower than for political expression, or in relation to a violation of freedom of speech - including freedom of political expression  - under circumstances in which the magnitude of the violation is not great.  As explained above, in such circumstances the requirement of “explicit authorization” by law could be construed in a “more lenient and flexible manner” (see and compare: Zakin v. Mayor of Beer Sheva  [27], per Justice I. Zamir,  at para. 9).

This is not the case in the present context.  The prohibition on political advertising prevents absolutely and in advance the broadcast of political advertisements on radio and television, owing to the fact that their goal is to influence the public on a publicly controversial political matter. For the reasons elucidated above, my position is that a total ban on the broadcast of political advertisements severely violates freedom of political expression. The fundamental rationales of freedom of political speech, its immense importance to the individual and society, its crucial contribution to the democratic process, and the magnitude of its violation under the circumstances, should all affect the interpretation of the requirement of “explicit authorization” by law in the current context.

Bearing all the above in mind, my view is that for purposes of a total ban that prevents in advance any possibility of political advertising in the broadcast media, the general authorization in s. 25A(b)(2) of the Broadcasting Authority Law and s. 88(2) of the Second Authority Law is insufficient. Imposing this kind of broad prohibition requires clear authorization by law that determines the basic criteria relating to this prohibition, even in general terms.  It will be pointed out where necessary, the arrangements for implementation of the prohibition on political advertising on radio and television are likely to be made in the framework of secondary legislation, to enable the implementation and enforcement of the prohibition. Similar arrangements operate both in England and in Germany.  In Germany, all sixteen states resorted to parliamentary legislation to incorporate the German Interstate Broadcasting Treaty, which established a total ban on the broadcast of political advertisements other than during election periods (s. 7 para. 8 Rundfunkstaatsvertrag - Interstate Broadcasting Treaty). At the same time, authorization to make rules for the purpose of implementing that prohibition was prescribed by law. In England, the total ban on political advertising in the broadcasting media other than during an election period was anchored in parliamentary legislation – section 321 of the Communications Act, 2003. S. 319(2) of the said Act contains authorization to make rules for the implementation of that particular prohibition.

15.  In their pleadings, the respondents referred to other provisions in the Broadcasting Authority Law and the Second Authority Law that relate to the Authority’s duty to act fairly and to ensure reliable broadcasts that give  expression to the variety of views prevailing in the public (for the specific statutory provisions, see para. 35 of Justice Naor’s judgment). My view is that given the nature and magnitude of the violation of freedom of political expression, these statutory provisions do not constitute “explicit authorization”  by a law to establish the prohibition under consideration. The statutory obligation to maintain fairness in broadcasts may well necessitate a strict regulatory regime for political advertising on radio and television, but it is not, per se, sufficient to constitute “explicit authorization” by law to make a rule that categorically denies the possibility of political advertising.  Establishing such a prohibition requires clear authorization by law that determines the fundamental criteria for the existence of such a prohibition. 

16.  I wish to emphasize here that contrary to the respondents' claims, our conclusion in this case is not inconsistent with previous rulings of the Supreme Court. In HCJ 10182/03 Education for Peace and in Gush Shalom Society v. Broadcasting Authority [41], the constitutionality of the rule prohibiting the broadcast of political advertisements was not at issue; in any case, the rulings in that case have no bearing on the question of whether there is "explicit authorization" by a law for the establishment of the aforementioned prohibition.  The other judgments cited by the respondents in their pleadings dealt with the issue of the constitutionality of the rules that prohibited freedom of commercial speech (see e.g. Tempo Beer Industries Ltd v. Second Authority [40], para. 4, which discussed the constitutionality of the rule prohibiting a “broadcast proposing a competition or campaigns with prizes for drinking" alcoholic beverages). These judgments, which concern restrictions on  freedom of commercial speech, do not contradict our conclusion regarding the absence of "explicit authorization" in a law for establishing the rules under discussion in the present petition, which significantly restrict the freedom of political expression.

Further to the above, it is noteworthy that our conclusion in this case is consistent with the approach of this court in Association for Civil Rights in Israel v. Minister of Internal Security  [43]. In that case, the majority (Justice Hayut and Deputy President Rivlin, Justice Naor dissenting) held that the general authorization established in s. 132(17) of the Prisons Ordinance [New Version] 5732-1972 does not constitute "explicit authorization"  by a law to enact a regulation that restricts the meeting between a prisoner and his lawyer. In that case, Justice  Hayut ruled that "the magnitude of the right that is liable to be violated by the limitations specified in s. 29(b) [the right of consultation with a lawyer – D.B.] and the nature of the violation, necessitate explicit and detailed authorization in primary legislation, and the general authority in s. 132(17) of the Prisons Ordinance is insufficient" (ibid., at p. 768). Deputy President Rivlin added: " In s. 132(17) of the Prisons Ordinance I found no hint of authorization of the secondary legislator to violate the right to counsel. General statements regarding authority to make regulations “in other matters that must be arranged to ensure the effective implementation of this Ordinance” or in matters related to “the proper administration and the discipline of the prisons” are insufficient." (ibid., at p. 768).  We may therefore conclude that in view of the social importance of the right of consultation with a lawyer, and considering the nature of the violation of the said right and its magnitude in the particular circumstances, the majority view of this court is that a general authorization in the Prisons Ordinance does not constitute "explicit authorization" by law for the purpose of a serious violation of the aforementioned right in the framework of secondary legislation. This position is consistent with our conclusion in the circumstances of the case before us, which is that considering the elevated status of freedom of political speech and taking into account the magnitude of its violation, the general authorizing provisions of s. 25A(b)(2) of the Broadcasting Authority Law, and s. 88(2) of the Second Authority Law do not constitute "explicit authorization" by a  law for the purpose of establishing a rule that prohibits absolutely the broadcast of political advertisements.

17.  The conclusion dictated by the above reasons taken together is that the absolute ban on the broadcast of political advertisements in s. 7(2) of the Broadcasting Authority Rules and ss. 5 and 11 of the Second Authority Rules was established without proper authorization by law. However, under the circumstances I believe that an immediate voiding of the Rules would have undesirable consequences, due to the need for legislative regulation of the subject following a comprehensive examination of all aspects involved. I further note that even according to the petitioner, the broadcast of political advertisements on radio and television requires regulation by legislation of the Knesset. In these circumstances my proposal to my colleagues is to suspend the effect of the invalidition of the said rules for a period of one year to enable the Knesset to address the issue. (On recourse to suspension as a manifestation of the doctrine of relative invalidity, see Association for Civil Rights v. Minister of Public Security  [43], at p. 763 and citations there.)

Comments prior to closing

18.  In view of my conclusion that under the circumstances, the requirement that the violation be by virtue of “explicit authorization” in a law has not been fulfilled, I am not required to decide on the question of whether the substantive components of the limitations clause were present. Even so, I wish to make a few brief comments on the matter.

From the respondents’ pleadings before this Court it emerged that the ban on political advertising on the broadcasting media was designed to ensure the fairness and balance of television and radio broadcasts.  The purpose of the prohibition is to prevent undue and unequal influence on the public-political discourse on the part of financially powerful bodies by means of relaying political messages in the framework of advertisements at a high financial price.  The concern is that the ability to purchase advertising time in order to broadcast political messages may be detrimental to substantive equality in relation to those messages lacking the financial backing that would enable their presentation on that platform.  Such a result may undermine the aspiration for a balanced presentation of the different opinions in society and even lead to a perversion of the democratic process. The parties agreed that this purpose was a fitting one, and Justice Naor elaborated on the reasons justifying this purpose in her judgment.

In the circumstances of this case, the main dispute concerning the substantive components of the limitations clause is over the requirement of proportionality. Evidently, all are agreed that the broadcast of political advertisements over the electronic media is a subject that requires intervention and regulation. The dispute pertains to the extent of intervention and the proper means of achieving the purpose we discussed.  In this regard there are a number of conflicting considerations. On the one hand, the electronic channels constitute a limited public resource. Broadcasts over these channels are a source of tremendous public influence and power. It could be argued that a framework for the broadcast of advertisements that depends on the funding power of those seeking to advertise precludes proper implementation and enforcement of the fairness doctrine; therefore, the means necessary for maintaining a fair balance between the differing views amongst the public is the total preclusion of any possibility of political advertising on radio and television. This is the way to prevent a situation in which “money talks”.  Indeed, as mentioned, the legislation in England and in Germany established an absolute prohibition on political advertising on the broadcasting media. It will be mentioned that in Germany, the constitutionality of that prohibition has never been adjudicated by the Federal Supreme Court.  In England, the House of Lords recently handed down a decision that unanimously denied an appeal filed against a judgment of the High Court of Justice, which held that the absolute statutory prohibition on political advertisements does not contradict art. 10 of the European Convention on Human Rights (see Animal Defenders International v. Secretary of State for Culture, Media and Sport, [2008] 3 All ER 193).

On the other hand, some would argue that establishing a total ban on the broadcast of political advertisements in the electronic communications media constitutes an excessively harmful means, considering the potential contribution of such advertisements to the political-public discourse in Israel. According to this approach, in order encourage pluralism in society, political advertisements ought not to be banned entirely; rather, they should be permitted, subject to certain qualifications.  In this context it should be mentioned that today, political advertisements are published for payment in the print media, on internet sites and on public billboards. Furthermore, it must be recalled that advertisements with political content are in fact broadcast today, if the rule governing the imparting of information to the public can be applied to them. Thus, for example, in the framework of announcements about conferences, assemblies and demonstrations, there is nothing to prevent the broadcast of paid advertisements featuring political contents. Against the background of this reality, a doubt may arise, prima facie, as to whether the fear of a distortion of the public discourse due to the broadcast of political advertisements on television and radio is indeed serious and substantiated. Support for this approach can be found in the ruling of the European Court of Human Rights in the case of  VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI.[ ]. In that case, the Court ruled that a Swiss law that established a blanket prohibition on political advertising on radio and television disproportionately violates the freedom of expression protected by art. 10 of the Convention. I should mention that in view of this judgment of the European Court of Human Rights, the British Government at the time refrained from making a declaration in the House of Commons regarding the compatibility of the statutory prohibition on the broadcast of political advertisements with the European Convention on Human Rights (a declaration of this kind is required under s. 19(1)(b) of the Human Rights Act for purposes of a government draft law). See: Joint Committee on Human Rights, Scrutiny of Bills: Further Progress Report – Fourth Report of Session 2002-2003, p. 6-10, Ev 14).

A comparative examination of the position in the United States and Canada reveals that these jurisdictions permit the broadcast of political advertisements, subject to limitations. For example, a number of states in the United States, such as Kansas and Florida, require that these broadcasts be accompanied by an announcement explaining to the listener and the viewer that this is an advertisement, intended to encourage “an informed choice” in the political message that is conveyed to the public by commercial means. The Canadian legislator refrained from establishing a prohibition or restriction on the broadcast of political advertisements when it was not an election period. At the same time, the broadcasting entities themselves established partial limitations for the purpose of regulating the matter. For example, s. 1(f) of the Canadian Code of Advertising Standards states that "[t]he entity that is the advertiser in an advocacy advertisement must be clearly identified as the advertiser" in the framework of the advertisement so that the listener or viewer can know who is behind the advertisement. 

Further to the above, it will be pointed out that an approach that supports the broadcast of political advertisements on radio and television – even if only in a qualified and restricted manner - must address all the aspects requiring attention.  For example, according to such an approach, the question of whether there are alternative means of preventing the excessive domination of certain messages over others (for example, by placing restrictions on the amount of time allocated for political advertisements and the times of their broadcast, the duration of the broadcasts, their frequency and their price, and the position of the political advertisement within the cluster of advertisements) should be examined.  Moreover, the approach supporting the broadcast of political advertisements subject to limitations and qualifications requires that recourse to measures to ensure that listeners and viewers are aware that this is political advertising be considered (this is the purpose of the duty of notice in the U.S.A and in Canada). Another matter that should be considered is the relationship between the regulatory arrangement for the broadcast of political advertisements and the prohibition on the broadcast of "party propaganda", and also the question of the relationship between that arrangement and the broadcast of propaganda by the parties during an election period.  These are sensitive and complex issues that must be examined in depth, and as such they justify primary legislation.

19.  Thus, the question of the proportionality of an absolute prohibition on political advertising has no simple answer.  According to the case law of this court, the question of proportionality is the sort of question that does not have a precise, standard answer, because it requires acts of balancing and evaluation. Taking this into account, this court has acknowledged "room for constitutional maneuver”, also known as the "range of proportionality". The room for constitutional maneuver is determined in accordance with the specific circumstances of each particular case, taking into account the nature of the right and the magnitude of its violation, as opposed to the nature and substance of the competing rights or interests (see my comments in Menahem v Minister of Transport [50], at pp. 281-282 and citations).  Presumably, when regulating the broadcast of political advertisements on Israeli radio and television, the primary legislator will consider the various factors taken into account and the regulatory arrangements that were adopted by other countries. This being so, at this stage I will not adopt a position on the question of the proportionality of the Rules that are the subject of the current petition. 

I therefore propose to my colleagues to rule that the order nisi be made absolute. Accordingly, there should be a declaration of the invalidity – suspended, at this stage – of the prohibition on the broadcast of political advertisements on television and radio as prescribed in s. 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993,  s. 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules 5759-1999 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules 5754-1994 – all this,  in the absence of “explicit authorization” by a law for the establishment of that prohibition.  Should my opinion be accepted, the effect of the declaration of invalidity will be suspended for one year in order to enable the Knesset to address the matter.

Concluding Note

20. After writing the above, the opinion of my colleague Justice A. Procaccia arrived on my desk. For the reasons elaborated in her judgment, she believes that the Rules prohibiting paid advertisements of ideological – political expressions should not be viewed as a violation of freedom of speech.  I will just mention that this approach was not mentioned in the parties’ pleadings before us, and the point of departure in this hearing was that the Rules do indeed violate freedom of speech, and therefore they must be examined in accordance with the limitations clause. For the reasons elucidated in my opinion above, I too believe that the Rules violate the freedom of political expression, and I see no reason to add to those reasons. Nevertheless, I would like to comment briefly on the doctrinal-fundamental aspects emerging from my colleague’s judgment.

In her judgment, my colleague Justice Procaccia discussed the importance of the two-stage doctrine in the examination of a constitutional argument.  According to this doctrine, an argument regarding the violation of a constitutional right must be examined in two stages: at the first stage, the internal scope of the constitutional right must be defined.  In view of that definition, the question of whether the right under discussion was indeed violated under the circumstances must be examined. Only if the answer is affirmative do we proceed to the second stage, which is concerned with the degree of protection afforded to the right that was violated. At this stage of the constitutional analysis, the question that must be examined is whether the violation of the right is lawful in accordance with the criteria of the limitations clause.  The two-stage doctrine is clearly dictated by the wording and provisions of the Basic Laws concerning human rights, and constitutes a central tool of analysis in the constitutional rulings of this court.  Indeed, an examination of my own opinion and the judgments of my other colleagues on this bench reveals that we have no argument regarding the two-stage doctrine. However, on reading the judgment of Justice Procaccia, it would appear that there is in fact a dispute concerning the relationship between the two stages upon which the doctrine is based.

The two-stage doctrine is grounded in the conception that the two stages of the constitutional examination affect each other.  Thus, for example, some are of the opinion that the more the court extends the scope of the constitutional rights, so it is liable to narrow the scope of protection afforded to them (see para. 45 of Justice Procaccia’s judgment and citations there). Moreover, the nature of the violation of the protected right and its magnitude will affect the examination of the right in terms of the limitations clause (see para. 12 of my comments above).  The two stages of constitutional examination are therefore closely linked.  This does not, however, alter the fact that analytically and practically, there are two distinct stages of examination. The definition of the internal scope of a constitutional right (or a basic case-law right) is based on factors that influence the substance and dispersion of the relevant right. Usually, the definition of the internal parameters of a right reflects a value-based, normative balance between the right under discussion and other human rights (see: Barak, Constitutional Interpretation, at p. 381). On the other hand, the question of whether the violation of a constitutional right is justified according to the conditions of the limitations clause is based on “external” balances between the protected right and opposing public interests.  In the framework of the external balancing, conflicts arise between values and principles of a public nature which, by virtue of their cumulative weight, justify the violation of a protected human right.

21. I am afraid that my colleague Justice Procaccia has applied the two- stage doctrine in a way that may obscure the distinction between the two stages. In general, the accepted approach in the case law of this court is that a restriction on the manner in which a human right is realized constitutes a violation of the inner scope of the right, and the examination must therefore also relate to the violation of the manner in which a right is realized, as part of the violation of the right. According to this conception the very existence of other means of realizing a relevant human right may reduce the magnitude of the violation of the right, but it does not negate the actual fact of the violation (see and compare e.g. in the context of freedom of occupation: Menahem v. Minister of Transport [50], para. 11 of my judgment). In the circumstances of the present case, my colleague Justice Procaccia agrees that the broadcast of political advertisements for payment may constitute a “special means of realization” of the political expression. At the same time, she argues that this means of realization is not part of the inner scope of the constitutional right of freedom of speech.  Here, Justice Procaccia attached significant weight to the public interests and values forming the basis of the fairness doctrine, which aims to ensure “a free marketplace of ideas” in the media. The background for this is the nature of commercial advertising, which is purchased for payment and is dependent upon the financial abilities of the person commissioning it.

There would appear to be no disagreement amongst the justices hearing this case regarding the status and importance of the fairness doctrine in the communications media. However, the question of principle that arises here is that of the stage at which the said doctrine should be considered in the framework of the constitutional examination. Should the fairness doctrine influence the definition of the internal scope of the right to freedom of speech as suggested by Justice Procaccia’s approach? Or perhaps the appropriate context for consideration of the fairness doctrine is in the framework of the limitations clause, as indicated in Justice Naor’s judgment. My position on this matter is in line with Justice Naor’s position, as stated in para.s 18 of my comments above.

As a rule, when considering a limitation on the manner in which a protected constitutional right is realized, the balance that must be struck is between the relevant protected right and other public interests and values. This indeed is the case before us, in which the primary justification for the restriction - or more precisely, the prohibition - on the realization of freedom of political speech by way of paid advertising lies in the fairness doctrine. The balance here is an “external one” between a constitutional human right and opposing public interests, and in principle, the appropriate context for effecting this balance is within the framework of the limitations clause.  Any other approach is liable to lead to an excessive narrowing of the internal scope of human rights, because the ways of realizing these rights would be in danger of not receiving protected status. Such an approach might also lead to an analytical and practical blurring between the stage of defining the internal scope of human rights and the degree of protection afforded them, since the public interests weighed up in the framework of the requirements of proper purpose and proportionality in the limitations clause might seep into the definition of the internal scope of the rights. Inter alia, this is liable to lead to a heavier burden of proof borne by petitioners claiming a violation of a right, because the consideration given to public factors would be diverted to the first stage of examining whether or not the right was actually violated.

These comments are of a general nature, but they are especially true in relation to the freedom of political expression. In my understanding, the elevated status of freedom of political expression in the democratic system and its important underlying rationales justify viewing the various means of realizing the aforementioned right as being of constitutional status within the framework of the internal scope of the right, and the justification for any violation of them should therefore be examined in the framework of the degree of protection afforded to freedom of speech in accordance with the conditions of the limitations clause.

 

 

Justice E. Hayut

Like my colleagues President D. Beinisch and Justice M. Naor, I too believe that the protected value in the present case is the freedom of political expression, any violation of which must comply with the criteria of the limitation clause in s. 8 of Basic Law: Human Dignity and Liberty. I also accept my colleagues’ position that the petitioner's freedom of political expression was substantively violated when respondents 2 and 3 decided to prohibit the broadcast of the advertisement at issue in this petition, and that according to one of the conditions of the limitation clause, which my colleagues discussed at length, respondents 2 and 3 are required to show that this violation was ”by a law" or "according to a law… by virtue of explicit authorization therein." At this point President Beinisch and Justice Naor part ways.   Justice Naor is of the opinion that the Broadcasting Authority Rules and the Second Authority Rules  (Rule 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993; Rule 5 of Second Authority for Television and Radio (Advertising Ethics in Radio Broadcasts) Rules 5759-1999, and Rule 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994) which prohibit, inter alia, the broadcast of an advertisement that relays a publicly controversial political or ideological message (hereinafter jointly: "the prohibiting rules") were made by virtue of "explicit authorization" as required. In her view, this authorization can be read into the general authorizing provisions of s. 25A(b)(2) of the Broadcasting Authority Law, 1965-5725 (hereinafter: "Broadcasting Authority Law"), and ss. 24(a)(6) and 88(2) of the Second Authority for Television and Radio Law, 5750-1990 (hereinafter: "the Second Authority Law") respectively. According to Justice Naor’s approach, this interpretation of the authorizing provisions in the aforementioned Laws is supported by various provisions in the Broadcasting Authority Law and the Second Authority Law that give rise to a general duty to broadcast balanced programs that fairly reflect the variety of opinions prevailing amongst the public. In her own words:

'Indeed, a reading strictly of those sections of the two Laws concerning advertisements provides no indication of the intention of the primary legislator regarding what is permitted and what is forbidden. In my view, however, one cannot read the provisions concerning advertisements in isolation from the other provisions of the Law, as if these broadcasts were a limb severed from the body of the Broadcasting Authority or of the Second Authority.

….

In my opinion, these principles, which deal with programs – the "hard kernel" of the functions of the Broadcasting Authority and the Second Authority – are the primary arrangement in the light of which the rules should be determined. The rules for advertisements must be consistent with the primary legislation, and in my opinion – and to the extent that they relate to the matter before us – they are indeed consistent. We are not in a “legislative vacuum” and in my view, the argument regarding the absence of primary legislation in the authorizing law does not apply here. The subject of advertisements is a subsidiary matter that is attached to the main matter (para. 35 of Justice Naor's judgment).'

Satisfied that the condition of "explicit authorization" prescribed by the limitation clause has been fulfilled, Justice Naor proceeds to examine whether the prohibiting rules comply with the other conditions of the limitation clause relevant to our case, i.e. whether the Rules were intended for a proper purpose and whether the violation was proportionate and not in excess of that which is necessary. Here too Justice Naor gives an affirmative answer.   Regarding the proper purpose, Justice Naor holds that the Rules were intended to prevent erosion in the application of the fairness doctrine in programs, and the rupture of this doctrine by the relaying of political messages in the framework of advertisements to which it is not applicable. Regarding proportionality, Justice Naor holds that this condition too is satisfied, along with all of its subtests; there is a rational connection between the means chosen and the purpose that the Rules seek to realize; a total prohibition is necessary to realize the purpose for which the Rules were established, and there is a reasonable balance between the magnitude of the violation of the petitioner's  freedom of political speech and the benefit to society from upholding the fairness doctrine. 

2.  The President, on the other hand, opined that the authorizing provisions in s. 25A(b)(2) of the Broadcasting Authority Law and ss. 24 (a)(6) and 88(2) of the Second Authority Law do not constitute "explicit authorization" as required under the limitation clause for the establishment of prohibiting rules, and stresses in this context that -

'... in cases involving a serious violation of a major basic right, clear statutory authorization in the authorizing law establishing general criteria for the essential features of the violation that is permitted by way of secondary legislation will be required. The level of detail required in the authorization will be a function of the magnitude of the violation of the protected right, the nature of the matter, and the overall context.'

On this matter I concur with President Beinisch, and as mentioned in her judgment, I expressed this view in a previous case in which a similar question arose (Association for Civil Rights in Israel v. Minister of Internal Security [43]). This being the case, I too take the view that the order nisi should be made absolute as far as it relates to the constitutionality of the prohibiting rules. Nevertheless, I do not concur with the President regarding the outcome of the petition before us, insofar as it relates to the decision of the Second Authority for Television and Radio (hereinafter: "the Second Authority") to prohibit the broadcasts that are the subject of this petition. The reason is that s. 86(a) of the Second Authority Law, which refers to s. 46(a) of that Law, prescribes a primary arrangement concerning "party propaganda" (which has no parallel in the Broadcasting Authority Law), establishing an explicit prohibition that is relevant for our purposes.  In my view, this prohibition legitimates the decision adopted by the Second Authority in the present case.  My colleague Justice Naor maintained that the reliance of the Second Authority’s decision on the statutory arrangement in s. 86(a) of the Second Authority Law was "over and above what was required," and as such did not require further attention. She further held that in view of the wording of the order nisi of 29 July 2004, the question of the constitutionality or the interpretation of the provisions regarding "party propaganda” does not arise in our case. The President too was of the opinion that the wording of the order nisi and the reasons relied upon by the Second Authority in its initial decision to disqualify the petitioner's advertisements obviated the need to hear the Second Authority’s alternative pleadings, according to which even if the prohibiting rules were to be invalidated, the decision in the present case should not be overturned, even if only because it was also lawfully based on  the provisions of s. 86(a) of the Second Authority Law. 

My view of the matter is different. In his letter of 19 October 2003 to the petitioner’s lawyer, the Second Authority’s legal advisor did indeed stress that the advertisements were disqualified for broadcast in view of Rule 5 of the Second Authority Rules for Radio, whereas the prohibition on "party propaganda" within the meaning of s. 46(a)(3) of the Second Authority Law (to which s. 86 (a) refers concerning advertisements) was mentioned in that letter "above and beyond that which was necessary."  Nevertheless, in rejecting the appeal filed by the petitioner on this matter, the Appeals Committee of the Second Authority Council clearly relied on the aforementioned statutory provision as well, stating as follows:

‘Section 5 of the Rules (Ethics in Radio Advertising) prohibits the broadcast of an advertisement "on a political, social, public or economic matter that is the subject of public controversy." In addition, s. 46(a)(3) of the Second Authority Law, 5750-1990 prohibits the broadcast of party propaganda (Shammai v. Second Authority for Television and Radio [5]). as stated it is not disputed that the programs that are the subject of this appeal promote an initiative which is essentially of a political-ideological nature, with the intention of persuading the public to support the initiative. As such their broadcast cannot be allowed.'

This decision of the Appeals Committee with its reasons was attached as appendix H to the petition, and inter alia was challenged by the petitioner, insofar as it relates to the Second Authority. As to the wording of the order nisi: as opposed to my colleagues, my view is that s. 1 of the Order relates in a general sense to the legal and constitutional validity of the decisions made by respondents 2 and 3, including all that they were based upon, and in any case it does not limit the scope of this hearing to the validity of the "prohibiting rules". This question was specifically addressed in ss. 2 and 3 of the order. Examination of the briefs and summations submitted by the Second Authority similarly indicates that they relate extensively to the issue of anchoring the prohibiting decision in the provisions of ss. 46(a)(3) and 86(a). For all these reasons I think that this question must be addressed, and were my opinion to be accepted, we would accept the claims of the Second Authority on this matter. 

3.  Section 86(a) of the Second Authority Law provides as follows:

 ‘A franchisee shall not broadcast an advertisement  –

(1) On subjects the broadcast of which are prohibited under s. 46(a);

(2)….

Section 46 (a) of the Second Authority Law, referred to in s. 86(1), determines inter alia that -

‘A franchisee shall not broadcast programs that contain -

(1) …

(2) …

 (3)  party propaganda, except for election propaganda that is permitted by law;           

In Shammai v. Second Authority for Television and Radio [5], President Barak addressed the interpretation of “party propaganda”  in s. 46(a) of the Second Authority Law, and in preferring an interpretation that attributed maximal weight to the substance and content of the propaganda over a literal, formal interpretation, President Barak held that -  

‘"Propaganda" refers to an expression, the dominant effect of which – at a level of substantial or near-certain probability – lies in its influence on the viewer and which has no other dominant effect such as artistic, or news-related (see HCJ Zwilli v. Chairman of the Central Elections Committee [6]). It is "party" propaganda if the content directly relates to subjects that are disputed by political parties in Israel. For that purpose, the phrase “party propaganda” (in s. 46(a)(3)) cannot be restricted to (party) propaganda concerning the Knesset elections. "Parties" exist in Israel in relation to matters that are not only at the highest national level (Knesset)’ (ibid, at p. 33).

This ruling has its logic. The underlying rationale for the prohibition of advertisements on publically disputed political matters was elucidated at length in Justice Naor’s judgment, and her comments need not be repeated.   I will briefly add that the "fairness doctrine" is well grounded in the legislation regulating the media market in Israel (see s. 4 of the Broadcasting Authority Law and ss. 5(b)(6), 5(b)(7), 46(c) and 47 of the Second Authority Law) and while it has been argued that the time has come to cancel it and to adapt the legal position in Israel to the developments in this context in the U.S.A (on the significant differences between the Israeli media market and the American media market and the difficulties involved in the cancellation of the "fairness doctrine" in Israel, see Amnon Reichman, “The Voice of America in Hebrew?” Be Quiet, Someone is Speaking  – The Legal Culture of Freedom of Speech in Israel 185, 228-229 (ed. Michael Birnhack, 2006)). At all events, as long as the current statutory arrangement remains in force, and the fairness doctrine lives and breathes within its framework, the primary and secondary legislation in this area must be interpreted as legislation that is designed for its realization. There is no dispute that by their very essence, advertisements are not the appropriate platform for the application of the fairness doctrine; this being the case, it must be ensured that in relation to political and ideological subjects that are publicly controversial in Israel, these advertisements will not be used in order to circumvent this doctrine. In other words, the incursion of publicly controversial matters into advertisements, the air-time of which was paid for and which from the outset are not intended for that kind of content, should be prevented. In HCJ 10182/03 Education for Peace we pointed out the risks involved in this situation:

‘The concern arises that wealthy political bodies will be able to purchase broadcasting time in order to “market” their positions in advertisement form, and in that way purchase an advantage over political rivals with less financial capability’ (ibid, at p. 417).

Aware of that danger, in the case of Shammai v. Second Authority [5] this court interpreted s. 46 of the Broadcasting Authority Law and the term “party propaganda” in a manner that accorded primacy to the substance of the broadcast and not to the identity of the entity seeking its publication (on the separate statutory arrangement applicable to propaganda during an election period see Elections (Modes of Propaganda) Law, 5719-1959; Zwilli v. Central Elections Committee [6], at p. 709). I accept this interpretative approach. It may further be pointed out in this context that on a practical level, franchisees of television and radio programs or of the Second Authority are naturally quite limited in their ability to the identity of the entity seeking to broadcast an advertisement or the identity of the entities directly or indirectly involved in its activities, and this too supports the substantive approach applied by President Barak in Zwilli v. Central Elections Committee [6], which examines the actual content of the matter.  It will be recalled that the advertisements relevant to this petition concern the Israeli-Palestinian conflict and the principles which in the petitioners’ view could lead to its resolution. This being so, it would appear that these advertisements conform to the definition of the term “party propaganda” as interpreted in Shammai v. Second Authority [5], given that they are broadcasts the contents of which “directly relate to subjects that are disputed by [political] parties in Israel” and the dominant effect of which is to influence the viewer or the listener on these topics. As such, according to my approach, s. 86(a) of the Second Authority Law (which refers to s. 46(a) of the same Law) definitely provides a legal basis for the Second Authority’s decision, by stipulating that these advertisements are prohibited for broadcast.  It should be emphasized that this is a statutory arrangement that was enacted in 1990, and it is therefore governed by s. 10 of Basic Law: Human Dignity and Liberty regarding the validity of laws; at all events it seems that the statutory arrangement in s. 86 (a) of the Second Authority Law aims for a proper purpose and satisfies the proportionality tests;  therefore, it does not violate the spirit of the Basic Law and the conditions of the limitation clause in that Law (cf. Stein v. Commissioner of Israel Police [10], at para. 16).

4.  In conclusion, regarding the “prohibiting rules” I concur with the position of the President, that in the absence of explicit authorization on this matter in the primary legislation, the rules that violate the freedom of political expression cannot stand, and the order nisi should therefore be made absolute with respect to the invalidity of the “prohibiting rules”. At the same time, and contrary to my colleagues who were of the opinion that the matter need not be decided, my view is that s. 86(a) of the Second Authority Law is a primary arrangement that provides a legal basis for the Authority’s decision to prohibit advertisements in this case, and I would therefore deny the petition and cancel the order nisi insofar as it relates to the legality of the prohibiting decision of the Second Authority.  This result, whereby the prohibition is valid only with respect to the radio and television broadcasts of the Second Authority, creates an undesirable lack of uniformity between the Second Authority and the Broadcasting Authority regarding those advertisements that constitute “party propaganda”. It is for this reason, combined with all the other reasons given by the President in this context, that it would be appropriate to formulate with all possible speed a uniform statutory arrangement that would apply to the whole communications market, and would address all of the matters addressed by the “prohibiting rules”.  Like the President, I too believe that the effect of the invalidity of the “prohibiting rules" should be suspended for one year to enable the legislature to formulate an appropriate arrangement.

 

 

Justice A. Procaccia

I have read the judgments of my fellow justices carefully. I concur with the conclusion of my colleague Justice Naor, according to which this petition should be denied. However, my path to that conclusion is different, and I would like to present it.
In her judgment Justice Naor assumes that the Rules of the Broadcasting Authority and of the Second Authority (hereinafter: "the Rules") prohibiting political-ideological expression in paid advertisements violate the petitioner's freedom of political speech, and in doing so violate a constitutional right. Nevertheless, in her view, this violation does not render the Rules unconstitutional, since the violation satisfies the conditions of the limitation clause of Basic Law: Human Dignity and Liberty (hereinafter: "the Basic Law"). According to her approach the Rules also satisfy the test in the limitation clause that the violation be "by a law… or according to a law by virtue of explicit authorization therein."
My colleague President Beinisch, too, assumes that the Rules prohibiting paid political-ideological advertisements violate a person's freedom of political expression, which is part of the constitutional right to human dignity, and that this violation should be examined from the perspective of the limitation clause of the Basic Law. In her view, however, the case at hand does not satisfy the first condition of the limitation clause which requires, as a condition for the constitutionality of the violation, that such violation be by a law or according to a law by virtue of explicit authorization therein. According to the President, the concept of "explicit authorization" in primary legislation as stated in the limitation clause is circumstance-dependent, its actual implementation deriving from the conditions and circumstances of the case. Inter alia, weight must be attached to the nature of the violated right, its underlying reasons and the magnitude of the violation. In President Beinisch's view, the absolute prohibition on political advertisements dictated by the Rules is a significant violation of freedom of political expression, which has constitutional standing in the Israeli legal system. Under these circumstances, the general authorizing provisions to enact regulations in the Broadcasting Law and in the Second Authority Law cannot be viewed as satisfying the condition of "explicit authorization" for the competent authority to violate a person's freedom of political expression in the avenue of paid advertising. Therefore, according to this approach, the Rules do not fulfill the first condition of the limitation clause, and the petition should therefore be granted, the Rules should be declared invalid and the Knesset should be in a position to address the fundamental issue raised in this proceeding in the framework of the process of primary legislation.
The approaches taken by the President and Justice Naor proceed from the basic assumption that not providing a platform for political expression in paid advertisements on the Broadcasting Authority and the Second Authority (hereinafter: "the media authorities") is a violation of freedom of speech; hence the need to examine the significance of the violation from a constitutional perspective and to clarify whether the violation satisfies the constitutional test in accordance with the balancing formula of the limitation clause.
I disagree with my colleagues regarding the basic assumption that in the circumstances of this case, the Rules banning paid advertising of political-ideological expression violate the basic right to freedom of speech.

The essential difference in our approaches is reflected in the legal classification of the claim of a right to political-ideological expression by way of paid advertisements. In the framework of a person's broad right to freedom of political expression, is he entitled to realize that freedom by way of an advertisement on the public media? Is political expression in a paid advertisement necessarily included within the broad scope of the constitutional right to freedom of speech, such that its violation is a violation of a constitutional right, necessitating a constitutional analysis of the nature of the violation and the degree of its justification in accordance with the limitation clause? Or, on the other hand, should we say that the constitutional right to freedom of political expression does not establish the right to realize that freedom by way of the broadcast of paid advertisements, and it does not, therefore, give rise to a duty on the part of the media authorities to provide a platform for political expression in that particular broadcasting format. If this is the case, then the regulation of paid advertising tracks to exclude political-ideological expression should not be regarded as a violation of the constitutional right to freedom of political expression. Where there is no violation of the constitutional right to freedom of speech, there is no need to examine the administrative arrangement governing the advertising tracks in light of the conditions of the limitation clause.

6.    My assumption is that the second possibility reflects the correct classification of the petitioner's claims. As such, I see no need for a constitutional analysis of the Rules prohibiting political expression in paid advertisements from the perspective of the limitation clause in the Basic Law. The matter in dispute lies outside the constitutional arena, and therefore it does not involve an analysis of the limitation clause, which is required only for a matter within the purview of the basic right, when the basic right has been violated. In the case before us, the constitutional right to freedom of political expression, the scope of which is particularly broad, does not extend to the right to realize that freedom via the medium of paid advertisements. The broad scope of that constitutional right and the duty of the public media authorities to provide a platform for that expression do not engender the right to claim that the political speech must be expressed within the paid advertising track offered by these authorities. This being the case, the matter lies outside the purview of the constitutional right. Another consequence of this reality is that rules made by the competent authority limiting paid advertisements to matters that are essentially commercial and neutral do not "violate" the constitutional right to freedom of political expression, and do not draw the matter into the constitutional arena. There are no grounds, therefore, for examining the alleged "violation" from the perspective of the balances in the limitation clause. I will elaborate, and will begin with the main foundations of my approach:

(1) The argument that there has been a constitutional violation of a constitutional right requires a two-stage analysis. The first stage addresses the question of whether the violation of the right pertains to a matter situated within the parameters of the constitutional right. If the answer is negative, the constitutional examination stops at the first stage, continuing no further. If the answer is affirmative, one proceeds to the second stage, at which the nature of the violation of the constitutional right is examined in accordance with the conditions of the limitation clause in the Basic Law. While there may be a certain overlap between the factors to be considered at each stage, this does not obviate the need to differentiate them and to draw a clear distinction between the discussion of the scope of the constitutional right, and between the questions relating to the existence of a violation of the right and the degree of constitutional justification for the violation. The discontinuation of the legal-constitutional examination at the first stage may give rise to additional grounds for judicial review, for example, from the field of administrative law.

(2) In our case, in the framework of the first stage of the constitutional examination we must consider whether, within a person's constitutional right to freedom of political expression, he is entitled to demand that a public communications entity provide him with a platform for expression via the medium of paid advertisements. This question aims to classify the claim to a right of expression in that medium, and to determine whether it is included within the parameters of the constitutional right to freedom of political expression, or whether it goes beyond them. This classification involves a determination of the scope of the constitutional right and its limits. Examining the scope of a constitutional right means charting its contours, which define what falls within it and what does not. The definition of the scope of the constitutional right is extrinsic, rather than intrinsic, to the limitation clause.

(3) The definition of the contours of the constitutional right and the resolution of the question of whether or not they include the matter under consideration, directly affect the question of whether there was a "violation" of the constitutional right to freedom of speech. Only where there is a violation of a constitutional right can one progress to the second stage of constitutional examination to consider the significance of the violation in accordance with the balancing formula of the limitation clause. When the alleged violation is external to the constitutional right in terms of its defined scope, we are not required to conduct a constitutional examination of the limitation clause.

(4)   At the first stage of the constitutional examination, the scope of the constitutional right is examined by way of purposive interpretation, to which the question of the appropriate content of the constitutional right is central. Purposive interpretation is influenced by the fundamental values of the constitutional system, the foundations of the democratic system, and the social, value-related and moral goals of Israeli society. Essentially, it is a question of legal policy that guides purposive interpretation in constitutional matters. The purposive interpretation of a constitutional right answers the question of whether a particular matter falls within the area of a constitutional right or outside it.

(5)   Drawing the contours of the constitutional right impacts on the question of whether the alleged violation is of a right that is defined as a constitutional right. If the answer is in the negative, the constitutional discussion is then complete. If the answer is in the affirmative, the question then is whether there was an unconstitutional violation of the right. This too is a question of legal-constitutional interpretation. If there was a violation of a constitutional right, then the examination proceeds in accordance with the balancing formula of the limitation clause.

(6) Defining the contours of the constitutional right is of particular importance in assigning the appropriate specific weight to the constitutional right. An overly-broad conception of the scope of a constitutional right, exceeding that of the purpose it serves, may lead to a dilution of constitutional rights and to their devaluation. The constitutional discussion must focus on the core of the constitutional rights and on the questions relating to the constitutionality of their violation. A constitutional discussion of matters that lie outside the purview of the constitutional rights, or at their periphery, is liable to harm the status of the constitutional rights and the scope and the nature of protection accorded to them.

(7) The right to freedom of speech, including freedom of political expression, is a constitutional right of particular importance in the hierarchy of human rights. A violation of this right is a violation of a constitutional right. Nevertheless, realization of freedom of political expression as a constitutional right, even if it requires a positive act on the part of the public authority, does not necessarily include every possible existing means of realization. Within the framework of realizing freedom of political expression, a person does not have the right to demand that the public communications authorities provide a platform for political expression in paid advertisements for anyone who wants it. Even though the public communications authorities are obligated, by their very existence, to provide a political platform for the range of opinions and views prevailing in the public within their schedule of programs, they are not obligated, ab initio, to allocate a platform for such expression in their paid advertising track, nor are they competent to operate a track of that nature without special legislative authorization. For reasons that will be elucidated below, the issue of political expression in paid advertisements is external to the broad scope of the right to political expression. As such, the administrative regulation of paid advertisements by the communications authorities, which prevents political expression within those broadcasts, does not involve a constitutional violation of the freedom of speech, and there is therefore no need to proceed to the second stage of constitutional examination, involving constitutional adjudication of the balances formula in the limitation clause.

(8)   Beyond the issue of the constitutional violation of the freedom of speech, several other questions that were not raised or considered in the present case may well arise in the context of regulating paid advertisements. For example, on the constitutional level, the question could arise as to whether the petitioner's right to equality in the advertising track was violated in comparison with other commercial bodies who were allowed to advertise, whereas the petitioner was not. Moreover the prohibition in the Rules of paid advertising of political-ideological messages raises questions from the field of administrative law, such as whether such a prohibition gives rise to administrative grounds of disqualification, e.g. discrimination, unreasonableness, or irrelevant or unfair considerations. These issues did not arise directly in this proceeding and as such no basis was laid for judicial intervention in the Rules of the communications authorities.

We will now elaborate on the above.

The constitutional right – its essence and scope

7.    The constitutional right is not an absolute right, but a "relative" one, from two aspects. First, in terms of its scope, the borders of the constitutional right are defined and not all-encompassing. Secondly, even within its defined borders, the constitutional right is not necessarily protected in its entirety. There are circumstances in which the violation of a constitutional right may be considered permitted and justified, due to its conflict with opposing human rights, or due to conflicting values in the sphere of the public interest; this results in the limitation of the protection of the full scope of the constitutional right. This point was made by A. Barak in Interpretation in Law, Constitutional Interpretation, (1994), at pp. 370-371 (hereinafter: Constitutional Interpretation):

'The first aspect of the "relativity" [of the constitutional right – A.P.] reflects the scope of the human right (the problem of scope)… . The second aspect of "relativity" reflects the protection accorded to a human right ("the problem of protection"). It is the product of the constitutional relationship between a constitutional human right and its violation… . The main difference between these two aspects – and hence also between the two kinds of balance – is that the first aspect establishes the scope of the constitutional right. The second aspect does not affect the scope of the right but rather the degree of protection accorded to it.'

In constitutional discourse, the examination of the relativity of the constitutional right in two stages – the scope of the right and the degree to which it is protected – has been dubbed "the two-stage doctrine." This doctrine has been developed in the case law in various contexts.

An example of the application of the two-stage doctrine appears in CrimA 4424/98 Silgado v. State of Israel [85], at pp. 551-2, per Justice Strasberg-Cohen:

'According to the principles that we follow, the constitutionality of a statutory provision is examined in two main stages: in the first of them, the interpreter of the law examines whether the human right anchored in the Basic Law was indeed violated by the statutory provision under constitutional examination. Only if he concludes that this is the case will he proceed to the second stage, at which the question of whether the offending legislation satisfies the requirements of the limitation clause in the Basic Law is examined' (see Barak, Constitutional Interpretation, at pp. 473-4).

The two-stage doctrine has been developed and analyzed in several other case-law rulings: Adalah Legal Center for Rights of Arab Minority v. Minister of the Interior [49], per President Barak, at paras. 41, 52 and 53, and per Deputy President Cheshin, at paras. 34 and 37; Shinui – the Center Party v. Chairman of the Central Elections Committee [16], per President Barak, at paras. 8 and 9; CrimA 2831/95 Alba v. State of Israel [86], at pp 288-289, per President Barak; Movement for Quality Government in Israel v. Knesset [14]. On the distinction between the scope of the constitutional right and the degree of its protection, see also HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [87], at p. 538). The scope of the right is determined in accordance with the interpretation of the wording of the right and its purpose: see e.g. Mateh Harov v. Israel Police [32], at para. 13 (per President Barak) in which it was held that not all aspects of freedom of speech are included in the ambit of the constitutional right to human dignity, and one cannot read into the right more than it can carry. The scope of the right to freedom of speech as a constitutional right that is derived from human dignity must be determined in keeping with the particular meaning that must be attributed to human dignity (see also HCJ 326/00 Municipality of Holon v. N.M.C. Music Ltd. [88], at pp. 664-5; Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], in which the justices expressed doubt as to whether pornographic expression is included in the freedom of speech).

Regarding the two-stage doctrine in Canada, see Irwin Toy Ltd. v. Quebec (1989) 1 S.C.R. 927; R. v. Keegstra (1990) 3 S.C.R. 697; R.M Elliott, "The Supreme Court of Canada and Section 1: The Erosion of the Common Front", 12 Queen's L.J. 340 (1987). Regarding the doctrine in South Africa, see: Woolman & Botha, Constitutional Law of South Africa, 2nd ed. Ch. 34 (hereinafter: Woolman & Botha).

There is a reciprocal relationship between the two aspects of the "relativity” of a human right. The first aspect establishes the contours of the right, and defines the borders of its natural reach. The second aspect is based on these borders and it examines the circumstances in which a violation of the constitutional right exists, and those in which the violation is permitted in order to allow for the realization of conflicting rights and values. This examination establishes the scope of protection accorded to the constitutional right, which does not always follow its contours. A matter situated beyond the borders of the constitutional right anyway cannot be the subject of a “violation” of the right in the constitutional sense, and it is extrinsic to the constitutional protection.

At its first stage, the two-stage doctrine of constitutional examination requires analysis of whether the claim of a violation involves a matter falling within the parameters of the constitutional right. Only if the answer is affirmative is it necessary to conduct a constitutional examination at the second stage, and to clarify whether there was a “violation” of a constitutional right; if there was, the balancing formula in the limitation clause, which answers the question of whether the violation of the constitutional right was justified and permitted, must be invoked. This examination of the limitation clause establishes the protected scope of the constitutional right in circumstances of conflicting values. There may be a certain overlap of the considerations relevant to the first and second stages of the constitutional examination.

9. In my view, our concern is with the first stage of the examination of the "relativity" of the basic right of freedom of political expression, and does not reach the second stage of the constitutional examination, which relates to the nature of the violation of the basic right. The reason for this, according to my approach, is that the petitioner failed to substantiate its claim that its right to freedom of political expression in the public media includes the right to realize that freedom in paid advertisements. The scope of the right to freedom of political expression in the public media does not extend to this particular claim of right, for the reasons that will be elucidated below. This being the case, I believe that the petition should be denied outside the gates of the limitation clause, without entering them. Hence, a discussion of the constitutionality of the Rules against the background of the limitation clause is altogether irrelevant here.

Determination of the scope of the constitutional right

10. The scope of a constitutional right is established by means of purposive constitutional interpretation, according to which the extent of the right is determined. This determination is an interpretative act based on the underlying purpose of the right and the nature of the goals that it is intended to realize (United Bank Mizrahi Ltd v. Prime Minister [21], at para. 10, per President Barak). Purposive interpretation answers the question of what matters are included within the parameters of the constitutional right, and what matters are external to it. This is an examination of the intrinsic nature of the constitutional right and of the matters it includes. Any conduct falling within the bounds of the constitutional right enjoys constitutional status. Conduct external to those parameters does not (Barak, Constitutional Interpretation, at pp. 371-2, 373; Kahane v. Managing Committee [54], at p. 270; Universal City Studios Inc. v. Films and Plays Censorship Board [19], at p. 33 {242}). The scope of the right is determined in its interpretation. The interpretation is constitutional, effected in accordance with the constitutional purpose, and with a broad view of the values of the system.

11. The constitutional purpose is inferred from the language, the history and the fundamental principles of the system (President Barak, United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15], at para. 86 ff.). Every right must be assigned the scope that realizes its purpose. It is not the linguistic borders that determine the scope of the right but its purpose (Barak, Constitutional Interpretation, at p. 376).

In their text, Woolman and Botha address the need to define the scope of the constitutional right utilizing interpretive tools that rely on the value-related purpose of the right, as opposed to a literal interpretation of the scope of the right. They reject the determination of the scope of a right in accordance with the literal interpretative approach, which relies on a literal definition of the right, and endorse the approach of value-based interpretation, for a number of reasons: first, the constitution should be interpreted according to its logic and the values underlying it. Its ambit should not extend to activities that were not designated for protection within the constitutional right, and the aforementioned value-related approach is intended to filter out those kinds of activities and exclude them from the constitutional framework. Secondly, a more rigid purposive approach to the interpretation of the scope of the constitutional right at the first stage of the constitutional analysis commits the state to a higher degree of persuasion in justifying the violation of the constitutional rights at the second stage of the examination; and thirdly, the value-related interpretation would have a welcome effect in reducing the burden of litigation and in decreasing the number of applications to court for the exercise of judicial review.

The scope of the constitutional right – content and manner of realization

12. In determining the scope of the constitutional right, a distinction must be drawn between the borders of the content of the right and the means of realizing the right. One aspect examines the question of the contents of the constitutional right. The second aspect is concerned with the modes of constitutionally realizing the constitutional right. The aspect dealing with the modes of realizing the right is also relevant in determining its borders, for it poses the question of whether every possible means of realizing the right is part of the constitutional right, or whether there are means of realizing rights that are not naturally built into the scope of the constitutional right.

In defining the scope of the constitutional right, therefore, both the contents of the right and the means of realizing the right, which are interwoven, are examined.

The constitutional right to freedom of speech

13. Freedom of speech is one of the most important basic freedoms of a person in Israel. It is a central value without which a free society cannot exist. Freedom of speech comprises a complex of aspects that relate to both society and the individual. One aspect, directed at society, is that freedom of speech is the bedrock of the workings of a democratic regime, based upon the free flow of opinions, ideas and beliefs. Freedom of speech is, indeed, the life-blood of democracy. Without it, a regime of free government based on free choice cannot be established. Another aspect of freedom of speech in this context is designed to bring about the full and complete dissemination of knowledge and information, which is critical for the formulation of an opinion and a position in a democratic regime, and to thereby enable engagement with truth and falsehood. In its other aspect, directed at the individual, freedom of speech is intended to enable a person to express himself and to develop his personality and individuality in an open and free society that accepts, examines, criticizes, and contends with a wealth of human expressions, opinions, ideas, beliefs, styles, tastes and lifestyles. Freedom of expression embraces all walks of life – philosophy, culture, art, policy and the economy, religion and ways of life. It is reflected in all the experiences to which a man is exposed in the course of his life.

Freedom of political expression

The contents

14. Freedom of speech is a broad concept that spans a large array of subjects and areas. In the aspect relating to the democratic process, special normative significance attaches to freedom of political speech among the broad variety of categories of expression in the many realms of life. A democracy without freedom of political expression loses its life force and vitality, paving the way for a regime of secrecy, operating far from the eyes of the individual and far from the public eye as well. Without freedom of political expression, freedom of speech in other areas of life also disappears; culture and human creativity are suppressed, philosophy and thought frozen, and human progress arrested. Along with these, the individual's ability to develop his talents and to realize his individuality disappears. The flow of knowledge and information concerning the actions of the government, which is a critical tool for public criticism of the regime, is interrupted. Hence the exceptional, widespread and broad protection accorded to the freedom of political expression, among the whole range of types and forms of free speech in a democratic regime.

Means of realization

15. Freedom of speech in general in Israel is reflected in diverse avenues of expression – in the printed media, on radio and television, in print, in words, in photographed expression, in a range of media of expression. In a free regime, the channels of expression, including political expression, are broad and varied. Written, broadcast and photographic communication play a central role in the realization of freedom of speech in a democratic society. Indeed – "Freedom of access to the media is, in fact, a condition for realizing freedom of speech, which without access to the media is liable to be stripped of any content and real importance" (Daphne Barak-Erez, "The Individual's Access to the Media – Balance of Interests in the Area of Freedom of Speech", 12 Tel Aviv Law Review 183 (1987), at p. 184). Israeli law recognizes the right of access to the media (s. 47 of the Second Authority Law; s. 4 of the Broadcasting Authority Law; Cohen v. Israel Bar Association [52], at pp. 537-538, and D.B.C. v. Committee for Cable Broadcasts [9]; HCJ 10182/03 Education for Peace v. Broadcasting Authority, at para. 7 of Justice Hayut's judgment). The right of access to the media means ensuring a broad scope for the full and varied expression of the opinions and ideas prevailing in society. The aforementioned right of access also incorporates the doctrine of fairness, by virtue of which the media bodies in Israel are obliged to fairly and faithfully present the full spectrum of prevalent public opinions, while achieving the proper balance between them (Novik v. Second Authority for Television [51]).

16. These two aspects of freedom of speech in the media – the right of access to the communication media and the doctrine of fairness – merge into one principle, which is that of the effectiveness of expression (Cohen v. Israel Bar Association [52], at pp. 547-548). Derived from the state's obligation to protect the rights specified in Basic Law: Human Dignity and Liberty is its duty to protect the effectiveness of freedom of speech by achieving a proper balance in the presentation of the expression in all its forms. Indeed, "[i]t is incumbent upon the democratic regime to monitor the use of the media rigorously, to prevent upsetting the vital balance in the marketplace of ideas and public expression. This applies to the freedom of access and the right of access to the media and to the contents of the broadcasts" (Documentary Creators Forum v. President of the State [56], at pp. 515). (On the approach whereby the protection of constitutional freedom of speech may also necessitate active state interference, see: Jerome Baron, "Access to the Press – A New First Amendment Right" 80 Harv. L. Rev. 1641, 1642-3 (1967)).

17. Political expression is particularly important in the public-state media channels, the role of which is to reflect the diversity of political-social expression in all its forms and quality, in the broadest, most open and most balanced manner, as required in a society based on the unfettered flow of views and information. The question before us is whether the constitutional right to freedom of political expression extends to the right to political expression in paid advertisements. Does this special form of political expression form part of the constitutional right to freedom of speech in the public media, and is it included among the constitutional means for its realization? Does restriction of this form of expression constitute a constitutional "violation", the justifiability of which must be examined in accordance with the limitation clause?

Political expression in paid advertisements – part of the constitutional right to freedom of expression?

18.  The constitutional right to freedom of expression is, in its essence, the freedom to express opinions and ideas unhindered. This means that it is essentially a negative right, at the core of which lies the power and the legal capacity to prevent a violation and constriction of the right to expression, in the broad sense of the concept. The constitutional right to freedom of speech, in its pure sense, does not impose a correlative constitutional duty upon the state to make various forms of expression available to the citizen. Its obligation is to refrain from interfering with the forms of expression that the citizen chooses to employ. In a modern state, however, the borders between positive and negative constitutional rights are often blurred, and in the area of freedom of speech situations may arise in which the state is also required to take positive action in order to enable the exercise of this freedom by the citizens. The area of the modern communication media may be a good example of this.

19. The existence of a constitutional right does not necessarily mean that every possible means of realizing it must be included within the parameters of the right. When the realization of an individual's right is not dependent upon the authority's cooperation, the question arises whether every possible means of individual realization of the right is included within the bounds of the constitutional right. This question is examined by means of purposive interpretation, which looks for the purposes and goals underlying the right and the means of realizing it. When the means of realization of a right depends upon the active cooperation of the public authority, the question becomes more complex: the examination then required is whether the particular means imposes a constitutional duty on the authority to enable the individual to realize the right, or even, under certain circumstances, obligates the authority to take action in that respect. In certain circumstances, purposive interpretation may yield the conclusion that the means of realizing the freedom of speech chosen by the individual, requiring cooperation on the authority's part, is not included within the scope of the constitutional right, and is extrinsic to it. Here, a claim of a violation of right occasioned by the authority's refusal to enable the realization of the right in that particular manner does not mandate constitutional consideration of the nature of the violation, because the normative conduct of the authority is extrinsic rather than intrinsic to the constitutional right. This applies to the case before us, for the following reasons:

20.  First, in examining the scope of the right to freedom of expression in the communications media and the means of its realization, a broad view of the freedom of political expression in the media authorities is required, above and beyond the narrow perspective that focuses on paid advertising. Under the existing legal system, freedom of speech in all its variations, including freedom of political expression, is broadly and fully protected in the context of the functions and obligations imposed on the authorities in the relevant legislation. They must ensure this freedom of expression, and secure a proper internal balance between the diverse aspects of social expression. This obligation of the authorities, which also applies to the provision of full and balanced political expression in the general lineup of programs, is integral to the doctrine of "fairness", which by virtue of statute and case-law is anchored at the basis of the actions of these bodies. The duty of balance and fairness binding the media authorities is designed to provide a full response to the right of expression of the state populace in the framework of the general schedule of programs they broadcast. If they fail to discharge this duty, they can be obligated to do so by way of judicial review of administrative actions.

21.  Secondly, paid advertising in the media authorities, which is the object of the disputed Rules, is not part of the general lineup of programs, which is intended to provide a full response to freedom of speech, including freedom of political expression, in the different fields. The advertising track is an ancillary tool, created and designed purely to serve the fiscal objectives of the media authorities as a means to trim budgetary deficits, in order to enable the media authorities to fulfill their duties and provide a proper and balanced service to the population within the general lineup of programs. In terms of its purpose and objective this track is not intended to promote freedom of expression in any particular area, the framework for realization of which exists in the general lineup of programs. Moreover, according to the principles of customary law, in the absence of explicit authorization in the relevant statutes the media authorities have no authority to introduce and permit paid advertising, in that the track of advertisements is "alien" to the primary roles for which the authorities were established by law.

22. The essence of the constitutional right of freedom of speech is that no statutory source is necessary to grant it or to provide a basis for it. It exists inherently by virtue of its normative, constitutional status. A law is required in order to limit the constitutional right, and not in order to grant it (Zamir, Administrative Authority, vol. 1 at pp. 50-51 (hereinafter: Administrative Authority); Dovrin v. Prisons Authority [20], at para. 16). In the absence of special legislation, the media authorities would not have been competent to establish paid advertising tracks. This is an indication that the broadcast of paid advertisements is not an avenue for the realization of freedom of speech, which has a constitutional, normative status, and the prevention of which is a violation of a constitutional right.

23. Furthermore, even after the regulation of the paid advertisements track by statute, its introduction by the authority is optional. Should it wish – it may introduce it. Otherwise it may cancel it. It cannot be assumed that the right of freedom of speech includes a vested right to demand of the authority, as a constitutional claim of right, that it operate a paid advertising track  and that it allocate a platform for any particular expression by way  of this particular means. It may be presumed that were the authority to decide to cancel its operation of the advertising track, we would be hard put to find a legal source obligating it to change its decision. According to its purpose, therefore, the advertising track does not constitute an avenue of expression. Regulating this track for the purpose of achieving a financial objective does not engender a right to use it as a means of political expression, and it is difficult to regard the prevention of such expression as a violation of the constitutional right to freedom of speech.

24. Thirdly, and deriving from the two other reasons, within the framework of the constitutional right to freedom of speech a person is not entitled to realize freedom of political expression vis-à-vis a media authority specifically by means of a paid advertisement, which requires a positive action on the authority's part, assuming that the system guarantees freedom of political expression in the general lineup of programs designed for that purpose. In the context of the programs, the media authorities are permitted to regulate the range of contents of expression, including political expression, in the various tracks designed to reflect that range in a balanced and fair manner. There is no vested right to demand of the authority, as part of the constitutional right to freedom of speech, that it provide a platform for political expression through a track designated for a different purpose. Thus, for example, just as a person has no right to demand that a political expression be broadcast on a music channel of the Broadcasting Authority, neither can he demand this on the sports or culture channel. This is the case a fortiori with respect to the track of paid advertisements, which from the outset is not part of the general lineup of programs, and the entire purpose of which is to raise  funding rather than to serve as a platform for any particular form of expression, and which also requires statutory authorization to allow it to operate.

25. Fourthly, from a value-based perspective, the Rules preventing political expression in paid advertisements also bar the purchase of air time for the expression of socially controversial ideological messages. In doing so they prevent a distortion of the requirement of balance and fairness in the general lineup of programs, the purpose of which is to grant a platform for expression in the free marketplace of ideas and opinions in a manner that is not dependent on the financial standing of the opinion-holder.

In view of all the above, regulation of the broadcast of paid advertisements in the Rules that prevents political expression in that framework does not amount to a constitutional violation of a constitutional right.

I will now elaborate on these lines of reasoning.

Freedom of speech in the broadcasts of the media authorities and the doctrine of "fairness"

26. The laws that apply to the media authorities for our purposes guarantee, as a fundamental principle, freedom of speech in broadcasts, and proper balance in this medium of expression.

The Broadcasting Authority Law states that the Authority will maintain the broadcasts as a state service (s. 2), and that one of its functions is to "broadcast educational, entertainment, and informational programs in the fields of policy, society, economy and industry, culture, science, and the arts," with a view, inter alia, to "reflect the life, struggle, creativity, and achievements of the state" (s. 3(1)(a) of the Law).

The Second Authority Law defines the functions and powers of the Authority including, inter alia, "the broadcast and supervision of programs in the fields of learning, education, entertainment and information, on subjects of politics, society, economics, culture, science, art and sports" (s. 5(a) of the Law). In the framework of its functions, the Authority must act to "foster good citizenship, and strengthen the values of democracy and humanism…" (s. 5(b)(2)), and "to give expression to the cultural diversity of Israeli society and to the different points of view prevalent among the public" (s. 5(b)(6)), and also "to broadcast reliable, fair, and balanced information" (s. 5(b)(7) of the Law)).

27. The requirement of balance and fairness in giving expression to the diversity of viewpoints among the public applies to the media authorities, and it was established as a statutory duty incumbent upon them.

Section 4 of the Broadcasting Authority Law states as follows:

'Ensuring reliable broadcasts

The Authority will ensure that the programs provide suitable expression of different approaches and opinions current among the public, and that reliable information shall be broadcast.'

S. 47 of the Second Authority Law establishes the duty of balancing as follows:

Providing the opportunity to respond

(a) The franchisee shall ensure that in programs on current affairs, the contents of which are of public significance, suitable expression shall be given to the various views prevailing amongst the public.

(b) The Council will make rules with respect to providing those who are, or who are liable to be, directly harmed by the broadcasts with an opportunity to respond in a manner fitting the circumstances.'

Section 46(c) of the Law prohibits the franchisee from expressing his own personal views in the broadcasts, or those of his managers or interested parties.

28. These statutory provisions bind the media authorities in the framework of their duty to provide a platform for the variety of opinions and viewpoints prevalent among the Israeli public, while ensuring a balanced and fair approach. The media authorities are also obliged to broadcast reliable information. They must guarantee the free flow of ideas and opinions of all shades and types, without requiring a special fee, except for general fees intended to finance the broadcasting enterprise as a whole. The media authorities must ensure equality in their implementation of freedom of speech. Within their obligations of balance and fairness in broadcasts, the media authorities are entitled to regulate the programming schedule, and to that end they may establish different channels, each designated for particular areas of expression in accordance with the different subjects that the media authority presents in its broadcasts. This brings about the formation of a general lineup of programs comprising tracks devoted to matters of policy and politics, economics and the economy; another track for culture and music, a sports channel etc. Assuming that an internal balance in the range of different subjects broadcast is maintained and that the media enables broad and fair expression, it is difficult to find a basis for the assumption that there is a right to demand the broadcast of political messages in the paid service advertisements track as part of the realization of the constitutional right to freedom of political expression in the media. This is true a fortiori for a demand that relates to a secondary track, of a commercial nature, which is not part of the general lineup of programs, which is basically intended to serve as an auxiliary funding tool to cover the Authority's budget, and which was not meant to serve as a platform for free speech.

29. The statutory framework, which guarantees fair and balanced programming, assumes that freedom of speech, including freedom of political expression, is regulated in the context of the lineup of programs of the media authorities by virtue of their statutory obligations. The statutory obligations of fairness and balance in the media are joined by the "doctrine of fairness" – accepted in the media of many of the Western states – that has become part of settled case law in Israel. This doctrine, which bases the duty of the media entities to preserve balance and fairness on the presentation of a variety of ideas and opinions in a free society, has struck deep roots in the Israeli normative system, and is now firmly anchored in both statutory law and settled case law (for an extensive analysis on this subject, see para. 40 of Justice Naor's judgment).

A claim that the obligations of fairness and balance have been violated may constitute grounds for judicial review, on the administrative level, of the manner in which the media authorities exercise their powers within the parameters of public law. Since our assumption is that complete freedom of speech is guaranteed within the context of the general lineup of programs, which regulates the different forms of expression in the different tracks, no foundation was laid for recognition of a right to political expression in a paid advertisement in a commercial track that from the outset was not intended for that purpose, and the prevention of expression in that track should not be regarded as a constitutional violation.

30. From the above it emerges that our assumption must be that freedom of political speech finds its full expression within the context of the general broadcasts alignment of the media authorities, which are required to provide it with a platform, and are obligated to ensure a fair balance of all its varieties, representing the entire spectrum of Israeli society. The violation of these duties by the media authorities may provide grounds for an administrative claim for the exercise of judicial review over the operations of the Media Authority in that particular area.

The assumption that there exists full freedom of political expression in the broadcasts of the media authorities, and that there exists a duty of fairness to which they are subject in regulating that expression, lies at the heart of the approach according to which paid political advertising is not one of the constitutional means available to a person in order to realize his recognized right of freedom of political expression.

The nature of the paid advertisements track

31. The status and the position of the paid advertisements track of the media authorities must be analyzed from the broad perspective of the general lineup of programs of these authorities, and not as an organ detached from the entire system. The particular character of the paid advertisements track, its establishment, its legal foundation, and its overall goals, reinforce the conclusion that its existence does not grant any person the right to demand realization of political expression by way of paid advertisements as part of the constitutional realization of his right to freedom of speech. It follows that the Rules prohibiting political expression in paid advertisements establish a behavioral norm that is outside the "constitutional arena" involving freedom of speech, and not inside it. As such, the claim of violation of freedom of speech in view of the said prohibition is not on a constitutional level, but rather, if at all, on an administrative level, in the realm of one of the recognized grounds for judicial review.

32. Paid advertising, which is the subject of the Rules in dispute, is not an integral part of the programming setup of the media authorities, within which they are required to provide a platform for political expression. The paid advertisements track of the two media authorities is an extra-professional, auxiliary tool, which is not part of their statutory functions and obligations. It is an optional matter, subject to the discretion of the media authority, which may or may not use it, as it wishes. Its entire purpose is to serve as a financial tool for increasing the budgetary income of the media bodies and enabling them to function efficiently in discharging the tasks and duties and imposed upon them. It is not intended to serve as a platform for any particular category of expression, including political expression. Incidental to achieving the monetary goal, and in order to realize it, various bodies – generally commercial – are permitted to relay their messages, without such expression, per se, constituting a purpose of the advertising track. My colleague, Justice Naor, discussed this particular feature of advertisements at length (para. 18 of her judgment).

33. Being extrinsic to the programs framework, the paid advertisements track is not bound by the obligation of balance and fairness that binds the authority as part of its professional duties. In that it is external to the obligations of the authority, and because, in terms of its purpose, it is not intended to reflect the messages of any particular kind of expression, the operation of this track is not subject to the general duty binding the authorities in the context of general broadcasts, to give expression to the range of opinions and trends in Israeli society. Since the advertising track was not, from the outset, intended to provide a platform for the expression of ideological messages, the authorities are entitled to regulate the contents of advertisements in a manner that realizes the funding objectives of advertising in optimal fashion, without violating any duty of balancing and fairness that binds them in relation to programs, which relates to the level of their contents and ideas. The authorities' position in this regard is that paid advertisements, as a funding tool, may legitimately be restricted to matters that are purely commercial and neutral in terms of their social-ideological contents.

34. Not only does the prohibition on extending paid advertising to matters that are publically controversial not violate the freedom of political-ideological expression, but it actually prevents the wealthy from gaining control over opinions and public information in the state. Limiting the advertising track to matters of a commercial-neutral nature actually promotes freedom of expression, rather than conflicting with it. It dovetails in with the functions of the media authorities and the duty of fairness and balance that binds them. This is the background to understanding the underlying rationale of the arrangements governing paid advertising tracks, and their designation for matters which are essentially commercial and neutral (s. 25A of the Broadcasting Authority Law and s. 7(2) of the Broadcasting Authority Rules; s. 81 of the Second Authority Law, and s. 5 of the Second Authority Rules).

35. Furthermore, from a legal perspective, the operation of a paid advertisements track by the media authorities requires special statutory authorization, without which they have neither the power nor the authority to operate this track, in that it is extra-professional vis-à-vis the classic functions of these authorities. Indeed, authorization for the broadcast of advertisements was a later addition to the Broadcasting Authority Law, by way of s. 25A, in 1993. Prior to this amendment, it was legally problematic for the media authorities to operate a track for paid advertisements in the absence of specific statutory authorization. The legal position adopted by the Attorney General and the court was that without special statutory authorization, the media authorities had neither the power nor the authority to broadcast a paid advertisement (Explanatory Notes to the Broadcasting Authority (Amendment No. 8) Bill, 5752-1992, HH. 2114, at p. 220). This was the background to the enactment of the provision in s. 25A of the Law, which authorized the Broadcasting Authority to operate this track. (Regarding the limitations that apply to paid advertisements without special statutory authorization, see also Osem v. Broadcasting Authority [2], at para. 6; Reshet Communications v. Broadcasting Authority [3], at pp. 808-890; Daily Newspaper Association v. Minister of Education [68], and HCJ 3424/90 Daily Newspaper Journalists Association v. Minister of Education [89]). These decisions clearly indicate that specific authorizing legislation is required in order to enable the media authority to operate a track for paid advertising.

Can it be said that as part of the constitutional right to freedom of political expression, a person has the right to demand a platform for expression specifically within paid advertisements, when this activity is not an integral part of the classic functions of the media authority, and when the media authority requires specific statutory authorization to carry it out, and has discretion to decide whether to do so, depending upon the circumstances in accordance with its funding requirements?

36. In this context it should be remembered that a constitutional right does not require statutory expression. It exists by virtue of the values of the constitutional system and by virtue of the Basic Law; even without being reflected in a regular law, it exists by virtue of the constitutional norm it embodies. Indeed –

'When a person has a right, and certainly when he has a constitutional right, a public authority does not need statutory authorization in order to uphold and respect that right. The opposite is true: it requires statutory authorization to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it must satisfy the tests of the limitation clause as a condition for its validity and operation' (Dovrin v. Prisons Authority [20], at para. 16 of my judgment).

(See also in HCJ 1/49 Bejerno v. Minister of Police [90], at pp. 80, 82). It is the violation of a human right that requires an authorizing law that seeks to legitimate the violation (Zamir, Administrative Law, at p. 50). In the absence of statutory authorization to violate the right, the administrative authority oversteps its competence and its authority.

37. In the present case, the administrative authority requires special statutory authorization to enable it to operate a track for paid advertising, for the legal starting point is that without special authorization it cannot operate such a track. This assumption involves a further assumption – that there is no constitutional right to realize the freedom of political expression in paid advertising. Since a person does not have a primary constitutional right to express his messages, irrespective of their contents, in paid advertisements, special statutory authorization is required to vest competence and power in the authorities to operate such a track. Absent that explicit authorization, as stated, the authority would not be able to perform that activity. It follows that the right to freedom of political expression in the media does not encompass expression in paid advertising, and were it not for the special authorization, the authority would not have been permitted or competent to operate that track. This structure of rights and authority also explains why freedom of political expression for paid advertising is not part of the freedom of political expression that is constitutionally protected.

38. Moreover, even assuming the existence of statutory authority for paid advertisements, the authority is an optional one, which the media authority has the discretion to exercise, to ignore, or even to revoke. Since this track is designed for funding purposes, its use is circumstance-dependent, and it is entirely a function of the financial position of the authority. Had the authority not found itself in financial straits, and had it not been granted statutory authorization to operate a paid advertising track, it may reasonably be assumed that it could not have been compelled to operate that kind of track to allow for paid political expression as part of the basic right to freedom of speech. It may further be assumed that in the absence of statutory authorization for paid advertising, a petition seeking to compel the authority to broadcast a paid political advertisement would have been denied. Furthermore, once there is no longer a financial need, the media authority would be entitled to discontinue the use of the advertising track, or even to bring about the repeal of the statutory authorization for paid advertising. It is doubtful whether such repeal would constitute grounds for a claim of violation of the constitutional right to freedom of speech. This is because realization of the right to expression in the media in various areas, including the political-ideological area, is not dependent upon the advertising broadcasts. As such, the regulation of this track and its designation for matters that are commercial and neutral in nature does not constitute a violation of a constitutional means of realizing freedom of political expression. Realization of the freedom of political expression in a paid advertisements track is not part of the right to freedom of expression in the media, and it is not part of the constitutional right that warrants constitutional protection. Consequently, regulation of the paid advertisements track and its designation for particular kinds of messages that are commercial or neutral in nature, and which do not include matters that are politically or ideologically controversial, do not constitute a constitutional violation of the freedom of political expression.

39. Furthermore, from a comprehensive perspective it can be said that limiting advertisements to commercial broadcasts and announcements of a neutral character promotes, rather than violates, freedom of political expression in the broad sense. Precisely by reason of its cardinal, vital importance to the democratic process, political expression should not be a commercial commodity, and to the extent that it is, by its very nature it distorts free public discourse. It may also distort the duty of balance and fairness that binds the media authorities in relation to broadcasts in general. When the wealthy person purchases a public information platform in the media by way of a paid advertisement, while the person of lesser means is unable to purchase broadcasting time in order to relay his views, the inevitable result is a disruption of the required balance in the presentation of ideas and opinions in the ideological arena. This inequality in power of political expression, which derives from the funding capacity of the wealthy party, is a serious violation of the principle of equality and fairness in the media, and it may severely distort the appropriate point of balance in social-political expression that is guaranteed in the general lineup of programs. It was not by chance that the Broadcasting Authorities imposed prohibitions on paid advertising of political and ideological programs. They were motivated by the desire to promote the idea of substantive freedom of political expression, and by their concern for equality in the means of its realization, and not the opposite. The concern for substantive realization of political-ideological expression and balance in the means of its regulation provides a substantive, value-based reinforcement for restrictions established by the Rules regarding paid advertisements of publicly controversial messages. This point was made by Baroness Hale of Richmond in the matter of Regina (Animal Defenders International) v. Secretary of State for Culture, Media and Sport (2008) 2 WLR 781 UKHL 15, handed down in March of this year in the English House of Lords, and cited in the judgment of my colleague, Justice Naor, in her comments on the harm involved in paid political advertisements, where she writes, inter alia:

'So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality.'

And elsewhere she clarifies:

'… we do not want our Government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. "Within the sphere of democratic politics, we confront each other as moral equals"… . We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.'

40. In her article, Prof. Aditi Bagchi points out the dangers to freedom of speech that are likely to issue from private parties who acquire control over the means of expression and public information. The dangers looming from this direction are no less than those which the government itself may place in the way of freedom of speech. Therefore, according to this view, in certain cases the state is justified, and possibly even duty-bound, to intervene and take measures to increase freedom of speech, while limiting the dangers of the distortion of freedom of speech that can be caused by private bodies:

'[W]e should not blindly emphasize the dangers posed by state action at the expense of those posed by certain types of private action   Random insults by individual private actors are not likely to affect the political identity of those insulted. But restrictive choices by mass media that influence large numbers of people and claim to respond to the views of the public do pose a substantial threat to those excluded from their forums. This is not to say that these media must affirm all viewpoints, but the rules governing access – rules affirmatively enacted by the government – should ensure that each citizen can consider herself a participant in public discussion.'

And therefore –

'[W]hen private actors wield disproportionate power over public discourse, the state should ensure that all citizens retain the access necessary for their voices or views to count' (Aditi Bagchi, "Deliberative Autonomy and Legitimate State Purpose Under the First Amendment", 68 Albany L. Rev. 815 (2005) 819, 861-962).

41. Restricting the broadcast of paid advertisements to commercial and neutral matters does not jeopardize the balance required for the realization of freedom of political-ideological expression in society. Expanding the broadcasts to include this kind of expression is liable to destroy and fundamentally distort the fairness required of the media, which necessitates providing a platform of expression for the different opinions prevailing in a society, with no dependence on or connection to money and the financial capacity of the opinion holders.

In Summary           

42. Our concern here is with determining the contours of the constitutional right to freedom of political expression and with the question of whether these contours include the right to express a political message in paid advertisements facilitated by the public media authorities. This places us at the first of the two stages of constitutional analysis. Delineating the scope of the constitutional right should answer the question of whether the Rules preventing paid advertisements of political matters violate the constitutional right to freedom of political expression in that medium. This question is answered according to purposive interpretation of the right to political expression and the constitutional means of realizing that right. Purposive interpretation is based on an examination of the values underpinning the right, and not on the basis of the literal scope of the right.

43. From the above analysis my conclusion is that the scope of the right to freedom of political expression, however broad, does not, in terms of its purpose, extend to the right to realize that expression by way of a paid advertisement in the public media. Freedom of political expression in Israel is guaranteed in the framework of the duty of balance and fairness in the general lineup of programs operated by the authorities. It does not extend to the entire advertising track, which from its inception was not intended as a platform for expression, but rather, was introduced for a budgetary-financial purpose. The existence of this track is, from the outset, dependent upon the existence of special statutory authorization granted to the authority for the purpose of its operation, which is dependent entirely upon the will and the financial requirements of the authority. Restricting advertisements to matters that do not arouse public controversy promotes, rather than contradicts, the function served by the media authorities in the protection of freedom of political expression, and their mission to preserve the balance and fairness of socio-political messages in the broadcasts, independent of the finances and the economic ability of the opinion holder. As such, regulation of the advertising track in this manner does not violate a constitutional right, and it does not, therefore, give rise to the need for a constitutional examination of the alleged violation. Consequently, there are no grounds for examining the applicability of the limitation clause, with its various conditions, in our case. We therefore stop at the first stage of the constitutional examination, without crossing the threshold of the second stage. The relativity of the right to freedom of political expression in the public media leaves political expression in paid advertisements outside its borders.

General Comment

44. To complete the picture, I wish make a number of observations.

The normative constitutional system in Israel is young, and it is undergoing a process of gradual development towards its complete formation. At this stage of its development it is especially important to attribute adequate weight to the examination of the relativity of the constitutional right in accordance with the two-stage doctrine, and in so doing, to relate to the natural scope of the right, prior to considering its relativity in terms of the second aspect, which concerns the constitutionality of the violation according to the conditions of the limitation clause. The comprehensive approach whereby almost every matter that is connected literally to the constitutional right falls within the parameters of the right itself rapidly leads the constitutional discussion into the second stage, at which the constitutionality of the violation is analyzed in accordance with the limitation clause. This approach is liable to entail both a theoretical and a practical difficulty. On the theoretical level, it obscures the two-stage doctrine required in the constitutional discourse. On the practical level, it may dilute constitutional rights, and weaken their protection against violation. It is only natural that the more that essentially marginal matters, situated on or outside the borders of the constitutional right, are treated as constitutional matters, the weaker becomes the need to provide effective protection against the violation of the constitutional right, and the more blurred becomes the distinction between the important and the unimportant. Such a process is liable to impoverish the constitutional discourse, diluting its intensity and vitality. It seems to me that the constitutional discourse should focus on the core of basic rights and on the core of the protection they require against violation. As the constitutional rights are developed, care must be taken to define their appropriate borders, to prevent them from being interpreted as all-inclusive and from absorbing matters that do not properly belong within their borders, all within the framework of the constitutional purpose.

45. Delineating appropriate borders for the scope of the basic human rights is likely to reinforce the rights rather than weaken them. It can enrich constitutional discourse and focus it on the substantive protection required for the core of human rights. Delineating the limits of constitutional rights by borders defined according to the constitutional purpose enhances their constitutional protection, and is not detrimental to them. In the words of Deputy President Cheshin in Adalah Legal Center v. Minister of the Interior [49] (para. 41):

'Stretching basic rights in every direction – up, down and to the sides – while referring the interests that are capable of affecting their boundaries to the limitation clause, is liable to have a detrimental effect on constitutional debate, and this is liable to lead eventually to a reduction in the constitutional protection of human rights.'

See also in Bank Mizrahi v. Migdal [15], at pp. 470-471{286}, the opinion of Justice Zamir, who warns against rigid determinations as to what constitutes "property" and what constitutes a "violation of property", based on the concern that "the more the scope of property as a constitutional right is widened, the more it is to be feared that the force of the protection of this right will be weakened." Comments in a similar vein were made by Hogg in his article, "Interpreting the Charter Rights: Generosity and Justification", 28 Osgood Hall L.J. (1990) 817, 819. See also Peter W. Hogg, Constitutional Law of Canada, 5th ed. Vol. 2 (2005), at para. 3.83:  

'There is a close relationship between the standard of justification required under s. 1 and the scope of the guaranteed rights. If the courts give to the guaranteed rights a broad interpretation that extends beyond their purpose, it is inevitable that the court will relax the standard of justification under s. 1 in order to uphold legislation limiting the extended right. For example, if the guarantee of freedom of expression in s. 2(b) were held to protect perjury, fraud, deception and conspiracy – all forms of expression in an extended sense – it would be foolish to require a legislative body to satisfy a high standard of justification in order to regulate or prohibit such obviously harmful behavior.

… Each right should be so interpreted as not to reach behavior that is outside the purpose of the right – behavior that is not worthy of constitutional protection… .'

It could be argued that in terms of the result, there is no difference between the approaches:

'It may well be that it makes little difference in result whether the courts opt for a stringent standard of justification coupled with a purposive interpretation of rights, or for a relaxed standard of justification coupled with a broad interpretation of rights.'

However, as Hogg explains, tremendous importance attaches to this question in terms of the scope of judicial review.

'[I]t certainly makes a great deal of difference to the scope of judicial review. If the rights are broad, and the standard of justification is low, then many more charter challenges will come before the courts, and will fall to be determined under s. 1. Since the standard of justification under s. 1 would be low, it would be difficult to devise meaningful constraints on the process of judicial review. The result would be that judicial review would become even more pervasive, even more policy-laden, and even more unpredictable than it is now. In my view, therefore, the courts should adhere to the strict standard of justification prescribed by Oakes, and should give a purposive (rather than a generous) interpretation to the guaranteed rights. That approach will help to stem the wasteful floods of litigation, to limit the occasions when courts have to review the policy choices of legislative bodies and to introduce meaningful rules to the process of Charter review.'

For additional opinions in the legal literature that support defining the scope of constitutional rights as a means of fortifying them and of preventing their dilution, see: Yves De Montigny, "The Difficult Relationship between Freedom of Expression and its Reasonable Limits", 55(1) Law & Contemp. Prob. 35 ; V. Blasi, "The Pathlogical Perspective and the First Amendment", 85 Colum. L. Rev. 449, 479 (1985); Sidney R. Peck, "An Analytical Framework for the Application of the Canadian Charter of Rights and Freedoms", 25 Osgoode Hall L.J. 1 1987. See also Bradley W. Miller, "Justifications and Rights Limitations" http://ssrn.com/abstract=1084468, who supports interpreting the scope of constitutional rights strictly at the first stage of the constitutional examination, inter alia to prevent a devaluation of the rights and a weakening of the constitutional examination at the second stage, which focuses on reviewing the degree of justification for the violation of the right according to the constitutional balancing formula.

A different approach is taken by President Barak, according to whom the main restrictions on constitutional rights should be imposed at the second stage of the constitutional examination, rather than the first stage, which is concerned with defining the scope of the right. According to his approach –

'The starting point should assume a generous definition. The restriction – which might take into account the situation of the case on the periphery of the right or at its core – should be considered within the framework of applying the limitation clause. The balance between the rights of the individual and the public interest or between rights inter se should be made within the framework of the limitation clause' (per President Barak in Adalah Legal Center v. Minister of the Interior [49], at para. 102).

 For a critique of the aforementioned approach of Prof. Hogg, see per President Barak in Bank Mizrahi v. Migdal [15], at pp. 462-3{246-247 }.

46. On the basis of all the above, it cannot be said that the petitioner's constitutional right was violated as a result of the refusal of the authorities, within the framework of the Rules, to broadcast a paid advertisement involving an expression whose content was political-ideological.

Other possible grounds for challenging the Rules

47. Quite another question is whether the manner of regulation of paid advertisements in rules that permit commercial advertisements and bar advertisements of a political-ideological character provides the petitioner with constitutional cause based on the violation of equality between commercial bodies and political bodies, or with cause under administrative law, such as unreasonableness, irrelevant considerations, discrimination, etc. The petitioner did not make any claims to that effect and none were considered in the course of the hearing. As such we need not consider them. I would nevertheless like to relate to the aspect of equality as a possible constitutional claim in the circumstances of this case, which is also connected to the claim of discrimination on the administrative level.

Violation of equality

48.  The petitioner focused on the argument that its right to freedom of political expression was violated by the prohibition that the Rules imposed on the publication of such expression in paid advertisements. I attempted to show why the constitutional right was not violated in a manner that justified constitutional adjudication in accordance with the limitation clause.

For the sake of completion I would add that a claim of violation of equality might possibly have been raised on the constitutional level, its thrust being that the Rules in our case discriminate unlawfully between those expressing themselves commercially, who are permitted to advertise in service broadcasts, and those expressing themselves politically, to whom this channel of expression is blocked. Could it be said that under these circumstances there has been a violation of the constitutional right to equality between the purveyors of different messages, who seek to advertise their messages for payment?

49. Equality is an established foundation of the Israeli legal system. It is a value that lies at the foundation of a society's existence, and a guarantee for a person's development and self-realization. It is essential for the establishment of a democratic regime: Adalah Legal Center v. Minister of the Interior [49]; HCJ 4112/99 Adalah Legal Center v. Tel-Aviv Municipality [91], at p. 415; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [92], at p. 332; HCJ 7111/95 Center for Local Government v. Knesset [93], at p. 503.

50. Nevertheless, the value of equality was not included as a basic right in the Basic Law, and the question has therefore arisen in the past as to whether the right to equality can be classified as a constitutional right that derives from the right to human dignity, and in that capacity granted constitutional protection by virtue of Basic Law: Human Dignity and Liberty.

Israeli case law is divided over whether the right to equality can be derived from the right to dignity. According to some, the right to equality is included in Basic Law: Human Dignity and Liberty as an "unnamed right" (Justice Or in HCJ 5394/92 Huppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [94], at pp. 360-363; Justice Mazza in Israel Women's Network v. Minister of Transport [36], at pp. 521-523, and see all the citations in s. 39 of Adalah Legal Center v. Minister of the Interior [49]). There were some who adopted a restrictive approach in applying the basic right to dignity to the right to equality (Justice Zamir in HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [95], at pp. 205-206 and his comments in Center of Local Government v. Knesset [93], at pp. 510-511). Others sought to restrict constitutional recognition of the right to equality to cases in which the violation of equality amounted to humiliation of another person, in which case, according to this approach, there was an overlap between the right to equality and the core of the right to human dignity (Miller v. Minister of Defense [11], at pp. 146-147 see also HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [96], at pp. 47-48).

51. Ultimately, the case law adopted an "intermediate approach", according to which "human dignity" is not limited to damage to the core of human dignity, but neither does it encompass every human right that can be derived from human dignity. It includes all those rights that are linked to human dignity (whether at its core or at its periphery) by close, significant ties (as per President Barak in Movement for Quality of Government v. Knesset [14], at para. 33). The right to human dignity thus includes those aspects of equality that guarantee protection of human dignity from violation, and that are closely related to it. Human dignity thus extends to those situations in which a violation of equality is inextricably linked to human dignity and to a violation thereof. In determining the scope of the constitutional right to dignity, consideration must be given to the violation of equality as a factor in delineating the contours of the right. This approach was also adopted in later case-law (see HCJ 2223/04 Levy v. State of Israel [97]; 9722/04 Polgat Jeans Ltd. v. Government of Israel [98]; HCJ 8487/03 IDF Invalids Organization v. Minister of Defence [99]; HCJ 11956/05 Suhad Bishara v. Ministry of Construction and Housing [100]).

52. Do the Rules in the present case, which permit paid advertisements in commercial matters but bar advertisements of a political-ideological character, violate equality as a constitutional right? The obvious answer to this question is in the negative, for in the circumstances of this case, even if there is a violation of equality, it is not a violation that is closely linked to human dignity, and as such we find ourselves outside the constitutional purview of Basic Law: Human Dignity and Liberty.

Our assumption for this purpose is that political expression and its messages are regulated by the general lineup of programs as part of the authorities' obligation to ensure balance and fairness in their operation. This stems both from the Broadcasting Authority Law and the Second Authority Law, and from the basic principles of the system. The paid advertisements track was not originally intended to serve as a platform for expression, and it was introduced to serve a financial-economic purpose of the media authorities. Given our assumption that freedom of political expression is maintained and protected, and that the paid advertising track was not intended for the realization of freedom of speech, it follows that the violation of equality is not closely linked to human dignity, and there is therefore no violation of the constitutional right to dignity, in the context of the right to equality.

53. Even if the issue is not the violation of a constitutional right, one ought nonetheless to examine whether there could be a claim of discrimination on the administrative level, as opposed to the constitutional level, that justifies consideration.

Substantive equality is defined as like treatment of equals, and different treatment of those who are different (HCJ 10076/02 Rozenbaum v. Prison Authority Commissioner [101], per President Barak, at para. 11). In order for there to be a violation of equality, it must be proved that there are groups between which there is identity or equivalence in relevant features, and which, despite their similarity, are treated differently (HCJFH 4191/97 Rekanat v. National Labor Court [102], at p. 330, per President Barak).

54. In the case at hand, as far as paid advertising is concerned, there is a substantive difference between the two relevant groups involved – a difference that explains and justifies the contents of the Rules, which permit commercial advertisements of a neutral nature, and prohibit advertisements of a political or ideological nature. The conception underlying the distinction between the two groups is value-based, deriving from the understanding that political-ideological-social expression in the public-national communications media should not be affected by the financial capacity of the opinion-holder, and that allowing political expression to be bought for money not only fails to promote the marketplace of opinions and ideas in a free society, but actually disrupts it, by letting money talk. Permitting paid political advertising means allowing the power to disseminate information on social, political and ideological matters to be purchased. This conflicts with the basic conception whereby free discourse and expression should be available equally to all people, irrespective of their financial abilities – a conception which furthers the democratic process and does not thwart it.

55. Commercial advertisements and other neutral broadcasts for which payment is made do not influence the marketplace of ideas and opinions in the social sphere, and do not distort the free flow of political-ideological expression in the general lineup of programs of the public media, which is not dependent upon financial resources. Opening the track of paid advertising to political expression may well disrupt the existing balance in the open marketplace of opinions and ideas and distort public discourse in view of the concern that financial magnates could assume control of this broadcasting track in the media. This explains the substantive difference between the two groups that are relevant in our case, and justifies the distinction made by the Rules in relating to each group. This distinction between the two groups is particularly valid in view of the fact that the matter involves public media authorities, which operate as statutory corporations by virtue of laws regulating their public activity. This is especially significant in relation to the Broadcasting Authority, which operates its schedule of programs as a statutory state service (s. 2 of the Law).

Political expression is given an extensive platform in the context of the programs themselves, without special payment. Commercial and neutral expression was allocated a paid advertisements track, which does not affect or distort public discourse through the monetary purchase of the power to disseminate information. It is difficult to argue that this approach, with its particular distinctions, provides grounds for a claim of inequality and unlawful discrimination, in either the constitutional or the administrative realm, that warrants judicial intervention.

Conclusion

56. In view of all the above, my view is that it was not proved that any of the petitioner's constitutional rights was violated, be it a violation of freedom of speech or a constitutional violation of the right to equality. Nor would there appear to be any administrative cause of action based on discrimination, which, had it existed, may have warranted judicial intervention in the actions of the authorities on the administrative level.

Therefore, and based on the aforementioned reasons, I concur with the conclusion proposed in the judgment of Justice Naor, whereby the petition should be denied on all counts.

.

Justice A. Grunis

I agree that the Rules should not be declared invalid [-as stated in the opinion of my colleague Justice M. Naor. In doing so, there is no need to to take a stand on the relation between freedom of political expression and human dignity.

I have studied the opinion of my colleague Justice Procaccia. I accept her fundamental approach regarding the determination of the boundaries of a constitutional right. I concur with her statements (in para. 6(6) of her opinion) that “[a]n overly-broad conception of the scope of a constitutional right, exceeding that of the purpose it serves, may lead to a dilution of the constitutional rights and to their devaluation” (see also para. 2 of my opinion in Adalah Legal Center  v. Minister of the Interior [49]).  Nevertheless, there is no dispute that there was a violation of freedom of speech in the case before us. I will therefore refrain from expressing a position regarding the approach of Justice Procaccia as far as freedom of speech is concerned. Nor do I think it necessary to adopt a position regarding the relationship between the actual existence of the right and the means of expressing it in the circumstances of this case.

 

 

Justice S. Joubran

I concur with the opinion of my colleague Justice M. Naor, and with the additional comments of my colleague Justice E.E. Levy

1.    First, I will point out that in view of our conclusion, I accept as a starting point – purely for purposes of this hearing – the assumption that the Rules under discussion contain a violation of freedom of expression as a protected basic right. This assumption was accepted by the litigants in this hearing; as such I will not relate to the analysis of my colleague, Justice Procaccia, and prefer to leave that subject for future consideration.

2.    As explained in the opinion of my colleague Justice M. Naor, to enable political expressions on controversial  matters to be broadcast in the framework of paid advertisements will, in practice, spell the demise of the fairness doctrine in Israel.  Concededly, this doctrine applies only to the “regular” framework of broadcasts, and if political advertising is not possible in the framework of broadcast advertisements, the doctrine will not apply to them. On the other hand, opening the  advertising track to broadcasts of political expression will, inevitably, empty the fairness doctrine of any content. It is clear that despite the fact that the air time allotted for advertisements is quite brief in relation to the regular programs, the other features of advertisements -  including the possibility of frequent repetition of a particular message, freedom in formulating the contents of the message, and the very fact of this being a dedicated track for the relaying of messages intended to influence -  increases the weight attaching to them (in this regard the scholar Marshall McLuhan already pointed out that “the medium is the message”). In the public, media-oriented environment of our times, as pointed out by Justice E. E. Levy, there is a serious concern that granting the access requested in the petition will flood the advertising track with political broadcasts of all types, and in doing so divert the central focus of political discourse from “regular” programs to advertising programs. It is clear that all this would directly affect the application of the fairness doctrine, and in fact lead to its revocation.

3.  It is for these reasons that I concur with Justice Naor’s ruling that there is nothing wrong with the fact that the arrangement preventing the broadcast of political expressions in the framework of advertisements is not explicitly anchored in primary legislation. I accept her ruling that this arrangement actually relies upon the general fairness doctrine, and is a direct product of it. In my view, it is sufficient that the fairness doctrine is well anchored in primary legislation to satisfy the requirement of “explicit authorization”.

4. To be precise: the only way of preventing the revocation of the general fairness doctrine, should the petition be granted on its merits, would be to make it directly applicable to advertisements through the creation of a supervisory regime over these broadcasts as well.  However, even assuming that creating such supervision is possible, it is unclear why the petitioner and similar entities would benefit from such an arrangement, and why it would ameliorate the violation of freedom of expression.  It should be remembered that the possibility of being heard, subject to the laws of the fairness, is already available to the petitioner in the framework of the regular programs, without payment. The petitioner contends that in the current situation, entities with unique political views are not given sufficient exposure in the framework of regular programs. However, as mentioned by Justice Naor, the solution to this problem must be found in the existing framework, through recourse to the fairness doctrine itself, and if necessary, by use of administrative processes, as mentioned by Justice Procaccia.

5.  Moreover, opening the advertising track to the broadcast of political expressions would not necessarily solve the problem that the petitioner describes.   On the one hand, the creation of a rigid regulatory regime for oversight of the broadcast of “advertising” political material would deprive this track of its uniqueness, because the main difference between this track and the regular programs would be the component of payment for broadcasting content. However, as stated, the component of payment is itself problematic; the drawbacks of this course of action would therefore appear to outnumber its advantages – in view of the fact that the very regime that allegedly harms the petitioner in the framework of regular programs would harm him again in the framework of advertising broadcasts.

On the other hand, the creation of a more lenient supervisory regime would create a situation in which "money talks", given that broadcasting time is limited by its very nature. In that situation, one form of exclusion would be replaced by another, and here too, opinion holders supported by more limited means would be in an inferior position to their more established competitors.

6.    I wish to clarify that these comments do not imply that the fairness doctrine is a sacred principle from which there can be no diversion. Like any other socio-legal conception it has its drawbacks, and it may even involve a violation of protected basic rights. However, even were it to be claimed that the drawbacks of this conception exceed its advantages, this would not, in my view, lead to its invalidation on the grounds of contradicting Basic Law: Human Dignity and Liberty. On this matter I share the view of my colleague President D. Beinisch, that due to its complexity and tremendous sensitivity, the subject requires thorough study and consideration, and should be dealt with by legislation, even though I disagree with her conclusion on the matter.  Under the circumstances, as stated, I do not find that the current arrangement lacks explicit statutory authorization.  At the same time, I do not find that we have the ability or the possibility of deciding whether the fairness doctrine itself is good or bad, or at least, whether to allow it to be emptied of content.

Petition denied, by majority opinion, as per the judgment of Justice M. Naor.

 

18 Av 5768.

20 August 2008.

 

 

HCJ 9098/01

Yelena Ganis and others

v

1.       Ministry of Building and Housing

2.       Attorney-General

HCJ 10043/01

Raphael Kornitzer and another

v

1.       Ministry of Building and Housing

2.       Minister of Building and Housing

3.       Minister of Finance

4.       Attorney-General

HCJ 401/02

Mordechai Bilitzer and others

v

1.       Government of Israel

2.       Minister of Finance

3.       Minister of Building and Housing

 

The Supreme Court sitting as the High Court of Justice

[22 November 2004]

Before President A. Barak, Vice-President E. Mazza
and Justices M. Cheshin, J. Türkel, D. Beinisch, E. Rivlin, A. Procaccia

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts: Shortly before the election for Prime Minister in 2001, the Knesset passed a law that gave certain persons an entitlement to grants for the purchase or extension of an apartment in Jerusalem. After the election, some six weeks later, the Knesset suspended the grants, and went so far as to include a provision to the effect that the suspension of the grants was retroactive, from the date on which the grants originally came into effect. The petitioners challenged this retroactive suspension of the grants, on the grounds that they had relied on the grants and undertaken to buy or extend an apartment in Jerusalem during the interim period, and therefore it was unconstitutional for the Knesset to suspend the grants retroactively.

 

Held: The Supreme Court was unanimous in the opinion that the Knesset had acted improperly when it retroactively suspended the grants, since it had not considered the possibility that some persons may have relied on the grants and taken commitments upon themselves as a result. However, the justices differed as to the proper approach that should be adopted to remedy the situation.

The majority opinion was that it was possible to construe the statute narrowly in such a way that the retroactive suspension would only apply to potentially entitled persons who had not relied on the statute during the interim period, but it would not apply to those entitled persons who did rely on the statute during the interim period. Consequently, the right of the latter group of persons to receive the grant was held to remain valid.

The minority opinion was that it was not possible to construe the statute narrowly as aforesaid, and therefore the retroactive suspension ought to be declared void for unconstitutionality.

 

Petition granted, in the manner held by the majority (Justice Cheshin, President A. Barak, and Justices A. Procaccia and D. Beinisch), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

 

Legislation cited:

Adoption of Children Law, 5741-1981, s. 13.

Basic Law: Human Dignity and Liberty, ss. 3, 8.

Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992, s. 1.

Budget Principles Law, 5745-1985, s. 39A.

Economic Policy for 2004 Fiscal Year (Legislative Amendments) Law, 5764-2004.

Government and Justice Arrangements Ordinance, 5708-1948, s. 10(a).

Housing Loans Law, 5752-1992, ss. 6B, 6C.

Housing Loans Law (Amendment no. 5), 5761-2001.

Income Tax Ordinance [New Version], s. 3(i)(1)(a).

Inheritance Law, 5725-1965, s. 5(a)(1).

Interpretation Law, 5741-1981, s. 22.

Interpretation Ordinance [New Version], s. 17.

State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, ss. 20, 20(a)(1), 20(b), 20(c).

Torts Ordinance [New Version].

 

Israeli Supreme Court cases cited:

[1]      HCJ 6195/98 Goldstein v. Central District Commander [1999] IsrSC 53(5) 317.

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

[3]      HCJ 5503/94 Segal v. Knesset Speaker [1997] IsrSC 51(4) 529.

[4]      CA 238/53 Cohen v. Attorney-General [1954] IsrSC 8 4; IsrSJ 2 239.

[5]      PPA 1613/91 Arbiv v. State of Israel [1992] IsrSC 46(2) 765.

[6]      CrimA 4912/91 Talmai v. State of Israel [1994] IsrSC 48(1) 581.

[7]      HCJ 5290/97 Ezra, Israel National Orthodox Youth Movement v. Minister of Religious Affairs [1997] IsrSC 51(5) 410.

[8]      CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[9]      HCJ 1149/95 Arco Electric Industries Ltd v. Mayor of Rishon LeZion [2000] IsrSC 54(5) 547.

[10]    CFH 4757/03 Land Appreciation Tax Director v. M.L. Investments and Development Ltd (unreported);

[11]    LCrimA 1127/93 State of Israel v. Klein [1994] IsrSC 48(3) 485.

[12]    HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [1958] IsrSC 12 1041.

[13]    CA 2000/97 Lindorn v. Karnit, Road Accident Victims Fund [2001] IsrSC 55(1) 12.

[14]    HCJ 1779/99 Brenner-Kadosh v. Minister of Interior [2000] IsrSC 54(2) 368.

[15]    CA 3798/94 A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.

[16]    HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

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

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

[19]    CA 1900/96 Telmaccio v. Custodian-General [1999] IsrSC 53(2) 817.

[20]    MApp 67/84 Hadad v. Paz [1985] IsrSC 39(1) 667.

[21]    LCA 6339/97 Roker v. Salomon [2001] IsrSC 55(1) 199.

[22]    FH 40/80 Koenig v. Cohen [1982] IsrSC 36(3) 701.

[23]    CA 3622/96 Hacham v. Maccabi Health Fund [1998] IsrSC 52(2) 638.

[24]    CA 7034/99 Kefar Saba Assessing Officer v. Dar [2004], IsrSC 58(4) 913.

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

[26]    HCJ 79/63 Trudler v. Borstein, Election Official for the Composition of the Agricultural Committee of Ramat HaSharon Local Council [1963] IsrSC 17 2503.

[27]    LCA 176/86 A v. B [1988] IsrSC 40(2) 497.

[28]    HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [1991] IsrSC 45(5) 445.

[29]    HCJ 188/77 Coptic Orthodox Mutran v. Government of Israel [1979] IsrSC 33(1) 225.

[30]    CA 64/72 General Federation of Workers v. Moav [1973] IsrSC 27(1) 260.

[31]    HCJ 264/77 Katan v. National Insurance Institute [1978] IsrSC 32(1) 678.

[32]    HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477.

[33]    CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [1985] IsrSC 39(2) 70.

[34]    CA 10608/02 Hazima v. Department of Customs and VAT [2004] IsrSC 58(3) 663.

[35]    CA 9136/02 Mister Mani Israel Ltd v. Rize [2004] IsrSC 58(3) 934.

[36]    HCJ 4128/02 Man Nature and Law — Israeli Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[37]    HCJ 4885/03 Israel Poultry Raisers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

 

American cases cited:

[38]    Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947).

[39]    Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

[40]    Crowell v. Benson, 285 U.S. 22 (1932).

[41]    Ellis v. Railway Clerks, 466 U.S. 435 (1984).

[42]    Shapiro v. United States, 335 U.S. 1 (1948).

 

Jewish law sources cited:

[43]    I Kings 21, 19.

 

For the petitioners in HCJ 9098/01 — E. Prince, R. Dovrovitzer.

For the petitioners in HCJ 10043/01 — A. Zahar.

For the petitioners in HCJ 401/02 — R. Yarak.

For the respondents — O. Koren, D. Briskman.

 

 

JUDGMENT

 

 

Justice M. Cheshin

The Knesset enacts a law and provides therein that persons who buy an apartment or extend an apartment in Jerusalem are entitled to receive a grant of several tens of thousands of sheqels. The commencement of the law is, as usual, on the date it is published in Reshumot. A short time — approximately six weeks — after the law is published, the Knesset ‘returns to its senses’ and decides — once again in a law — to postpone the commencement of the first law. Until now, all has gone well; there is no clamour or outcry. But the Knesset wishes to give the second law, the law that postpones the commencement of the first law, not only future application — prospective application — but also past application — retrospective application — from the date of the commencement of the first law, the benefit law. In other words, the second law seeks to suspend the application of the first law, the benefit law, retroactively, from the first day on which it came into effect. This leads to the question: what is the law with regard to someone who bought an apartment or extended an apartment in Jerusalem during that interim period of six weeks, between the date on which the first law was published and the date on which the second law was published? Was the Knesset entitled to deny him in the second law — by means of the suspension — what it gave him in the first law? Does the retroactive application of the second law comply with the criteria provided in the Basic Law: Human Dignity and Liberty? This is the question that the petitioners have brought before us, and it is to this question that we are obliged to provide an answer.

Prologue

2.    The Housing Loans Law, 5752-1992, grants ‘entitled’ persons — persons without housing who are entitled to housing assistance pursuant to rules prescribed by the Ministry of Building and Housing in coordination with the Ministry of Finance — certain pecuniary benefits. In the middle of the year 2000, Knesset members promoted a private draft law whose purpose was to give significant pecuniary benefits to whoever would buy apartments or extend their apartments in Jerusalem. The draft law, so the explanatory notes state, was intended to contend with the migration away from Jerusalem by encouraging young couples and additional entitled persons to buy or extend apartments in Jerusalem. After it was approved by the Knesset, the draft came up before the Knesset Finance Committee, and a representative of the Ministry of Finance expressed opposition to the draft, on the grounds that the grant offered would not prevent migration away from Jerusalem but would cause a rise in the prices of apartments in Jerusalem. In the words of Mr S. Yiftah, the representative of the Ministry of Finance:

‘The problem here is a question of supply. The increase in the stock of apartments in Jerusalem, for the present purpose, is less than the natural increase in population, and it is also less than the total increase in population. The increase in the stock of apartments is 2% per annum, and the natural increase of the population in numbers of households, is 2.5% per annum. In such a situation, there is no doubt that whoever does not find his solution in Jerusalem will leave Jerusalem. In the absence of solutions on the supply side, there is no doubt that the draft will not only not help, but it will increase the price unequivocally. When there will be reserves of apartments in Jerusalem, the position will be different.’

(Page 60 of the minutes of the meeting of the Knesset Finance Committee on 11 September 2000, as published on the Knesset web site).

Later at the meeting, MK Meir Porush was asked to vote upon the source of the budget for financing the draft law — as required by the provisions of s. 39A of the Budget Principles Law, 5745-1985 — and his response was that ‘each year approx 1,200 million sheqels remain from loans and from this item — that is [the] budgetary source.’ The representative of the Ministry of Finance replied that this source was totally irrelevant. But the Finance Committee decided to adopt the draft law, and the draft was published on 18 December 2000 as a draft law promoted by it, under the name of the draft Housing Loans Law (Amendment no. 6) (Promoting Jerusalem, the Capital of Israel) 5761-2000 (Draft Laws 5761, 369). The following is what the explanatory notes to the draft law (ibid.) tell us:

‘In view of the migration away from Jerusalem, the capital of Israel, there is great importance in encouraging entitled persons to prefer Jerusalem when they are about to buy or extend an apartment.

The proposed law will encourage many to buy an apartment in Jerusalem and it will thereby strengthen its status as the united and prosperous capital of Israel, a matter on which there is a consensus in the State of Israel.

The estimated cost to the State is 130 million new sheqels.’

The Knesset approved the draft law on its first reading, and when the draft came up for discussion at the Finance Committee, the representative of the Minister of Finance again argued that its enactment would lead to a rise in the prices of apartments in Jerusalem, while it would not prevent the migration away from the city:

‘Assaf Regev [Ministry of Finance]:
The main problem in Jerusalem is not the demand for apartments but the supply of apartments. This law will simply raise the prices of apartments. It will increase the demand for apartments but it will not increase the supply of housing. The problem in Jerusalem is that there are no available planning resources nor are there any resources of land. An initial consequence of this law is that it will lead to an increase in the prices of housing and it will harm precisely those persons whom MK Meir Porush supposedly wishes to help.’

(Page 60 of the minutes of the meeting of the Knesset Finance Committee on 3 January 2001, as published on the Knesset web site).

The Finance Committee approved the draft law with various changes, and the draft was brought before the Knesset once again for the second and third readings. The Knesset adopted the draft law, and on 15 February 2001, the Housing Loans Law (Amendment no. 5), 5761-2001 was published (in Sefer HaHukkim (Book of Laws), 5761, 140). Below we will refer to this law as ‘Amendment 5.’ This law was supposed, as we have said, to grant significant pecuniary benefits to persons suffering from housing distress who bought or extended apartments in Jerusalem.

3.    Amendment 5 was of short duration. This law was adopted at the end of the term of office of Ehud Barak’s government, when the government did not have the confidence of a majority of the Knesset. On 6 February 2001 elections were held for prime minister, and when a new government was formed on 7 March 2001, it was decided to postpone the date of the commencement of Amendment 5, and also to postpone the commencement of additional laws of a similar nature — laws for which there was no allocation in the State budget — that were adopted at the same time. Thus, on 21 March 2001, the draft State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, was published (in Hatzaot Hok (Draft Laws), 5761, 582). The following was stated in the explanatory notes (ibid., at p. 586):

Introduction

During the last year, the Knesset adopted a series of laws, which were initiated by Knesset members and whose cost, whether through increasing spending or by reducing the income of the State, is estimated at approximately 3,000 million new sheqels per annum. The draft budget for 2001 does not include sources of finance for these laws.

It is proposed therefore to postpone the commencement of most of the aforesaid laws to the next tax year, and to amend or cancel several of them, as set out below, so that the budgetary cost involved in operating them shall not be reflected in the current fiscal year.’

With regard to Amendment 5, the explanatory notes to the draft law said as follows (ibid., at pp. 587-588):

‘The Housing Loans Law (Amendment no. 5), 5761-2001, provides that the Government should give a grant to any entitled person who buys an apartment in Jerusalem or who extends his apartment as a result of housing distress, in an amount of 80 thousand new sheqels, when the apartment is situated on land administered by the Israel Lands Administration, and in an amount of 60 thousand new sheqels, when the apartment is situated on land that is not administered by the Israel Lands Administration.

The direct budgetary cost of the law is approximately 160 million new sheqels per annum, and it involves wide-ranging ramifications whose cost may reach hundreds of millions of additional new sheqels.

…

It is therefore proposed that the validity of the aforesaid laws should be suspended until the end of 2001. In addition, in view of the fact that during the short period when these laws were valid no instructions were given to implement them, it is proposed that it should also be provided that even during the period when the aforesaid laws were valid, it was not possible to acquire rights by virtue thereof.’

The draft law passed a first reading, and when it was sent to the Finance Committee, to be prepared for the second and third readings, we find the following remarks were made by Mr Ohad Marani, the Director of Budgets at the Ministry of Finance, to the members of the committee:

‘A final remark on the private laws — we do not say that the laws are populist, nor do we say that they were passed as an oversight, but we do say that this is a collection of private laws that cost a great deal of money. Each one of these laws costs money — whether they are better or worse is a matter of individual opinion for each draft law — but all these laws cost a great deal of money. We have no budget to finance these laws.

Similarly, in our opinion — irrespective of the quality of each law in itself — these laws do not reflect any clear statement of the government’s priorities, and if you will allow me to say this, I will say that I am not sure whether they even reflect the priorities of the Knesset. In the last two months, when the government did not have a majority in the Knesset, a series of many laws was passed. All of these laws cost approximately 3,000 million sheqels. This is a large amount of money, and we are not able to finance all these laws.’

(Page 5 of the minutes of the meeting of the Knesset Finance Committee on 27 January 2001, as published on the Knesset web site).

After deliberation, the Finance Committee referred the draft law back to the Knesset, and on 4 April 2001, when it was published in Reshumot, the draft became law. Thus the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, was enacted (Sefer HaHukkim (Book of Laws), 5761, 236). Below we shall refer to this law as ‘the Arrangements Law.’ Section 20 of the Arrangements Law is the provision relevant to the matter before us; in this, the validity of Amendment 5 was suspended until 31 December 2001 (from then until today the commencement of Amendment 5 has been repeatedly deferred until 31 December 2007: Economic Policy for 2004 Fiscal Year (Legislative Amendments) Law, 5764-2004).

According to s. 20, the commencement of the Arrangements Law was determined to be retrospective, from 15 February 2001, i.e., starting from the date of the commencement of Amendment 5. Thus the legislator of the Arrangements Law sought to uproot Amendment 5 ab initio, and so to postpone its commencement. The reason for this was that Amendment 5, as well as other laws that were enacted at the end of the term of office of the Barak Government, were all adopted — at a total cost of 3,000 million sheqels a year — without there being any sources of financing in the budget, and implementing them would have harmed the budget seriously.

4.    Up to this point we have summarized the tortuous series of events in which Amendment 5 — an amendment that granted benefits to persons suffering housing distress who bought or extended an apartment in Jerusalem — was adopted, and how, approximately six weeks later, the Knesset enacted s. 20 of the Arrangements Law, which sought to uproot these benefits ab initio.

The main pertinent facts and the question in dispute

5.    There are three petitions before us. In HCJ 9098/02 the petitioners are five couples, in HCJ 10043/01 the petitioners are one young couple, and in HCJ 401/02 there are twenty-five petitioners, some of whom are couples and some single. The cases of the petitioners differ from one another — each one has its own unique series of events — but they all focus on the same six weeks between the date on which Amendment 5 was published and the date on which the Arrangements Law was published. The petitioners argue that they complied in full with all the conditions set out in Amendment 5 for receiving the pecuniary benefits: they were recognized as ‘entitled persons’ and they bought apartments or extended apartments in accordance with the provisions of Amendment 5 prior to its suspension; moreover, by buying and extending the apartments they relied on the undertaking of the law to give them pecuniary grants. This leads to the conclusion, so the petitioners argue, that they were entitled in those six weeks to receive the benefits that the law gave them. But then s. 20 of the Arrangements Law befell them, and because of its retroactive application, they were denied a right that they had acquired by virtue of Amendment 5. This denial that was the result of s. 20 — this is the essence of the claim — was an unlawful denial and contrary to the Basic Law: Human Dignity and Liberty, and therefore their petitions ask us to declare the retroactive provision void and to order the State to give them the grants as stated in Amendment 5. The respondents gave their reply to the claims of the petitioners, and we now have the burden of entering into the dispute and deciding between the opposing parties.

Later in our remarks we will consider the legal questions in this matter, but let us first say that in the absence of details and clarifications, we will find it difficult to decide whether the petitioners, or some of them — complied with the preliminary conditions that were provided in s. 6B of the Housing Loans Law. This is the case, for example, with regard to whether the petitioners were ‘entitled persons’ as s. 6B requires. And if this is the case with regard to the conditions set out expressly in s. 6B, certainly we shall be unable to decide the question whether, when they bought or extended an apartment, the petitioners — or some of them — relied on the undertaking of the law in s. 6B. In view of our final decision in the three petitions — and as we shall explain below — there is no longer any need to decide the individual case of each petitioner.

6.    Before we consider the matter in detail, let us set out the pertinent provisions of the law, and below we will discuss the provisions of the law in greater detail.

Amendment 5: Section 6B of the Housing Loans Law — the benefiting provision

7.    The first provision of the law, which sought to benefit persons who purchased or extended apartments in Jerusalem, will be found in s. 6B that was added by Amendment 5 to the Housing Loans Law. The following is the language of s. 6B, as added to the Housing Loans Law:

‘Special grant for purchasing or extending an apartment in Jerusalem

6B. (a) An entitled person, including someone recognized as entitled to a housing distress programme for apartment owners, who bought an apartment in Jerusalem or who extended his apartment in Jerusalem, will receive a grant as set out below:

 

(1) For an apartment on Israel Land as defined in the Basic Law: Israel Land (hereafter — Israel Land) — an amount of 80,000 new sheqels;

 

(2) For an apartment on land that is not Israel Land — an amount of 60,000 new sheqels.

 

(b) What is stated in sub-section (a) shall apply both with regard to a purchase or an extension of an apartment that has not yet begun to be built and also with regard to a built apartment.

 

(c) The amounts of the grants under sub-section (a) will be revised on the first of January each year for the increase in the index as of the fifteenth of December that precedes it; the revised amounts as aforesaid shall be rounded to the nearest new sheqel.

 

(d) The Minister of Building and Housing shall publish a notice concerning the amounts of the grants, as revised under this section.

 

(e) Nothing in the provisions of this section shall derogate from any benefit given under any law.

(We should remark, parenthetically, that later the number of the section was changed, and it is today numbered 6C). We see that the first part of section 6B(a) stipulates preliminary conditions for receiving the benefits — someone who is recognized as an entitled person (as this concept is defined in the law) or someone recognized as entitled to a housing distress programme for apartment owners and who bought an apartment in Jerusalem or extended an apartment in Jerusalem — and then it proceeds to stipulate the benefits that will be given. The interpretation and effect of the provisions of s. 6B are the subject of disagreement between the parties, and we will now discuss these briefly.

8.    The state argues as follows: it is a basic premise in the petitioners’ arguments that the provisions of s. 6B intended to give them, in themselves, a right to the grants as set out in the law. The petitioners’ premise is therefore that by complying with those preliminary conditions prescribed in the first part of s. 6B, they automatically acquired a right to the grants. It is this right, they further go on to claim, that s. 20 of the Arrangements Law purportedly wishes to take away from them. But this basic premise, so the State claims, is founded upon an error. The reason for this is that the right of the petitioners to the grants had not yet crystallized into a mature right during those six weeks when Amendment 5 was valid. Why is this? Because at that time rules had not yet been prescribed for implementing the giving of the grants, including suitable rules for implementation by the commercial banks, and in the absence of rules of implementation the right to the grant did not crystallize. In the language of the respondents:

‘The absence of rules for implementing the grant is not merely a procedural problem, but it is a substantial failure, which prevents the implementation of the law. It is not reasonable to order the payment of a grant without rules that regulate the implementation of the provisions of the law… It should be emphasized that neither party disputes that during the period when the law was valid, it was impossible to receive the grant from the banks, because of the absence of guidelines for implementing the law… In addition it should be noted that it is clear that whoever wished to realize his alleged right to a grant was obliged to apply to a bank, and if he did not do so before buying the apartment, he certainly cannot argue now that he relied on the grant when he bought the apartment.’

Is this really the case?

9.    The question that must be asked is, of course, what right did the petitioners acquire pursuant to the provisions of s. 6B of the Housing Loans Law? Was this a qualified right or a conditional right? And if it was a qualified right or a conditional right — what was the qualification and what was the condition? Indeed, there are cases where a statute makes its implementation conditional upon the enactment of regulations or on the fulfilment of other preliminary conditions; and the question whether this is indeed the case here is a question of interpretation of the statute. As was stated in HCJ 6195/98 Goldstein v. Central District Commander [1] at p. 331:

‘There are cases where a statute makes its implementation conditional upon regulations that will be enacted pursuant to it, and without regulations the statute cannot be implemented… and there are cases where a statute can be implemented even when no regulations for implementation have been enacted pursuant to it. The answer to the question whether a particular statute can or cannot be implemented without regulations for implementation derives first and foremost from the drafting of the statute, whether it makes itself conditional upon the enactment of regulations for implementation or not.’

See also the references mentioned in that judgment.

The question here is therefore a question of interpretation: do the provisions of s. 6B, as added in Amendment 5, in and of themselves, give rise to a right to receive grants — naturally, if the preliminary conditions prescribed in the provisions of s. 6B itself are fulfilled — or perhaps the provisions of s. 6B are merely the infrastructure, and the right to a grant will not be complete and final unless rules are enacted to regulate the methods of receiving the grant? If the latter interpretation is the correct one, then the petitioners did not acquire a right to a grant in those six week, and the application of s. 20 retroactively did not infringe any right since they had not acquired one.

10. A consideration of the provisions of s. 6B of Amendment 5 does not leave us in any doubt; we know that whoever complies with those preliminary conditions prescribed in the first part of s. 6B(a) acquires a clear right ex lege to receive the grants set out in the law. The right is granted directly by the law, and the executive authority did not acquire any power to delay the payment or to make it subject to additional conditions that are not prescribed in the law. The right of the entitled persons is a specific right, a clear and express right that makes itself conditional only on the conditions prescribed in the first part of s. 6B(a): first, that a recipient of the grant is ‘an entitled person, including someone recognized as entitled to a housing distress programme for apartment owners,’ and second, that the person claiming a grant bought an apartment or extended an apartment in Jerusalem. If both of these conditions were fulfilled during the critical six weeks, the applicant is entitled to a grant. Indeed, the executive authority is entitled — perhaps we should say, obliged — to formulate rules, and even strict rules, for proving compliance with those two preliminary conditions that give entitlement to a grant. And we agree that these rules were not determined during those six weeks. However, the failure to enact the rules was insufficient to affect or invalidate the substantive right of the entitled persons to a grant. Their right remained valid, and the failure to enact rules for implementation was incapable of derogating from the existence and validity of the right.

11. The State does not stop here, and it goes on to raise, in the same context, an argument that is a variation on the issue of the preliminary conditions for the validity of the law. According to the State, even if the petitioners acquired a right de jure, they never had any real expectation of realizing it. Consequently everyone agrees that during the lifetime of s. 6B — in those six weeks between the commencement of s. 6B of the Housing Loans Law and the commencement of s. 20 of the Arrangements Law — it was not possible to receive the grant from the banks; moreover there was talk of the Government taking action to cancel s. 6B. It follows from this, the State argues, that ‘there was no basis for the petitioners to have any reasonable expectation of receiving the amount.’ Therefore, prima facie, the petitioners never acquired any real right, a right that ought to be protected. In other words, because the petitioners did not have a reasonable expectation, a real expectation, that they would receive a grant, they ought therefore not to be regarded as having a right to a grant — a right that the law seeks to protect.

But the State’s argument is no argument. From a simple reading of the provisions of s. 6B we can see that whoever fulfils two preliminary conditions set out in the first part of s. 6B(a) is entitled directly and by virtue of the statute itself to receive a grant, and no interpretive acrobatics will succeed in interpreting the provision of the law otherwise. So, whoever fulfilled those two preliminary conditions acquired a right — a right that is unconditional — to receive grants as set out in the law.

12. The State further argues: if we interpret s. 6B, in and of itself, in the absence of rules for implementation of the right to a grant, then a person could have bought an apartment in Jerusalem, received a grant, and the next day sold the apartment to someone else. Is this possible? This is an indication, so the State ends its argument, that it was not possible to implement the law without rules; and once we realize that no rules were made, we will also know that the petitioners did not acquire a real right to receive a grant. This claim has no merit. It has no merit not because it is not a good argument in general; it is a good and proper argument in general. But the law in this case is so clear in its language that the argument has nothing to which to attach itself. We should point out, parenthetically, that a restriction of this kind exists apparently in rules that were prescribed under the Housing Loans Law, in its original form, and a hint of this can be found in the deliberations of the Finance Committee (see: pp. 52-53 of the minutes of the meeting of the Finance Committee on 11 September 2000, as published on the Knesset web site). However, since the rules were not presented to us, we cannot say anything for certain. In any case, even this argument that the application of the provisions of s. 6B should be restricted, has, in our opinion, no foundation either in statute or case law.

13. From all of this we see that the right of those persons listed in the provisions of s. 6B of the Housing Loans Law is a right ex lege, a right that is not conditional upon the fulfilment of additional conditions to those prescribed in that provision.

Section 20 of the Arrangement Law — the repeal provision

14. The second provision of statute in this matter — and this is the main one — is found in s. 20 of the Arrangements Law (which was published in Reshumot on 4 April 2001), which states as follows:

‘Housing Loans Law — Amendment no. 7

20. (a) In the Housing Loans Law, 5752-1992 (in this section — the Housing Loans Law) —

(1) Section 6B, which is entitled “Special grant for purchasing or extending an apartment in Jerusalem” shall be marked “6C,” and it shall not apply in the period from 22 Shevat 5761 (15 February 2001) until 16 Tevet 5762 (31 December 2001);

 

         …

 

(b) The commencement of sub-section (a)(1) is on 22 Shevat 5761 (15 February 2001).

 

(c) Notwithstanding the provisions of section 6B of the Housing Loans Law, which is entitled “Special grant for purchasing or extending an apartment in Jerusalem,” according to its language prior to the commencement of this law, no person shall be entitled to the benefits under the aforesaid section in the period from 22 Shevat 5761 (15 February 2001) until the commencement of this law.’

The provisions of section 20, for our purposes, fall into two parts. One part — which is the main one — is prospective and its purpose is to postpone the application of the provisions of s. 6B of the Housing Loans Law into the future. Another part is retrospective, and its purpose is to make that postponement retroactive, from the date on which the provisions of s. 6B came into effect. We are now concerned with the retroactive part of s. 20, and we will consider the details of this issue in our remarks below.

The order of our deliberations

15. The petitioners argue that s. 6B of the Housing Loans Law gave each one of them a right to receive pecuniary grants as set out in s. 6B; that the retroactive application of the provisions of s. 20 of the Arrangements Law purports to deprive them of their right; that the denial of this right is clearly in conflict with s. 3 of the Basic Law: Human Dignity and Liberty, which commands us that ‘A person’s property shall not be infringed;’ this leads to the conclusion that the retroactive application of s. 20 of the Arrangements Law is void. The argument of the petitioners is therefore simply this, that s. 20 of the Arrangements Law is null and void, in so far as it seeks to apply itself retroactively, in that it conflicts with the protection of property as stated in s. 3 of the Basic Law: Human Dignity and Liberty.

However, as we have repeatedly said, before we consider an argument that a statute is void, we must first interpret the statute according to its language and according to its purpose; to go on to determine the scope of its application; and in the course of this interpretation, we are obliged to do our best to try and reconcile the provisions of the statute with the provisions of the Basic Law. See and cf. CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 349-350; HCJ 5503/94 Segal v. Knesset Speaker [3], at pp. 548-550. Let us therefore begin our voyage by interpreting s. 20 of the Arrangements Law. It need not be said that if we reach the conclusion that the provisions of s. 20 do not purport to apply retroactively, or if, alternatively, s. 20 can be applied retroactively only in some cases but not in others, then we will be obliged to derive conclusions from this for the case before us, and it is possible that the consideration of the constitutional issue will thereby become redundant. But let us not jump ahead of ourselves.

Concerning the retroactive application of s. 20 of the Arrangements Law

16. There is a presumption, both in statute and in case law, that a statute is prospective — prospective, but not retrospective. A statute is intended to regulate interpersonal relationships, and it therefore follows that by its very nature it is prospective. See and cf. s. 10(a) of the Government and Justice Arrangements Ordinance, 5708-1948; s. 17 of the Interpretation Ordinance [New Version]; s. 22 of the Interpretation Law, 5741-1982; CA 238/53 Cohen v. Attorney-General [4], at pp. 16, 38 {___, ___}; PPA 1613/91 Arbiv v. State of Israel [5]; CrimA 4912/91 Talmai v. State of Israel [6], at pp. 619 et seq.; HCJ 5290/97 Ezra, Israel National Orthodox Youth Movement v. Minister of Religious Affairs [7], at p. 424; A. Barak, Legal Interpretation (vol. 2, Interpretation of Legislation, 1993), at pp. 609 et seq.. The source of this presumption, inter alia, lies in the recognition that the application of a statute retroactively may cause an injustice, violate rights that have been acquired, undermine stability and certainty in interpersonal relationships and harm just expectations. But this presumption — that a statute is only prospective — like every other presumption is rebuttable in the interpretation of a particular statute; and the question whether a particular statute or regulation operates retroactively or not is a question of interpretation. The question that must be asked is a double one: first, did s. 20 of the Arrangements Law seek to apply itself retroactively? If the answer to the question is yes, then a second question arises, namely: must that retroactive application be complete or is it possible to interpret it as merely partial?

17. The answer to the first question is unambiguous. In at least three places the legislature wished to inform us that s. 20 operates retroactively, from the date of the commencement of Amendment 5, namely from 15 February 2001. The legislature informed us of this the first time in s. 20(a)(1), where it stated that Amendment 5 — or more precisely, s. 6B of the Housing Loans Law as added by Amendment 5 — shall not apply ‘in the period from 22 Shevat 5761 (15 February 2001) until…’. The law states this a second time in s. 20(b), where it says that ‘The commencement of sub-section (a)(1) is on 22 Shevat 5761 (15 February 2001),’ as if we did not know this from what is stated in section 20(a)(1) itself. And in case we fail to understand the express provisions that we have cited, the legislator took pains to notify us a third time of the issue of the retroactive application, by stating in s. 20(c) that, notwithstanding the provision of section 6B that was added in Amendment 5 on the subject of a ‘special grant for purchasing or extending an apartment in Jerusalem,’ nonetheless no person shall be entitled to these benefits ‘in the period from 22 Shevat 5761 (15 February 2001) until the commencement of this law.’ Not once, not twice, but three times! Indeed, the legislature did not give the learned interpreter any credit at all, and its fear of the presumption of non-retroactivity was so great that it saw fit to tell us again and again that its intention was to uproot benefits ab initio, from the date of the commencement of Amendment 5. The interpretation of s. 20 of the Arrangements Law in respect of the retroactivity is an unambiguous interpretation. The legislature succeeded again and again in informing us of its intention that the denial of the benefits was intended to operate retroactively, from the date of the commencement of the law that granted those benefits, and thus the presumption of non-retroactivity was entirely rebutted.

18. Finally we should add that this unambiguous intention is also evident from the deliberations that took place at the Finance Committee. In those deliberations a proposal was made to the effect that the application of the suspending law would be prospective only, but the representative of the Ministry of Finance opposed this vehemently, and consequently the law as we have it was enacted. The following is a part of the discussions at the Finance Committee on 27 March 2001:

Chairman Yisrael Katz: And what will happen to the law in the interim?

Yitzhak Cohen: We must at least agree on the commencement of the law. Is the first of May acceptable?

Ohad Marani [Director of Budgets at the Ministry of Finance]: No…

Yitzhak Cohen: I propose that we agree to suspend it until the first of June…

Yaakov Litzman: The statute was passed and published. People have bought apartments on the basis of the knowledge that there is an increased loan. It is impossible now to say that this will commence later. First there needs to be a declaration of the Ministry of Finance, before we continue, and until that moment — the statute exists…

Chairman Yisrael Katz: What is the position of the Ministry of Finance with regard to the proposals?

Ohad Marani [Director of Budgets at the Ministry of Finance]: Certainly not. That was not the arrangement. We wish to postpone the statute, as was agreed. This is a statute that costs a considerable amount of money, 160 million sheqels. We wish to postpone it as agreed.

(Pages 30-31 of the minutes of the meeting of the Knesset Finance Committee on 27 March 2001, as published on the Knesset web site).

19. The essence of the matter is that s. 20 of the Arrangements Law was intended to apply retroactively. But in saying this we have still answered only the first part of the double question. For even if s. 20 of the Arrangements Law was intended to apply retroactively — from the date of the commencement of s. 6B of the Housing Loans Law as added in Amendment 5 — there still remains the question as to which activities s. 20 is supposed to apply. Is the retroactive application all-embracing, applying to every subject matter and for all intents and purposes, or perhaps it is only a partial application? And if it is a partial application, what is the part to which s. 20 applies and what is the part to which s. 20 does not apply? Let us now confront this question.

20. To which classes of cases in the past was s. 20 of the Arrangements Law intended to apply? In order to remove doubt, we should add that in speaking of the ‘intention’ of s. 20, we are not referring to the subjective intention of all or some of the Members of Knesset, and certainly not to the intention of the Government or its representatives. We are referring to the message and purpose required by s. 20 in and of itself, when combined with existing legislation and case law, and especially when integrated with the basic principles and doctrines that constitute the framework within which the legislature enacts legislation and the judiciary determine case law. As was stated in CFH 7325/95 Yediot Aharonot Ltd v. Kraus [8], at pp. 73-74:

‘It is accepted that the interpretation of a statute begins with the words of the statute. This statement is correct, of course, when we wish to study the words and phrases of the statute. But it is we who do our utmost to interpret it, and we are not a tabula rasa. Before we approach the statute we must ask: who are we, and the answer to this question is that “we” are those proper values, principles, morality and fundamental outlooks. It follows therefore that we begin the voyage of interpretation — whether wittingly or unwittingly — with those values and principles and doctrines — the foundation on which the law is based — and from these our voyage continues. We cannot “understand” a statute unless we analyze it with the analytical tools that we carry about with us, and these analytical tools are what will guide us… Let us know and remember that legal interpretation is — always and forever — a legal creation, an ethical creation, an inseparable part of the culture of a people and country.’

21. Two alternative interpretations of s. 20 offer themselves for our selection, and the question before us is which of the two is preferable. One interpretation proposes that we read s. 20 according to its text and language, combining words and sentences, and deriving the meaning and the dictates of the statute from those combinations of words and sentences. In years past, we called this interpretation — literal interpretation. If we choose this interpretation, we will conclude that the retroactive application of s. 20 is all-embracing; it is retroactive for all intents and purposes, as if s. 20 was enacted on the day when s. 6B was enacted. According to this interpretation, the provisions of s. 20 were intended to suspend the provisions of s. 6B absolutely and in every respect, until it would one day be revived.

An alternative interpretation of s. 20 may be called a purposive interpretation, and this is indeed what it is. It need not be said that this interpretation does not ignore the combinations of words and sentences in the statute, but in order to discover and comprehend the essence and the content, the interpretation will take into account the historical background of the legislation in its time and place, the objective purpose of the legislation, the difficulties that the legislator wished to overcome, the evil that the provision was designed to prevent; the events that have occurred from the time that s. 6B came into existence until the enactment of s. 20; to all of these we will apply our accepted rules of interpretation, the rules that express the values and the basic principles upon which the legal system and the social order are founded. See and cf. Yediot Aharonot Ltd v. Kraus [8], at pp. 71 et seq.; Segal v. Knesset Speaker [3], at 562 et seq., and the references cited therein. This is what we will do with regard to s. 20 and this is what we will do with regard to s. 6B of the Housing Loans Law.

Which of these interpretations should we prefer, and which shall we reject?

22. We are speaking of the interpretation of s. 20 of the Arrangements Law, but since we know that s. 20 only came into existence because of s. 6B of the Housing Loans Law, it is only logical that we should begin the voyage of interpretation precisely with the provisions of s. 6B. As for this provision of statute, we know that originally it was intended by its promoters to prevent migration away from Jerusalem, to encourage persons entitled to housing to prefer Jerusalem when they wanted to buy or extend an apartment, and to strengthen the status of Jerusalem as the capital of Israel. See supra, para. 2. Admittedly, Ministry of Finance representatives thought that these purposes would not be achieved by means of grants as the promoters proposed, but the Knesset thought otherwise, and that is the thinking behind the law. And so, when the Knesset enacted s. 6B, the petitioners hurried off — so they claim, each with regard to himself — and in reliance on the promise of the State in s. 6B they bought apartments or took steps in order to extend their apartments. The petitioners claim, therefore, that they took upon themselves pecuniary undertakings and changed their position in reliance upon an undertaking given by the legislator — the State’s undertaking — that they would be given various grants for the purchase of an apartment that they bought or for the extension of an apartment that they possessed.

In view of all of the aforesaid, we will have difficulty in adopting an interpretation that recommends us to ignore totally the moral and social aspect involved in the breach of the undertaking that the State took upon itself, i.e., a breach of the undertaking to give grants to whoever pursued the path that the legislator outlined in s. 6B. If the State acts in this fashion, what will the individual say and what will the public say? If the leaders of the country — those who sit in the legislature — repudiate the promises that they have made and the undertakings that they took upon themselves, what will members of the public do and say? Indeed, we will find it difficult to accept that the legislator reverses his tracks in this way, repudiates his undertaking to the individual and abandons along the way whoever followed him. The state ought to act honestly and carry out undertakings that it took upon itself, and the state can be presumed to act in this way. These principles of substance translate themselves into the language of interpretation, and it necessarily follows that obviously the retroactive application of s. 20 of the Arrangements Law was not originally intended to apply — we might almost say: is incapable of applying — to someone who relied on the legislator’s promise and clearly changed his position. As Justice Strasberg-Cohen wrote in HCJ 1149/95 Arco Electric Industries Ltd v. Mayor of Rishon LeZion [9], at p. 574, with regard to the factor of reliance as the decisive factor in disqualifying retroactive legislation:

‘An important factor is the existence of harm to the actual reliance on existing legislation and the degree of reliance thereon. Retroactive legislation that harms reliance cannot be compared to retroactive legislation that does not harm it at all or to a significant degree.’

The petitioners before us argue, each with regard to his own case, that they bought and extended apartments in reliance on s. 6B of the Housing Loans Law, and therefore, prima facie, the retroactive application provision passes over them and does not affect them. Being mindful of the basic principles on which the Israeli legal system is founded, we can say that the retroactive application of s. 20 was not originally designed to apply to someone who acted and changed his position in reliance on the provisions of s. 6B. The retroactive application was intended to apply only to someone who did not rely on the State’s promise as stated in s. 6B, i.e., someone who bought or extended an apartment without there being any causal connection between the purchase or extension of the apartment and the State’s promise in s. 6B.

23. Interpreting s. 20 in this way will uphold in its entirety the purpose of s. 6B as its promoters foresaw. Section 6B only came into existence in order to prevent migration away from Jerusalem and to encourage persons entitled to housing to prefer Jerusalem when buying or extending an apartment. So, if someone intended in any case to buy an apartment — or to extend an apartment — in Jerusalem irrespective of the benefits that the legislator wished to grant in s. 6B, then the purpose of s. 6B would not be prejudiced by denying the benefits retroactively.

Indeed, initially the law granted s. 6B benefits to whoever complied with the s. 6B conditions even if they did not rely on the legislator’s undertaking. However, for the purpose of determining the scope of the application of s. 20, and relying on the basic presumption — which adopts the guise of a rule of interpretation — that tells us that the legislator will not act unjustly to an individual nor will he turn his back on persons who followed him and relied on promises and undertakings that he made, we will interpret s. 20 as seeking to apply only to persons who did not rely on the legislator’s promise and not to apply to persons who relied on the legislator’s promise. Justice Barak expressed these ideas well in Arbiv v. State of Israel [5], when he said the following (at pp. 776-777):

‘The presumption is that a statute does not apply retroactively… the basic approach is that “applying a new statute to a transaction that was completed before the statute was published, where those concerned have acted and completed it in reliance on the law in force at that time, may be wrong and unjust”… retroactive or retrospective legislation conflicts with “accepted concepts of justice”… and the presumption against this legislation is required in order to do justice. The principle of the rule of law requires certainty and security in interpersonal relationships. Retroactive legislation harms both of these… it does not allow conduct to be planned in advance, and therefore it also harms the stability of the law…’

24. In saying this we have only said a half of what needs to be said. In relying on the provisions of s. 20 of the Arrangements Law, and in thinking that this provision is capable of denying the rights of the petitioners, the State rejected in limine the demand of the petitioners to receive grants, and in any case it did not consider their requests on the merits. Thus the question whether the preliminary conditions set out in s. 6B of the Housing Loans Law were satisfied or not was not considered, and the question whether the petitioners bought or extended apartments in Jerusalem in reliance on the undertaking in s. 6B, as they claimed, was certainly not examined. All of these questions need to be examined on the merits, and it need not be said that the petitioners have the burden of proving that they are indeed entitled to the grants as they demand. In this regard, the State is competent to determine proper proceedings that will allow the petitioners to prove what they are liable to prove, namely the fulfilment of the conditions prescribed in s. 6C (originally s. 6B) of the Housing Loans Law and a change of their position in reliance on the State’s undertaking, and at the end of these proceedings to decide in respect of the request of each of the petitioners. In order that the proceedings will not be prolonged excessively, we will propose the following timetable: within thirty days from today, the State shall determine the proceedings, and within an additional ninety days — assuming that the petitioners cooperate with the State — decisions shall be made with regard to the petitioners’ requests.

25. Our decision with regard to the method of interpreting s. 20 of the Arrangements Law makes a consideration of the constitutional question (see supra, at para. 15) redundant, and we will therefore not enter into it.

In summary

26. I propose to my colleagues that we make the order absolute as stated in para. 24 supra, and that we further find the State liable to pay the petitioners in each of the three petitions legal fees of NIS 25,000.

Subsequent reflections

27. I have carefully read the opinions of my colleagues Vice-President Mazza, Justice Türkel and Justice Rivlin. My colleagues, each following his own path and his own style, are of the opinion that the retroactive provision in s. 20 of the Arrangements Law is void ab initio, and their main reason for this is that if we say otherwise — as I have, for example — then we have overstepped our authority as a court and we have taken upon ourselves the role of legislator. My interpretation that seeks to distinguish between various classes of persons having rights, while restricting the application of s. 20 merely to those persons who did not rely on Amendment 5 of the Housing Loans Law, does not have, in my colleagues’ opinion, even a ‘minimal foothold in the text,’ and according to them it amounts, ‘in practice, to a change in the language of the statute, and as such it departs from the legitimate boundaries of interpretation’ (Vice-President Mazza, in the first paragraph of his opinion). My colleague Justice Rivlin speaks in similar terms, and whoever reads his remarks will comprehend his meaning.

28. I find this surprising, and I ask myself what is this fear of the legislator that has so suddenly overwhelmed my colleagues, that it may be said of us that we have broken down the barriers and gone ‘beyond the confines of what is possible and what is permitted’ (in the language of my colleague Justice Rivlin in para. 3 of his opinion). Yet we engage in this kind of ‘legislative’ activity from time to time. Moreover, my colleagues’ decision is that the retroactive provision of s. 20 of the Arrangements Law is void ab initio. Is this normative activity of declaring a provision of statute to be void ab initio not ‘legislative activity’? Indeed, the court is supposed to make its decision by virtue of a Basic Law, but this does not lessen the fact that the decision is a legislative decision that voids statute. Moreover, my colleagues’ decision is to suspend for six months the commencement of their judgment. Does this decision to suspend not have an aspect of legislation to it? Indeed, the statement that certain normative activity of the court is a ‘legislative’ activity — i.e., activity that trespasses on the province of the legislature — is a statement that cannot, in and of itself, captivate or intimidate us. We are charged with examining the decisions that we make diligently and painstakingly, and we should determine the character of normative activity on the merits and not by affixing labels that are prefabricated.

29. On the merits, the drafting of s. 20 of the Arrangements Law appears, on the face of it, to apply itself to the past universally, to impose itself on every event that has occurred and to every act that has been done concerning the special grant involved in the purchase or extension of an apartment in Jerusalem, between 15 February and 4 April 2001 (the day on which the Arrangements Law was published). This is the interpretation of the application of s. 20 retroactively from the date of commencement of s. 6B of Amendment 5. From the viewpoint of the legislation, in and of itself — or we might say, from a merely normative viewpoint — there is no difficulty in this. Just one stroke of the pen, and a statute that is enacted today carries itself into the past at the whim of the legislator. Such is the act of legislation. But life — the life of man and his surroundings — is different. No matter how much we wish or yearn to do so, no man can change acts and events in the past, not even a legislator:

‘We are unable to change the past (to the regret of some and to the happiness of others). Acts that were done, were done; omissions that were committed, were committed; events that occurred, occurred; vows that were made, were made; vows that were breached, were breached. All of these are as if they froze on the spot and became stone, and what has been done cannot be undone. We are incapable of doing anything other than describing and recording things that have happened — or that have not happened — but we are unable to change them. The freedom of choice and selection — as choice and selection — are no more’ (Talmai v. State of Israel [6], at p. 619).

Therefore a kind of dichotomy arises: from a historical point of view, we cannot change events in the past, but from a normative point of view, we find legislation that seeks to take control of events in the past that were originally governed by a different law.

This is what happened in the case before us: during the period of the retroactive application of the statute, events occurred that were of legal significance according to the law that prevailed at that time, and no one can change these events. In view of all this, the pertinent question is whether the legislator, and we as interpreters of the statute, are able and permitted to ignore those events as if they did not occur.

30. Let us now examine those events of legal significance that occurred in the period between 15 February 2001 and 4 April 2001, and we will discover that the entitled persons stipulated in the original s. 6B fell into several categories. The following are the main categories: first, entitled persons who relied on the State’s undertaking in Amendment 5 and bought or extended an apartment in Jerusalem; second, entitled persons who bought or extended an apartment in Jerusalem without relying on the State’s undertaking in Amendment 5; third, entitled persons who took various preliminary steps towards the purchase or extension of an apartment in Jerusalem, but did not reach the point of buying or extending an apartment; fourth, entitled persons who did nothing. The fourth category of entitled persons does not concern us here. We are therefore left with the other three categories of entitled persons. Against this background the question arises: there is no doubt that s. 20 of the Arrangements Law, according to its language and at face value, purports to take control of all those events and rights that were acquired, namely to ignore all those events and all the rights that were acquired. But we are experienced interpreters of statute who are continuously called upon for the purposes of interpretation, analyzers of statute equipped with analytical tools and high-powered microscopes; we know how to interpret and analyze even legislation that appears to violate — unfairly — basic rights or rights even if they are not basic rights. Let us therefore proceed to the task.

31. A first principle is that the legislature can and may knead legislation as it wishes, as long as the legislative proceedings are in progress. But when a statute has left the bakery, the baker can no longer put his mark upon it or express an opinion about its quality. The decision concerning the validity, scope of application and interpretation of the statute lies with the court — the court and no other. See and cf. CFH 4757/03 Land Appreciation Tax Director v. M.L. Investments and Development Ltd [10]; LCrimA 1127/93 State of Israel v. Klein [11], at pp. 500-501.

A second principle, which is of inestimable value, is that when approaching the task of interpreting statute, we do not come empty-handed. We come heavily laden with morality, fairness, justice, equity and efficiency. We come with language, interpretation and meaning, social norms, conventions, basic premises, fundamental principles and doctrines. We come with the theory of the separation of powers and the principle of the decentralization of powers. We come with the tools of PaRDeS[1] (Interpretation, Implied Meaning, Homiletic Exegesis and Hidden Meaning). See and cf. Yediot Aharonot Ltd v. Kraus [8], at pp. 71-74. All of these principles and values translate themselves into rules of interpretation that are applied in practice — narrow interpretation, broad interpretation, presumption of administrative regularity, ut res magis valeat quam pereat, etc. — and this is what we do in our everyday work of interpretation.

32. For our purposes we can say that when subjecting the provisions of s. 20 of the Arrangements Law to the filter of values, principles and rules, we are charged with doing our best to uphold the statute, so that the dictates of the legislature are upheld, in so far as possible, even if only partially. Thus, when we put the provisions of s. 20 into the time tunnel, and we send it back into the past to 15 February 2001, we meet on our way those entitled persons who relied on the State’s undertaking and carried out acts that changed their position. Applying the statute literally is likely to cause hardship to those entitled persons, and it is possible that it will even lead them to disaster. In the words of my colleague Justice Rivlin, not allocating the promised funds to those entitled persons will be ‘equivalent in many senses to taking away the apartments in which they live.’ The ‘objective’ interpretation of the statute requires us therefore to interpret it narrowly, i.e., as a statute that does not intend to apply itself to those entitled persons. We make use of this tool of narrow interpretation on a daily basis, and I do not see in what way this case differs from other cases; why in other cases we should give a warm welcome to narrow interpretation, whereas in this case we should reject it utterly.

33. In our opinion, the text can indeed bear the interpretation that we proposed without collapsing under the weight. It follows that we shall not apply the provisions of s. 20 to entitled persons who relied on the Government’s undertaking and changed their position. But the same will not necessarily apply to other categories of entitled persons, such as, for example, entitled persons who bought or extended an apartment in the relevant period without knowing about, and therefore without relying on, the State’s undertaking.

34. My colleagues will certainly not deny the blue pencil principle, namely the principle of separating and distinguishing between the invalid and unhealthy part of a statute, which should be voided, and the valid and healthy part of that statute. See, for example, A. Barak, Legal Interpretation (vol. 3, Constitutional Interpretation, 1994), at pp. 735 et seq. (and as we have seen, invalidating a statute, or a part thereof, is equivalent to an act of legislation). Why therefore should we not apply this principle to this case also? Admittedly, the cases differ from one another. The (usual) blue pencil principle assumes a physical possibility of circling (with a ‘blue pencil’) the defective part of the statute (or of the contract) and to cut it out of the actual text. This is not the case here, since the categories of entitled persons are not listed in the law one after another, but are included in the statute in one category. However, I can see no magic in the ‘physical’ ability of cutting parts out of the statute and throwing them into the bin in order to uphold the other part of the statute. There is nothing in my opinion to prevent an interpretation of s. 20 as if all the categories of entitled persons whom we have mentioned are listed there, one after another (see para. 30; and if I have omitted a category of entitled persons, we can add it to the list), and after a close examination we can cut out and remove what is unhealthy and keep what is healthy. It is also possible to regard the entitled persons as listed in the statute one on top of the other, and we can peel away the statute like peeling the layers of an onion: healthy layers will be left and unhealthy layers will be thrown into the bin. The cutting will not be vertical, like the cutting of the blue pencil, but horizontal, like the peeling of the onion. We were taught this by Justice Silberg in HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [12], at p. 1074 (on the question of declaring a bylaw void, in whole or in part):

‘… Already at the beginning of the eighteenth century a more liberal spirit prevailed, and a qualification was made to this doctrine. The qualification is: unless there is a way of “dividing” up the statute, and it is possible to distinguish between the invalid part and the valid part thereof. In other words, the partial defect in the bylaw does not lead to its complete disqualification, when the two parts are not dependent on, or in conflict with, one another, and it is possible for the valid part to stand without relying on the other part.

…

It seems to me that the stability and coherence of the remaining permitted part should be examined not merely from the viewpoint of the “syntactical” structure of the language of the statute, but also, and mainly, from the viewpoint of the substantive content thereof. If the bylaw of any public corporation tries to apply itself to two classes of persons, and something is found to be invalid with regard to one of these, it will still be regarded as valid with regard to the other class — even if it will be necessary to delete or add several words — unless the two classes are so bound to one another that it is impossible to separate them’ [emphases in the original].

Indeed, the examination ought to be one of substance and not merely one of form.

We concede that the voyage of examining substance may be full of pitfalls and care must be taken with regard thereto. But I think that in our case we will not encounter any special difficulty, since there is a division and distinction between the different classes of entitled persons, and I have not found any good reason not to hold the State liable where it should be liable, and to exempt it where it should be exempt. In conclusion we can reiterate that we do not see any difference — in the sense of a legal distinction — between the ‘classic’ blue pencil principle and the peeling of layers in our case.

Suspending the validity of the judgment

35. My colleague Vice-President Mazza proposes that the validity of the decision concerning the invalidity of the retroactive provisions of s. 20 of the Arrangements Law should be suspended for six months, and the purpose of the suspension is ‘to allow the legislature to re-enact these provisions, while distinguishing — according to the parameters that will be determined in the statute — between persons who relied on the entitling law and others to whom the entitling law was supposed, in principle, to apply.’ The purpose of this suspension seems to me problematic, since without any great difficulty we can already, in my opinion, reach the same conclusion today. A short path appears to me preferable to a long one.

Voiding a statute and upholding a statute

36. My colleague Vice-President Mazza sees fit to void a provision of statute, whereas I uphold that provision of statute, while interpreting it narrowly. But expressing matters in this way is merely an optical illusion. From an operative point of view, the narrow interpretation that I have adopted is equivalent to a partial voidance of s. 20 of the Arrangements Law. The difference between the interpretation of my colleague and my interpretation is this, that the narrow interpretation which is preferable to me brings finality to those persons who relied on the State’s undertaking and changed their position, whereas my colleague’s interpretation makes it possible for a future statute to create parameters that may perhaps harm the rights of those who relied on the State’s undertakings. So I ask: once my colleague has reached the conclusion that those persons who relied on the State’s undertaking and incurred unnecessary expenses, are entitled to receive their grants, what justification is there for us not entitling them, immediately, to what they seek? The question provides its own answer.

Who is all-powerful and what is all-powerful?

37. My colleague Justice Rivlin writes in his opinion (in paragraph. 3) as follows:

‘Even the statement that even the British Parliament cannot make a man a woman or a woman a man has lost some of its force, since with the assistance of the surgeon’s scalpel Parliament can do even this. It can do this, but we cannot; we do not have this power.’

I would like to make two comments on these remarks, one concerning Parliament and the other concerning the courts.

38. Concerning Parliament, unlike my colleague, my opinion is that Parliament was always able — as it is today — to make a man a woman and a woman a man, even without the surgeon’s scalpel. A.V. Dicey, in Introduction to the Study of the Law of the Constitution (London, eighth edition, 1924), at p. 41, wrote as follows:

‘It is fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.’

I commented on this statement when I wrote (in United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 527):

‘This statement is, of course, imprecise. If the author’s intention is that Parliament does not have the power to make a man a woman and a woman a man — taking the words literally — then the remarks are certainly correct. But then they have no significance whatsoever, since in the same way Parliament does not have the power to move a pencil from one side of the table to the other. Parliament — as such — does not concern itself at all with physical actions, and it does not have the power to make physical changes in the world about us directly. Parliament only concerns itself with norms and normative activity, and it is in this field that it has power and authority. If the intention of the author is therefore that Parliament is “unable” — from a normative point of view — to make a woman a man and a man a woman, it is obvious that the statement is incorrect. In the wonderful world of norms — a world that cannot be perceived by the five senses but that rules our lives — the Knesset “can make” a man a woman and a woman a man. It is a separate question whether those persons to whom the norms are supposed to apply will abide by them. That question, it need not be said, falls outside our jurisdiction.’

And so, in the creation of norms in the world of norms, Parliament is all-powerful. Parliament does not have — nor did it ever have — a surgeon’s scalpel that can draw blood. But it had, has and always will have a normative surgeon’s scalpel.

Concerning the courts, it is true that the court is not all-powerful like Parliament, but it too has power. Thus we see that not so many years ago — twenty or twenty-five years — it never occurred to any woman or man that the concept ‘spouse’ in the Torts Ordinance extended also to unmarried partners. But in recent years we have said this: CA 2000/97 Lindorn v. Karnit, Road Accident Victims Fund [13]. See further the remarks of President Barak, ibid., at pp. 32-33. And in former generations, even someone who exercised his imagination could not have conceived that two women would be registered at the Population Registry as the mothers of an infant, since ‘a person only has one mother.’ But in recent years this has happened: HCJ 1779/99 Brenner-Kadosh v. Minister of Interior [14]. It is therefore possible that in suitable circumstances a court will make, in our lifetime or thereafter, additional decisions that our ancestors never imagined.

 

 

Vice-President E. Mazza

Like my colleague, Justice Cheshin, I too think that the interpretation of s. 20 of the Arrangements Law (‘the suspending law’) on the question of its retroactivity is unambiguous. As he says, ‘the legislature did not give the learned interpreter any credit at all, and its fear of the presumption of non-retroactivity was so great that it saw fit to tell us again and again that its intention was to uproot benefits ab initio, from the date of the commencement of Amendment 5.’ But unlike my colleague I am of the opinion that it is not possible to overcome this unambiguous provision by means of interpretation. In my opinion, it is not reasonable to expect the legislature to clarify its intention more decisively that it did in ss. 20(a)(1), 20(b) and 20(c). This is a clear and comprehensive directive and I can see no linguistic possibility of restricting it in a way that will apply only to some of the persons entitled to a grant under Amendment no. 5 of the Housing Loans Law (‘the entitling law’). In any case, it is not possible to interpret the suspending law as applicable only to whoever did not rely on the entitling law. Such an interpretation does not even have a minimal foothold in the text. It constitutes, in practice, a change in the language of the statute, and as such it departs from the legitimate boundaries of interpretation (cf. Justice Cheshin’s criticism of the doctrine of the ‘concealed lacuna’ in a statute: CA 3798/94 A v. B [15], at pp. 177-178 {298-299}. For the distinction between interpretive activity and extra-interpretative activity, which requires a distinct source of authority, see: A. Barak, Purposive Interpretation in Law (2003), at pp. 101 et seq.).

In such circumstances, we are obliged to examine the constitutionality of the retroactive application of the suspending law in accordance with the constitutional criteria set out in the Basic Law: Human Dignity and Liberty. Indeed, I too accept that whenever it is possible to refrain from constitutional intervention in the validity of a statute by giving an interpretation — even if it is a ‘creative’ interpretation — to a provision of a problematic statute, we are obliged to prefer this method. But even interpretation has its linguistic limits. We are not speaking of a choice between ‘literal interpretation’ and ‘purposive interpretation,’ but of a choice between purposive interpretation that is based on the text and purposive interpretation that is divorced from it. In any case, there is no basis for such great fear of the constitutionality test. Even when unconstitutionality is discovered in a statute, this does not necessarily lead to drastic consequences. Constitutional law allows a moderate and precise correlation of the remedy to the nature of the constitutional violation and all the interests involved therein (see: A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994), at pp. 699-775).

What does the constitutionality test tell us in the case before us? Like my colleague Justice Cheshin, I too am of the opinion that the entitling law gave the persons entitled thereunder a substantive right, and that the legislature was not entitled, when enacting the suspending law, to ignore the reliance of those persons on the entitling law. This substantive right amounts to ‘property,’ within the meaning of s. 3 of the Basic Law (see: United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 431-433, and also my comment on p. 578). I am also prepared to accept that the harm to the property of whoever did not adversely change his position in reliance on the entitling law complies with the conditions of the limitation clause in s. 8 of the Basic Law. In other words, in the absence of a legitimate interest of reliance, there is a presumption that the legislature that gave may also take away, and this should not be seen to contain any constitutional defect. But this is not the case with harm to someone who relied on the aforesaid property right and adversely changed his position as a result of the entitling law. Even if we regard this harm as befitting the values of the State of Israel and designed to achieve a proper purpose, it cannot be regarded as proportional harm. Proportional harm to the property of someone who relied on the entitling law must, at the very least, have taken into account various parameters connected with his reliance, such as the degree of legitimacy of the reliance, its strength and the criteria for proving it. The suspending law does not relate to these questions at all, and even from the history of its legislation we do not find that the legislature took any account of them.

It should be noted that in all of the aforesaid I am not adopting any position on the constitutional question of the entitling law itself. The respondents argued that this law was defective ab initio, inter alia because it did not promote the purpose for which it was enacted and because it unlawfully violated the principle of equality governing the whole class of persons lacking housing in Israel. But even if we assume that there is a foundation to those arguments, that in itself will be insufficient to remedy the disproportionate constitutional violation of the suspending law to the property of those persons who relied on the entitling law; they were not responsible for the alleged defects, and it is not fair that they should suffer the consequences thereof.

What then is the appropriate constitutional remedy in this case? One possible path is to declare the suspending law void in its entirety, effective immediately. In the circumstances of this case that would be the most drastic intervention in the validity of the statute and in the work of the legislature (see Barak, Constitutional Interpretation, at pp. 734-735). It significance is a blanket voiding of the constitutional parts of the statute, and consequently, inter alia, significant harm to the State budget. Another possible path is that we take upon ourselves the task of amending the defective statute, for example by means of separating the unconstitutional part from the constitutional parts, or by means of ‘extending the statute’ (ibid., at pp. 735-740, 759-767). Adopting this path admittedly does not harm the constitutional parts of the statute and significantly reduces the harm to the State budget, but adopting it still involves an ‘aggressive’ intervention in constitutional activity. Following this path also places institutional difficulties before the court, in view of its limited ability to formulate primary arrangements and to consider all of the relevant factors instead of the legislature. A third possible path is to declare the violating statute void, in whole or in part, but to suspend the validity of the voidance for a period that will allow the legislature to amend the constitutional defect. We have already followed this path in the past (HCJ 6055/95 Tzemah v. Minister of Defence [16], at p. 284 {687}; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [17], at pp. 415-416). It seems to me that in our case too this path should be followed, since it is preferable to the other possible paths. The advantages of this path are obvious: it allows the legislature to consider the question of reliance concerning the suspension of the entitling law, a question that it did not consider when it enacted the suspending law; its intervention in the work of the legislature is minimal; and it does not impose on the court a task that is unsuited to its institutional competence. Suspending the validity of the declaration of voidance does not lead to an immediate operative consequence, and it certainly does not cause — at least until the mending of the defect by the legislature or until the end of the suspension period — any harm to the constitutional part of the statute or the State budget. In this way, the legislator, and not the court, is the one that determines the exact timing, manner and scope of the harm to the budget, which itself is unavoidable.

After writing my opinion, I received the opinion of my colleague the President. I have examined it, but I am not convinced that it is possible to overcome the retroactive provision of the suspending law by means of interpretation. The President’s interpretive distinction is based on the phrase ‘no person shall be entitled to the benefits’ in s. 20(c) of the suspending law. In his discussion of this phrase, the President says that even though in the linguistic sphere a person who is entitled to benefits means any person who is entitled to a benefit, whether he is an entitled person who relied on the statute or an entitled person who did not rely on the statute, the court has the power to interpret the words of the legislature in a manner that restricts them to those entitled to benefits who did not rely on the entitling law. I should emphasize that, in my opinion, this proposed path is not at all simple. But in our case, even the President’s proposal concerning the interpretation of the phrase ‘no person shall be entitled to the benefits’ is insufficient for solving the difficulty that the suspending law raises. For in order to clarify its intention with regard to the scope of the application of the suspending law, the legislature did not merely use the aforesaid phrase. In s. 20(a)(1) it took pains to explain that s. 6B of the entitling law would not apply during the period of the suspension of the law’s validity; and in order to make its intention with regard to the retroactive validity of the suspension even clearer, it stipulated in s. 20(b) that the date of commencement of the aforesaid s. 20(a)(1) would be on the date of the commencement of the entitling law. It follows that the legislature made its intention absolutely clear, that it wanted to suspend the validity of the entitling law, retroactively, from its date of commencement; and with all due respect, I do not see any method of interpretation that can determine that s. 6B of the entitling law, whose applicability was expressly cancelled (‘shall not apply’) by the legislature starting from its date of commencement, continues to apply vis-à-vis those persons who relied upon it. With regard to the remarks of the President in para. 16 of his opinion, I would like to point out that even if we assume that the proponents of the suspending law were unaware of the possibility that its retroactive application would harm those persons who have relied on the entitling law, I see no place for doubt that the subjective intention of the legislature, when enacting the suspending law, was to suspend the validity of the entitling law absolutely and retroactively. I even cannot agree with the President’s remarks in para. 17 of his opinion. With all due respect, I am of the opinion that we are obliged to interpret the suspending law against the background of the legal position created when it was enacted, according to which the ‘temporary’ suspension of the entitling law is still valid, and not against the background of a hypothetical legal position according to which suspending its validity has already occurred in the past.

My opinion is, therefore, that we should grant the petitions and make the order absolute, in the sense that we declare the retroactive provisions of s. 20 of the Arrangements Law void. The validity of the declaration shall be suspended for six months from the date of giving the judgment; and the purpose of the suspension is to allow the legislature to re-enact these provisions, while distinguishing — according to the parameters that will be determined in the statute — between persons who relied on the entitling law and others to whom the entitling law was supposed, in principle, to apply.

 

 

President A. Barak

My opinion on the dispute between my colleagues is the same as the opinion of Justice M. Cheshin. I agree with his reasoning. I would like to add several remarks of my own.

Presentation of the problem

1.    The Housing Loans Law (Amendment no. 5), 5761-2001 (hereafter — Amendment 5) provides that ‘an entitled person… who bought an apartment in Jerusalem or who extended his apartment in Jerusalem, will receive a grant…’ (s. 6B(a)). Amendment 5 determined the amount of the grant and the ways of revising it. This provision came into force on 15 February 2001 (when it was published in Reshumot). Not even two months passed and the Knesset enacted the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter — the Arrangements Law). The Arrangements Law suspended the validity of s. 6B of Amendment 5. This suspension — which came into effect on 4 April 2001 when the Arrangements Law was published in Reshumot, was given retroactive effect from the date of publication of Amendment 5 (s. 20(a)(1), 20(b) and 20(c)) (hereafter — the interim period).

2.    The main purpose of the suspension was prospective. It was intended to save the State treasury a significant expense (approximately sixty million sheqels per annum) and to prevent an increase in housing prices in Jerusalem as a result of an increase in demand. Nonetheless, the suspension also operated retrospectively. In this respect, three provisions were enacted in s. 20 of the Arrangements Law. Two of these stipulated a suspension (ss. 20(a)(1) and 20(b)). The third provision cancelled the actual right in the interim period (s. 20(c)).

3.    Against this background, we all agree that the fact that an entitled person bought an apartment in Jerusalem in the interim period cannot prevent the application of s. 20 of the Arrangements Law to the interim period. Therefore, the right of an entitled person who bought an apartment in Jerusalem during the interim period for his own reasons, without relying at all on the acquisition of the right to a grant that he was granted in Amendment 5 (whom we shall call an entitled person who did not rely on Amendment 5) was suspended and even cancelled. That person does not come before us in these petitions. But what is the law with regard to an entitled person, who did rely on the existence of the grant and, because of the grant that was given in the interim period, sold his other apartment or entered into pecuniary undertakings and bought an apartment in Jerusalem in the interim period? Is also this entitled person (whom we shall call an entitled person who did rely on Amendment 5) caught by the provisions of the suspension and the cancellation? Indeed, it is the case of the entitled person who did rely on Amendment 5 that comes before us in these petitions for our decision.

4.    We all agree that the Arrangements Law should have distinguished — for the purposes of the suspension in the interim period — between the entitled person who did rely on Amendment 5 (whose right, because of his reliance, ought not to be suspended or cancelled in the interim period) and the entitled person who did not rely on Amendment 5 (who for various economic reasons ought to have his right suspended even in the interim period (ss. 20(a)(1) and 20(b) of the Arrangements Law), and even cancelled in its entirety (s. 20(c) of the Arrangements Law)). The dispute between us is whether it is possible to base this distinction between the entitled person who relied on Amendment 5 and the entitled person who did not rely on Amendment 5 in the suspension and cancellation provisions in s. 20 of the Arrangements Law, or whether this distinction has no foothold in the provisions of s. 20 of the Arrangements Law. In this dispute, I am of the opinion — and thus I join with the approach of my colleague Justice M. Cheshin — that it is possible to base this distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5 on the provisions of s. 20 of the Arrangements Law. My colleague the Vice-President, together with Justices Türkel and Rivlin, are of the opinion that this distinction does not have any basis in the provisions of s. 20 of the Arrangements Law. Against the background of their approach — and since they are of the opinion that the distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5 is important and even has constitutional force — they are of the opinion that any provision that suspends or cancels the entitlement in the interim period is unconstitutional and therefore void.

5.    I think that we are all agreed that if it possible to distinguish — within the framework of the possible interpretation of s. 20 of the Arrangements Law — between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5, this path should be chosen. The other path — the one in which we examine the question whether an arrangement that does not distinguish in the interim period between the two classes of entitled persons is a constitutional arrangement or not — becomes available to the judge only if the first path is closed to him. Indeed, we all agree upon the outlook that the proper approach is that the interpreter of the statute should do everything possible in order to give the statute that possible interpretation that is consistent with the constitution (in Israel — with the Basic Law) and does not conflict with it, ‘and between two possible interpretations we should choose the interpretation that is consistent with the constitution’ (HCJ 4562/92 Zandberg v. Broadcasting Authority [18], at p. 810). Thus we give expression to the aspiration of achieving normative harmony in the legal system. This also gives rise to the presumption that the general purpose of every statute is to achieve constitutional values. Notwithstanding, this proper approach assumes, as my colleagues have noted, a possible interpretation of the statute. It acts within the framework of the accepted rules of interpretation. It cannot be said that we must always choose the meaning that achieves consistency between the statute and the constitution (see A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation, 1994). The presumption of consistency between the constitution and the statute can be rebutted. It is rebutted where the accepted rules of interpretation in the legal system do not allow this consistency to be achieved. It follows that the key to solving the legal question before us lies in providing an answer to the question of interpretation. The question is whether the normal accepted rules of interpretation in Israel allow a distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5. Let us now turn to an examination of this question.

Limits of interpretation

6.    The basic premise is that the ‘limit of interpretation is the limit of language’ (CA 1900/96 Telmaccio v. Custodian-General [19], at p. 827). ‘An activity is interpretation if it gives a meaning to the text that is consistent with one of its (express or implied) senses of the text in its (public or private) language’ (A. Barak, Purposive Interpretation in Law (2003), at p. 55). The interpretation ends where the language ends. ‘It is essential… that the interpretive option that realizes the legislative purpose is capable of sustaining the language of the statute’ (MApp 67/84 Hadad v. Paz [20], at p. 670). This was well expressed by my colleague, Justice M. Cheshin:

‘Every word, every expression in the language can be interpreted narrowly or it can be interpreted broadly, even very broadly, but no matter how much we widen the interpretation, we will reach a point where the elastic reaches it maximum stretching point’ (LCA 6339/97 Roker v. Salomon [21], at p. 253).

I discussed the same idea in another case:

‘The art of interpretation is not limited merely to words, but the words limit the interpretation… It is possible that the language of the statute may be given a broad interpretation or a narrow interpretation, but in general an Archimedean foothold must be found for a word in the language of the statute’ (FH 40/80 Koenig v. Cohen [22], at p. 715).

And in another case I added:

‘Every interpreter must take into account the limits of language. The linguistic significance of the language, which is intended to realize the purpose that underlies it, must be consistent with one of the linguistic senses of the text. Admittedly, the linguistic component is not sufficient for interpretation, but it is essential to it’ (CA 3622/96 Hacham v. Maccabi Health Fund [23], at p. 646).

This approach is derived from constitutional considerations. The role of the judge as an interpreter is to interpret a text that is created by the persons competent to do so (the legislature, the minister, the parties to a contract, the testator). His role as an interpreter does not authorize him to create a new test (see Barak, Purposive Interpretation, ibid., at p. 57).

7.    Section 20 of the Arrangements Law suspends and cancels the right of entitled persons. It states that ‘no person shall be entitled to the benefits’ provided in s. 6B of Amendment 5 (s. 20(c)). Prima facie, from a linguistic viewpoint, ‘no person shall be entitled to the benefits’ refers to every person who is entitled to a benefit, whether he is an entitled person who relied on Amendment 5 or an entitled person who did not rely on Amendment 5. Against the background of this general and broad language arises the interpretive question that is before us, which concerns the legitimate interpretive possibility of narrowing this broad language. The solution to this question will be found in the solution to the general problem of interpretation. Is the interpreter entitled to narrow the broad language of the text in order to achieve the purpose of the text? When the text provides a legal arrangement that applies to ‘every person,’ with regard to ‘every object’ or ‘in all circumstances’, may the interpreter — who wishes to achieve the purpose underlying the text — interpret the text in such a way that it does not apply to a particular class of persons (not ‘every’ person) or such that it does not apply to a particular class of objects (not ‘every’ object) or such that it does not apply in a particular class of circumstances (not ‘all’ circumstances)? The answer given to this question in Israel and in comparative law is yes. I discussed this in Zandberg v. Broadcasting Authority [18], where I said:

‘Where the language of the statute is broad, the judge is entitled and competent to give it a narrower meaning, which extends only to some of the options inherent in the language, provided that by doing so he realizes the purpose of the legislation. This is the case in Israel. This is also the case in comparative law’ (Zandberg v. Broadcasting Authority [18], at p. 811; see also R. Sullivan, Driedger on the Construction of Statutes, third edition, 1994, at p. 94).

Indeed, in order to realize the purpose underlying the statute — whether it is a specific purpose or a general purpose — the interpreter is authorized to give the broad language of the statute a narrower meaning. We will discuss this approach, while distinguishing between giving a narrow interpretation to broad language in order to realize a specific purpose and giving a narrow interpretation to broad language in order to realize a general purpose.

8.    Let us begin with situations of restricting broad language in order to achieve a specific purpose. A purpose is specific when it is unique to the purposes and functions that are unique to a statute or to several statutes. In order to realize this specific purpose — whether a subjective purpose or an objective purpose — the interpreter may give the general language of the statute an interpretation that restricts its application and prevents it from applying to certain situations that fall within the bounds of the general language. The following are two examples of this approach.

9.    Zandberg v. Broadcasting Authority [18] considered the Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992 (hereafter — the confirmation law). This law provided (in s. 1):

‘In order to remove doubt, it is hereby provided that the fees for possessing a radio or television receiver, which were determined in accordance with the Broadcasting Authority Law, 5725-1965, for the years 1985 to 1992, are valid for all intents and purposes from the date on which they were determined.’

It was held in that case that the general and broad language of the statute, according to which fees were valid ‘for all intents and purposes,’ required the conclusion that the confirmation law allows linkage differentials to be charged on fees that were unpaid. Notwithstanding it was held — and this is what is relevant to our case — that the expression ‘for all intents and purposes’ should be given a narrow interpretation, so that it should not apply to a law determining a fine for arrears. Underlying this approach was the special purpose of the confirmation law that was inconsistent with imposing a fine for arrears for a period in which there was no duty at all to pay the fee itself. In my opinion, I considered the question whether it was possible to limit the expression ‘for all intents and purposes’ in such a way that it would not apply to fines:

‘Is it possible to interpret the broad language of the confirmation law narrowly in such a way that the validity, notwithstanding the all-inclusive language, shall not apply to a fine for arrears? Is it possible, according to our accepted rules of interpretation, to interpret broad language narrowly merely because of a narrower purpose underlying it? In my opinion, the answer is yes. Indeed, the judicial interpreter ought not to sit idle and direct barbs of criticism at the legislature because he, the judge, has been unable to restrict its language that is too broad. The judge may not display apathy to a situation in which the legislative purpose is not realized. He must make an interpretive effort to realize the purpose of the legislation… the judge should not sit idle and watch the legislative purpose fail. He must interpret the statute in accordance with its purpose. Sometimes this interpretation will lead to a result that the language of the statute should be interpreted broadly. Sometimes — and this is the case before us — this interpretation leads to the conclusion that the language of the statute should be interpreted narrowly. The criterion is the criterion of the purpose of the statute. In order to realize it, the interpreter is entitled to restrict the broad (linguistic) meaning of the statute’ (ibid., at p. 811).

10. A second example can be found in the interpretation of s. 3(i)(1)(a) of the Income Tax Ordinance [New Version]. According to this provision, a right that a person received in the past to buy an asset (such as an option that an employee receives from his employer with regard to work relations) is liable for tax when it is realized. This court restricted the broad language of the statute that referred to any right, i.e., to any option, and held that this provision refers only to options that are not negotiable. The court held, relying on Zandberg v. Broadcasting Authority [18], that a court may ‘give a narrow interpretation to broad language of a provision of statute in order to apply it only to those case that are required to realize the purpose underlying the legislation’ (per Justice E. Chayot in CA 7034/99 Kefar Saba Assessing Officer v. Dar [24]).

11. Let us now turn to the second situation — which is mainly the one relevant to our case — in which the judge-interpreter restricts the broad and general language of the statute in order to realize a general purpose (subjective or objective), which is enshrined in the basic values of the legal system. I discussed this possibility in one case, where I said:

‘On more than one occasion our Supreme Court has adopted this method, when it restricted or extended the language of the statute in order to realize the basic principles of our legal system. Indeed, legislation in general and basic provisions of statute in particular are not one-time acts that are divorced from the general experience. The statute derives its flesh and bones within the framework of a given legal system. It constitutes one brick of a whole building, which is built on foundations of a political and legal system that constitute the “basic principles of that society”.’ (EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [25], at p. 307 {158}).

In that case, I gave examples of this approach, inter alia, in American case law that interpreted the First Amendment to the Constitution. This Amendment provides that ‘Congress shall make no law… abridging the freedom of speech, or of the press…’. I said that ‘the Supreme Court has not hesitated to hold, in a long line of precedents, that notwithstanding the absolute language, which rules out any discretion on the part of Congress, it has the authority to restrict the freedom of speech and the press in certain cases’ (ibid., at p. 301 {151}). I went on to say:

‘We interpret the language of the general obligation against the background of our constitution and in accordance with the principles of equality, justice, fairness and morality of our legal system. Applying these restricts the general language’ (ibid.).

Let us turn to several cases that exemplify this approach.

12. In a significant number of laws, it is stated that decisions of quasi-judicial bodies are ‘final.’ It is stated in several places that there is ‘no further recourse.’ Notwithstanding this broad language, this court has not hesitated in holding that the expression ‘final’ or ‘no further recourse’ does not prevent an application to the High Court of Justice (see HCJ 79/63 Trudler v. Borstein, Election Official for the Composition of the Agricultural Committee of Ramat HaSharon Local Council [26]; LCA 176/86 A v. B [27]; HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [28]). This approach was based on ‘narrow interpretation’ (HCJ 188/77 Coptic Orthodox Mutran v. Government of Israel [29], at p. 236), or on ‘precise and narrow interpretation’ (CA 64/72 General Federation of Workers v. Moav [30], at p. 265), or on ‘strict and narrow’ interpretation (HCJ 264/77 Katan v. National Insurance Institute [31], at p. 687). Underlying this was the need to realize the general and important social value of accessibility to the courts.

13. Sometimes a civil servant is obliged to make decisions within the field of public law. An example is a competent authority that is obliged to grant a licence to whoever fulfils the conditions for this. Notwithstanding the general and all-embracing language of the provision, it is accepted that such a civil servant may not make decisions in a position of a conflict of interests. I discussed this in one case, where I said:

‘When a statute provides that someone is obliged to hear every dispute, it is obvious that he is not obliged to hear a dispute in which he has a personal interest’ (Neiman v. Chairman of Elections Committee for Eleventh Knesset [25], at p. 307 {158}).

Underlying this approach is the outlook that the rule concerning the prohibition against a conflict of interests is one of the basic principles of our legal system. It is a part of the general purpose of every piece of legislation. Even when a statute makes use of general language that does not contain any restrictions, restrictions are imposed by virtue of the general principle of the prohibition of a conflict of interests.

14. In comparative law the following example is well-known: an inheritance statute provides that when a person dies, his property passes to his children. That inheritance statute contains no provision — of the kind that we have in Israel (s. 5(a)(1) of the Inheritance Law, 5725-1965) — to the effect that a child who murders his father is disqualified from inheriting from him. Notwithstanding this, it is accepted that the son who murdered his father does not inherit (see H. Hart and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (1944), at p. 68; R. Dworkin, Taking Rights Seriously (1977), at p. 22; S. Shilo, ‘Disqualification from Inheriting: Someone who Deliberately Causes the Death of the Legator,’ Uri Yadin Book — Articles in Memory of Uri Yadin 257, vol. 2 (1990)). Underlying this approach is the outlook that the general language of the inheritance statute concerning heirs in an intestacy should be interpreted against a background of the basic principles of the legal system. One of those basic principles — which is based on principles of equity, justice and morality — is that a person should not be allowed to enjoy the fruits of his misdeeds (‘Have you committed murder and also taken the inheritance?’ (I Kings 21, 19 [43])). The broad language receives a restricted sense in order to realize one of the basic principles of the legal system. In discussing this approach, Vice-President S. Levin said:

‘Statutes are not enacted in a vacuum. They form part of an integral system that includes fundamental principles. They are presumed to have been enacted within the framework of these principles, which they are intended to realize… It is presumed that they operate in order to achieve justice and equality, and their application will prevent outcomes that are inconsistent with public policy. One of the rules of public policy is that the wrongdoer should not benefit from his misdeed’ (CA 3798/94 A v. B [15], at p. 154 {266}).

By virtue of this principle, Vice-President S. Levin held in A v. B [15] that a rule should be read into s. 13 of the Adoption of Children Law, 5741-1981, that a parent may not object to his child being declared adoptable if this is contrary to reasons of public policy concerning the acts that led to the birth of the child.

15. Underlying the approach that an interpreter may restrict the general language of the statute in order to realize the general purpose of the legislation is the approach that ‘a provision of statute is a creature that lives in its environment’ (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [32], at p. 513). Language is interpreted in accordance with its context, and the text is understood against the background of the context. The context of every statute includes the basic values of the legal system, which constitute its general purpose. This is the ‘spirit’ that encompasses the ‘body’ (see A. v. B [15], at p. 182 {306}). This is the ‘normative umbrella’ that extends over all statutes (CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [33], at p. 75). An expression of this approach was given by my colleague Justice M. Cheshin, when he said that:

‘When we approach a statute of the Knesset, we do not come empty-handed. We come with a weight of language, linguistic definitions and meanings, social customs and morality, consensuses and first principles, justice and equity, principles and doctrines in our knapsack… all of these — doctrines and values and principles — are located, prima facie, outside the statute, but they serve as a platform for the statute — for every statute — and no statute can be conceived without them. A statute without that platform is like a house without foundations… When we approach the work of interpretation — like a surgeon — we do not come empty-handed. When we read the statute in our judicial capacity, we carry on our bodies an “interpretation kit,” and in this kit are all of those values and principles and doctrines without which we would not be what we are: basic principles of the legal system, morality, fairness, justice’ (Yediot Aharonot Ltd v. Kraus [8], at p. 72. See also Segal v. Knesset Speaker [3], at pp. 563-567; A. v. B [15], at p. 182 {306}).

By virtue of this approach — which constitutes a central component of our theory of interpretation — the interpreter is authorized to consider the general language of the statute and to restrict it merely to those aspects that realize the basic values of the legal system. It is to this that my colleague Justice M. Cheshin refers in his simile that ‘we can peel away the statute like peeling the layers of an onion: healthy layers will be left and unhealthy layers will be thrown into the bin’ (para. 34 of his opinion).

From the general to the specific

16. Does the purpose of s. 20 of the Arrangements Law require a restriction of the scope of the section to an entitled person who did not rely on Amendment 5? Let us begin with the specific purpose underlying s. 20 of the Arrangements Law. For this purpose, I have examined the legislative and parliamentary history. It emerges from this that according to the factual basis that was brought before the Knesset, the assumption was apparently that applying s. 20 of the Arrangements Law retroactively would not harm the entitled persons who bought an apartment in Jerusalem at all. In the explanatory notes to the draft law, it was stated that ‘In addition, in view of the fact that during the short period when these laws were valid no instructions were given to implement them, it is proposed that it should be provided also that even during the period when the aforesaid laws were valid, it was not possible to acquire rights by virtue thereof’ (cited by my colleague, Justice M. Cheshin, in para. 3 of his opinion). It would appear that the question before us — the law concerning the entitled person who relied on Amendment 5 — was not considered by the members of the Knesset. It can therefore certainly not be said that the subjective purpose of s. 20 of the Arrangements Law is to deny the grant even to entitled persons who relied on Amendment 5.

17. Moreover, s. 20 of the Arrangements Law did not merely suspend the right of the entitled persons in the interim period. It expressly stated that the right was cancelled (s. 20(c)). It follows that even if on 31 December 2001 — which was the original date for the end of the suspension — Amendment 5 had become valid once again, this would not have applied to the interim period, and it would have begun only on 4 April 2001 (the date on which s. 20 of the Arrangements Law was published) rather than on 15 February 2001 (the date on which Amendment 5 was published). This approach is natural with regard to entitled persons who did not rely on Amendment 5. It is totally irrational with regard to entitled persons who did rely on Amendment 5. If the Treasury has resources to finance the entitled persons from 4 April 2001, how is it possible to explain the unwillingness to finance precisely those entitled persons who bought an apartment in Jerusalem during the interim period while relying on Amendment 5? It would appear that the correct answer is that the interests of these entitled persons were not even considered by the legislature. The assumption was that all the entitled persons, without exception, bought an apartment in Jerusalem without relying on Amendment 5.

18. What about the general purpose of s. 20 of the Arrangements Law? This general purpose naturally includes the property right and its not being harmed retroactively. Notwithstanding, this right in itself is insufficient, since it would deny the retroactive application of the infringement of the property right of every entitled person — both the entitled person who relied on Amendment 5 and the entitled person who did not rely on Amendment 5. This result, which empties the application of s. 20 of the Arrangements Law of all content in the interim period, cannot be reached by means of interpretation. This requires a constitutional analysis. But the petitioners before us argue that they are entitled persons who did rely on Amendment 5. How is it therefore possible to justify the distinction between an entitled person whose property right was infringed during the interim period and who did rely on Amendment 5 and an entitled person whose property right was infringed in the interim period but who did not rely on Amendment 5? What is the difference between the one and the other from the viewpoint of the basic values of the legal system? The answer is that one of the basic values of our legal system is the interest of the individual’s reliance. Protection of this interest — alongside the general infringement of property — allows the interpreter to restrict the scope of the infringement to an entitled person who bought an apartment in Jerusalem solely to entitled persons who did not rely on Amendment 5. Let us therefore turn to the interest of reliance, its status in our legal system and its operation in the case before us.

19. The interest of reliance is like a golden thread that runs through Israeli law. Significant portions of private law are based on it (see A. Barak, The Agency Law, vol. 1, 1996, at p. 180; D. Friedman and N. Cohen, Contracts, vol. 1, 1991, at p. 151; G. Shalev, The Law of Contracts, second edition, 1995, at p. 161; D. Barak-Erez, ‘The Protection of Reliance in Administrative Law,’ 27 Hebrew Univ. L. Rev. (Mishpatim) 17 (1996), at p. 22). This was the law in the past when the principle of estoppel based on the rules of reliance was employed. It is also the law today, when it is possible to regard the realization of the interest of reliance as a part of the principle of good faith. From private law the interest of reliance passed to public law (see S. Schonberg, Legitimate Expectations in Administrative Law (2000)). Indeed, the public authority is the trustee of the public. Its fiduciary duty to the public leads to its duty to act fairly, equitably and proportionately. From these we derive a duty to take into account the individual’s interest of reliance. On this basis are founded the laws of administrative promise, the laws of tenders, the laws of administrative finality, the laws of administrative instructions and the laws of relative voidance (see Barak-Erez, supra). They are the basis for the need to ensure that legislation (whether primary legislation or subordinate legislation) has transition provisions in order to protect the interests of those persons who relied on the former law. This is certainly the case when a person relies on a right that was given to him (whether in primary legislation, in subordinate legislation or in any other administrative act), and it is taken away from him not only from now onwards (and without any transition provision) but even retroactively. The infringement of the interest of reliance is the most extreme in such a case. Underlying the protection of the interest of reliance are considerations of both morality and efficiency. Of course, the strength of the interest of reliance is not absolute. It is not the only consideration. It needs to be balanced against other interests, which operate in different directions. However, it must always be taken into account and given the proper relative weight (see A. Barak, Legal Interpretation, vol. 2, 1993, at p. 470).

20. In the petition before us, the petitioners claim that they relied on Amendment 5. In buying an apartment in Jerusalem during the interim period, they took into account that they would be given a pecuniary grant, and they planned their actions on the basis of this reliance. We must take this reliance of theirs into account. This is a social interest worthy of protection. Naturally, the existence of the reliance must be proved; even if it exists, it can have various degrees of strength. This public interest does not have decisive weight. However, it justifies the distinction between an entitled person who did rely on Amendment 5 and an entitled person who did not rely on it. Indeed, this distinction is accepted by all of us. My colleagues, Vice-President E. Mazza, and Justices J. Türkel and E. Rivlin, are prepared to regard the absence of this distinction as a ground for declaring s. 20 of the Arrangements Law unconstitutional, in so far as the transition period is concerned. Like my colleague, Justice M. Cheshin, I too propose giving this interest a different role, which concerns the meaning of the statute and not its validity. In view of this approach, I do not need to examine the constitutional aspect in depth, and I will refrain from adopting any position in this respect.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague, Justice M. Cheshin, and with the comments of my colleague, President A. Barak.

 

 

Justice J. Türkel

Like my honourable colleague, Vice-President E. Mazza, and for his reasons, I am also of the opinion that it is not possible to overcome the unambiguous provisions of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, by means of interpretation. Admittedly, in general it is preferable to adopt the path of interpretation and to refrain from a constitutional examination of a statute, but the language of the section does not have any linguistic opening, even as small as the eye of a needle, through which it is possible to inject a different meaning from the one that the legislator intended. It follows that we are compelled to examine the constitutionality of the retroactive application of the section in accordance with the constitutional criteria in the Basic Law: Human Dignity and Liberty. In this regard, I agree also with the comments of my honourable colleague, Justice E. Rivlin.

Therefore I agree with the opinion of the Vice-President and the outcome that he reached.

 

 

Justice E. Rivlin

1.    In the dispute between my colleagues Vice-President E. Mazza and Justice J. Türkel on one side, and President A. Barak, as well as Justices M. Cheshin, D. Beinisch and A. Procaccia on the other, my opinion is like that of the Vice-President, for his reasons. Like him, I am of the opinion that there is no possibility of interpreting the provisions of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter: the Arrangements Law), in a manner that restricts its application to such an extent that it can make it unnecessary for us to consider its constitutionality.

2.    In practice, there is no dispute between my colleagues that we cannot accept the outcome that the benefit to which the petitioners are entitled should be cancelled so comprehensively, and retroactively. My colleague Justice M. Cheshin wishes to avoid the constitutional question that arises in the petition by using an alternative tool — the tool of interpretation — in order to resolve the petitioners’ problem. My colleague the President also proposes this. I accept their fundamental position, with which my colleague the Vice-President also agrees, according to which we should turn to constitutional review — which can be described as a ‘judgment day weapon’ — only when we have exhausted all other avenues. This approach is accepted in American constitutional law, where a doctrine sometimes called the doctrine of ‘strict necessity’ is accepted. According to this theory, the court shall not resort to constitutional review unless it is unavoidable. Various techniques are used by the court there as escape routes from constitutional review. In Rescue Army v. Municipal Court of Los Angeles [38], Justice Rutledge listed these techniques and explained the logic that justified using them (it should be noted that some of the techniques are the subject of dispute in the United States, and others, such as the right of standing, are no longer relevant in Israeli law):

‘…this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications… arose in the Court's refusal to render advisory opinions…

… in addition, “the Court (has) developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision” (Ashwander v. Tennessee Valley Authority [39], at p. 346). Thus, as those rules were listed in support of the statement quoted, constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute’s operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided’ (at pp. 568-569).

‘The policy’s ultimate foundations… lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system’ (at p. 571).

One of the tools listed by Justice Rutledge is the construction of the statute under attack in such a way that it will make constitutional review of its superfluous. With regard to this tool, Justice Brandeis, to whose important remarks in Ashwander v. Tennessee Valley Authority [39], at p. 348, Justice Rutledge refers, cited the following:  

‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided’ (Crowell v. Benson [40], at p. 62).

See also the remarks of Justice White, in a similar vein, in Ellis v. Railway Clerks [41], at p. 444.

3.    But care must be taken so that excessive use is not made of this tool. Chief Justice Vinson said in this regard, in Shapiro v. United States [42], at p. 31:

‘The canon of avoidance of constitutional doubts must… give way where its application would produce a futile result, or an unreasonable result “plainly at variance with the policy of the legislation as a whole”.’

Like my colleague Vice-President E. Mazza, I too am of the opinion that the case before us is one of the cases to which Chief Justice Vinson referred. As both the Vice-President and Justice M. Cheshin explain, the language of the provision that is relevant in our case is unambiguous. A provision should not be given an interpretation that is entirely in conflict with its language. The art of interpretation, although it is desirable and essential, has limits, beyond which the interpreter cannot pass; otherwise he will find himself rewriting legislation. In the case before us, the interpretation proposed by the majority justices goes, in my opinion, beyond the confines of what is possible and what is permitted. As my colleague the President says, there are indeed times when the interpreter is authorized to give the broad language of the statute a narrower meaning in order to achieve a broad or specific purpose. But this is not the case where the legislature has made its intention clear in a manner that is unambiguous. Once it has done that, and has ruled out any other intention, there is only one method of interpretation and no other — one interpretation but not its opposite. Indeed, even the statement that even the British Parliament cannot make a man a woman or a woman a man has lost some of its force, since with the assistance of surgeon’s scalpel Parliament can do even this. It can do this, but we cannot; we do not have this power. My colleague Justice Cheshin complains about this remark. He emphasizes that the court does have power and he points to important case law that has strengthened equality between the sexes with a progressive spirit. But the dispute between us, in this case, concerns the method rather than the outcome, for where the interpretive tool fails, constitutional review may remain. Where it is impossible to call a woman a man, it is possible, in the proper circumstances and when the constitutional requirements are fulfilled, to nullify the distinction between them by means of reducing the force of the provision of statute itself. Thus equality is achieved between man and woman even without calling a woman a man. Like my colleague Vice-President E. Mazza, I am of the opinion that where the court reaches an opinion that a particular law, according to the interpretation required in the light of its language and purpose, is not a desirable law, it cannot, by giving an (‘creative’) interpretation to the statute, remedy it on behalf of the legislature. In such cases, the court is obliged to examine the statute constitutionally. This examination does not constitute a ‘fear of the legislator’ that has taken hold of us — in the language of my colleague Justice M. Cheshin. This examination is merely a direct constitutional attack on the statute, of its actual validity, once the more moderate attack — namely the interpretation to which my colleague resorted — was unsuccessful. As my colleague Justice J. Türkel rightly points out, since there is no ‘linguistic opening, even as small as the eye of a needle, through which it is possible to inject a different meaning from the one that the legislator intended… we are compelled to examine the constitutionality of the retroactive application.’

This procedure is the proper procedure in view of the principle of the separation of powers. The power to enact and amend legislation is the sole province of the legislature, whereas the court interprets statutes and examines their constitutionality. An interpretation that is inconsistent with the language of the statute violates the authority given to the legislature far more than a declaration that a statute is void for constitutional reasons. An interpretation that lacks a proper foothold in the language of the statute may breach the delicate balance between the powers. In a certain sense, interpretation that bypasses the language of the statute also involves the court shirking its proper role, namely to denounce in a loud and clear voice any statute that our statute book cannot accept — in view of the basic principles of our legal system, as these are established in the constitutional documents. A clear constitutional declaration is sometimes an essential need that presents the legislature and the public with a constitutional guideline that also looks to the future.

4.    In view of the aforesaid, I am of the opinion that we cannot avoid considering the question of constitutionality that the petition raises. On this question too I agree with the position of my colleague, Vice-President E. Mazza. I will merely add and comment that the question of the scope of the property right enshrined within the framework of s. 3 of the Basic Law: Human Dignity and Liberty is a weighty and multifaceted question. I am not persuaded that there is a basis for regarding reliance on an undertaking or even on a property right — as it is recognized in private law — as property that is worthy of constitutional protection in every case. This has already been said in CA 10608/02 Hazima v. Department of Customs and VAT [34]:

‘The modern State, which is no longer merely a ‘night watchman,’ cannot refrain from intervening in the private market and from causing, in certain circumstances, harm to the right of private property. For this reason, the definition of property, and the definition of harm thereto, for the purposes of constitutional law are not identical to the definitions recognized in private law. The protection to the right of property is also not absolute, and frequently it will have to contend with competing values, until it reaches a proper balance (ibid., at para. 8).

In our case, I am of the opinion that we are able to refrain from considering this major question, on account of the special circumstances of the case. According to the arguments of the petitioners, they had in their possession, in theory if not in practice, money that the State allocated them. The petitioners used this money in order to buy or to extend residential apartments. Taking this money away from them, now, is equivalent in many senses to taking the apartments in which they live away from them, because they will not be able to meet the financial undertakings involved in the purchase or extension of the apartments, to which the petitioners have already committed themselves. The centrality of the home for the ‘personhood’ of the individual and his self-realization (M.J. Radin, ‘Property and Personhood,’ 34 Stan. L. Rev. (1982) 957) requires us to hold that the protection of this is included in the constitutional protection of property (see and cf. CA 9136/02 Mister Mani Israel Ltd v. Rize [35], at para. 8). Therefore the provisions of s. 20 are contrary to the dictates of s. 3 of the Basic Law, and since, as my colleague Vice-President E. Mazza has shown, it does not comply with the terms of the limitations clause, it is void. In the circumstances of the case, the proposal of my colleague, the Vice-President, to make an absolute order in the sense that we declare the retroactive provisions of s. 20 of the Arrangements Law void and that the validity of the aforesaid declaration shall be suspended for six months for the purpose set out in the opinion of the Vice-President seems right to me.

Therefore I agree with the opinion of Vice-President E. Mazza.

 

 

Justice D. Beinisch

1.    All of my colleagues in this case agree that the retroactive application of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter: section 20) cannot stand in its entirety. There is no disagreement between us that its application must be restricted, so that the comprehensive retroactive cancellation of the benefit to which the petitioners were entitled under s. 6B (currently s. 6C) of the Housing Loans Law, 5752-1992, is not upheld in a way that does not take into account at all the question whether they relied on the provisions of the statute that granted entitlement to the benefit, and the question whether they changed their position accordingly before the benefit was suspended.

The disagreement is whether the proper outcome of restricting the retroactive application can be achieved by means of interpretation — as Justcie Cheshin, President Barak and Justice Procaccia believe — or whether a constitutional examination of the aforesaid section 20 and a declaration that its retroactive provisions are void are inescapable, which is the position of Vice-President Mazza, Justice Rivlin and Justice Türkel.

Everyone agrees that when the validity of a statute is questioned and a doubt arises as to its constitutionality, the court should first consider whether it is possible to find a reasonable interpretation that will make it unnecessary to decide its constitutionality and will allow the statute to exist in harmony with the basic principles of the constitution and the legal system (see, for example, the opinion of Justice Cheshin in Segal v. Knesset Speaker [3], at pp. 548-550; the opinion of Justice Dorner in HCJ 4128/02 Man Nature and Law — Israeli Environmental Protection Society v. Prime Minister of Israel [36]; HCJ 4885/03 Israel Poultry Raisers Association v. Government of Israel [37], at pp. 74-79 {451-458}). However, this is only the case when the path of interpretation is available to the court. As President Barak discussed in his book Legal Interpretation (vol. 3, Constitutional Interpretation, 1994, at p. 117:

‘The proper approach is that we should choose, of the two possible interpretations from the viewpoint of the language and the purpose, the interpretation that leads to harmony between the statute and the constitution… [but,] the loyalty of the judge-interpreter to the legislation requires him to give the statute an interpretation that its language can sustain and that realizes its purpose. If this interpretation leads to a harmony between the statute and the constitution, it is right and proper; and if this interpretation leads to a conflict between the statute and the constitution, it is unavoidable. It transpires that the desire to achieve harmony between the statute and the constitution operates within the framework of the rules of interpretation, and as an inner-purposive rule of interpretation. It assists in formulating the purpose of the legislation. It cannot bring about a forced harmony between the interpretation of the statute and the constitution.’

None of my colleagues disputes this starting point in principle; the dispute is whether in this case the interpretive option that allows the provisions of s. 20 of the aforesaid law to be upheld and its retroactive application not to be comprehensive is open to us. I have given much consideration to this question, and initially I even was disposed to favour the approach of Vice-President Mazza. But after I read the opinions of my colleagues several times, I have been persuaded that the interpretive path proposed by Justice Cheshin is indeed possible (or, should we say, is not impossible) in this case, and therefore we are obliged to prefer it.

2.    The approach of Justice Cheshin and President Barak admittedly narrows the retroactive application of the aforesaid section 20 by means of an interpretation that adds to the broad language of the section a qualification that is not expressly mentioned in the section. But in appropriate circumstances there are cases where the legislative purpose, as well as the context, the text taken as a whole and the basic principles of the legal system require us to read into a provision of statute a qualification that is not stated in it. This interpretive outcome is possible when a qualification of this kind is consistent with the purpose of that statute and it has a foothold, albeit a weak one, in the language of the statute, or at least when the language of the statute does not conflict with the possibility of reading into it the aforesaid qualification (and for this purpose I accept in principle the approach of the President as set out in paras. 7-15 of his opinion).

3.    In our case, the language of section 20 admittedly is more consistent, on the face of it, with an interpretation that grants this section an all-embracing retroactive application, but I do not think that the language of the section completely rules out the possibility of qualifying the retroactive application as proposed in the opinion of my colleague, Justice Cheshin. Note that the interpretation of Justice Cheshin does not absolutely rule out the retroactive application of section 20, for we all agree that the language of the section cannot sustain such an interpretation; instead, it restricts or qualifies the retroactive application, in a way that the language of the section can sustain. In such circumstances, we should consider whether this interpretation is consistent with the purpose of the statute.

4.    The purpose of the aforesaid Arrangements Law and of section 20 thereof is to postpone the date of commencement of statutes that were enacted without there being sources of finance in the budget, and the implementation of these would have seriously harmed the budget (see para. 3 of the opinion of Justice Cheshin). As can be seen from the language of section 20 and from the deliberations that took place before it was enacted, the legislature was of the opinion that in order to realize the purpose of the statute — preventing serious harm to the State budget — it was not sufficient to suspend the validity of the provision granting entitled persons a grant to buy or extend an apartment in Jerusalem from that time onward, but it was necessary to suspend the validity of that provision retroactively from the date on which it was enacted. However, there is no doubt that the saving achieved for the State budget as a result of denying the benefits to those few entitled persons who, during the six weeks in which the provision granting the benefits was valid, managed to rely upon it and to change their position adversely, is a negligible fraction of the total saving. Certainly, these are not amounts that are capable of frustrating the purpose of the statute — preventing serious harm to the budget. Therefore, the interpretation of Justice Cheshin, which excludes from the retroactive application of section 20 those few persons who relied on the provision of the entitling law, is consistent, or at least does not conflict with, the particular purpose of section 20 — preventing serious harm to the State budget.

5.    Alongside the particular purpose of the aforesaid section 20 is the general purpose of the section. Within the framework of this general purpose are the basic principles of our legal system. Within the framework of the general purpose of the legislation, there is, inter alia, a presumption that a statute is not intended to conflict with the basic laws and to harm the basic rights of the individual. The property right that the State gave to entitled persons under the aforesaid entitling provision was a concrete and restricted benefit that was given for the purpose of housing, and only to entitled persons who fell into the category of persons in need. Retracting the benefit from those persons who relied on that benefit to buy or extend a residential apartment amounts to a real infringement of the basic right to property. Therefore, there is no doubt that the general purpose of the aforesaid section 20 not only is consistent with the interpretation of Justice Cheshin, which seeks to prevent the serious harm to the property right of those entitled persons who relied on it, but it even requires this interpretation.

It should be noted that, in my opinion, in this case we are not required to decide the question of the status of the principle of reliance in Israeli law and the question whether it is included among the basic principles of our legal system (cf. paras. 18-19 of the President’s opinion). This is for the reason that in our case the question whether the principle of reliance in itself can require a narrow interpretation that is consistent with it does not arise. In the case before us, the reliance constitutes a circumstance that makes the harm to property disproportionate (as my colleagues Vice-President Mazza and Justice Rivlin explain), and the property right is the dominant basic principle in view of which the restrictive interpretation in required.

6.    Thus we see that the interpretation proposed by Justice Cheshin, which excludes from the retroactive application of section 20 the entitled persons who relied on the provision of statute that gave entitlement to a grant for the purchase or extension of an apartment in Jerusalem, is possible from the viewpoint of the language of the section, does not conflict with the particular purpose of the section, and is required by the general purpose of the section. In these circumstances, the interpretive path should be preferred to the voidance of the relevant part of the provision of statute.

 

 

Petition granted, in the manner stated in the majority opinion (Justice Cheshin, with President A. Barak and Justices A. Procaccia and D. Beinisch concurring), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

9 Kislev 5765.

22 November 2004.

 

 

[1]   The Hebrew acrostic for the four Rabbinic tools of Biblical interpretation.

HCJ 5261/04

Advocate Yossi Fuchs

v

Prime Minister of Israel, Ariel Sharon

HCJ 5262/04

Advocate Naftali Gur-Aryeh and another

v

Prime Minister of Israel and another

HCJ 5263/04

Yitzhak Vazana and others

v

Prime Minister of Israel and another

HCJ 5264/04

Advocate Ben-Zion Gispan

v

Prime Minister of Israel, Ariel Sharon and others

HCJ 5317/04

Minister of Tourism, Binyamin Elon

v

Prime Minister of Israel, Ariel Sharon

 

The Supreme Court sitting as the High Court of Justice

[26 October 2004]

Before President A. Barak, Vice-President E. Mazza
and Justices M. Cheshin, J. Türkel, D. Beinisch, A. Procaccia, E.E. Levy

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts: The prime minister wished to promote a political plan, known as the ‘disengagement plan.’ In order to ensure that a majority of the Cabinet would support the plan when it was brought to a vote, the prime minister removed two ministers from office two days before the vote was scheduled to be held.

The petitioners attacked the constitutionality of the prime minister’s action on both technical grounds and substantive grounds. They argued, inter alia, that it was improper for the prime minister to remove two ministers from office because they opposed his plan, in order to create an artificial majority in the Cabinet in favour of the plan.

 

Held: The Supreme Court held that the discretion of the prime minister when exercising his power to remove ministers from office was very broad, and that the removal of ministers from office in order to further a political plan that the prime minister regarded as essential for the welfare of the State of Israel fell within the zone of reasonableness for his action in removing the ministers from office.

 

Petitions denied.

 

Legislation cited:

Basic Law: the Government, 5728-1968, s. 21A.

Basic Law: the Government (Amendment no. 3) (5741-1981).

Basic Law: the Government, 5752-1992, ss. 35(b), 35(c).

Basic Law: the Government, 5761-2001, ss. 1, 3, 4, 5(a), 7(a), 13(c), 13(d), 14(d), 15, 16(a), 19, 20, 22, 22(b), 24(b), 25, 28, 29(a), 31, 31(f), 39, 40, 40(c).

Basic Law: the Knesset, ss. 1, 4.

Government Law, 5761-2001, ss. 1(a), 2, 9(6).

Interpretation Law, 5741-1981, s. 10(c).

Transition Law, 5709-1949, s. 11(g).

 

Israeli Supreme Court cases cited:

[1]      HCJ 621/76 Segal v. Government of Israel [1977] IsrSC 31(2) 8.

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

[3]      HCJ 6741/99 Yekutieli v. Minister of Interior [2001] IsrSC 55(3) 673.

[4]      HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(2) 481; [1998-9] IsrLR 139.

[5]      HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353; IsrSJ 10 204.

[6]      HCJ 1080/99 Duek v. Mayor of Kiryat Bialik [2001] IsrSC 55(2) 602.

[7]      HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [1993] IsrSC 47(5) 404; IsrSJ 10 258.

[8]      HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [2003] IsrSC 57(6) 817; [2002-3] IsrLR 311.

[9]      HCJ 5131/03 Litzman v. Knesset Speaker [2005] IsrSC 59(1) 577; [2004] IsrLR 363.

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

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

[12]    HCJ 1635/90 Jerzhevski v. Prime Minister [1991] IsrSC 45(1) 749.

[13]    HCJ 502/99 Cohen v. Prime Minister (unreported).

[14]    HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[15]    HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55(4) 800.

 

The petitioner in HCJ 5261/04 represented himself.

For the petitioners in HCJ 5262/04 — N. Gur-Aryeh.

For the petitioners in HCJ 5263/04 — A. Nof.

For the petitioners in HCJ 5264/04 — S. Samina, B.Z. Gispan.

For the respondents — O. Mendel, A. Helman, High Court of Justice Department at the State Attorney’s Office.

 

 

JUDGMENT

 

 

President A. Barak

The prime minister wishes to promote a national-political plan. He considers this plan to be vital to the future of the State of Israel. It has serious ramifications in terms of the foreign and defence policies of the State of Israel. The prime minister gives instructions that the plan should be submitted to the Cabinet for its approval. Shortly before the time of the vote, the prime minister decides to exercise the power given to him in s. 22(b) of the Basic Law: the Government, and to remove from office two of the Cabinet ministers who oppose the plan and are working to prevent its approval. He does this in order to obtain a majority vote in the Cabinet. Is this decision lawful? That is the question before us.

The facts

1.    During 2004, the prime minister, Mr Ariel Sharon, began to promote a political plan that is called the ‘disengagement plan.’ The plan includes the evacuation of all of the settlements in the Gaza Strip and several settlements in Samaria. The prime minister decided to submit the plan to the Cabinet for approval. A discussion of the matter was scheduled for Sunday, 6 April 2004. On Friday, 4 April 2004, the prime minister sent letters to two Cabinet ministers, MK Avigdor Lieberman (the Minister of Transport) and MK Binyamin Elon (the Minister of Tourism), both from the National Union faction, removing them from office. The removal from office was carried out by virtue of the prime minister’s power in s. 22(b) of the Basic Law: the Government. The grounds for the decision to remove the ministers from office were the fact that both of the ministers had said and made it clear that they were vehemently opposed to the ‘disengagement plan’ and that they would do everything they could to prevent it from being approved by the Cabinet, and the assumption that, in view of this opposition, the two ministers would in any case not remain in the Cabinet, if the plan were approved. The prime minister was of the opinion that this was a political plan ‘of historic significance’ (s. 2 of the Attorney-General’s response), that it was essential for ‘ensuring the future welfare of the State of Israel’ (ibid.) and that it was of decisive importance in the context of international relations between the State of Israel and other countries’ (ibid.). For this reason, in the prime minister’s opinion, ‘the rejection of the plan by the Cabinet would have had very grave implications for the foreign relations of the State of Israel’ (ibid.). Therefore, the removal of the ministers from office was intended to ensure that the ‘disengagement plan’ would be approved by a majority of the Cabinet and would be implemented.

2.    The letters removing the ministers from office were signed as aforesaid on Friday, 4 June 2004. When they had been signed, but before they were delivered to the ministers who were removed from office, the members of the Cabinet were notified by telephone of the prime minister’s decision to remove the Minister of Tourism and the Minister of Transport from office. The letter to the Minister of Transport was delivered by a messenger from the prime minister’s office on the same morning. The prime minister informed the Minister of Tourism of his removal from office in a telephone conversation between them. Meanwhile, the efforts that were made to ascertain the physical location of the Minister of Tourism in order to deliver the letter removing him from office were unsuccessful. The Minister of Tourism refused to divulge his location to the Cabinet secretary in conversations that they had during that day. A messenger, who was sent to the home of the Minister of Tourism as well as to his office, did not find him at those locations. Finally it was decided — after the Cabinet received guidelines from the Attorney-General in this respect — that in the circumstances it was sufficient to send the notice by facsimile and by messenger to the home and office of the Minister of Tourism, together with notice by telephone. Notice as aforesaid was given to the minister’s assistant, but the attempt to speak with the minister himself was unsuccessful. Equally unsuccessful was the attempt to send the notice by facsimile to the minister’s home. A driver was sent to the minister’s home, and he tried to leave the letter concerning the removal from office in the mailbox, but, according to what the Cabinet secretary was told by the security officer at the Ministry of Tourism, the sentry on duty had received orders from the minister himself not to accept the letter. Finally, on Friday afternoon the letter removing him from office was placed on the reception desk of the office of the Minister of Tourism.

3. On Sunday, 6 June 2004, petitions were filed in this court, asking that we make an order nisi and an interim order, to the effect that the letters removing the ministers from office should be suspended and not come into effect. In the decision of this court (the honourable Justice E.E. Levy) on 6 June 2004, it was decided to deny the application for an interim order, and it was held that, at this stage of the proceedings, it appeared that the procedure that was followed for delivering the letters to the ministers was prima facie lawful, as was the notice to the Cabinet ministers of the prime minister’s decision in this regard.

4. The Cabinet meeting took place as planned on 6 June 2004. The Minister of Tourism came to this meeting, but when it became clear to him that the application for an interim order was denied by this Court, he left the meeting. It was decided in the Cabinet meeting to approve the ‘disengagement plan’ that the prime minister presented, by a majority of seven for and four against.

The arguments of the parties

5.    In the five petitions that were filed in this court, two main arguments were raised against the legality of the action of the prime minister, with respect to the removal of the Minister of Tourism and the Minister of Transport from office. The first argument was mainly a procedural one, according to which the procedure for removing the Ministers from office was unlawful, in view of the provisions of s. 22(b) of the Basic Law: the Government, for the following reasons: the period of forty-eight hours until the letters came into effect as intended included the hours of the Sabbath; the letter was not delivered to the Minister of Tourism himself; the telephone notice of the prime minister’s decision that was given to the ministers did not, according to the petitioners, comply with the conditions prescribed by law. The second argument argued before us — and this is the main one —was that the decision to remove the ministers from office was not in itself a lawful one. The petitioners argued that the prime minister is not authorized to remove a minister from office in circumstances where the reason for this decision is a political position that is held by that minister and that is opposed to a position or plan of the prime minister. This is especially the case in view of the fact that the Cabinet had not yet reached a decision on the matter, and there had been no claim that the minister concerned lacked the necessary abilities or qualifications, or had run his ministry improperly. A minister should not be dismissed merely for political reasons. This is especially so when the government and its basic principles won the confidence of the Knesset and also when the prime minister does not have unlimited powers but is primus inter pares. Alternatively, it was argued before us that even if the prime minister was authorized to remove a minister from office because his positions conflicted with the positions and plans of the prime minister, the decision to remove the ministers from office was extremely unreasonable, in the circumstances of the case, and therefore the court ought to intervene therein, since the purpose of the removal from office was to ensure an ‘artificial’ majority in the vote at the Cabinet meeting, and the use of the power to remove a minister from office merely in order to obtain a majority by uprooting the position of that minister ab initio is improper and extremely unreasonable. It was further argued that the removal from office was unlawful, since the ministers of the National Union faction had not departed from what was agreed in the coalition agreements and in the basic principles of the Government.

6.    In their response, the respondents asked us to deny the petitions. According to them, the prime minister’s decision was lawful, both from a procedural point of view and on the merits. With regard to the procedural aspect, the letters of dismissal were lawfully delivered to the two ministers, and the failure to deliver the letter physically to the Minister of Tourism did not undermine the validity of the removal from office, both in view of the reasons in the Attorney-General’s guideline in this matter, and in view of the purpose of the Basic Law: the Government and the fact that the minister knew that he had been removed from office. There was also no defect in the fact that the period of time from the decision to remove the ministers from office until it came into effect included the Sabbath, nor in the fact that the notice of the removal from office was given to the other Cabinet ministers by telephone. On the merits, the respondents argued that the prime minister’s discretion pursuant to the Basic Law also includes circumstances in which he is seeking to promote an important political plan to which one of the ministers is opposed and wishes to frustrate. The prime minister may remove a minister from office for this reason even when there is no argument with respect to the qualifications of the minister or the manner in which he carries out his job. This can also be seen from the purpose of the Basic Law: the Government and from the broad discretion given to the prime minister by virtue of his special status in the system of government in Israel. Moreover, the decision to remove the Ministers from office, in the circumstances of this case, does not warrant the intervention of this court, since it is reasonable on the merits. We are speaking of an important and essential political plan, whose approval by the Cabinet was of extreme importance, in defence and policy contexts. The removal of the two ministers from office was reasonable and even necessary, and it certainly does not warrant the intervention of this court, particularly in view of the broad discretion that the prime minister has in this context.

7.    On 20 June 2004 a hearing took place on the petitions. Two days later (22 June 2004), it was unanimously decided to deny all of the petitions, with a stipulation that the reasons would be given separately. The following are our reasons.

8.    As can be seen from the dispute between the parties, there are two issues before us. One is whether the removal from office was lawful, in the procedural sense. The other is whether the decision to remove the ministers from office was lawful on the merits. The question of the intervention of this court will be determined by these. Let us begin with the first question.

The procedural aspect

9.    Consideration of the petitioners’ arguments and the procedural issues that they raised has led us to the conclusion that they are insufficient in order to undermine the validity of the decision to remove the ministers from office. Section 22(b) of the Basic Law: the Government provides that ‘The prime minister may, after notifying the Government of his intention to do so, remove a minister from office; the office of a minister ends forty-eight hours after the written notice of his removal from office has been delivered to him, unless the prime minister changes his mind before that.’ There is no dispute that the written notice of dismissal was delivered to the Minister of Transport. With respect to the Minister of Tourism, we accept the position of the respondents that it is possible, in the circumstances, to regard the Minister of Tourism as someone to whom written notice of removal from office ‘has been delivered,’ within the meaning of this term in the Basic Law: the Government. There is no dispute that the Minister of Tourism was, in fact, aware of the prime minister’s decision, since the prime minister himself notified him of this by telephone. Messengers were sent both to the home and the office of the Minister of Tourism. At the same time, the Minister of Tourism refused to divulge his physical location and so in practice he frustrated the possibility of physically delivering the written notice of removal from office. There is no dispute that the requirement of delivery in s. 22(b) of the Basic Law: the Government must be satisfied in accordance with the letter of the law, not only because of the rule of law (and the rule of the constitution), but also in order to preserve the status of a Cabinet minister, his ability to know with certainty whether it has been decided to remove him from office, and the ability to calculate the forty-eight hours from the time of delivery of the written notice of removal from office until the removal from office comes into effect. As we shall clarify below, this period has an importance of its own, particularly in the context of the prime minister’s power to remove a minister from office, but the requirement of delivery ‘to’ the minister who is being removed from office must be interpreted not only ‘in accordance with the letter of the law,’ but also ‘in accordance with its purpose.’ This purpose concerns, as aforesaid, clarity and certainty, and a clear allocation of forty-eight hours from the moment of delivery until the removal from office comes into effect. We are satisfied that, in such circumstances where the minister was notified of his removal from office by telephone, messengers searched for him at his home and his office, and mainly where the Minister himself refused to divulge his location, the written notice of removal from office may be regarded as having been ‘lawfully’ delivered, within the meaning of s. 22(b) of the Basic Law: the Government.

10. An additional argument of the petitioners concerned the period of time between the delivery of the letter of removal from office and the coming of the removal from office into effect. According to s. 22(b) of the Basic Law: the Government, the removal from office comes into effect forty-eight hours after it has been delivered to the minister. In the case before us, the delivery took place on Friday morning and the Cabinet meeting was on Sunday, a little more than forty-eight hours later. The argument is that the Sabbath should not be included within the framework of these forty-eight hours, and therefore when the Cabinet voted the removal from office had not yet come into effect. The Attorney-General asked us to reject this argument, so we must ask whether the Sabbath should be included in the case before us in the calculation of the forty-eight hours. Our answer to this question is yes, and therefore the petitioner’s argument in this regard should be rejected.

11. This position of ours is based on the interpretation and purpose of the provision according to which the removal from office comes into effect only forty-eight hours later, as stated in s. 22(b) of the Basic Law: the Government. Indeed, this provision has a double purpose: first, the right to change one’s mind. Removal from office is not an insignificant matter; it is a special step that has broad ministerial and political implications. The forty-eight hours are therefore intended to allow the person who decided upon the removal from office — the prime minister — to change his mind (see and cf. HCJ 621/76 Segal v. Government of Israel [1], at p. 12). Second, giving time to the various parties and institutions to act — should they wish to do so — with respect to the decision of the prime minister. A decision to remove a minister from office does not merely affect the minister himself: it affects the party on behalf of which he was appointed, and the faction of which he is a member; it concerns the entire government and its internal balance of power; it concerns the relationship between the Knesset — which expressed confidence in the government and its composition — and the government, as well as the relationship between the Knesset and the prime minister. Therefore the forty-eight hours constitute a kind of balancing mechanism, which is intended to suspend the removal of office from coming into effect to allow other parties and institutions to take action. At the same time, this period was set at forty-eight hours only, in order to allow the prime minister to make effective use of this power and to carry out his role as head of the government. Upon examination of the circumstances of the case, and in view of this double purpose, we have reached the conclusion that the Sabbath, which fell in the middle of the forty-eight-hour period, is a part of the period and therefore the removal from office became effective on Sunday morning, before the Cabinet meeting. As to the right of changing his mind, we have not heard any argument that the prime minister wished to change his mind or that he was unable to do so because of the Sabbath. As to ensuring sufficient time for the action of other parties and institutions, there was in fact sufficient time for this purpose. The prime minister’s decision concerning the removal from office was conveyed to the two ministers on Friday morning. There were several hours before the Sabbath began. An additional twelve hours passed from the end of the Sabbath until the time when the removal from office came into effect. During this time, petitions were filed in this Court and even an application to grant an interim order was heard. Admittedly, we are not speaking of a long or significant period of time, but it is a sufficient period of time for the purpose of realizing the various purposes underlying s. 22(b) of the Basic Law: the Government.

12. We could have reached a similar conclusion not only on the basis of the purpose of s. 22(b) of the Basic Law: the Government, but also in view of s. 10(c) of the Interpretation Law, 5741-1981. This section provides that ‘when calculating a period of time, rest days, court vacation or statutory holidays shall also be included, unless they are the last days of the period.’ It follows that according to this provision, the calculation of the period should also include the Sabbath. I should mention, in passing, that even if this is the case, it does not constitute a basis for the interpretation of s. 22(b) of the Basic Law: the Government. The Interpretation Law is an ordinary statute, whereas s. 22(b) of the Basic Law: the Government is a constitutional super-legislative provision. There is a basis for the argument that this provision cannot — in the absence of another provision in the basic law itself — define terms in the basic law (see HCJ 1384/98 Avni v. Prime Minister [2], at pp. 210-211). This provision can, of course, assist in the interpretation, but it is not binding within the framework of interpreting the term ‘forty-eight hours’ in s. 22(b) of the Basic Law: the Government.

13. The last argument — from the procedural viewpoint — that was presented to us was that the notice to the Cabinet of the removal from office was not delivered to the Cabinet ministers lawfully. Indeed, it is provided in s. 22(b) of the Basic Law: the Government that the removal of a minister from office takes place ‘after the [prime minister] has given notice to the Cabinet of his intention of doing so.’ The petitioners argue that the notice must be given by the prime minister personally and certainly not by telephone. Therefore the alleged defect is that the notice was given by the Cabinet secretary, on Friday morning, by telephone, to the Cabinet ministers and not to the Cabinet itself at its meeting. We have found no merit in this argument. Indeed, notice to the Cabinet of the intention of removing a minister from office is a condition for carrying out the removal from office lawfully. This is not merely a formal requirement, but it reflects the status of the whole Cabinet as a collective entity and the balance between the status of the Cabinet and the Cabinet ministers on the one hand, and the status of the prime minister on the other. But we have not found in either the language or the purpose of the section a requirement that the notice should be conveyed specifically in writing, or by the prime minister personally. What is important is the notice and the knowledge, and in this context no claim has been brought before us that any of the Cabinet ministers was not notified of the intention or that the manner in which the notice was given was unlawful. We have found no basis for the argument that the notice must be given to the Cabinet, as distinct from the ministers, and specifically at a Cabinet meeting, particularly in view of what is stated in the Basic Law: the Government, according to which the government is composed of the prime minister and other ministers (s. 5(a)). It follows that this argument too should be rejected.

14. The conclusion is therefore that there were no procedural defects in the decision to remove the Minister of Tourism and the Minister of Transport from office that justify its being set aside, and it follows that there is no ground for our intervention on this basis. Consequently, it becomes necessary to examine the main argument in the petitions before us, that the prime minister unlawfully exercised the power given to him under s. 22(b) of the Basic Law: the Government. Let us therefore turn to examine this aspect, which is the substantive one.

The normative framework

15. The power of the prime minister to remove a minister from office is found in s. 22(b) of the Basic Law: the Government:

‘The prime minister may, after notifying the Cabinet of his intention to do this, remove a minister from office; the office of a minister is terminated forty-eight hours after the written notice of removal from office has been delivered to him, unless the prime minister changes his mind before that time.’

The provision gives the prime minister power to remove a minister from office. It does not set out the scope of the discretion that the prime minister has when making a decision of this kind. We learn from the basic principles of our legal system that the discretion is not absolute. ‘Israeli law does not recognize “absolute” discretion’ (per Justice M. Cheshin in HCJ 6741/99 Yekutieli v. Minister of Interior [3], at p. 682). There is no public official in Israel who has absolute discretion. This is the rule, and it also applies to the prime minister. All executive discretion is limited, by its very nature. What are the limits that apply to the discretion of the prime minister when removing a minister from office? The decision in this regard is based on the purpose of s. 22(b) of the Basic Law: the Government (see, for example, Avni v. Prime Minister [2]). Within this framework, we should take into account the basic principles of the structure of government in Israel, as reflected in the relevant provisions of the various Basic Laws and the fundamental principles of our legal system.

16. The power of the prime minister to remove a minister from office is founded upon two conflicting aims. The first aim concerns the strengthening of the status and the independence of a Cabinet minister and the Cabinet as a whole, as these derive from the system of government in Israel, the relationship between the Knesset and the Cabinet and the relationship between the prime minister and the Cabinet as a whole and the ministers in it. The second aim concerns the strengthening of the status, authority and powers of the prime minister, vis-à-vis the other members of the Cabinet, vis-à-vis the Cabinet as a whole and vis-à-vis the Knesset. The prime minister’s power to remove a minister from office — just like the scope of this power and the discretion underlying it — are the product of a balance between these two conflicting aims.

The status of a Cabinet minister and of the Cabinet as a whole

17. Several fundamental principles that can be seen from the Basic Law: the Government in particular and from the Israeli legal system in general indicate the status of a Cabinet minister and of the Cabinet as a whole. First, Israel is a parliamentary democracy. This is a system of government in which the executive authority — which is the government (s. 1 of the Basic Law: the Government) requires the confidence of the Knesset in order to hold office (s. 3 of the Basic Law: the Government). Moreover, the Knesset can pass a vote of no confidence in the government and thereby terminate its office (s. 28 of the Basic Law: the Government). According to s. 5(a) of the Basic Law: the Government, ‘The government is composed of the prime minister and other ministers.’ Admittedly the prime minister is the person who forms the government (s. 7(a) of the Basic Law), but once the government has been formed, it must appear before the Knesset and notify it of its basic principles, its composition and the distribution of portfolios between the ministers, and ask for the confidence of the Knesset (s. 13(d) of the Basic Law). These provisions, when taken together, show that the Knesset votes confidence in a particular composition of the government. A minister who has been included as a member of the government at the beginning of its term of office has received the confidence of the Knesset. This is of special importance. The Knesset is the legislature of the State (s. 1 of the Basic Law: the Knesset) and the representative organ of state that is elected by the sovereign, which is the people (HCJ 3267/97 Rubinstein v. Minister of Defence [4], at p. 508 {172-173}). The Knesset expressed confidence in a particular composition of the government, including the holding of office by every minister therein. In addition, if a minister is included in the government after confidence has already been expressed, although the renewed confidence of the Knesset is not required and a Cabinet decision is sufficient, nonetheless the notice of this decision must be given to the Knesset and the office of the minister becomes effective only when the Knesset has approved the notice (s. 15 of the Basic Law). The significance of this is that the Knesset is involved in the formation of the government, and is concerned therein both at the beginning of its term of office — within the framework of the vote of confidence — and subsequently — within the framework of the approval of the government’s notice about the addition of a minister to the Cabinet. Second, the government in Israel is a collective entity. The Basic Law: the Government distinguishes between powers given in the Basic Law to the government and those given to the prime minister (see, for example, ss. 24(b), 31 and 39 of the Basic Law). Thus, for example, the Basic Law: the Government provides that ‘the Cabinet shall determine the procedures for its meetings and work, the manner of its deliberations and the way in which it makes its decisions, whether on a permanent basis or for a particular matter’ (s. 31(f) of the Basic Law). The powers given to the government are given to the prime minister and the other ministers jointly, since ‘the government is composed of the prime minister and other ministers” (s. 5(a) of the Basic Law: the Government). Cabinet decisions are therefore decisions of the government as a whole, i.e., a decision of the various ministers who comprise it. A Cabinet minister —like the Cabinet as a whole — is in this sense a ‘constitutional organ.’ The collective responsibility of the Cabinet before the Knesset (s. 4 of the Basic Law: the Government) also establishes the status of the Cabinet as a collective entity, as well as the status of each of the ministers who comprise it. Third, the proportional method of elections in Israel (s. 4 of the Basic Law: the Knesset) usually leads to the governments in Israel being coalitions of various factions that represent several parties that contested the election for the Knesset (see HCJ 1601/90 Shalit v. Peres [5], at p. 363 {218-219}). In general, appointing someone as a minister does not merely reflect the ministerial aspect of his position. It also reflects the party political aspect of giving executive power to representatives of the various factions that are members of the government (cf. HCJ 1080/99 Duek v. Mayor of Kiryat Bialik [6], at p. 612). ‘A minister who sits at the Cabinet table as a representative of a party or a movement undoubtedly fulfils a political function. He expresses opinions and outlooks, a political and social approach, that are espoused by the public that elected him and by the movement that regards him as its representative in the government’ (per Justice D. Levin in HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [7], at p. 426 {289}). This coalition aspect establishes and strengthens the status of a Cabinet minister as well as the status of the government as a whole as a coalition of factions, which wields executive power in Israel.

The status of the prime minister

18. The prime minister is a minister (s. 5(a) of the Basic Law: the Government). Any law that derives from the status of a minister derives also from the status of the prime minister. Notwithstanding, the prime minister is a special kind of minister. He is first and foremost among the ministers. This is the case because of several provisions in the Basic Law: the Government. First, it is the prime minister who forms the government. The President of the State gives the task of forming the government to a member of the Knesset (s. 7(a) of the Basic Law: the Government). When the government has been formed by that member of the Knesset, he becomes the prime minister (s. 13(c) of the Basic Law: the Government). ‘… The prime minister has the main power with respect to forming the government, determining the identity of the ministers who hold office in it and the positions that they hold…’ (per Justice E. Rivlin in HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [8], at p. 833 {326}). Second, the Cabinet owes collective responsibility to the Knesset, but the ministers are personally responsible to the prime minister for the offices to which they are appointed (s. 4 of the Basic Law: the Government). This is personal responsibility of each minister to the prime minister in respect of his carrying out his office as a minister. Third, it is the prime minister who conducts the Cabinet meetings (see and cf. s. 16(a) of the Basic Law: the Government). Fourth, the resignation or death of a prime minister means the resignation of the government as a whole (ss. 19 and 20 of the Basic Law: the Government). Moreover, the prime minister has the power, in certain circumstances and with the consent of the President of the State, to bring about the dissolution of the Knesset (s. 29(a) of the Basic Law: the Government). Finally, if a minister ceases holding office, or he is temporarily incapable of carrying out his office, the prime minister or another minister designated by the Cabinet deputizes for him (s. 24(b) of the Basic Law: the Government). It follows that the prime minister is a member of the Cabinet, but his status is a special one. He is the head of the government. It is he who forms it. It is he who decides its composition and who will hold the various offices in it, and it is he that directs its main activities and objectives.

The authority to remove a minister from office

19. These conflicting aims — both the one concerning the status of the government and its ministers and the one concerning the status of the prime minister — are manifested in a series of arrangements that all serve to balance the importance of upholding the status of the prime minister and his ability to lead the government, on the one hand, and the recognition of the status of the Cabinet ministers and the government as a whole, on the other. The Basic Law: the Government recognized the status of a Cabinet minister and of the government as a whole, but at the same time it recognized the special status of the prime minister. It created various mechanisms that are intended to preserve both the status of a Cabinet minister and the government as a whole, and the status of the prime minister. Thus, for example, the confidence of the Knesset upon the formation of a government is given to the government as a whole, and not merely to the prime minister (s. 13(d) of the Basic Law). The prime minister cannot appoint a minister to the initial composition of the government without this appointment receiving the confidence of the Knesset; should there be a need to add a minister to the Cabinet after its initial formation, this is done in accordance with a proposal of the prime minister, but the decision in this regard is within the purview of the entire Cabinet, and notice of this must be given to the Knesset, which has the power to approve the notice or not (s. 15 of the Basic Law: the Government); the appointment of deputy ministers is made by the minister in charge of the ministry, but the consent of the prime minister and the approval of the Cabinet as a whole is required for this (s. 25 of the Basic Law: the Government). Indeed, the common factor in these and other provisions is the desire to ensure that the prime minister is able to fulfil his role as the head of state, including his ability to direct and manage government business, while at the same time preserving the status of the government as a whole and the other ministers who compose it.

20. Section 22(b) of the Basic Law: the Government, which concerns the power of the prime minister to remove a minister from office should be interpreted against this background. Indeed, the Basic Law: the Government gives the prime minister the power to remove a minister from office. This is a special power that indicates the power of the prime minister to decide the composition of his government. It reflects the special status of the prime minister and preserves his ability to manage the government and to allow it to achieve its goals (see and cf. W.I. Jennings, Cabinet Government (1947), at p. 163). The Basic Law: the Government could have provided a different arrangement with respect to this issue of the authority to remove a minister from the government after its formation. In systems of government such as the presidential system that exists in the United States, it is accepted that the status of the president as the head of the executive branch is much stronger. The ministers (‘the secretaries’) are appointed and dismissed by the president without any de facto intervention on the part of the legislature (see B. Schwartz, A Commentary on the Constitution of the United States — The Powers of Government, vol. II, (1963), at p. 39). By contrast, the Basic Law: the Government, in its original 1968 version, did not include any provision with respect to the removal of a minister from office and a removal of this kind could only take place upon a vote of no confidence in the government as a whole or the resignation of the whole government. In 1981, the Basic Law: the Government was amended by adding a provision that allows the prime minister to remove a particular minister from office without any connection to the question of a vote of confidence in the Knesset (section 21A of the Basic Law: the Government; the Basic Law: the Government (Amendment No. 3). 5741-1981). The Basic Law: the Government of 1992 included two arrangements concerning the removal of a minister from office. The first gave the prime minister the power to remove a minister from office (s. 35(b)) and the second gave the Knesset the power to remove a minister from office, with a majority of seventy members, after a majority of the members of the Knesset Committee so recommended and the minister in question was given a right to state his case before the Knesset Committee and before the Knesset (s. 35(c)). In the current version of the Basic Law: the Government, the arrangement that was finally chosen is that the power to remove a minister from office is given to the prime minister. The Knesset no longer has the power to dismiss an individual minister, but only the power to vote confidence or no confidence in the government as a whole. Alongside all these, s. 11(g) of the Transition Law, 5709-1949, has remained in force, and this provides that the government can remove a minister from his office if the minister or his faction votes against the government (see A. Rubinstein, The Constitutional Law of the State of Israel, vol. 2, (fifth edition, 1996), at pp. 742-743). So we see that the various arrangements, both in Israel and in comparative law, are all based upon different balancing points between the status of the prime minister and the status of a minister in his government. Therefore the question before us is what are the parameters of the prime minister’s discretion when exercising his power to remove from office one of the ministers in his government, as stated in s. 22(b) of the Basic Law: the Government.

The parameters of the prime minister’s discretion when removing a minister from office

21. The prime minister is a part of the administrative authority and the principles that apply to the administrative authority and its employees apply also to the prime minister. It follows that, like any public official, his discretion is not absolute. He must act reasonably and proportionately; he must consider only relevant considerations; he must act without partiality and without arbitrariness; he must act in good faith and with equality. Therefore the power to remove someone from office should be exercised ‘… fairly, without irrelevant considerations and for the public good’ (per President Shamgar in Movement for Quality Government in Israel v. Government of Israel [7], at p. 417 {276}). Like any power involving discretion, the prime minister also has a zone of reasonableness, within the framework of which he can select one of several reasonable options. In so far as each option is legal, this court will not intervene in this decision nor will it replace the prime minister’s discretion with its own (see Movement for Quality Government in Israel v. Prime Minister [8], at pp. 840-848 {336-348}). But the prime minister’s discretion is not unlimited; it is delineated by those situations of extreme unreasonableness. If a decision of the prime minister to remove a minister from office is extremely unreasonable — or a decision not to remove a minister from office is extremely unreasonable — it would be an unlawful decision, and the court would exercise its power of judicial review. Indeed, the grounds for judicial review and the substantive law are united (see and cf. HCJ 5131/03 Litzman v. Knesset Speaker [9]).

22. When will there be grounds to hold that the removal of a minister from office is unlawful, that it is unreasonable in the extreme? The answer to this question can be derived from the balance between the two different goals that underlie the purpose of the Basic Law: the Government. On the one hand, it is clear that the Basic Law: the Government did not give the prime minister unlimited power that would negate the status of a government minister, and the role of the government as a whole, as a collective entity with powers of its own. It follows that we should interpret the power of the prime minister in such a way that reflects the role of the government as a whole, with its various members, the fact that the appointment of the minister won the confidence or the approval of the Knesset, and the coalition-based form of government that is practised in Israel, where, in effect, the ministers — especially those who are not from the prime minister’s party — are chosen by their parties and not by the prime minister. It is natural that ‘when he is required to exercise his discretion, the prime minister may also address party-political considerations…’ (Justice D. Levin in Movement for Quality Government in Israel v. Government of Israel [7], at p. 427 {291}). On the other hand, it is clear that the Basic Law: the Government sought to maintain the status and the independence of the prime minister, as well as his ability to change the composition of the government in accordance with various needs that may arise during its term of office, while giving expression to the ability of the prime minister to manage and lead the government, and the responsibility of the ministers to him (s. 4 of the Basic Law: the Government). What is the proper balance between these two conflicting goals?

23. In our opinion, the proper balance is reflected in the approach that the prime minister is authorized to remove a minister from office only if the prime minister is convinced that this will promote the ability of the government to function properly as the executive branch of the State and to realize the policy goals which have been set. ‘The powers granted to the prime minister to appoint ministers and removing them from office are therefore a means for advancing the aforesaid purposes of improving the government’s image and functioning and public confidence in it’ (Justice E. Rivlin, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 846 {345}). This balance properly reflects the status of the government as a collective body that has won the confidence of the Knesset, on the one hand, and the prime minister’s need to adapt the composition of the government to various changes and developments, while preserving its ability to function properly, on the other. This criterion provides a proper solution in those cases where a minister is at odds with government policy or acts contrary to the principles of collective responsibility (see Movement for Quality Government in Israel v. Government of Israel [7], at p. 423 {282}, and Z. Segal, Israeli Democracy (1991), at pp. 130-131). It also includes an assessment of the minister’s functioning and his success in his office (see and cf. HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). Furthermore, this criterion includes those cases in which removal from office is required in order to maintain public confidence in the government, which is an important and relevant consideration within the framework of the ability of the government to function as the executive branch of the State. Indeed, maintaining public confidence in the government is a substantial and important consideration when scrutinizing the discretion in the removal from office (see Movement for Quality Government in Israel v. Prime Minister [8], at p. 898 {419}; Rubinstein and Medina, Constitutional Law of the State of Israel, at p. 708). Therefore, the criterion that removal from office will be deemed lawful only if the prime minister is persuaded that it is capable of promoting the government’s ability to function properly as the executive branch of the State and to realize the policy goals that have been set, properly addresses the cases where a member of the government is involved in a grave incident that affects the standing and image of the government, public confidence in it and its ability to lead and serve as an example, as well as its capacity to inculcate proper forms of conduct (see Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at pp. 460-461; Movement for Quality Government in Israel v. Government of Israel [7], at p. 423 {282}). This criterion — according to which the removal of a minister from office will be lawful if it is based upon the prime minister’s belief that it will promote the government’s ability to function properly as the executive branch of the State and to realize the policy goals that it has set — allows the prime minister to take account of ‘political’ considerations, which include the ‘need to preserve a coalition and to ensure the continued confidence of the Knesset…’ (my remarks in Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). It also includes situations where the conduct of a particular minister may ‘… cause irreparable national harm,’ because it impairs ‘… the proper functioning of the government and increases the chance that an erroneous decision may be made, which may have disastrous consequences for the State’ (Justice E. Goldberg in HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [11], at p. 65).

24. Indeed, this criterion reflects the special standing of the prime minister as the person responsible for the proper and effective management of the work of the government as a whole. It emphasizes the idea that ‘the main consideration in exercising the powers of the government and the prime minister is the public interest’ (my remarks in HCJ 1635/90 Jerzhevski v. Prime Minister [12], at p. 848). It expresses the principle in the Basic Law: the Government, that the ministers are responsible to the prime minister for the performance of their office. This criterion focuses on the prime minister’s discretion and assumes as its premise that the prime minister must have this discretion. It reflects the prime minister’s ability to remove a minister from office, even though the minister may have won the confidence of the Knesset when it expressed its confidence in the government as a whole, and irrespective of the fact that usually he will be the representative of a faction and party that contested the elections. It gives the prime minister a tool that allows, in certain circumstances, a change in the composition of the government. ‘The power, under this section, is unique both because of the standing of the prime minister concerning the composition of the government and because of the political nature of the government’ (per Justice Y. Zamir, in Movement for Quality Government in Israel v. Government of Israel [11], at p. 58). It is therefore a criterion that reflects the need to prevent ‘… “disruptions” to the functioning of the government’ (Movement for Quality Government in Israel v. Government of Israel [11], at p. 59).

25. But at the same time this criterion reflects the caution that the prime minister must show when removing a minister from office. The government and its ministers are not subordinate to the prime minister. They constitute a collective, constitutional organ. The executive branch of the State is the government, not the prime minister. When a minister has been appointed, and certainly when this appointment has won the confidence or the approval of the Knesset, it is not possible to remove him from office over a trifling matter. The decision to remove him from office must be supported by a basis of fact, as well as an objective reason that is capable of furthering the government’s ability to function properly and to fulfil its constitutional role as the executive branch of the State (s. 1 of the Basic Law: the Government). An objective reason of this kind is also required in order to preserve public confidence in the government and its actions. Since a minister is responsible to the prime minister (s. 4 of the Basic Law: the Government), when the prime minister is considering whether the minister should continue to hold office, it is appropriate that he should take into account the manner in which he has carried out his office. This criterion therefore reflects a proper balance between the status of a minister in the government and the government as a whole, and the need to preserve the ability of the government to function and to be managed by the prime minister, while realizing its constitutional role.

Removal from office on political grounds

26. Can the prime minister remove a minister from office because of his political opinions and because of his opposition to a political initiative that the prime minister is advancing? The answer to this question must be examined in accordance with the aforesaid criterion. The answer is yes, if the prime minister is persuaded that the removal from office will further the ability of the government to function properly as the executive branch of the State, and to realize the policy objectives that it has set. Therefore political considerations per se, within the framework of the prime minister’s decision to remove a minister from office, are not improper. They should be examined within the framework of all of the circumstances. It has been held that ‘… regarding a matter involving party politics, one cannot rule out taking into account considerations that are the product of political circumstances… party political considerations may be legitimate, in certain circumstances, but they should be examined with a proper balancing of the other considerations…’ (per President Shamgar, in Movement for Quality Government in Israel v. Government of Israel [7], at pp. 420, 423 {280, 285}; see also Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). It has also been held that ‘… no one will dispute the fact that the variety of considerations that the prime minister may take into account with respect to the appointment of a minister or his removal from office may include, inter alia, political considerations concerning the stability of the government, forming a lasting coalition and other considerations of a political nature, which are legitimate, and even essential, considerations in the process of forming a government and appointing ministers’ (per Justice D. Beinisch, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 939 {469}). These political considerations can also include policy issues. ‘… the constitutional authority for the appointment and removal of ministers is mainly intended to realize policy objectives, and even policy objectives of a political nature — including the need to appoint ministers with the proper skills and experience —which is the responsibility of the prime minister’ (per Justice D. Dorner in Movement for Quality Government in Israel v. Prime Minister [8], at p. 949 {482}). It follows that the mere fact that the removal from office was based upon policy opinions of that minister does not invalidate the removal from office, just as it does not validate it. We must examine whether, in the circumstances of the case, the prime minister was persuaded that the removal of the minister from office — because of the policy positions of that minister and because of the difference between them and the government’s positions — might further the government’s ability to function properly as the executive branch of the State, and to realize the policy goals that have been set.

Removal from office before a Cabinet vote

27. Some of the petitioners’ arguments were devoted to the question whether the prime minister can remove a minister from office in order to obtain a majority for a Cabinet vote. Their answer was no, on account of the importance of the principle of majority decision and preserving the independence of the discretion of Cabinet ministers. We cannot accept this position. If it is determined that the prime minister has indeed removed a particular minister from office, because he thought that the removal from office was required in order to further the ability of the government to function properly as the executive branch of the State and to realize the policy goals that it had set, this should not be prevented merely because it was done before a Cabinet vote and in order to influence the outcome of the vote. This is because the proper functioning of the government is manifested, inter alia, in its ability to make decisions that reflect policy objectives and national interests. What therefore is the point of waiting to see how things turn out, if the purpose of the removal from office is to further the activity of the government? It is possible that the impropriety in the minister’s actions — for which the prime minister wishes to remove him from office — is his actual vote and opposition to the policy that the prime minister wishes to advance. In these circumstances, if it is accepted that the removal from office was carried out by the prime minister after he was persuaded that this was required in order to further the activity of the government and its ability to meet the policy challenges that face it, it should not be held that the prime minister’s decision is lawful if — and only if — it was made after that minister expressed his opposition to a proposal within the framework of a Cabinet meeting or its decisions. Not only is such an interpretation not implied by the Basic Law: the Government itself, which merely requires notice to the government of the removal from office (s. 22(b) of the Basic Law) — but it also conflicts with the purpose of the Basic Law: the Government and the need to give the prime minister, as required by his special position, a tool to adapt the composition of the Cabinet to the constitutional role of the government.

The status of the basic principles

28. Is the prime minister bound by the basic principles of the government when he wishes to exercise his power under s. 22(b) of the Basic Law: the Government? Our response to this question is no. Indeed, the basic principles of the government have importance. This is not merely because they generally express the outcome of various coalition agreements that were signed and so, de facto, they constitute the government, but mainly in view of the constitutional role of these basic principles, as can be seen in s. 13(d) of the Basic Law: the Government, according to which ‘When the government has been formed, it shall appear before the Knesset, give notice of the basic principles of its policy, its composition and the distribution of portfolios between the ministers, and seek a vote of confidence…’ Therefore the confidence of the Knesset in the government is not merely personal but it also addresses the basic principles of its policy. This means, in practice, the realization of the concept of the confidence of the Knesset in the government, as well as the right of the public to know the principles and the objectives of the government, as it has been formed (cf. s. 1(a) of the Government Law, 5761-2001, and Shalit v. Peres [5]). But this importance of the basic principles does not limit the prime minister’s discretion when he is about to decide a question of removing a minister from office. There are two main reasons for this. First, we have discussed the fact that the Basic Law: the Government gave the prime minister, rather than the Knesset, the power to remove a minister from office. Restricting the prime minister to the basic principles of the government means de facto restricting him to the Knesset’s vote of confidence as it was expressed when the government was first formed (s. 14(d) of the Basic Law: the Government). As we have seen, this is not the arrangement that was chosen in the Basic Law: the Government, with respect to the power of the prime minister and his relationship with the Knesset. Second, it is inappropriate to regard the basic principles as boundaries of the prime minister’s power under s. 22(b) of the Basic Law: the Government. This power — according to the provision in the Basic Law itself — is a power involving discretion. The basic principles — like a political or coalition agreement that establishes them (see s. 2 of the Government Law, 5761–2001, and Jerzhevski v. Prime Minister [12], at pp. 846-848) — are incapable of limiting this discretion, not merely because the aforesaid discretion is stipulated in the Basic Law, but also because of the nature of goals and objectives, which require modification with the passing of time. Limiting the discretion of the prime minister to the basic principles means uprooting his ability to steer the government as the executive branch of the State, in accordance with changing needs. This is not what the Basic Law: the Government says, nor is it its purpose. Therefore we cannot accept the petitioners’ argument in this context, and we do not need to decide the question whether the prime minister did, in fact, act contrary to the basic principles or not, either in his policy or in his decision to remove from office ministers who acted in accordance with what is stated in the aforesaid basic principles.

The scope of the intervention of this court in the decision of the prime minister

29. Indeed, it is natural that the spectrum of cases, in which the prime minister may be persuaded that the removal of a minister from office may further the ability of the government to function properly as the executive branch of the State and to realize the policy goals that it has set, is very broad. This is especially so in view of the fact that we are speaking, in the final analysis, about a tool that has been given to the prime minister so that he can guide the ship of State to safety, while maintaining its cohesion and its ability to rise to the various goals and challenges that it faces. This breadth of the spectrum of cases, just like the purpose of giving discretion precisely to the prime minister, sheds light on the scope of the discretion entrusted to him. This is very broad discretion (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 460; HCJ 502/99 Cohen v. Prime Minister [13]), or ‘broad in the extreme’ (per Justice E. Rivlin, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 846 {345}). This cannot be restricted in a sweeping manner that will undermine the position of the prime minister, as it appears from the provisions of the Basic Law: the Government. This broad scope of the discretion in the Basic Law also determines the scope of the intervention of this court in the decision of the prime minister to remove a minister from office or not to do so. It should be noted that the scope of judicial review of the decisions of the prime minister concerning the removal of a minister from office is a mirror image of the scope of the power of the prime minister. The judicial review is narrow in nature because of the broad spectrum of considerations that the prime minister may take into account within the framework of the discretion given to him when deciding to remove a minister from office. This broad spectrum is what determines the question when removal from office is lawful and when it is not lawful. Its breadth is what limits the scope of judicial review. In this sense, it is true that ‘the zone of reasonableness is as broad as the power itself’ (per Justice M. Cheshin in Movement for Quality Government in Israel v. Prime Minister [8], at p. 916 {439}; Litzman v. Knesset Speaker [9]; and cf. Movement for Quality Government in Israel v. Government of Israel [11], at p. 68). Moreover, we should remember that the parliamentary system of government in Israel means that review of the actions of the government and the prime minister is usually the purview of the Knesset, which votes its confidence in the government and also has the power to vote no confidence in it. This review of the Knesset — and the political establishment as a whole — also affects the breadth of the prime minister’s discretion and consequently the degree of intervention of this court (see and cf. HCJ 5167/00 Weiss v. Prime Minister [14]; HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [15]). Notwithstanding, it should be recalled that the power of the prime minister is not absolute. There are situations in which he is not entitled to make use of the power that is given to him, and in any case there exists judicial review — as distinct from parliamentary review — if he has exercised his power and removed a minister from office. Does the case before us fall within this framework?

From the general to the specific

30. The prime minister wished to advance a national political plan, and in his opinion this is a plan ‘that is vital for the future of the State of Israel, a plan that has serious implications, inter alia, for foreign affairs and the security of the State of Israel’ (para. 62 of the response of the Attorney-General). No one denies that the prime minister clearly exercised his power on the basis of national political considerations, namely his desire to advance the ‘disengagement plan.’ In these circumstances, we are persuaded that the removal from office falls within the scope of considerations whose main purpose is to further the ability of the government to function properly as the executive branch of the State and to realize the political goals that it has set, while maintaining public confidence in the government. The existence of political negotiations, while addressing international and defence issues of the State, certainly falls within the framework of the role of the government in Israel and is included in the framework of its policy goals. The prime minister thought that the positions and the opposition of the Minister of Transport and the Minister of Tourism would frustrate this process, and for this reason it was correct to remove them from office. The response of the Attorney-General also shows the importance of the timing that was chosen. A vote of no confidence in the government was scheduled for 7 June 2004, because of the failure to approve the ‘disengagement plan.’ On 8 June 2004, the prime minister was obliged to take part in a political debate in the Knesset. These reasons were added to the position of the prime minister, that there was special importance to the timing of the government’s decision (on 6 June 2004) with respect to the approval of the ‘disengagement plan,’ because of serious aspects of foreign affairs of the State of Israel and undertakings that the prime minister had given in the international arena. It should be further noted that Justice Levy proposed, when he heard the application for an interim order in this case, that the Cabinet meeting should be postponed to a later date, but the prime minister was unwilling to postpone the date of the meeting, for the aforesaid reasons. It need not be said that we are not expressing any position on the question whether the political plan is an appropriate one or not. The only issue that we are discussing is whether the removal of the ministers from office by the prime minister, for the purpose of facilitating the adoption of the plan by the government — at the time and in the circumstances when it was done — is constitutional or not. In this respect, we are satisfied that the removal from office falls within the prime minister’s zone of reasonableness, as stated in s. 22(b) of the Basic Law: the Government. In any event, and in consequence thereof, there are no grounds for our intervention in this decision.

31. For these reasons, we have decided to deny the petition.

 

 

Justice M. Cheshin

Section 22(b) of the Basic Law: the Government (5761-2001) tells us the following:

‘Termination of the office of a minister

22.(a) …

(b) The prime minister may, after notifying the Government of his intention to do so, remove a minister from office; the office of a minister ends forty-eight hours after the written notice of his removal from office has been delivered to him, unless the prime minister changes his mind before that time.

 

     (c) …

The question relevant to our case is this: what considerations may the prime minister take into account when he decides to remove a minister from office? More precisely, what considerations may the prime minister not consider as a basis for removing a minister from office? The law does not tell us either the former or the latter considerations, and, as is our wont, we will learn and discover the nature of those considerations from the matter at hand. We are speaking of the composition, structure and management of the government, and everyone knows and understands that we are dealing here with an issue that is replete with policy and politics. The material is the material of policy and politics; the substance of which the government is made is the substance of policy and politics; the atmosphere is an atmosphere of policy and politics; everywhere you turn, the environment of the government is policy and politics, and the prime minister and the Cabinet ministers live and breathe policy and politics from morning to evening, every day, continuously. And just as issues of policy and politics lead to the formation of a government, the same is true with regard to the continuation of the government’s existence and management, both outwardly and inwardly. All of this implies, and it can be understood from the context, that when removing a minister from office the considerations of the prime minister will mainly be considerations of policy and politics.

2.    What is the scope of the prime minister’s discretion when removing a minister from office? Indeed, ‘absolute’ discretion is neither known nor found in our legal system. No one holds unlimited office or power. An authority that holds power by law — any authority — holds its power in trust for the public, and there is no trustee whose power knows no limits. But it is also true that we will find it difficult to describe an example from life — from our life — where by removing a minister from office the prime minister’s discretion will overstep its limits. The power of the prime minister extends far and wide, as far as the eye can see; his power is so broad — ‘broader than broad’ — that it resembles a ‘black hole’ which sucks in almost all considerations. This does not include or justify considerations based on corruption, God forbid, or considerations bordering on corruption. But apart from these considerations of a corrupt nature, we will have difficulty in finding considerations that are irrelevant. This is true of national considerations and political considerations, as well as of personal considerations.

            So much for the scope of the discretion.

3.    As to the scrutiny of the court with regard to the removal of a minister from office — and this is the other side of the coin — it has been said that the discretion of the prime minister in this regard moves in the stratosphere, where the legal atmosphere is weak and rarefied. Such is the legal atmosphere, and such is the scrutiny of the Court. Indeed, the strength of the court’s scrutiny is determined, inter alia, by the breadth and the depth of the power of the competent authority, naturally in inverse proportion. And since we know that the power of the prime minister to remove a minister from office is all-embracing, we also know that the strength of the court’s scrutiny is small. Admittedly, it is possible that in certain circumstances — for example, because of overwhelming national considerations — the court will compel a prime minister to remove a minister from office. See, for example, Movement for Quality Government in Israel v. Government of Israel [7] (the Deri case); Amitai, Citizens for Good Government and Integrity v. Prime Minister [10] (the Pinhasi case); Movement for Quality Government in Israel v. Prime Minister [8] (the Hanegbi case, minority opinion at pp. 881 {393} et seq. and 939 {468} et seq.). But our case is one where the prime minister himself wishes to remove a minister from office, and in this context we will find it difficult, as aforesaid, to find a consideration that will escape from the gravitational force of the prime minister’s authority.

4.    When the prime minister decides to remove a minister from office, and all the preliminary conditions required by statute are fulfilled, we will have difficulty finding a court that will order him — contrary to his decision — to sit at the Cabinet table with a minister whom he does not want. Indeed, the solution to the issue of the removal of a minister from office is not to be found in the court. The solution is to be found in the standing of the prime minister in his party, in the mutual relationships between the parties, in the standing of the government in the Knesset, in public opinion. Just as the power and the strength of the prime minister derive from his party, from the coalition agreements, from the confidence of the Knesset and from public support, so too that party, those agreements and with them the confidence of the Knesset and public support will also determine the limits of his power to remove a minister from office. In other words, when we consider the nature of the material, we will know — in principle — that the authority and power of the prime minister to remove a minister from office stops with his party, the coalition agreements, the confidence of the Knesset and public support. In general, it may be said that considerations that lead to the formation of a government are also the ones that will determine the government’s path, and they are considerations that a prime minister can and may take into account when he decides to remove a minister or ministers from office. I repeat that this is the case when the prime minister wishes to exercise his power to remove a minister or ministers from office. It is not the case when the prime minister refuses to exercise his power and thereby harms a value of great importance in national life.

5.    Finally, my colleague President Barak says in his opinion that when the prime minister wishes to remove a minister from office, it is incumbent upon the prime minister to act reasonably and proportionately, to consider only relevant issues, to act without partiality and without arbitrariness, to act in good faith and with equality. Within the limits of rhetoric, I agree with my colleague, but pitfalls await us in these guidelines. Take, for example, the principle of reasonableness. How will this principle further us if we believe — as I do — that with the exception of considerations that can be regarded as considerations of a corrupt or quasi-corrupt nature, the prime minister is entitled and authorized to consider (almost) every consideration that exists: national considerations, political considerations, personal considerations? And if this is the case with respect to reasonableness, it certainly applies to proportionality. The same applies with respect to the guideline of relevant considerations, the guideline prohibiting partiality and arbitrariness, etc.. In fact, as I have expressed my opinion above, with the exception of considerations of a corrupt or quasi-corrupt nature, I will have difficulty seeing a court intervene in the proceeding of removing a minister from office. This proceeding is for the Knesset and the coalition partners to judge, for their judgment — in the main — and not for the judgment of the court.

 

 

Vice-President E. Mazza

The reasons of my colleague, the President, explain well the constitutional outlook that served as a basis for our decision, on 22 June 2004, to deny the petition.

 

 

Justice E.E. Levy

1.    I accept the approach of my colleague, Justice M. Cheshin, that the power of the prime minister to remove a minister from office ‘is all embracing,’ and this determines, inversely, the scope of the power of review of this court. Therefore I have joined in denying the petitions, but I found it necessary to add several comments.

2.    Amendment no. 3 of the Basic Law: the Government, which gave the prime minister the power to dismiss a minister who holds office in his government and was incorporated in the Basic Law: the Government of 2001, was preceded by a draft law in the same spirit, which was debated in the Knesset in 1981 and was intended, according to the explanatory notes, to help the prime minister contend, inter alia, with what were defined as ‘small, extortionist parties’ (see the draft Basic Law: the Government (Amendment no. 3)). During the debate on the draft law, MK Amnon Rubinstein grimly described the status of the prime minister at that time, as someone who ‘… is leading a strange alliance of independent, semi-feudal ministers, each of whom has his own domain that may not be touched… the result, of course, is that it is impossible to put any real national policy into effect, there are no priorities, there is no possibility of shaping economic policy, which clearly, primarily and absolutely requires national priorities’ (Divrei HaKnesset  (Knesset Proceedings) (5741) 2693, session dated 13 May 1981, at p. 2694).

Similar remarks were made by Knesset Member Moshe Shahal: ‘… It is impossible to replace ministers, and they have almost taken possession of private estates. From the moment that a minister is appointed to the position, it is difficult, almost impossible, for the prime minister to do his job and to say to a particular minister: you have not succeeded in your job, I want to replace you with someone else’ (ibid., at p. 2695). Later on in his remarks, Knesset Member Shahal did not conceal the main target of his criticism:

‘The problem of the prime ministers is with the ministers in their party, with whom they cannot work and whom they cannot dismiss, and this power, which the law intends to give to the prime minister is a power that will allow him power inside his party, which will enable him to conduct the business of his government in an orderly manner.’

3.    The picture that emerges from the debate in the Knesset, to someone who tries to understand the purpose of Amendment no. 3 of the Basic Law: the Government is that the Amendment greatly extended the power of the prime minister in the relationship between him and his ministers, mainly in the following areas:

a. The creation of direct accountability of each minister to the prime minister, for the performance of the special portfolios given to him (s. 4 of the Basic Law: the Government (2001)). It follows that a failure of a minister in carrying out his job can serve as a ground for removing him from office, by virtue of the power that was given to the prime minister in s. 22(b) of the Basic Law.

b.     Preventing ‘extortion’ by small parties.

c.     Giving the prime minister tools to deal also with the lone minister who ‘casts off all restraint’ and makes it difficult for the government to implement its policy.

Let us examine the conduct of the prime minister in the current case, and how it fits with the purpose of Amendment no. 3 of the Basic Law: the Government.

4.    No complaints were made against Ministers Elon and Lieberman, with regard to their personal conduct, nor were there any objections to their performance as ministers. Moreover, they did not take action against Cabinet decisions that had already been made and that were effective before their dismissal, and consequently they had not caused any difficulties for the implementation of government policy. On the contrary, the positions of the two ministers with respect to the withdrawal from the territories held by Israel and with regard to the evacuation of Jewish settlements were known to the prime minister from the day when the government was formed, since the National Union faction made it clear in the coalition agreement that it objected to the establishment of a Palestinian state west of the Jordan, regardless of its borders. It follows that it is also clear that Ministers Elon and Lieberman in particular, and the National Union faction in general, did not breach the coalition agreement and therefore they are not to be included among those rebellious ministers or among the ‘small, extortionist parties’ that led to the amendment to the law, so that the prime minister would be able to deal with them. In these circumstances, we cannot fail to reach the conclusion, which in practice is agreed by all, that the gulf that was created between the two ministers and their faction and the prime minister arose from the decision of the latter to adopt a new political policy, which was different from the one that formed the basis of the coalition agreement, namely the advancement of the plan that he conceived and that is known as the ‘disengagement plan.’ Here it should be clarified that the prime minister is certainly entitled to abandon one political policy and to adopt another policy, when he thinks that the change in circumstances and the welfare of the State of Israel require this. But to the same extent it is also the right of the ministers, if not their duty, to state their opinion in the Cabinet and to give expression to the outlook of their voters, for if one says otherwise, only persons who blindly follow the proposals of the prime minister and are prepared on a permanent basis to abandon their own opinions and espouse his will hold office in the government. I think that it is unnecessary to say how distant such a scenario is from the practice of democracy of which we are proud.

Notwithstanding, the new outlook of the prime minister is, with all due respect, primarily his own outlook, and it remains such, as long as the government has not adopted it and given it validity in one of its decisions. In view of the aforesaid, logic dictates that the decision to remove ministers from office on the ground that their beliefs will make it difficult to implement government policy cannot be made before the Cabinet vote on that policy, but only thereafter. This leads to a further conclusion, that the prime minister acted as he did because of a concern that the vote of the two ministers against his plan would, when joined with the vote of additional ministers who opposed it, lead to the creation of a majority against his plan. He decided to prevent this outcome by dismissing two of the opposing ministers and in this way he intended to bring about a change in the balance of power in the Cabinet. And if further evidence is needed of the fact that the dismissals were intended solely in order to obtain a technical majority, it is sufficient to point out the fact that once the majority in the Cabinet was assured, the prime minister saw no further need to raise the threat of removal from office against other ministers who opposed his plan, including ministers from his own party.

This is an example of how the objectives that Amendment No. 3 of the Basic Law: the Government was intended to achieve (namely, dealing with rebellious ministers and with ‘small, extortionist parties’) were entirely abandoned, and how that amendment was used for purposes that the initiators of the amendment probably never imagined.

5.    I saw fit to make my comments because I fear that even in the fifty-sixth year of Israel’s independence, the parliamentary democratic system and especially the culture of government that requires restraint, even when the legislature has given the executive branch a broad power whose limits have not been clearly defined, have not yet been fully developed. The government has been given fields of operation that are very broad in scope, and their effect on the State in general, and on each of its citizens in particular, is great, and sometimes fateful. An example of this is the power to declare war (see s. 40 of the Basic Law). Imagine the possibility that a prime minister, for objective reasons or for improper internal considerations, initiates a move of the latter type (a declaration of war), in which it is apparent from the outset that he will not win a majority in the Cabinet. But the prime minister can circumvent this obstacle easily, just as it was done in the case before us, by dismissing ministers and creating an artificial majority. It need not be said that the ramifications of such a decision are likely to be fateful, and I ask myself whether this is merely an illusion that the Israel system of government is sufficiently resilient to prevent. Regrettably, I find it difficult to answer this question in the affirmative.

6.    Therefore, I think that it would be proper if the legislature formulated more efficient means of control over powers of the type that s. 22 of the Basic Law addresses. I am not unaware of the fact that the actions of the government are already subject to the scrutiny of the Knesset. Thus, for example, s. 40(c) of the Basic Law requires the government to notify the Foreign Affairs and Defence Committee of the Knesset of its decision to declare war. Moreover, the prime minister himself has a duty to give notice to the plenum of the Knesset in this regard. However, the time framework for giving the notices was defined in s. 40(c) of the Basic Law to be ‘as soon as possible,’ and one may wonder what the benefit of such a notice would be, even if in consequence the Knesset passes a vote of no confidence in the government, when that war, with all its horrors, is already being waged with full force (in this respect, cf. s. 9(6) of the Government Law).

 7. The appointment of ministers is the final link in the lengthy process of forming a government. This process ends only when the government and the person who heads it appear before the Knesset and win its confidence, after they present to it the basic principles of their policy. A similar process is also involved in bringing a new minister into the government. He too does not enter into his office until the Knesset approves the notice of the prime minister about his joining the Cabinet. It follows that both the government as an entity and the individual minister derive their power from the Knesset (s. 13(d) of the Basic Law). Against the background, I wonder whether it would not be appropriate that the process of removing ministers from office should be done in the same manner and with the same seriousness, since we are speaking of removing from office persons in whom the Knesset has expressed its confidence, and who are members in the central executive body, and there is no need to elaborate upon the decisive impact of its decisions on each of us. The removal of Ministers Lieberman and Elon from office — in a hasty proceeding, on the eve of the holy Sabbath, when the purpose was that the forty-eight hours required for the dismissal to come into effect, as stated in s. 22(b) of the Basic Law, would pass by the time that the Cabinet meeting convened on Sunday, thus creating a majority for the proposal of the prime minister — is, in my view, far from being a process that should exist in a democracy.

8.    However, and this is the main point, notwithstanding my reservations as to the proceeding that was carried out and my concerns as to its future repercussions, we should also emphasize the following: the prime minister did not make use of a provision of law that he created for his own needs, but of a power that the Knesset gave him. This power in s. 22(b) of the Basic Law: the Government is broad in the extreme, and the lacuna in the work of the legislature — defining the limits of the power and determining processes for controlling the use thereof — cannot be filled by the court in case law. This is particularly the case when dealing with a Basic Law. Therefore as long as s. 22(b) of the Basic Law continues to exists in this form, it seems to me that the approach of my colleagues, that the prime minister acted within the scope of the power given to him, is correct, and there is no basis for the intervention of this court.

 

 

Justice D. Beinisch

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

 

 

Justice J. Türkel

The question before us is whether the decision of the prime minister to make use of the power given to him in s. 22(b) of the Basic Law: the Government and to remove from office two of the government ministers who oppose the plan that he wishes to promote in order to obtain a majority in the Cabinet vote is lawful. My answer to the question is this: it is lawful, but it is not right. In other words, according to the language of the section, as it has been interpreted by my honourable colleague, President Barak, the prime minister was competent to do it, but he ought not to have done it.

In this respect, I agree with the comment of my honourable colleague, Justice Levy in his opinion, that ‘logic dictates that the decision to remove ministers from office on the ground that their beliefs will make it difficult to implement government policy cannot be made before the Cabinet vote on that policy, but only thereafter.’ I also accept his recommendation that the Knesset should have control mechanisms over the use of the power. I further feel myself obliged to point out that this case deals with the dismissal of only two government ministers; would this apply to a decision to dismiss a larger number of ministers? I am not certain, and we will leave this question until its time comes.

Notwithstanding, for the reasons set out by my colleague the President, I am of the opinion that there is no alternative to denying the petitions.

 

 

            Justice A. Procaccia

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

I wish to add the following comment.

The basic principles of democracy in Israel govern, inter alia, the procedural rules of decision-making in the various collective administrative bodies. Underlying these rules is the principle that decisions are made by a majority of those participating in the vote, that a member of the body making the decision is free, and even obliged, to express his opinion in matters being discussed, according to his outlook and conscience, and that in general he need not fear dismissal or removal as a result of an objective position that he holds with respect to an issue that is being discussed and decided. This process of freedom of expressing an opinion in a decision making body is vital for reaching a decision after considering a wide variety of points of view, relevant information and different ways of weighing conflicting interests and values. Freedom to express an opinion in the decision making process is also consistent with general values of freedom of expression, which run through every facet of life and human activity. This procedure of decision-making is accepted in executive institutions of various public bodies, local authorities, boards of directors of statutory corporations, planning and building authorities and, to a large extent, also on boards of directors of commercial enterprises. This mechanism of decision making is accepted, in the main, also in the government. The ongoing activity of the government is founded upon decision-making that is preceded by a discussion among the government ministers, in which the positions of the participants are raised, and the decision is made by a majority of the participants in the vote, while abstainers are not included in the count. This is the case in the Cabinet as a whole, as well as in Cabinet committees. This proceeding is expressed in the Cabinet Work Rules (ss. 19 and 35 of the Rules, revised as of 27 July 2003). The freedom to express an opinion and the free flow of objective positions and outlooks of the members of the decision-making body advance the decision-making process and shape its content, and they constitute a central and vital component of the way in which every administrative body operates, including the Cabinet. This is the case when we are referring to a professional issue that is to be decided by the administrative body, and also when we are referring to a minister who has a political role in the government, and expresses within this framework political opinions and views with respect to the political and social path that he deems fit. Strict adherence to this procedure of decision-making is vital for the proper functioning of public administration, including the government. Moreover, it promotes an important public interest.

Against this background, the power given to the prime minister under s. 22(b) of the Basic Law: the Government to dismiss a minister is far-reaching when it is exercised in the context of an objective position that the minister espouses with respect to a matter that is to be decided by the Cabinet, even when it is related to a matter that lies at the heart of a political issue that the prime minister wishes to promote. The interpretation of President Barak extends the power of the prime minister to dismiss a minister on the basis of a political opinion that he expresses in good faith on an issue of policy, where this opinion conflicts with the policy that the prime minister wishes to promote. This power is unparalleled in other collective bodies, and it is inconsistent with the procedure of decision-making that is commonly practiced therein, nor should it be applied in any way to their work procedures. It is also unacceptable and undesirable in the day-to-day, routine work of the government. It is a unique power that should be exercised only when it is absolutely essential to promote, in the words of the President, the proper functioning of the government as the executive branch and to realize the policy goals that it has set.

The exceptional and unique nature of this power of dismissal that is given to the prime minister with respect to a minister in the government requires that it is exercised very rarely, and only in special and exceptional contexts where the public interest, which requires the furthering of the government’s ability to function properly, and the realization of the national policy goals that it has set, clearly overrides the conflicting public interest that aims to protect the stability of the government and the integrity of its accepted decision-making process, including the right of every minister to express his objective opinion freely, without fear of dismissal or removal. I agree therefore with the position of the President, that the spectrum of cases in which the prime minister may exercise this power is broad and varied. Nonetheless, in my opinion the broad variety of grounds for exercising this power does not derogate from the duty to refrain from adopting this measure except when, in the prime minister’s opinion, there exists a need of supreme national importance that justifies it, even at the price of harming the stability of the government and the accepted and proper decision-making process, and this assessment falls within the zone of reasonableness according to the accepted criteria of public law. The strength of the need justifying the dismissal of a minister because he holds a controversial opinion must be clear, unique and of very great weight, when considered against the conflicting interest that seeks to protect the stability of the structure of the government, the propriety of its actions and the maintenance of its work routine in accordance with its procedures. When applying this criterion to the exercising of the prime minister’s power, the control mechanisms that exist in the sphere of political forces and parliamentary scrutiny of government activity are insufficient. The rules of public law apply and have their say.

In the case before us, the prime minister wished to promote a political plan to which he attributes fateful significance for society and the State. The promotion of the plan necessitated, in his opinion, the dismissal of the two ministers who opposed it, in order to obtain the majority that was required in order to adopt it as a government decision. In view of the centrality of the plan underlying the matter, the measure that was adopted in order to promote it, by way of dismissing the opposing ministers, did not depart, in this case, from the extreme and rare criterion that is required in order to exercise the power of dismissal, and in the balance of conflicting public interests, the action of the prime minister does not fall outside the zone of reasonableness, in accordance with the rules of public law.

            On this basis, I agree that the petitions against the prime minister should be denied.

 

 

Petition denied.

11 Heshvan 5765.

26 October 2004.

 

 

.

 

 

HCJ 11243/02

1.  Moshe Faiglin

2.  Hagai Yekutiel

v.

1. Mishael Cheshin, Chairman of the ElectionsCommittee

2.  Naomi Hazan, KM

3.  Ya’akov Stotland

4.  The Likud Movement

 

The Supreme Court Sitting as the High Court of Justice

[May 15, 2003]

Before President A. Barak, Vice-President S. Levin, Justices E. Mazza, T. Strasberg-Cohen, D. Dorner, Y. Turkel, D. Beinisch, E. Englard, A. Rivlin, A. Procaccia, and E. Levi  

 

Petition to the Supreme Court sitting as the High Court of Justice, pursuant to section 6 of the Basic Law: The Knesset.

 

Facts: Petitioner wished to be a candidate in the elections for the sixteenth Knesset. Petitioner included, with his candidacy application, a “Statement of Agreement” pursuant to section 57(i) of the Knesset Elections Law. Petitioner did not add any additional materials to note that he had been convicted of the criminal offense of incitement and sentenced to six months imprisonment, to be served as community service. Additionally, petitioner did not subject a request “to expunge the disgrace” of his conviction to the Chairman of the Central Elections Committee. In light of these circumstances, petitioners asked the Court to hold that petitioner was ineligible to compete for the Knesset elections.

 

Held: The Supreme Court held that petitioner could not compete in the Knesset elections, as he had not fulfilled the technical requirements of the Knesset Elections Law, including the requirement to submit a request to “expunge the disgrace” of his conviction. Justice E. Levi, in a dissenting opinion, asserted that petitioner was eligible to compete in the Knesset elections. The Court split as to the substantive question—whether the offence of which the petitioner was convicted did “involve disgrace.”

 

Basic Laws cited:

Basic Law: The Knesset, §§ 6, 6(a), 7, 7A

 

Legislation cited:

Knesset Elections (Consolidated Version) Law-1969, §§ 56, 56B, 56B(1), 57(i), 142, 143

The Penal Code-1977, §§ 133, 134, 151

 

Israeli Supreme Court cases cited:

[1]HCJ 705/78, The “Chai” Party for the Givaataim Municipal Council v. The Elections Officer, IsrSC 32(3) 608

[2]HCJ 6790/98 Avretz v. The Elections Officer for the Municipality of  Jerusalem, IsrSC 52(5) 323

[3]HCJ 2573/99, Ba-Gad v. The Elections Committee for the Knesset, IsrSC 43(3) 193.

[4]HCJ 5769/93 Hamza v. The Elections Officer for Shahb (unreported case)

[5]EA 2/84 Neiman v. Chairman of the Central Elections Committee, IsrSC 39(2) 225

[6]EA 1/65 Yaakov Yeredor v. Central Elections Committee, IsrSC 19(3) 365

[7]HCJ 753/87 Boronstien v. Minister of Interior, IsrSC 42(4) 462

[8]EA 1/88 Moshe Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 42(4)177

[9]C.App. 2316/96 Issacson v. Political Party Registrar, IsrSC 50(2) 529

[10]HCJ 3090/97 Cohen v. Southern District Commissioner, Ministry of Defense IsrSC, 52(2) 721

[11]HCJ 6859/ 98 Ankonina v. Or Akiva Elections Official, IsrSC 52(5) 433

[12]Crim.A. 6696/96 Binyamin Kahane  v. the State of Israel, IsrSC 52(1) 535

[13]HCJ 436/66 Menahem Ben Aharon v. Head of the Pardesia Local Council, IsrSC 21(1) 561

[14]HCJ 251/88 Wajia Oda v. Talel Rabi, IsrSC 42(4) 837

[15]CA 2211/96 Cohen v. Cohen, IsrSC 50(1) 629

[16]HCJ 6163, 6177/92 Eisenberg v. Minister of Building and Housing, IsrSC 47(2) 229

[17]HCJ 103/96 Cohen v. The Attorney-General, IsrSC 50(4) 309

[18]EA 11280/02 The Chairman of the Central Elections Committee v. Ahmed Tibi, IsrSC 57(4) 1

[19]CA 10596/02 Leah Ness v. Likud Movement, IsrSC 57(1) 769

[20]F.Crim.A. 1789/98 State of Israel v. Kahane, IsrSC 54(5) 145

 

Israeli Magistrate Court cases cited:

[21]CC (Jerusalem) 3996/95 State of Israel v. Faiglin

 

United States Supreme Court cases cited:

[22]Brandenburg v. Ohio, 395 U.S. 4442 (1969)

 

Israeli books cited:

[23]11 S.Z. Feller, Foundations of Penal Law (1994)

[24]I. Levi & A. Lederman, Principles of Criminal Liability (1981)

 

Israeli articles cited:

[25]R. Gabizon, A Dishonorable Offense as a Disqualification for Holding Public Office, 1 Mishpatim 176 (1965)

 

Miscellaneous:

[26]Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997)

 

 

For the petitioner— Haim Misgav, Tom Misgav, Yekutiel Hagai

For respondent 1— Dina Zilber

For respondent 2— Dafna Holtz-Lechner

For respondent 3— Ron Dror

For respondent 4— Eitan Haberman

 

 

 

JUDGMENT

Vice-President S. Levin

1.    Elections for the sixteenth Knesset were held on January 28, 2003. Petitioner, Moshe Faiglin, wished to run in the elections as part of the Likud List.  He was number 40 on the list.  The final date for submitting lists of candidates for the Knesset was December 20, 2002.  Faiglin appended a signed Statement of Agreement to the candidate list submitted by the Likud, in which he declared:

 

I have read and understood sections 6 and 7 of the Basic Law: The Knesset, and the provisions of section 56 of the Elections Law (Consolidated Version)-1969… I declare that to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.

 

Faiglin did not add any other documents to the Statement of Agreement. He did not note that he had been convicted of offences for which he was sentenced to six months of community service or that, on the day of the submission of the candidate list, seven years had not yet passed from the day he finished serving that sentence. Nor did he ask the Chairman of the Elections Committee to determine that, under the circumstances, the offences which he was convicted of did not involve “disgrace.” 

 

     On December 14, 2002, Knesset Member and Vice-Chairman of the Knesset Naomi Hazan submitted a petition to the Chairman of the Elections Committee. Ya’akov Stotland also submitted a petition on December 16, 2002. These petitions requested that the Chairman of the Elections Committee declare that Mr. Moshe Faiglin could not be elected to the Knesset, and that he should be removed from the Likud candidate list.  The Chairman of the Committee requested responses from both Faiglin and the Attorney-General.  After these responses were received, and short oral arguments were heard, the Chairman of the Committee decided that Faiglin would be removed from the candidate list. This was a result of his delay in submitting a “request to expunge the disgrace” as well as due to the concealment of facts.  The Chairman of the Elections Committee also determined that the offences of which Faiglin was convicted involved “disgrace.”

 

     On December 30, 2002, Faiglin and others appealed from the decision of the Election Committee. Their petitions were heard, along with other matters, before a panel of eleven justices on January 7, 2003  On January 9, 2003 we handed down our majority decision, against the dissenting opinion of Justice E. Levi, to deny the petition. Our reasoning is set forth below.

 

2.    On February 9, 1997, Faiglin was convicted of incitement and of the publication of inciting materials under sections 133 and 134 of the Penal Code-1977, and of an offence under section 151 of the Code. On November 11, 1997, he was sentenced to 18 months imprisonment, of which he was to effectively serve six months of community service. At the same time, Mr. Faiglin was put on six months probation.  Mr. Faiglin did not appeal the judgment and served his sentence.

The petitioner’s conviction and the sentence which he served are at the heart of the matter at hand.  Their significance becomes clear in light of the provisions of section 6 of the Basic Law: The Knesset and section 56B of the Knesset Elections (Consolidated Version) Law.  Section 6 of the Basic Law sets forth limitations on the right to be elected to the Knesset.  Section 6 (a) of the Basic Law provides:

6(a). Every citizen of Israel who, on the date of the submission of a candidates list containing his name, is twenty-one years of age, shall have the right to be elected to the Knesset, provided that a court of law has not deprived him of that right pursuant to statute, or that he has been sentenced, in a final verdict, to serve more than three months imprisonment, and on the day of the submission of the list seven years have not yet passed from the date upon which he finished serving his sentence, unless the Chairman of the Central Elections Committee determined that, under the circumstances, the offence of which he was convicted does not involve disgrace.

Section 56B, which implements the general provisions of section 6 of the Basic Law, provides:

56B. The following provisions apply to an offence which “involves disgrace” under section 6 of the Basic Law: the Knesset:

(1)(a) A candidate shall submit to the Central Committee, together with his Statement of Agreement to be a candidate as stated in section 57(i), a declaration regarding section 6 of the Basic Law;

(b)A candidate, or anyone who wishes to be a candidate, who has been convicted of an offence as stated in section 6 of the Basic Law, and requests that the Chairman of the Central Committee decide that the offence does not “involve disgrace,” shall submit a request to the Chairman of the Central Committee, together with his indictment, the judgment, and all other relevant material, no later than the day of the submission of the candidate list.

(c) The decision of the Chairman of the Central Elections Committee shall be final and shall be presented to the Central Committee no later than 28 days preceding the election.

From these provisions it is apparent that a candidate who wishes to run for the Knesset must submit a statement regarding section 6 of the Basic Law: The Knesset. If that person has been convicted and sentenced to imprisonment for a term which exceeds three months, he must request that the chairman of the Central Election Committee determine that the offence does not “involve disgrace.”  This must be done no later than the day of the submission of the candidate list to the Central Elections Committee. If he does not do so, the conviction is presumed to be dishonorable.

In his decision, the Chairman of the Elections Committee noted that there is an exception to the right to be elected, and to that exception “there applies another exception—an exception to the exception—which is: where the Chairman of the Central Elections Committee determines… that the offence which the individual was convicted of is not dishonorable under the circumstances.” The Chairman of the Elections Committee also determined that Faiglin had the responsibility to submit a request to “expunge the disgrace” of his actions no later than the time of the submission of the candidate list. Faiglin, however, submitted no such request. Only after Mr. Stotland petitioned for a declaration that Mr. Faiglin could not, by law, be a candidate for the Knesset, did Faiglin request that “the Chairman determine that his actions were not dishonorable.” Faiglin claimed that he was unfamiliar with the law; However, the Chairman of the Elections Committee weighed this claim harshly—in the Statement of Agreement which Faiglin submitted, he explicitly declared that he read the provisions of sections 6 and 7 of the Basic Law and the provisions of section 56 of the Elections Law. As such, the Chairman believed, it should have been clear to Faiglin that, pursuant those sections, imprisonment includes community service. Faiglin also declared that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.” The Chairman of the Elections Committee noted in his decision that he did not receive a satisfying explanation from Faiglin.

3. This Court reviews decisions of the Chairman of the Central Elections in its capacity as the High Court of Justice. Faiglin has not convinced us that there is cause to intervene in the Chairman’s conclusions, both with regard to his delay in submitting the request and also with regard to his concealment of the facts. On the contrary—this Court has, in the past, strictly construed the dates and times set forth in elections laws. The legislature sets forth a strict schedule, and the many dates follow one another and are dependent upon each other.  Reality demands that these dates be preserved in order to prevent chaos in the elections.  Compare: HCJ 705/78, The “Chai” Party for the Givaataim Municipal Council v. The Elections Officer [1]; HCJ 6790/98 Avretz v. The Elections Officer for the Municipality of  Jerusalem [2]; HCJ 2573/99, Ba-Gad v. The Elections Committee for the Knesset [3]. See also HCJ 5769/93 Hamza v. The Elections Officer for Shahb [4]This is one of the cases in which the public interest in the uniformity of election law takes precedence over the interest of the candidate to be elected. 

A strict approach to dates and times can also be discerned in sections 142 and 143 of the Elections Law.  Thus, for example, section 142 of the Elections Law provides that “when a certain action shall be completed a certain number of days preceding the elections, the Central Committee, with a two-thirds majority, may extend that date for up to five additional days, if it finds sufficient reason to do so.” Section 143 of the Elections Law, as amended by Amendment 49, provides that “section 142, and any other legislative provision allowing extension of dates, shall not apply to petitions and appeals under this Law.” 

  Faiglin argued that the Chairman of the Central Election Committee granted him an extension to submit a request to “expunge the disgrace.”  Indeed, after the submission of the requests to remove Faiglin from the candidate list, Faiglin submitted a request to extend the period to respond to those requests. The Chairman of the Central Election Committee determined that “ex gratia, I consent that the period for the submission of his response—in fact, his request—shall expire on Friday, December 20 2002, at 2:00pm.” Faiglin’s interpretation of this decision, however, is groundless. The decision only approves the submission of the request; the decision does not approve that the submission of such a request will be considered a request to “expunge the disgrace” which was submitted on time.  Moreover, the Chairman of the Central Elections Committee does not have the authority to extend such dates.

4.    All these suffice to deny the present petition, as we decided on January 9, 2003. As such, we have no need to discuss the other claims submitted by the respondents. Under these circumstances, there is no need to take a position concerning whether Faiglin was convicted of dishonorable offences. 

Justice I. Englard

I agree with the judgment of my colleague, the Deputy President.

Justice E. Levi

1. The right to be elected in enshrined in section 6(a) of the Basic Law: The Knesset, which reads:

6(a). Every citizen of Israel who, on the date of the submission of a candidates list containing his name, is twenty-one years of age or over shall have the right to be elected to the Knesset, provided that a court of law has not deprived him of that right pursuant to statute, or he has been sentenced, in a final verdict, to serve more than three months imprisonment, and on the day of the submission of the list seven years have not yet passed from the date upon which he finished serving his sentence, unless the chairman of the Central Elections Committee determined that, under the circumstances, the offence of which he was convicted does not involve disgrace.

Section 56B, especially sub-section(b) of the Knesset Elections (Consolidated Version) Law-1969, compliments the provisions of section 6:

A candidate, or anyone who wishes to be a candidate, who has been convicted of an offence as stated in section 6 of the Basic Law, and requests that the Chairman of the Central Committee decide that the offence does not “involve disgrace,” shall submit a request to the Chairman of the Central Committee, together with his indictment, the judgment and all other relevant material, no later than the day of the submission of the candidate list.

2.  At the end of 1995, an indictment was submitted against the petitioner in the Magistrate Court of Jerusalem, in light of petitioner’s activities in the “Zu Artzeinu” movement. It was alleged that the petitioner conspired to incite the Israeli public in an attempt to frustrate the decisions of the government and the Knesset, subsequent to the signing of the “Oslo Agreements.” It was also alleged that the petitioner and his colleagues called upon the public to disrupt the operation of the authorities by blocking roads, by protesting before the government offices in Jerusalem, and by erecting new settlement outposts in Judea and Samaria which would be manned by armed persons, while ignoring the military declaration that certain regions be considered “closed military territory.” It was also claimed that the petitioner and his colleagues called for detaining cars which displayed license plates of the Palestinian Authority, and when the time came, the frustration of evacuations of territories in the area of Judea and Samaria. Due to all these activities, petitioner was charged with the offence of incitement under chapter 1 of paragraph 8 of the Penal Code-1977, and the offence of unlawful assembly under section 121 of that law.

Petitioner did not deny his connection to the relevant publications, and the court determined, in its judgment of September 1997, that the petitioner intended to sabotage the implementation of government policy to the extent that it would undermine the stability of the government.  Therefore, it was determined that the petitioner’s actions did not constitute legitimate protest. Petitioner was convicted of the offences of incitement, inciting publications and unlawful assembly, under sections 133, 134 and 151 of the Penal Code-1977. The court sentenced him to 18 months of imprisonment, of which he was to serve six months of community service. He was also sentenced to six months of probation.

The parties did not appeal the judgment of the Magistrate Court.

3.    The petitioner was placed on the 40th spot on the Likud list for elections for the sixteenth Knesset. Pursuant to section 57(i) of the Knesset Elections Law, the petitioner signed a “Statement of Agreement” which included a declaration that he read and understood the provisions of sections 6 and 7 of the Basic Law and section 56 of the Elections Law.  The petitioner also declared that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.”

Petitioner had been sentenced to imprisonment.  Seven years have not yet passed since he finished serving his sentence.  Therefore, he is among those included in section 6(a) of the Basic Law, meaning that, in order him to be elected into the Knesset, he must first approach the Chairman of the Elections Committee, so that the latter may determine that the offences of which petitioner was convicted of were not dishonorable.  However, the petitioner did not do so until December 20, 2002, in response to the petitions that called for his disqualification.

Respondent number 1 inferred, from the fact that the petitioner signed the “Statement of Agreement,” that petitioner was aware of his obligations to submit a request as stated in the latter part of section 6(a) of the Basic Law.  Moreover, his signing of the “Statement of Agreement” constituted a declaration that he was not prevented from running in the Knesset elections.  This declaration, according to the Chairman, was inaccurate at best, and perhaps even unfaithful to the truth.

Respondent number 1 also dealt with the question of the “dishonorable” element in the offences of which the petitioner was convicted. Regarding this, the Chairman concluded that they:

undermine society and destroy the foundations upon which government and public administration rest. Indeed, were others to imitate the actions of Mr. Faiglin it could be said: In those days, there was no king in Israel and each person did as he saw fit. See Judges 21:25. The fabric of society would unravel. The offences of which Mr. Faiglin committed are extraordinarily dishonorable; and they are dishonorable even for one who does not wish to be elected for Knesset.

See para. 17 of the Chairman’s decision.

4. The Right to be Elected: A Fundamental Right

All agree that the right to vote and the right to be elected is the soul of democracy—they incorporate the principles of equality, of freedom of expression, and of the freedom of assembly.  See EA 2/84 Neiman v. Chairman of the Central Elections Committee, [5] at 264; EA 1/65 Yaakov Yeredor v. Central Elections Committee, [6] at 382; HCJ 753/87 Boronstien v. Minister of Interior, [7] at 473.  Deprive a person or group of their right to be elected, and you have deprived them of their right to express the political opinion which they have formed and of the right to participate in shaping the government. Indeed, such restrictions are not well-received by those who love democracy. Objections to those restrictions fade, however, when they are directed at a minority group; especially in those cases where the majority believes that the minority’s political positions will undermine the foundations of democracy. As such, and still fully aware of the fundamental importance of these rights, the majority deprives the minority of its right to compete in democratic elections.  There is but a short distance between these actions and forcing the minority to search for other manners of influence and expression, even if they constitute prohibited activity.  In order to prevent this, the legislature must plan with wisdom, so as not to perpetuate the rule of the majority in unlawful ways on the one hand, while preventing the minority from fighting for its opinion, on the other.  In this area, the Court performs a critical function, as it is supposed to review legislation intended to restrict the right to vote and to be elected, in order to ensure that the glory paid to these rights is more than simply lip service.

Indeed, this is the position consistently taken by our caselaw as expressed by President Shamgar in EA 1/88 Moshe Naiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, [8] at 185-86. His opinion remains relevant for us today.

Basic liberties, such as the freedoms of speech and religion, and the insistence on equality in elections, are part and parcel of our government system, and thus also of our judicial system.  The opinions and views of those in society are always different and variegated—in a free society, the differences are overt; in a totalitarian society, the differences are hidden.  The exchange of ideas, the clarification of views, as well as public debate and the desire to know, teach and convince are available to every opinion, every view, and every belief in a free society.  Making exceptions and distinctions between citizens, granting some rights while others not, is opposed to the truth that lies at the base of our liberties. Such inequities, in a democratic society, would present the same internal contradictions inherent in the actions of an individual who preaches against democracy while, at the same time, wielding the very rights that democracy grants.  Even unacceptable opinions and views should be debated, and peaceful ways of persuasion should be taken up against even these. Prohibitions and restrictions are extreme devices which are a last resort.  Our point of departure is that the freedom of speech should be granted even to those whose opinions seem mistaken and even dangerous.

To complete, I will add what is obvious—when you prevent an individual from being elected, you deprive others of their right to elect that candidate. The voters, as this Court noted in EA 2/84, [5] at 263, “wish to elect a candidate according to their preferences, based on their right to equality under the provisions of the Elections Law.  From the perspective of the voter, restricting the right to be elected includes an indirect limitation of the freedom of expression, as this deprives him of his ability to connect with others for the advancement of his views and opinions, as the candidate which he would prefer would have represented them.”

All this must guide us as we decide the petition at hand, and not only in our decision regarding the substantive question—whether there is disgrace in the offence that the petitioner was convicted of—but also the procedural claims—petitioner’s delay in submitting his request to the Chairman of the Elections Committee.  I have chosen to open with the procedural claim since, as the majority has concluded, if the petitioner cannot overcome this first obstacle, there is no reason to examine the second.

5.    As stated, the petitioner submitted his request to the Chairman of the Central Lections Committee on December 12, 2002, and failed to meet the date set by section 56B(b) of the Elections Law. For the purposes of this discussion, I am willing to presume that, absent explicit authorization, the Chairman of the Elections Committee could not extend the period for the submission of the request. Nevertheless, I am of the opinion that, considering the special circumstances of this case, the petitioner could still bring his case before the Chairman of the Elections Committee and request a substantive decision as to the question of whether there was disgrace in his conviction. What the petitioner lacked, was provided in the petitions submitted by respondents numbers two and three, the Vice-Chairman of the Knesset, MK Naomi Hazan and Mr. Stotland. These respondents did not raise the procedural claims which formed part of the basis for the Chairman’s decision—petitioner’s concealment of his conviction from the Election Committee and his delay in submitting his request regarding the “disgrace” of his conviction, a delay which has critical significance due to the tight elections schedule prescribed by the law.  These respondents based their petition upon a different cause—the “disgrace” inherent to petitioner’s conviction. As such, the matter of “disgrace” was open to respondent one, not as an alternate cause for the disqualification of the petitioner, but as the single, sole cause.

I emphasized the significance of the basic right to compete in the elections, since this is what obligates us—even when a candidate neglects a provision, we should aspire to maintain his right to be elected, so long as this is not opposed to the law, and so long as it serves the law’s purpose.  In this regard, and with respect to the status of the basic rights and their relationship to other rights, I find the words of Justice M. Cheshin, in C.App. 2316/96 Issacson v. Political Party Registrar [9], quite appropriate.  There, in my colleague’s decision to allow the “Arab Movement for Change” to register as a political party, he noted:

We are dealing with an individual’s fundamental, basic rights—with the freedom of assembly, the freedom of expression, and the right to vote and be voted for—and we all know that the force of these rights radiates into their surroundings, and that they are powerful in conflicts which may arise between them and other rights.  That blinding light which shines, from the basic rights, out in all directions also expands the areas over which they extend, thus limiting opposing rights.  In other words: we must do our best to expand the boundaries of the basic rights—here, the right to assemble as a political party—while simultaneously limiting the boundaries of those provisions which restrict and limit these rights.

I fully approve of my colleague’s words, especially in this current situation. This in light of an additional rule of construction in our caselaw, which provides that if “two possible interpretations stand before us, one based on the legislation’s language and the other on the legislation’s purpose, we should choose whichever interpretation least violates the basic right.” See HCJ 3090/97 Cohen v. Southern District Commissioner, Ministry of Defense, [10] at 737; HCJ 6859/ 98 Ankonina v. Or Akiva Elections Official, [11] at 454. With regard to the petitioner, he is the one responsible for submitting a petition for a declaration to “expunge the disgrace” under section 56B(b) of the Elections Law. This is only natural, since he himself has the greatest interest in not being disqualified. However, and so I suggest to interpret section 56B(b) of the law, we should not infer from here that there is no possibility that a request to review the disgrace of the offence be brought by someone else. Such other persons would not be limited by the schedule imposed upon the candidate, for would they be so limited, respondents two and three would also be prevented from bringing their petition. As such, we must infer that, if in the context of deciding with regard to a request to disqualify the candidate, the Chairman of the Central Elections Committee determines that his conviction is not dishonorable, it would be unreasonable not to perceive this as a green light for the candidate to run for the Knesset, even if he himself never approached the Chairman of the Elections Committee as specified in section 56B(b) of the law, or if he missed the date set in that section.

Had respondents two and three based their petition solely upon petitioner’s delay in submitting his request, or solely upon the fact that petitioner concealed facts from the committee, it is doubtful whether petitioner could be granted any remedy.  However, as stated, this is not the case, as the question of “disgrace” is the only claim which respondents two and three brought before the Chairman. Since this issue was raised, it demands a substantive decision, not merely a decision which would, in the words of my colleague, Justice M. Cheshin, in paragraph 12 of his decision, “cover all the bases.” 

In light of this, I am of the opinion that the examination of the current petition should not have stopped with the procedural claims, since it became unnecessary to decide these latter claims after the submission of the petition for the disqualification of the petitioner based on a claim of “disgrace.” Therefore, it would have been just to examine the substantive question of the “disgrace” involved in the petitioner’s conviction.  However, my esteemed colleagues are faithful to their view that the petitioner did not meet the procedural conditions and thus see themselves as exempt from discussing the question of “disgrace.” In this situation, and since the decision in this petition has already been made, and my reasoning can no longer affect the petitioner’s situation, at least not with regard to the elections for the sixteenth Knesset, I did not think it right to expand upon my reasoning where they had already decided in advance to base their judgment upon a different claim.  Nevertheless, I will not hide my opinion that I find it difficult to understand how there is dishonor in the offence of incitement of which the petitioner was convicted, an offense which is meant to protect the structure of the regime and not its content, and about which it has been said that “it would be appropriate to consider its invalidation…and replacement with an offence which is more suitable for our system. The wording of the offence is too vague and its boundaries too wide.  It reflects a worldview which is not democratic. It suits a mandatory government, which is not a government of the people. It does not award sufficient weight to freedom of expression.” These are the words of my colleague President Barak in Crim.A. 6696/96 Binyamin Kahane  v. the State of Israel, [12] at 585; see also Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997)

I also wish to draw attention to another matter, which I also commit myself not to expand upon. The language of section 6(a) of the Basic Law provides that the “disgrace” in the actions of the petitioner will be examined “under the circumstances.” As is known, our caselaw does not see “disgrace” as a formal ingredient of the specific offence of which an individual has been convicted, but rather that as that severe moral flaw which accompanies the circumstances of its execution.  See HCJ 436/66 Menahem Ben Aharon v. Head of the Pardesia Local Council IsrSC 21(1) 561, [13] at 564; HCJ 251/88 Wajia Oda v. Talel Rabi IsrSC 42(4) 837, [14] at 839; C.A. 2211/96 Cohen v. Cohen IsrSC 50(1) 629, [15] at 632; HCJ 6163, 6177/92 Eisenberg v. Minister of Building and Housing IsrSC 47(2) 229, [16] at 266; HCJ 103/96 Cohen v. The Attorney-General IsrSC 50(4) 309, [17] at 327. With regard to the “disgrace” involved in the petitioner’s actions, as viewed from the perspective of the “circumstances,” I wish to make several comments:

a. The events which provided the grounds for the petitioner’s conviction took place in 1995, against the background of what was seen, as the Magistrate Court stated in its convicting judgment, as “a feeling of helplessness before the repeated injuries to the Jewish population, at the hands of Palestinian terrorists.”  See para. 8 of the judgment.  The Court determined that “in the relevant period, the accused lived, like many others, with the strong feeling that the government’s policy was mistaken—a mistake that would cost human life and harm national security.”  See pg. 47 of the judgment.  The Court added that the petitioner’s action exceeded the bounds of the freedom of speech, However, it seems that even the Magistrate Court was of the opinion that the petitioner and his colleagues demonstrated “openly that they did not intend to act violently, and restrained themselves before the violence of the police.”  See pg. 10 of the judgment. These reasons explain the lenient punishment imposed upon the petitioner.

b. Petitioner was not the only one, during those long-ago days, who objected to the government’s policies. As the wave of terrorism intensified, opposition to the “Oslo Agreements” formed a central part of the platform of many public figures, and this position played a central role in their campaigns during several Knesset elections. Moreover, many of these public figures have actually been elected to the Knesset, and more than a few have climbed to the highest ranks of the executive branch.  In light of all this we must ask whether we should continue to visit upon the petitioner the sins of his past. Under these circumstances, should we see the petitioner as one who was then, or is now, set upon destroying the foundations of democracy in Israel? Can it be said today of the petitioner—despite the harsh events which have been the fate of the State of Israel since 1995—that he is, in the words of Justice Haim Cohen in HCJ 436/66, [13] at 564, “unfit to enter the congregation of the just…and that he is unfit to be publicly responsible for the decisions and actions which matters of the public and public security depend upon.” It seems that my answer to these questions is clear.  It is all the more clear in light of the fact—a fact which must be emphasized and encouraged— that the petitioner decided to channel his activities into the institutions of public democracy, as any person who wishes to participate in the government and influence its activities should do.

For all these reasons I have abstained from joining the majority. 

 

Justice T. Strasberg- Cohen

 

I agree with the judgment of my colleague, Vice-President S. Levin and with the conclusion that he reached.  Although his reasoning is sufficient to reach his decision here, I would also join the opinion of the Chairman of the Election Committee, who believed that the offences at issue here are dishonorable.

 

Justice A. Procaccia

 

I agree with Vice-President S. Levin’s judgment and reasoning.  I will add, although it is not necessary, that I am of the opinion that the offences of which Faiglin was convicted are dishonorable. As such, even had the procedural claims not sufficed to disqualify Faiglin, his candidacy could still be disqualified based on substantive grounds.   

 

“Disgrace” means a negative element which denotes more than a mere breach of the law.  This is a concept which carries moral weight, and which stems from the value, views, and moral standards of the public.  This is a multi-faceted concept which depends upon the nature of the offence committed and the circumstances under which it was committed, and which must be examined in the specific context in which it is employed.  Thus, the disgrace involved in an offence in the context of disqualification from holding public office or disqualification from being employed in a profession that serves the public, is not the same as the disgrace involved in the context of an individual’s candidacy in public elections.

 

Here, we are concerned with the offences of incitement and inciting publication of which Faiglin was convicted. Faiglin’s actions were directed against the policies of the government, and were directly opposed to the foundations of the democratic structure upon which our government system is based.  Faiglin was convicted of conspiracy to frustrate the execution of government policies in Judea and Samaria. He intended to force the government to change its policies by calling upon the public to carry out unlawful actions in order to impair the operation of the government, hamper the authorities, and break down the obedience to the rule of law in the State.  His actions were a danger to “rule of law, public security and public order, as well as a danger to social stability and the stability of the government, all of which are a product of democratic elections.”  CC (Jerusalem) 3996/95 State of Israel v. Faiglin [21] (judgment of November 11, 19997). These attempts to dictate governmental activities by incitement conflict with the democratic idea, which is built upon the rule of the majority acting within the bounds of the rule of law.  These offences against the democratic public order are not mere breaches of the law—they find their foundation in the rejection of the democratic foundation of society, and the foundation of the structure of the government.  Such offences provide sufficient reason to infringe an individual’s right to be elected into the very institution that he wishes to destroy.

 

 This view of “disgrace” is consistent with section 7A of the Basic Law: The Knesset, which provides that one may not be a candidate for the Knesset if he, as evidenced by his actions, rejects the existence of the State of Israel as a democratic state. See section 7A(a)(1) of the Basic Law. Rejecting the democratic character of the State precisely means the refusal to acknowledge the sovereignty of the people, and the rejection of the rule of law. It means a desire to change the regime and government policy through force or other unlawful means.  If such actions suffice to infringe the right to be elected even where an individual has not been prosecuted or convicted for such actions, a fortiori where the individual has been convicted of offences of this character. As such, there is a connection between the concept of “disgrace” with regard to the disqualification of a candidate who has been convicted of an offence which undermines the foundations of our system, and the disqualification of a candidate whose actions—even where he has not been convicted of them—constitute a rejection of the democratic existence of the State.

 

Section 6(a) of the Basic Law; The Knesset deprives an individual of his right to be elected if that individual has been sentenced to serve more than three months imprisonment, where seven years have not yet passed since the end of his sentence. The presumption is that conviction and sentencing are sufficient to deprive one of the right to be a candidate for election, if insufficient time has passed to “expunge the disgrace” of the individual’s actions. This is the rule, and no element of “disgrace” need be found in order to apply it.  Any person who wishes to deviate from the rule bears the burden of proving that his conviction lacks the element of disgrace.  Only if he succeeds in doing so may that individual become a candidate.

 

Faiglin bears the burden of proving the absence of disgrace.  He has not carried this burden.  The offences which he was convicted of are dishonorable according to the fundamental values of the democratic regime.  This is sufficient to disqualify him from being elected for Knesset, as state in section 6(a) of the Basic Law: The Knesset.

 

President A. Barak

 

I agree with the judgment of my colleague, Vice President S. Levin.  Indeed, none contest the fact that Mr. Faiglin did not meet the provisions of section 56B(1) of the Knesset Elections (Consolidated Version) Law-1969. He did not submit a request to the Chairman of the Elections Committee to the effect that he determine that the offences which he committed were not dishonorable.  Additionally, Mr. Faiglin added a “Statement of Agreement” to the Knesset candidate list, which stated that we was able to compete in the elections. This situation led the Chairman of the Elections Committee to disqualify the petitioners’ candidacy, and I have found no cause for our intervention in this decision.

 

2.    My colleague, Justice E. Levi, elevates the significance of the fundamental rights to vote and be voted for. He emphasizes the judgments of this Court that have concretized these principles. He notes the significance of preserving these principles, especially regarding the freedom of opinion of a minority group, and regarding ensuring the fairness of the rules of the political game.  Needless to say, I agree with all of the above, and these very principles served as the basis for my opinion that it was appropriate to accept the appeal from the decision of the Central Election Committee to disqualify the Balad party list (EA 131/033 [18]), to reject the appeals regarding the Committee’s approval of Mr. Baruch Marzel’s candidacy (EA 55/03 [18] and EA 83/03 [18]), and to reverse the decision of the Central Elections Committee to disqualify MKs Azmi Bishara (EA 50/03 [18]) and Ahmed Tibi (EA 11280/02 [18]) from running in the current elections. See The Chairman of the Central Elections Committee v. Ahmed Tibi [18]

 

3.    Of course, these principles also apply to the case at hand.  However, it is not only the facts that are at issue here; we also consider the relevant statutory provisions. The language and purpose of these provisions are clear. Regarding the language of these provisions:  the law clearly provides a date for the submission of the request to the Chairman of the Central Elections Committee (“no later than the day of the submission of the candidate list”). It also provides who shall submit the request (“anyone who wishes to be a candidate.”) Regarding the purpose of these provisions: it is obvious that realizing the right to vote and be voted for involves, and even depends upon, clear and ordered rules with regard to dates, procedures and rules.  These rules should guarantee a number of interests, including the transparency of the elections, their fairness and regularity, as well as ensuring their equality. See CA 10596/02 Leah Ness v. Likud Movement, [19] at 775-76. It is not the law’s purpose to allow for its own circumvention by allowing for the submission of the request to the Chairman of the Elections Committee after the date specified by the law.  It does not allow its own provisions to be rendered superfluous by allowing requests to be submitted by one who is not supposed to do so. Its object is not to violate the principle of equality by giving an advantage to a person who submitted a request to the Chairman of the Elections Committee via a member of the Committee, while other candidates cannot do so. Thus, I am of the opinion that it is our very adherence to the fundamental principles at issue here that lead to the conclusion that the petitioner was lawfully deprived of his right to run for election.

 

4.    Though it is unnecessary, I will add that even if the interpretation that my colleague, Justice E. Levi, gives to these provisions of the law should be adopted, I find it hard to ignore the “Statement of Agreement” which the petitioner himself submitted—as required by law. Therein he noted that he read and understood the provisions of sections 6 and 7 of the Basic Law: The Knesset and the provisions of section 56 of the Elections Law. He agreed that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.” He did this despite the fact that under section 6(a) of the Basic Law it is clear that absent a determination by the Chairman of the Central Elections Committee that the petitioner’s actions were not dishonorable, he could not run, as he had been convicted and sentenced to serve over three months imprisonment and, on the day of the submission of the candidate list, seven years had not yet passed since the completion of his sentence. 

 

5.    With regard to the substantive issue—the disgrace in the petitioner’s actions—I see no reason to decide in the matter. I note, however, that in this case I agree with the position of the Chairman of the Central Elections Committee, Justice M. Cheshin, and with the opinions of my colleagues, Justices T. Strasberg- Cohen and A. Procaccia.

 

Justice E. Mazza

 

I agree with the judgment of my colleague, Vice-President S. Levin, and like him I prefer not to take a position with regard to the question of whether, under the circumstances, the offences which the petitioner was convicted of are dishonorable, as per section 6 of the Basic Law: The Knesset.

 

Justice Y. Turkel

 

Like most of my colleagues, I am also of the opinion that the petition of Moshe Faiglin should be denied. I support the reasoning of my esteemed colleague, Vice-President S. Levin. The main reason for my position is that we should have true equality between the candidates, and this aspiration cannot be realized without strictness and stringency with regard to every jot and title of the election laws. The door of candidacy must be wide open or well-locked, and cannot be only partially open or shut.

 

2.    Therefore, it is not necessary to discuss whether the offences of which Faiglin was convicted of are “dishonorable,” as per section 6 of the Basic Law: The Knesset. Nevertheless, since my esteemed colleague, Justice T. Strasberg- Cohen, commented that “the offences which Faiglin was convicted of are dishonorable,” I will briefly add my own comment.  I am of the opinion that, under the circumstances, the offences of which Faiglin was convicted of were not dishonorable. In this regard, I rely upon the reasoning of my esteemed colleague, Justice E. Levi. The following remarks by Justice H. Cohen, regarding the dishonor of offences, hold true in our case as well:

 

This dishonor means moral turpitude which, when attributed to a person, attests to the fact that that he is unfit to enter the congregation of the just, and this “dishonor” must remain with the person even after his punishment. As the verse states: “his reproach shall not be wiped away.” See Proverbs 6:33.

 

 

HCJ 436/66, [13] at 564. In this regard, Justice (as he was then) A. Barak has said:

 

The expression “offence which…involves disgrace” is vague, since the word “disgrace” is uncertain in its application. Not every offence “involves disgrace,” and there are certainly offences which are not dishonorable. The line between the different offences must be drawn according to a moral standard. In HCJ 184/73 Hudayfee v. Amar IsrSC 27(2) 746, 750 we stated that “we do not look to the formal elements of the offense, but rather to the circumstances under which the offence was committed. It is these circumstances which point to any moral severity implied in the term disgrace.”

See also HCJ 6163/92, [16] at 266; HCJ 103/96, [17] at 327; R. Gabizon, A Dishonorable Offense as a Disqualification for Holding Public Office 1 Mishpatim 176 (1965) [25]; 11 S.Z. Feller, Foundations of Penal Law 30 (1994) [23]; I. Levi & A. Lederman, Principles of Criminal Liability 20-24 (1981) [24]. Regarding the offence of incitement see F.Crim.A. 1789/98 State of Israel v. Kahane [20]; M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997) [18].

 

Indeed, the offences of which Faiglin was convicted are severe.  However, we do not look to whether the offences themselves are severe, but rather to the circumstances under which they were committed.  These circumstances, as they were described in the decision of the Magistrate Court, attest to popular sentiments of “pain,” which were “in response to harsh terrorist attacks,” and the “the opinion of many people, who have come to feel that the government does not consider their opinions or respect their views.” See pp. 8-9 of the judgment.  I find no “unforgivable shame” in such actions and, in my opinion, where a person protests against a public issue which is significant to him, and this protest is done peacefully, as is apparent from pages 9-10 of the judgment, his actions are not even slightly dishonorable. Therefore, had the decision regarding the petition rested solely upon the issue of “disgrace,” I would have granted the petition.

  

Justice B. Beinisch

I agree with the judgment of my colleague, Vice-President S. Levin.  Like him, I am also of the opinion that Mr. Faiglin’s petition should be denied, since he did not meet the demands of section 56B of the Knesset Election (Consolidated Version) Law-1969, in combination with the provisions of section 6 of the Basic Law: The Knesset.  As such, he has not met the procedural conditions for submitting his candidacy.  Nevertheless, since my colleagues have taken a position regarding the substantive matter of “disgrace,” I will not refrain from expressing my own opinion in the matter. I would add my voice to that of the Chairman of the Central Elections Committee, Justice M. Cheshin, and assent to the opinions of my colleagues, the President, Justice Strasberg Cohen and Justice Procaccia.  Like Justice Procaccia, I am also of the opinion that any person, who has been criminally convicted of an offence which is entirely directed at undermining the foundations of our democratic system and government, has been “disgraced” to the extent that he is disqualified from running in the elections. I also agree with her that there is a strong connection between the dishonor of the petitioner due to his criminal conviction, and the separate disqualification cause provided for in section 7A(a)(1) of the Basic Law. 

 

As such, the petition should be denied.

 

Justice D. Dorner

1.    I agree with the judgment and reasoning of my colleague, Vice-President S. Levin, and with the comments of my colleague, President A. Barak, in so far as they regard the denial of the petition due to the petitioner’s failure to fulfill the provisions of section 56(b) of the Knesset Elections (Consolidated Version) Law-1969.

 

The procedural rules for submitting one’s candidacy in the elections are not technical conditions which may be waived if the candidate is otherwise eligible. These are substantive conditions, which were intended to ensure the principle of equality, which is at the heart and soul of our system of election law.

 

2.    As such, there is no need to discuss the question of whether the offences of which the petitioner was convicted are dishonorable.  However, since my colleagues addressed this question, adopting conflicting positions regarding the matter, I shall also express my own opinion.

 

Incitement may, under certain conditions, constitute a dishonorable offence under section 6 of the Basic Law: The Knesset. One of the objects of this provision is to prevent the candidacy of persons who have been convicted of activity which is intended to undermine our democratic regime. At the same time, however, we should note that any activity which takes place outside of the parliament, including entirely legitimate activities such as strikes and protests, not only express the opinions of the participants but, sometimes by disrupting our daily life, are also intended to influence the government and change its policies.

 

In the matter at hand, as is apparent from the judgment of the Magistrate Court, petitioner initiated and organized protests around the country in which thousands of people participated, with the intention of forcing the government to change its policy by disrupting the order of daily life. The legitimacy of the government was denied. In its verdict, the court emphasized that the protests were not violent. Even when confronted with the violence of the police, the petitioner instructed protestors to refrain from violence. The court determined that the petitioner intended to advance views to which he was deeply and faithfully committed, and that he took a position regarding a serious public controversy. In light of these factors, petitioner received a light sentence.

 

Petitioner, as stated in the judgment of the court, exceeded the bounds of legitimate protest, and was therefore convicted. Petitioner’s actions, however, which were expressed through non-violent activities, do not involve that disgrace which disqualifies a candidate from the Knesset.  Similar to the authority to disqualify pursuant to section 7A of the Basic Law: The Knesset, the power to disqualify pursuant to section 6 of the Basic Law should be strictly construed. The offence of unlawful political protest should only be deemed dishonorable in extreme cases—which the petitioner’s case is not.   

 

Justice E. Rivlin

I agree with the judgment of my colleague, Vice-President S. Levin.

 

Section 6a of the Basic Law: The Knesset deprives an Israeli citizen, who has been sentenced to serve over three months of imprisonment, of his right to be elected to the Knesset if, on the day of the submission of the candidate list, seven years have not yet passed from the end of his sentence. The Basic Law provides only one way to remove this obstacle—the determination of the Chairman of the Central Elections Committee that the offence of which the individual was convicted is not, under the circumstances, dishonorable.

 

2.    The petitioner before us was convicted of incitement—including inciting publication and unlawful assembly.  He was sentenced to serve six months imprisonment and twelve months of probation.

 

The petitioner, as he was required, did not submit a request to the Chairman of the Central Elections Committee to determine that the offences of which he was convicted were not dishonorable. Additionally, in the statement which he submitted to the Central Elections Committee, he declared that, to the best of his knowledge and understanding, he was eligible to run for the Knesset. These omissions suffice to deprive the petitioner of his right to present his candidacy. Therefore, it is unnecessary to address the question of whether the petitioner’s conviction was, under the circumstances, dishonorable.

 

3.    With regard to offences of incitement, this Court has already stated that “it would be appropriate to consider its invalidation…and replacement with an offence which is more suitable for our system. The wording of the offence is too vague and its boundaries too wide.  It reflects a worldview which is not democratic. It suits a mandatory government, which is not a government of the people. It does not award sufficient weight to freedom of expression.” Crim.A. 6696/96 Binyamin Kahane v. The State of Israel, [12] at 585 (Barak, P.). See also Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997) [26]. Similarly, in the Unites States, in the first half of the 20th century, there were remnants of colonial incitement laws. See The Smith Act (1940); The Subversive Activities Control Act (1950). The United States Supreme Court discussed the constitutional difficulty of applying those criminal provisions, and of their possible infringement upon the freedom of speech.  The Court clearly distinguished between mere advocacy and incitement to immediate illegal activity—between expressing invalid opinions and actually acting towards their realization. In Brandenburg v. Ohio, 395 U.S. 4442 (1969) [22], the United States Supreme Court required proof that words of incitement were intended to incite immediate illegal action, as well as requiring the probability of the materialization of the danger.

In light of the above, it is doubtful whether our offence of incitement attributes sufficient weight to freedom of speech, see Crim.A. 6696/96 [12], and this may effect the question of “disgrace.” Nevertheless, it is doubtful that this is the case here since, according to the judgment of the Magistrate Court, the petitioner’s behavior exceeded the bounds of legitimate protest.  In any case, for the reasons given by my colleague, Vice-President S. Levin, I concur with his judgment. 

May 15, 2003

 

 

 

 

 

 

 

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

Comments, questions and suggestions are all welcomed, and may be directed towards elig@supreme.court.gov.il

 

 

 

 

HCJ 5853/07

Emunah — National Religious Women’s Organization

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Knesset

4.   Haim Ramon

HCJ 5891/07

1.   Tmura — the Legal Struggle against Discrimination Centre

2.   Ahoti for Women in Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Haim Ramon

HCJ 5914/07

Legal Forum for the Land of Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Attorney General

4.   Knesset

5.   Haim Ramon

 

The Supreme Court sitting as the High Court of Justice

[6 December 2007]

Before Justices A. Procaccia, A. Grunis, E. Arbel

 

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: MK Ramon was convicted of committing an indecent act. According to statute, a person is barred from being a member of the Knesset or a cabinet minister only if he has been convicted of an offence involving moral turpitude and is given a custodial sentence. The court that sentenced MK Ramon did not give him a custodial sentence and it held that the offence did not involve moral turpitude.

Shortly after serving the sentence of community service, MK Ramon was appointed a member of the government with the position of Deputy Prime Minister. The appointment was approved by the Knesset. The petitioners challenged the appointment on the ground that, in view of the conviction, the appointment was unreasonable in the extreme.

 

Held: (Majority opinion — Justice Procaccia) There is no legal basis for cancelling the appointment on the ground of extreme unreasonableness. Since the court that sentenced MK Ramon held that the offence did not warrant a custodial sentence and did not involve moral turpitude, the government considered the question of MK Ramon’s conviction before making the appointment and the Knesset approved the appointment, the decision to appoint MK Ramon falls within the margin of reasonableness and judicial intervention is not warranted.

(Majority opinion — Justice Grunis) The ground of unreasonableness in judicial review is highly problematic, especially with regard to a decision of a collective body where it is difficult to know the reasons for the decision. It would appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is actually replacing the discretion of the authority with its own discretion. Consequently, the use of relatively narrower and more concrete grounds, such as irrelevant reasons, irrelevant purposes or discrimination, should be preferred to the use of the ground of unreasonableness. In the specific circumstances, the court is no better placed than any citizen of the state to determine whether the decision is unreasonable. Therefore the court should refrain from intervening in the decision.

(Minority opinion — Justice Arbel) The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the government and its members. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. The appointment should therefore be set aside as unreasonable in the extreme.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

 

Legislation cited:

Basic Law: The Government , 5761-2001, ss. 1, 6, 6(c), 13(d), 15, 23(b), 28(a).

Basic Law: the Knesset, ss. 1, 6(a), 42, 42A(a).

Civil Service (Appointments) Law, 5719-1959, s. 46(a)(1).

Criminal Register and Rehabilitation of Offenders Law, 5741-1981.

Municipalities Ordinance, s. 120(8).

Penal Law, 5737-1977, s. 348(c).

State Comptroller Law [Consolidated Version], 5718-1958

Israeli Supreme Court cases cited:

[1]      HCJ 6163/92 Eisenberg v. Minister of Housing [1993] IsrSC 47(2) 229; [1992-4] IsrLR 19.

[2]        HCJ 652/81 Sarid v. Knesset Speaker [1982] IsrSC 36(2) 197; IsrSJ 8 52.

[3]      BAA 11744/04 Ziv v. District Committee of the Bar Association (unreported decision of 8 August 2005).

[4]        CSA 4123/95 Or v. State of Israel [1995] IsrSC 49(5) 184.

[5]        HCJ 4523/03 Bonfil v. The Honourable Justice Dorner [2003] IsrSC 57(4) 849.

[6]      HCJ 436/66 Ben-Aharon v. Head of Pardessia Local Council [1967] IsrSC 21(1) 561.

[7]      HCJ 5757/04 Hass v. Deputy Chief of Staff, General Dan Halutz [2005] IsrSC 59(6) 97.

[8]      HCJ 5562/07 Schussheim v. Minister of Public Security (unreported decision of 23 July 2007).

[9]      HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [1993] IsrSC 47(5) 404; IsrSJ 10 258.

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

[11]    HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [2003] IsrSC 57(6) 817; [2002-3] IsrLR 311.

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

[13]       HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

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

[15]       LFA 5082/05 Attorney General v. A (unreported decision of 26 October 2005).

[16]    CA 3398/06 Antitrust Authority v. Dor Elon Energy in Israel (1988) Ltd (unreported decision of 15 June 2006).

[17]        HCJ 5261/04 Fuchs v. Prime Minister of Israel [2005] IsrSC 59(2) 446; [2004] IsrLR 466.

[18]    HCJ 1400/06 Movement for Quality Government in Israel v. Deputy Prime Minister (unreported decision of 6 March 2006).

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

[20]       HCJ 325/85 Miari v. Knesset Speaker [1985] IsrSC 39(3) 122.

[21]    HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55(4) 800.

[22]       HCJ 306/81 Flatto-Sharon v. Knesset Committee [1981] IsrSC 35(4) 118.

[23]       HCJ 1843/93 Pinchasi v. Knesset [1994] IsrSC 48(4) 492.

[24]       HCJ 1139/06 Arden v. Chairman of the Finance Committee (unreported).

[25]       HCJ 9156/06 Pollak v. Members of the Seventeenth Knesset (unreported).

[26]    HCJ 12002/04 Makhoul v. Knesset (unreported decision of 13 September 2005).

[27]    HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [2005] IsrSC 59(5) 865.

[28]       HCJ 4668/01 Sarid v. Prime Minister [2002] IsrSC 56(2) 265.

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

[30]       HCJ 727/88 Awad v. Minister of Religious Affairs [1988] IsrSC 42(4) 487.

[31]       HCJ 194/93 Segev v. Minister of Foreign Affairs [1995] IsrSC 49(5) 57.

[32]       HCJ 1635/90 Jerezhevski v. Prime Minister [1991] IsrSC 45(1) 749.

[33]       HCJ 7074/93 Suissa v. Attorney General [1994] IsrSC 48(2) 748.

[34]       HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[35]       CrimA 121/88 State of Israel v. Darwish [1991] 45(2) 633.

[36]    HCJ 11243/02 Feiglin v. Chairman of Election Committee [2003] IsrSC 57(4) 145.

[37]       HCJ 251/88 Oda v. Head of Jaljulia Local Council [1988] IsrSC 42(4) 837.

[38]       HCJ 103/96 Cohen v. Attorney General [1996] IsrSC 50(4) 309.

[39]       CrimA 115/00 Taiev v. State of Israel [2000] IsrSC 54(3) 289.

[40]    HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [1998] IsrSC 52(4) 547.

[41]    HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [2005] IsrSC 59(3) 145.

[42]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[43]       HCJ 73/85 Kach Faction v. Knesset Speaker [1985] IsrSC 39(3) 141.

[44]       HCJ 1956/91 Shammai v. Knesset Speaker [1991] IsrSC 45(4) 313.

[45]       HCJ 108/70 Manor v. Minister of Finance [1970] IsrSC 24(2) 442.

[46]    HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [1987] IsrSC 41(1) 757.

[47]    HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [1993] IsrSC 47(2) 147.

[48]       HCJ 156/75 Daka v. Minister of Transport [1976] IsrSC 30(2) 94.

[49]    HCJ 5131/03 Litzman v. Knesset Speaker [2005] IsrSC 59(1) 577; [2004] IsrLR 363.

[50]    CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [1959] IsrSC 13 1026; IsrSJ 3 53.

[51]    HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[52]       HCJ 3379/03 Mustaki v. State Attorney’s Office [2004] IsrSC 58(3) 865.

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

[54]       HCJ 89/64 Greenblatt v. Israel Bar Association [1964] IsrSC 18(3) 402.

[55]    HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [1971] IsrSC 25(1) 325.

[56]    HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [2000] IsrSC 54(1) 49.

[57]    HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [2004] IsrSC 58(5) 108.

[58]    HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security (unreported decision of 24 October 2006).

 

For the petitioner in HCJ 5853/07 — P. Maoz, M. Hoffman.

For the petitioners in HCJ 5891/07 — Y. Bitton, E. Moreno.

For the petitioner in HCJ 5914/07 — J. Fuchs.

For the prime minister, the government and the Attorney General — D. Briskman.

For the Knesset — N. Elstein.

 

 

JUDGMENT

 

Justice A. Procaccia

We have before us three petitions that seek to prevent the appointment of MK Ramon as a minister in the Israeli government. In the meanwhile, MK Ramon joined the Government and was appointed a minister with the title of Deputy Prime Minister. The reliefs sought in the petitions, in view of the circumstances, are therefore that we declare the appointment of MK Ramon as a cabinet minister unreasonable in the extreme, with the result that he is disqualified from holding office in the Government, and that we order the appointment to be cancelled (the alternative reliefs stated in HCJ 5914/07 and HCJ 5853/07).

Background and proceedings

2.    On 23 August 2006 an indictment was filed in the Tel-Aviv Magistrates Court against MK Ramon for an offence of an indecent act without consent, in contravention of s. 348(c) of the Penal Law, 5737-1977. The indictment alleged that while he was a member of the Knesset and Minister of Justice, on 12 July 2006, in the Prime Minister’s office, MK Ramon kissed and stuck his tongue into the mouth of the complainant, without her consent. The complainant is an IDF officer who was working at that time in the office of the Prime Minister’s military attaché.

On 20 August 2006 MK Ramon gave notice of his resignation from the government, and this resignation came into effect on 22 August 2006. While the criminal proceedings were pending, MK Ramon did not hold office as a minister in the government.

On 31 January 2007 the Tel-Aviv–Jaffa Court convicted MK Ramon of the offence with which he was charged.

3.    At the sentencing stage, MK Ramon asked the court to cancel his conviction, relying on a report of the probation service that was submitted in his case. The report recommended that community service be imposed upon him without a conviction. The position of the defence and the probation service with regard to cancellation of the conviction was based on a classification of the offence as one of the most minor of sex offences, MK Ramon’s lack of prior convictions, his many years of public service and his contribution to public life in Israel. Emphasis was also placed on the significant damage that would result from the conviction of MK Ramon as an elected official, and the serious harm that he and his family would suffer should the conviction be upheld. The prosecution opposed the cancellation of the conviction and emphasized the nature of the offence and the fact that it was committed by a member of the Knesset and a government minister against an army officer serving in the Prime Minister’s office. It also discussed the injury caused to the complainant by the act, and the manner in which the defence had conducted the case, which, it argued, had caused her particular harm. The prosecution also opposed the cancellation of the conviction on the ground that MK Ramon did not express sincere regret during the trial, which is a basic requirement for cancelling a conviction -  but only at the sentencing stage. It particularly emphasized the need to send a message to the public that would deter similar offences. The prosecution asked the court to hold that the offence committed by MK Ramon was one that involved moral turpitude.

4.    After considering the question of cancelling the conviction and examining all of the relevant considerations, the Magistrates Court arrived at the conclusion that the conviction should be upheld. In so doing, it preferred the public interest over the interest of MK Ramon.  It held that cancelling the conviction might obscure the public message required in the circumstances and minimize the criminal aspect of the act, and it therefore denied the defence’s request in this regard.

Notwithstanding, when it considered the actual sentence, the court addressed the question of the moral turpitude involved in the offence, in view of the prosecution’s request during its arguments  that the sentence should determine that the circumstances in which the offence was committed by the defendant involved moral turpitude. The defence opposed this request. The court rejected the prosecution’s request, and it explained its position as follows (para. 16e of the sentence):

‘In the defendant’s case, we have reached the conclusion that the overall circumstances in which the offence was committed do not justify a determination that the offence involved moral turpitude. The isolated and unplanned act was committed by the defendant following a meaningless conversation, in a mental state of indifference. The act lasted two to three seconds and ended immediately. Allowing the conviction to stand contrary to the recommendation of the probation service and the finding that the defendant’s acts did not involve moral turpitude constitutes a proper balance between the different interests and a fair expression of the different factors that have arisen in this case, including considerations of proper legal policy.’

The court sentenced MK Ramon to 120 hours of community service, and ordered him to compensate the complainant in a sum of NIS 15,000. It rejected the prosecution’s request that it should give MK Ramon a suspended prison sentence. It said in the sentence, inter alia (paras. 17 to 20):

‘In his final remarks, counsel for the defendant asked the court to show his client justice and mercy; we are receptive to this and will do so in sentencing.

The defendant’s punishment is his conviction.  We are aware of the mitigating circumstances set out above, and they have led us to think that the defendant’s sentence should be minimal, so that the future harm that he will suffer will be in proportion to the nature of the offence and the circumstances in which it was committed.

Here we should point out that in the sentence we have taken into account s. 42A(a) of the Basic Law: The Knesset, and we have adjusted the sentence to its provisions.

We therefore order the defendant to perform 120 hours of community service, in accordance with a programme that will be drawn up by the probation service.

We order the defendant to compensate the complainant in a sum of NIS 15,000.’

5.    The judgment of the Magistrates Court became absolute when no appeal was filed by either of the parties. Even though the Attorney General was of the opinion that the circumstances of the offence of which MK Ramon was convicted do involve moral turpitude, he decided not to file an appeal on this issue, but his position on the question of moral turpitude remains unchanged (letter of the senior assistant to the Attorney General of 14 May 2007 (respondent’s exhibit 3)).

6.    After the sentence was passed, MK Ramon performed the community service that was imposed on him. Following changes in the composition of the Government, and especially as a result of the resignation of the Minister of Finance, the Prime Minister decided to reshuffle the Cabinet. On 4 July 2007 the Government decided unanimously to accept a proposal of the Prime Minister and, within the framework of its authority under s. 15 of the Basic Law: The Government, to appoint MK Ramon as a cabinet minister without portfolio, with the title of Deputy Prime Minister.

7.    On the same day, 4 July 2007, Minister Meir Sheetrit, on behalf of the Government, notified the Knesset that the Government had decided to appoint MK Ramon a member of the cabinet, and he requested the Knesset’s approval of this decision under s. 15 of the Basic Law: The Government. In Minister Sheetrit’s notice to the Knesset, he said, inter alia, the following:

‘I respectfully notify the Knesset that at its meeting today the Government decided as follows: Appointing ministers to the cabinet in accordance with section 15 of the Basic Law: The Government… I would like to say… before I give the notice, that the Prime Minister in his remarks at the cabinet meeting at which these changes to the cabinet were approved, said the following:

“MK Ramon was convicted in court. It should be pointed out that the court, when it considered the sentence, expressly determined the sentence in such a way that would not prevent him from engaging in public activity in the Knesset and the Government, even though the prosecution requested that it rule that his case involved moral turpitude, and also sought a sentence that would prevent him from returning to the Knesset and the Government. I have considered the appointment of Haim Ramon and all the factors relevant to this — on the one hand, the judgment, the sentence and everything related thereto; on the other hand, the contribution that the appointment of Haim Ramon will make to the Government, the Knesset and his (sic) work as Deputy Prime Minister. After I considered the matter, I decided that in the balance between the considerations, those supporting his appointment override those that oppose it, and therefore I made the decision after I studied the court’s decision on the matter.”

On the basis of these remarks of the Minister Sheetrit  the Prime Minister  proposed, and the Government decided, to appoint MK Haim Ramon as an additional member of the cabinet.’

8.    Following Minister Sheetrit’s notice, a debate took place in the plenum of the Knesset with regard to the Knesset’s approval of the Government’s decision to appoint MK Ramon to the cabinet. Ultimately the Government’s decision was approved by a majority of the Knesset, with 46 members of Knesset for, 24 members of Knesset against, and no abstentions. After the Knesset decision, MK Ramon made the declaration of allegiance and his appointment as cabinet minister came into effect.

The foregoing is the factual background underlying the petitions.

The petitioners’ arguments

9.    Two of the petitions were filed by women’s organizations, and one petition was filed by the Legal Forum for the Land of Israel, which is a group of lawyers that is active, inter alia, with regard to issues concerning proper Government in the State of Israel.

The petitioner in HCJ 5853/07, Emunah — the National Religious Women’s Organization, claims that the appointment of MK Ramon as a cabinet member and as Deputy Prime Minister is a step that is unreasonable in the extreme, and deals a mortal blow to the organs of government and the dignity of the cabinet. It says that this appointment attests to improper exercise of discretion by the Prime Minister, the Government and the Knesset, being in contravention of  tests laid down in case law for the appointment of public officials to various public offices. It particularly emphasizes in its arguments the criteria laid down by this Court in HCJ 6163/92 Eisenberg v. Minister of Housing [1] and it claims that Ramon’s appointment as a cabinet minister is inconsistent with the tests laid down in that case with regard to the appointment of a person with a criminal record to public office. It goes on to argue that the rule in Eisenberg v. Minister of Housing [1] was later developed and extended to various situations in which a candidate for public office has been disqualified even when he has not been convicted in a criminal trial but certain circumstances in his past and his conduct indicate that he is unsuited to the position from the viewpoint of his moral standards and integrity. According to the petitioner, MK Ramon’s conviction for a sex offence, even though it was held that it did not involve moral turpitude, is inconsistent with his appointment as a cabinet member in view of the circumstances in which the offence was committed and in view of the short period of time that has passed since he was convicted and served his sentence.

The petitioners in HCJ 5891/07 emphasize what they view as the serious harm to women occasioned by the appointment of MK Ramon as a cabinet minister. They say that the appointment is inconsistent with the need to protect the status, safety, liberty and dignity of women. It conflicts with their right to protection in their lives. According to their approach, appointing a person as a cabinet minister a short time after he has been convicted of a sex offence not only injures the victim of the offence but also all women in Israel, and seriously undermines public confidence in its elected officials. The finding of the Court that the offence does not involve moral turpitude does not exempt the Prime Minister, the Cabinet and the Knesset from exercising reasonable discretion with regard to the appointment. In the circumstances of this case, they are of the opinion that the discretion was exercised in an extremely unreasonable manner, and therefore the decision to make the appointment should be cancelled.

The petitioner in HCJ 5914/07 also claims that the decision to appoint MK Ramon as a cabinet minister is unreasonable in the extreme, and it involves a serious injury to Israeli women in general and victims of sex offences in particular. According to case law, a cabinet member should resign when an indictment is filed against him, and from a normative viewpoint this rule should be used as a basis for determining the proper normative standard for returning to public office after a conviction. It follows that only if the defendant is acquitted in his trial, or at the most if a judgment is given in his case without a conviction, may he return to hold office as a cabinet member. But once  MK Ramon was convicted of an indecent act, even if it was held that no moral turpitude was involved, he should not be allowed to return to the cabinet until the passage of a significant cooling-off from the time of his conviction. The petitioner goes on to argue that an analogy should be drawn in this case from the existing arrangement in the civil service, where a person would not be given a position if he was convicted of an offence of an indecent act, until the prescription period under the Criminal Register and Rehabilitation of Offenders Law, 5741-1981, has passed. It is argued that it is unreasonable that the normative standard for appointing an elected official to the cabinet should be lower than this.

The respondents’ position

10. The state in its reply refers to s. 6 and s. 23(b) of the Basic Law: The Government. It claims that these provisions set out the detailed statutory arrangement concerning a person's eligibility to serve as a cabinet minister even though he has been convicted in a criminal trial, both for the purpose of an appointment to the cabinet (s. 6) and for the purpose of terminating the office of a member of the cabinet (s. 23). The law provides in s. 6 that a person who has been convicted of an offence and sentenced to imprisonment may not be appointed to the cabinet if on the date of the appointment seven years have not passed since the date on which he finished serving his sentence or judgment was given, whichever is the later. These two cumulative conditions of a criminal conviction and a custodial sentence (including a suspended sentence) create a presumption of moral turpitude if the period specified in the law has not yet passed since the sentence was completed or the judgment was given. This presumption can be rebutted by a decision of the chairman of the Central Elections Committee that the offence does not involve moral turpitude. Such a decision is possible only when the court has not determined that the offence involves moral turpitude. Regarding a member of the cabinet who is convicted of a criminal offence, the Basic Law provides in s. 23 that his office will be terminated if he is convicted of a criminal offence which has been determined by the court as involving moral turpitude.

The state claims that the law created formal tests as to whether a person convicted of a criminal offence may hold office as a cabinet minister both for the purpose of appointing someone with a conviction as a cabinet member and for the purpose of whether someone who was convicted while serving as a cabinet member may continue to hold office. These tests were intended to create certainty and stability in applying the proper criteria for holding office as a cabinet member. It follows that since the court held that the office committed by MK Ramon does not involve moral turpitude and it refrained from imposing a custodial sentence, his appointment to the cabinet was consequently sanctioned, and there is no legal impediment to appointing him.

The state agrees that there may be exceptional situations in which a person satisfies the criteria for holding office as a cabinet minister according to the tests in the Basic Law: The Government, and yet there will still be an impediment to appointing him as a cabinet member, but this is not one of those cases. In this case, the balance struck by the court in the criminal proceeding — where, on the one hand, it determined that MK Ramon should be convicted of the offence that he committed but, on the other hand, it went on to hold that the offence did not involve moral turpitude — should be upheld. The law provides that the trial court in a criminal case is the competent forum for determining whether the offence committed by the defendant involves moral turpitude, and the High Court of Justice should not act as a court of appeal regarding the trial court’s decision in this respect, since this would undermine certainty and stability in this matter.

Moreover, the state claims that the discretion of the Prime Minister and the government when appointing cabinet ministers is very broad, and the court should only intervene in such matters on rare occasions. The Knesset’s approval of the Government’s decision to make the appointment adds a dimension of parliamentary involvement in the appointment process, and this reduces the margin for judicial intervention in the appointment process even further.

11. The Knesset’s position is that the petitions should be dismissed in limine, since there was no defect in the appointment process. The plenum of the Knesset held a debate on the matter and approved the appointment in accordance with s. 15 of the Basic Law: The Government . The Knesset acted in this regard by virtue of its constitutional power as the organ that supervises the government’s work. The Knesset’s power to approve the addition of a minister to the cabinet under s. 15 of the Basic Law is a sovereign power, which is exercised in the course of the internal proceedings of the Knesset. This is a political act that allows very little scope for judicial intervention, especially when it concerns the relationship between the Knesset and the government, with its special political complexities. 

The Knesset also argued that it approved the appointment of MK Ramon as a minister after holding a debate on the merits of the appointment and a vote in the plenum of the Knesset. The Knesset was informed of the background and all the factors relevant to the appointment, and it was told of the considerations that the Prime Minister and the Government took into account before deciding  on  the appointment. The Knesset therefore made its decision with a full knowledge of all the background facts and considerations relevant to the appointment. The exercise of judicial review with regard to acts of the Knesset in this context is very narrow and it is limited to very extreme and rare cases in which the fundamental principles of the system are significantly undermined. The petitioners did not indicate any such ground for intervention in the circumstances of this case. Since the fundamental principles of the system have not been significantly undermined, there is no basis for exercising judicial review of the Knesset’s decision to approve the Government’s notice concerning the appointment of MK Ramon as a cabinet minister. In view of all this, the petitions should, in the Knesset’s opinion, be denied.

Decision

The significance of the judgment in the criminal trial and its ramifications on the legitimacy of the appointment

12. MK Ramon was convicted of an offence of an indecent act. The court's sentence in the criminal trial did not include a custodial or a suspended sentence. It also determined that the offence did not involve moral turpitude, and it said in this respect that the sentence took into account s. 42A(a) of the Basic Law: the Knesset and tailored the sentence to its provisions. This section provides that if a member of the Knesset is convicted of a criminal offence and it is determined that it involves moral turpitude, his membership of the Knesset will cease when the judgment becomes final. The significance of this provision is that the court in the criminal trial passed sentence with the express intention of not terminating Ramon’s membership of the Knesset in accordance with that provision of the law. When judgment was given in the criminal trial, MK Ramon was not a member of the cabinet. Therefore the court’s judgment did not expressly address the provisions of s. 6 of the Basic Law: The Government , which concern the conditions that govern whether a candidate  convicted in a criminal trial is competent to be appointed a minister. Notwithstanding, it may be assumed, albeit implicitly, that when the court passed sentence and considered the question of whether the offence involved moral turpitude, it intended to effect an outcome in which, on the one hand, Ramon’s conviction for an offence of an indecent act would stand rather than being cancelled and that he would also serve a sentence, but by which, on the other hand, after serving his sentence, MK Ramon would be able to return to public activity in the Knesset, the Government or any other sphere of public life. In taking this approach the court sought to distinguish the criminal proceeding and its consequences in the criminal sphere from MK Ramon’s activity in public life. It saw fit, in the circumstances of this case, to exhaust the criminal trial, but at the same time it sought not to terminate Ramon’s activity in the public sphere, which it regarded as the proper balance between the aggravating and mitigating factors that coexist in this case. In doing so, the court intended, inter alia, to ensure that Ramon satisfied the statutory conditions for continuing to serve as a member of Knesset that are laid down in s. 42A of the Basic Law: the Knesset. It also implicitly sought to ensure that he satisfied the conditions for being appointed a cabinet minister as laid down in s. 6 of the Basic Law: The Government , even though it did not expressly address this issue, since Ramon’s appointment to the cabinet was not a relevant matter at that time.

The court’s judgment in the criminal trial paved the way for MK Ramon to satisfy the statutory conditions that would allow him to be appointed to the cabinet. The court was mindful of the statutory restrictions in s. 42A of the Basic Law: the Knesset and s. 6 of the Basic Law: The Government  when it couched its sentence in terms that excluded Ramon’s case from the scope of the statutory restrictions that would otherwise have prevented him from continuing to serve as a member of Knesset and from being appointed a cabinet minister.

And so, after he was convicted and served his sentence, MK Ramon was appointed a cabinet minister with the title of Deputy Prime Minister. The appointment was proposed by the Prime Minister, adopted and subsequently approved by the Knesset. The Knesset approved the appointment after holding a debate and a vote, following which MK Ramon took the declaration of allegiance to the state and entered into office.

‘Competence, as distinct from discretion’

13. Compliance with the minimal qualifications provided by law for the purpose of an appointment to public office or the inapplicability of statutory restrictions on such an appointment still leave the authority making the appointment with a duty to exercise discretion with regard to the propriety of the appointment. Compliance with formal qualifications for holding a position does not necessarily mean that a candidate is suited to a public office in various respects, including in terms of his personal and moral level and in terms of his basic decency. The authority making the appointment should exercise its discretion with regard to the appointment in accordance with the established criteria of public law; its considerations should be relevant, fair and made in good faith, and they should fall within the margin of reasonableness.

In our case, according to the proper construction of the judgment in the criminal trial, Ramon satisfies the requirements for being appointed a cabinet minister in the sense that the statutory restrictions upon his continuing to hold office as a Knesset member and his being appointed a minister under s. 42A of the Basic Law: the Knesset and s. 6 of the Basic Law: The Government  do not apply. Thus the ‘minimum requirements’ for the appointment are satisfied. But this does not exempt the authority making the appointment from the duty to exercise its discretion with regard to the suitability of the appointment from the viewpoint of the nature of the office, the character of the candidate, and the circumstances of time and place according to criteria that comply with the rules of public law.

The petitions before us focused on the validity of the discretion exercised by the authority making the appointment from the viewpoint of its reasonableness. It was argued that appointing MK Ramon as a cabinet minister was unreasonable in the extreme in view of the nature and circumstances of the offence of which he was convicted and in view of the short time that has passed since the judgment was given and Ramon finished serving his sentence.

We should therefore address the reasonableness of the appointment, against the background of all the circumstances of the case. In this context it is necessary, inter alia, to define the margin of discretion of the authority making the appointment, which casts light on the margin of reasonableness. This margin in turn influences and casts light on the scope of judicial review that should be exercised with regard to the reasonable of the discretion exercised by the authority making the appointment.

The appointment — the margin of reasonableness and the scope of judicial review

Competence for public office

14. The competence of a candidate for public office is examined in two main respects:

The first respect concerns the ethical quality and moral virtues of the candidate, alongside his professional and practical abilities. The ability of a candidate to take on responsibility for holding public office depends not only on his talents and abilities, but also on his moral character, his integrity and his incorruptibility. When an ethical or moral impropriety is discovered in a person's actions before his appointment or while he is holding public office, a concern may arise as to his suitability for the office from the viewpoint of his integrity and ethical conduct, which may impair his ability to carry out his duties.

The second respect concerns the fact that public confidence in civil servants and elected officials is an essential condition for the proper functioning of the civil service and the organs of government. All branches of public service rely on public confidence not only in the practical abilities of civil servants and elected officials, but also, and especially, on their standards of morality and humanity, their integrity and incorruptibility. Without this confidence, the civil service cannot, in the long term, properly discharge its functions at the required level for any length of time.

When persons who have been morally compromised are appointed to public office or left in office after they have gone astray, the ethical basis on which the organs of state and government in Israel are founded may be undermined. The fundamental ethical principles on which Israeli society and government are based may be seriously compromised. Public confidence in the organs of government, whose rank and standards are supposed to reflect the basic ethical principles on which social life in Israel is based, may be weakened.

The appointment process for public office always requires the appointing body to exercise discretion. It should consider all of the factors that are relevant to the appointment, including the competence of the candidate. This competence is measured not only according to the professional abilities of the candidate but also according to his moral and ethical standards. Examining suitability for  office from a moral viewpoint requires the consideration of a wide spectrum of factors, including the nature of the acts attributed to the candidate, whether they involved any impropriety, how serious they were, and to what extent they affect his moral and ethical standing; whether he was convicted in a criminal trial, whether he is suspected of committing offences, and whether any criminal investigations are pending against him; whether the acts attributed to him have been proved, or whether they are merely suspicions, and what is the strength of such suspicions; what is the period of time that has passed since the acts were committed; did he commit a single act or was the act a continuous one(Eisenberg v. Minister of Housing [1], at p. 262 {64-65}; HCJ 652/81 Sarid v. Knesset Speaker [2], at p. 197 {52}); and, finally, whether the acts involved ‘moral turpitude.’ The concept of ‘moral turpitude’ in the law reflects an ethical-moral assessment which indicates that under the circumstances a particular act was tainted by a grave moral defect (BAA 11744/04 Ziv v. District Committee of the Bar Association [3]; CSA 4123/95 Or v. State of Israel [4], at p. 189; R. Gavison, ‘An Offence Involving Moral Turpitude as Disqualification for Public Office,’ 1 Hebrew Univ. L. Rev. (Mishpatim) 176 (1968), at p. 180).

Conditions of Competence and Statutory Restrictions upon holding office

15. The process of appointing  a person to public office is often subject to conditions of competence and statutory restrictions that may disqualify a candidate from being appointed. When the restrictions disqualify a candidate from being appointed, the authority making the appointment is left with no discretion. There are a host of statutory restrictions that negate the competence of a person convicted of an offence involving moral turpitude from holding office. This is the case with regard to a person’s competence to be appointed a cabinet member (s. 6 of the Basic Law: The Government ), the right to be elected to the Knesset (s. 6(a) of the Basic Law: the Knesset), and being appointed to the civil service or a local authority (s. 46(a)(1) of the Civil Service (Appointments) Law, 5719-1959; s. 120(8) of the Municipalities Ordinance). The criterion of ‘moral turpitude’ that justifies restricting a person’s competence to hold public office is a moral defect that taints his action, thereby impairing his ability to bear the responsibility required for discharging the job both because of the damage to his ethical standing and because of the anticipated harm to public confidence in the office and the person holding it, and even in public system as a whole  (Or v. State of Israel [4], at p. 189; HCJ 4523/03 Bonfil v. The Honourable Justice Dorner [5], at p. 854; HCJ 436/66 Ben-Aharon v. Head of Pardessia Local Council [6], at p. 564).

The statutory restrictions that negate a candidate’s competence for holding public office close the gates upon his appointment and prevent him from being appointed. It does not follow that where the statutory restrictions do not apply to a candidate, his appointment is necessarily permissible from the viewpoint of the lawfulness of the discretion that the authority should exercise when making the appointment. The authority making the appointment should act reasonably in exercising its discretion with regard to the appointment. Its responsibility in this process comes under scrutiny even when the candidate satisfies the formal qualifications and is not excluded by the statutory restrictions laid down for an appointment to public office. Notwithstanding, it is important to point out that the competence of a candidate according to the criteria laid down in statute may affect the scope of discretion that the authority may exercise in the appointment process.

The balances required when exercising discretion in the appointment process

16. Exercising reasonable discretion in the process of appointing someone to a public office requires the authority making the appointment to contemplate a very wide range of considerations. It should consider whether the candidate is suited to the position from the viewpoint of his professional qualifications, and from the viewpoint of his personal qualities and moral standards; it should evaluate the degree of public confidence that the appointment under consideration will foster; it should consider the wider needs of the administration, and the ability of the candidate to contribute to it and further the public interest in discharging his duties.

When the proposed candidate has a criminal record or his actions are tainted in some other way, the authority should examine the effect that this factor has on his competence for the position. It should take into account the nature of the act attributed to the candidate, its seriousness, the nature of the impropriety that taints it, and its effect on his ability to carry out his duties; it should examine whether the nature of the candidate’s acts indicates an inherent ethical flaw in his conduct, which affects his ability to function properly in the proposed position and has an impact on the ethical image of public service. On the other hand, it is possible that the act was an isolated lapse, which even if it has an aggravating aspect, does not indicate a fundamental flaw in the candidate’s character (HCJ 5757/04 Hass v. Deputy Chief of Staff, General Dan Halutz [7]; HCJ 5562/07 Schussheim v. Minister of Public Security [8]). Against this background, it should consider the effect of the appointment on public confidence in the system of government (Eisenberg v. Minister of Housing [1], at para. 40). It should consider the fact that the candidate has a criminal conviction in its proper context or any other impropriety in his conduct in their proper context, and weigh them against the other considerations that support the appointment, and strike a balance between them. The main criterion when striking this balance lies in the question whether in the circumstances of the case the appointment may cause serious and pervasive harm to the image of the government in Israel and significantly undermine the respect that the citizen has for the organs of government.

17. The unreasonableness of appointing someone who has been convicted of a criminal offence to public office does not necessarily depend upon the offence involving an element of immorality or a finding that it involves moral turpitude (Eisenberg v. Minister of Housing [1], at para. 55). Similarly, the very existence of a criminal conviction is not a prerequisite for disqualification from public office. Indeed, by virtue of the discretion of the authority making an appointment, not only have persons who have been convicted in a criminal trial been disqualified for public office, but so too have persons who have confessed to committing a criminal offence, even though they were not brought to trial (for example, the persons involved in the 300 bus affair, Yosef Ginosar and Ehud Yatom). In other cases, the court has recognized the possibility of disqualifying persons from public office when a decision has been made to bring them to trial, even before their guilt has been proved. This occurred in the case of Minister of the Interior Aryeh Deri and Deputy Minister of Religious Affairs Raphael Pinchasi (HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at p. 422 {284}; HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 467). A similar outlook has been adopted with regard to public figures against whom a criminal investigation was started, even though it was later decided not to bring them to trial. This occurred with regard to the criminal investigations relating to Minister Tzachi Hanegbi that did not lead to the filing of an indictment (HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], at p. 851 {353}).

The need to consider the ethical and moral aspects of appointing someone to public office has also been extended to situations in which a decision was made not to open a criminal or disciplinary investigation against a candidate for conduct giving rise to a suspicion of an illegal act (Hass v. Deputy Chief of Staff, General Dan Halutz [7], at para. 10 of the opinion of Justice Levy; HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [12], at p. 65). Indeed, one should not rule out the possibility that the improper conduct of a candidate, even if does not amount to a criminal offence, is sufficiently serious that it would be unreasonable in the extreme to appoint him to public office or to allow him to continue to hold public office.

18. Considerations regarding a candidate’s competence for public office from an ethical viewpoint are of great weight. In very serious cases, the ethical stain on a person’s character may make his appointment to the position completely inappropriate, even when from the viewpoint of his professional abilities he is likely to make a contribution towards the issue that lies at the focus of the public system. In such a case, even the needs of the public system will defer to the stain on the person’s character. But in other situations, alongside an examination of the ethical aspect of the candidate’s character, the authority should consider the broader needs of the public administration and the ability of the candidate to contribute to it, and a proper balance should be struck between all of the relevant considerations and factors.  With regard to a cabinet appointment, one should consider, inter alia, the potential contribution of the candidate to the office, the importance of bringing him into the government for the purpose of preserving the coalition and the effective functioning of the government. On a matter relating to parliamentary political life, one cannot rule out a proportionate consideration of factors relating to political circumstances (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at para. 30). The authority should take into account the requirements of the position, the special abilities of the candidate and the benefit that his holding office would engender in furthering the general public interest. The authority making the appointment should weigh up all of the aforesaid factors and strike a proper balance between them, within the margin of reasonable discretion that is given to it. A candidate’s criminal record or any stain on his character should be considered in accordance with their circumstances and seriousness against other relevant general considerations: the professional qualities, when taken together with the proven or alleged impropriety of his actions, should be considered against the nature of the office, its status within the administration, and how uniquely qualified the candidate is for the office. A balance is required between all the various conflicting considerations (HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], at p. 445; HCJ 935/89 Ganor v. Attorney General [14], at p. 513). An appointment is a reasonable decision if it is made as a result of a balance that gives proper weight to the different values that are relevant to the case. Assessing the weight that is given to the different considerations is a normative act that is made in accordance with accepted social values, which in turn cast light on the relative importance that should be attributed to the various conflicting factors (LFA 5082/05 Attorney General v. A [15], at para. 19 of the opinion of President Barak; Eisenberg v. Minister of Housing [1], at pp. 263-264 {65-66}; CA 3398/06 Antitrust Authority v. Dor Elon Energy in Israel (1988) Ltd [16]). Within the margin of reasonable discretion, depending upon how broad it is, there may be different possible balancing points between the conflicting considerations, all of which may pass the test of reasonableness. The broader the margin of administration discretion when making an appointment, the broader the margin of reasonableness, and this extends the range of legitimate possibilities for finding different balancing points between the conflicting values in the appointment process. The margin of discretion in the appointment process is determined by various factors: the identity of the authority making the appointment, statutory provisions and judicial decisions regarding the competence of the candidate for the appointment, parliamentary involvement in the appointment and the other circumstances of the case.

19. The limits of judicial review and the scope of its application when examining the reasonableness of the discretion of the authority making the appointment are affected by the authority’s margin of discretion in this regard. The scope of judicial review of the authority’s decision is inversely proportional to the scope of the margin of discretion given to the authority making the appointment. The broader the margin of the administrative discretion, the narrower the scope for judicial intervention in the administrative act.

 

The authority’s margin of discretion when appointing a minister who has a criminal conviction

20. For the purposes of this case, we should examine the margin of discretion given to an authority when appointing someone with a criminal conviction as a member of the cabinet. This margin of discretion will cast light on the scope of judicial review regarding the appointment. We should examine whether in the circumstances of this case the decision to appoint MK Ramon as a member of the cabinet falls within the margin of reasonableness or whether it falls outside this margin in such a way that we need to intervene and amend it.

The margin of discretion given to the government when appointing a cabinet minister who has been convicted of a criminal offence is influenced by conflicting considerations that pull in opposite directions: on the one hand, such an appointment gives rise to the question of the weight of the criterion of integrity and ethical conduct in the appointment of elected officials to the most senior positions in state institutions. The image of public service and government institutions is closely related to the moral character of its employees and elected representatives. The standing of government institutions and the effectiveness of their functioning depend largely upon maintaining public confidence in them, not merely from the viewpoint of their professional standards but first and foremost from the viewpoint of their ethical standards. Without this confidence, state institutions will find it difficult to operate. The integrity and moral status of civil servants and elected officials affect the degree of confidence that the public has in state institutions. Appointing someone as a cabinet minister after he has been convicted of a criminal offence of an indecent act just a short time before the appointment, directly concerns the question of integrity and moral character in the appointment of elected representatives, and this factor has considerable weight in limiting the margin of discretion of the authority making the appointment.

21. But this consideration does not stand alone. There are additional conflicting considerations that operate in concert to broaden the margin of discretion given to the authority making the appointment and to limit the scope of judicial review regarding the appointment. The conflicting considerations are the following: first, the prime minister and the government have broad powers when forming the government and appointing cabinet ministers, which is a part of the political process that characterizes the structure of democracy; second, the fact that the statutory qualifications for appointing a minister with a criminal conviction are satisfied has certain ramifications upon the margin of administrative discretion given to the authority making the appointment; third, the parliamentary approval given to the government’s decision to make the appointment, which embodies the consent of the state’s elected body to the appointment and the identity of the person chosen for the office, affects the margin of discretion in making the appointment; and fourth, an absolute judicial decision of a national court, which held in the criminal trial that a distinction should be made between the criminal sanction imposed upon the public figure and the effect of the conviction on the defendant’s public activity, so that the former would not preclude the latter, also contributes to a broader margin of discretion when the competent authority makes the appointment. Each of these factors individually, and certainly when taken together, extends the authority’s margin of discretion in making the appointment, and the scope of judicial review is correspondingly limited.

We will now consider these matters in detail.

The scope of discretion in forming a government and appointing ministers

22. As a rule, the scope of the prime minister’s discretion in forming a government and the government’s discretion in appointing new ministers has two aspects: on the one hand, the discretion given to the prime minister in forming his government and in deciding upon its members is broad. So too is the government’s discretion in its decision to appoint a new member of the cabinet. On the other hand, this discretion is subject to judicial review and is not completely immune from it, since —

‘The prime minister is a part of the administrative authority and the principles that apply to the administrative authority and its employees apply also to the prime minister. It follows that, like any public official, his discretion is not absolute. He must act reasonably and proportionately; he must consider only relevant considerations; he must act without partiality and without arbitrariness; he must act in good faith and with equality’ (HCJ 5261/04 Fuchs v. Prime Minister of Israel [17], at pp. 463-464 {483}).

The discretion given to the prime minister and the government with regard to forming a government, appointing and replacing ministers, and adding a new member to the government is broad, because of the special nature of the power of appointment, which is ‘of a unique kind, both because of the position of the prime minister with regard to the formation of the government and because of the political nature of the government. It includes a large number of considerations and encompasses a wide margin of reasonableness’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 58). The prime minister’s special power with regard to the appointment of cabinet ministers and the termination of their office is intended to ensure the government’s ability to function and operate, and it is an integral part of the political process at the heart of the democratic system, which the court rarely subjects to the test of judicial review (HCJ 1400/06 Movement for Quality Government in Israel v. Deputy Prime Minister [18]; Movement for Quality Government in Israel v. Prime Minister [11]). The margin of reasonableness that characterizes the scope of the prime minister’s discretion when determining the composition of his government and the appointment of cabinet members is very broad, and his criteria include parliamentary, political and party considerations. This broad margin is intended to facilitate the government’s ability to function properly as the executive branch of the state, and to realize the policy goals that it espouses (Fuchs v. Prime Minister of Israel [17], at para. 29 of the opinion of President Barak). This broad discretion is founded on the public interest of ensuring the stability of the government and its ability to achieve its goals. Indeed —

‘When we address the discretion of the prime minister in a decision to appoint a minister, the margin of reasonableness for his decision, in which the court will refrain from intervening, is very broad, both because of the status of the prime minister as an elected representative and the head of the executive branch, and because of the nature of this power’ (Movement for Quality Government in Israel v. Prime Minister [11], per Vice-President Or).

The scope of the discretion of the prime minister and the government when appointing cabinet ministers, no matter how inherently broad it may be, varies according to the nature of the conflicting factors that they should consider during the appointment process. Discretion that is entirely based on professional qualifications for the position or on purely political or public considerations of various kinds cannot be compared to discretion that is exercised as a result of a duty to contend with the ethical-normative considerations that arise from a candidate’s criminal past or from another stain on his character, which affects his social and public standing and is relevant to his competence to hold office. The ethical-normative aspect of administrative discretion may affect its scope in this special context, and result in the discretion being narrower, and judicial review being correspondingly more rigorous.

23. The consideration concerning the ethical background of a candidate for appointment as a cabinet minister should be taken into account by the prime minister when determining the composition of his government, even when the candidate satisfies the statutory qualifications that are required for the appointment. The weight given to this consideration should be determined in accordance with the special circumstances of the case and with a view to the relative weight that should be given to other important considerations that are relevant to the appointment process.The broad discretionary authority given to the prime minister in the realm of appointments compels him to address a broad variety of considerations. The prime minister should examine, inter alia, the importance of appointing the candidate with reference to the field of activity for which he will be responsible and his skills and abilities as can be seen from his record in the past; he should assess the effect of the appointment on the composition of the government and its ability to function. Public, political and other considerations should also be included among the complex set of criteria that are a part of the appointment process. It is the task of the prime minister and the government to assess the relative weight of all the relevant factors in a reasonable manner, and to strike a proper balance when deciding upon the appointment.

It is the task of the authority making the appointment to strike a balance between the conflicting considerations when appointing a person to the cabinet who has been convicted in a criminal trial. Its discretion is broad, but not unlimited. The law will intervene and have its say when the appointment reflects an improper balance between all of the relevant considerations and it involves a real violation of the ethical principles accepted by society. The law will intervene where such an appointment is likely to harm the status of government institutions and public confidence in them in such a serious way that the appointment is unreasonable in the extreme.

Statutory qualifications and restrictions relating to appointments

24. As we explained above, ss. 6 and 23 of the Basic Law: The Government  lay down the statutory qualifications and restrictions that prevent a person who has been convicted in a criminal trial from being appointed as a cabinet member or that require the termination of his office as a cabinet member.

Section 6(c), which is relevant to this case, provides:

‘Qualification of ministers

6. …

(c) (1) A person shall not be appointed a minister if he has been convicted of an offence and sentenced to imprisonment, and on the date of the appointment seven years have not yet passed since the day on which he finished serving the sentence of imprisonment, or from the date of the judgment, whichever is the later, unless the chairman of the Central Elections Committee determined that the offence of which he was convicted does not, in the circumstances of the case, involve moral turpitude.

 

(2) The chairman of the Central Elections Committee shall not make a determination as stated in paragraph (1) if the court has held according to law that the offence of which he was convicted does involve moral turpitude.’

The conditions that disqualify a person from holding office as a cabinet member, as stated in s. 6(c), are ‘minimum requirements’ that, when they apply, disqualify a person for the appointment. Where the restrictions upon the appointment do not exist, it does not mean that we are dealing with a ‘negative arrangement’ regarding the exercise of discretion by the authority making the appointment, whereby any appointment whatsoever will be valid. Even when there is no statutory restriction upon holding office, the authority should exercise discretion in making an appointment and strike a proper balance between the relevant considerations, according to their proper relative weight (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 457). The statutory qualification test for a person convicted in a criminal trial to hold office as a minister is closely linked to the question of the moral turpitude involved in the offence. Where there is moral turpitude, he is disqualified from holding office; this however, does not mean that the absence of moral turpitude necessarily legitimizes the appointment.  The reasonableness of the discretion of the party making the appointment is examined on its merits, according to all the circumstances of the case.

Notwithstanding, the existence of statutory restrictions upon the appointment of a cabinet minister does influence the scope of discretion of the person making the appointment when exercising the power of appointment granted to him. The stipulation of the legislature regarding the conditions that disqualify a candidate who has been convicted of a criminal offence for being appointed a minister has ramifications on the scope of the power of the person making the appointment and the margin of discretion regarding a candidate whose appointment is not ruled out by the minimum requirements. The statutory restrictions reflect the criteria that the legislature regarded as the proper ones for ensuring the minimum ethical standard for someone joining the government. Admittedly, meeting the qualifications that derive from compliance with these restrictions does not amount to an automatic ethical certificate of approval for the appointment, and the authority should examine in depth whether the candidate is suitable for the position, first and foremost from the viewpoint of his ethical qualities (Eisenberg v. Minister of Housing [1], at pp. 256-257). However, the statutory restrictions upon an appointment do cast light on the ethical criteria required by the legislature for the purpose of the appointment, and the effect of this is to increase the margin of discretion of the person making an appointment where the candidate satisfies the statutory minimum requirements for the appointment.

As the court held in Movement for Quality Government in Israel v. Prime Minister [11] (at para. 8 of the opinion of Justice Rivlin):

‘… the criteria for eligibility laid down by the legislature are not irrelevant when examining the discretion of the prime minister. The further we depart from the statutory criteria, the more difficult it will be to find a reason and justification for intervening in the prime minister’s discretion within the scope of his authority. Indeed, if the legislature has determined that the conviction of a minister of an offence involving moral turpitude necessitates his removal from office, the court will not lightly say that even when the minister has been acquitted of the offence, or a decision was made not to bring him to trial at all, the minister should be removed from office.’

The Knesset’s approval of the appointment

25. Under s. 15 of the Basic Law: The Government , the addition of a minister to the cabinet requires giving notice to the Knesset and receiving the Knesset’s approval. This process subjects the decision of the prime minister and the cabinet to add a minister to the cabinet and the identity of the minister who was appointed to a public, political and parliamentary test. The Knesset’s decision is made after a debate, and it is made by virtue of the Knesset’s position as the supervisor of the government’s actions. The Knesset’s approval for the government’s decision to add a minister to the cabinet reflects parliamentary approval of the elected house of representatives for the appointment that was made by the executive branch (Sarid v. Knesset Speaker [2], at para. 5 of the opinion of Justice Barak).

All organs of government are subject to judicial review, and the Knesset is no exception (HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19]). But the status of the Knesset as the legislative branch, as enshrined in the Basic Law and as determined by the structure of our democracy, requires the court to exercise its judicial review of Knesset decisions with caution and restraint. As a rule, the court will refrain from intervening in Knesset decisions, and the basic criterion by which the scope of the court’s intervention is determined depends upon the nature of the decision from the viewpoint of the amount of harm that it inflicts upon the principles of the constitutional system and the basic notions that lie at its heart (per President Shamgar in HCJ 325/85 Miari v. Knesset Speaker [20], at p. 195; Movement for Quality Government in Israel v. Knesset Committee [19]). The scope of judicial review of Knesset decisions is determined, inter alia, in accordance with the nature and characteristics of the specific decision. Intervention in a decision relating to legislation cannot be compared to intervention in a quasi-judicial decision or a decision concerning the Knesset’s scrutiny of the Government’s actions (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]).

26. The Knesset’s approval of the Government decision to appoint someone who was convicted of a criminal offence as a new minister has two aspects. One aspect relates to its nature as an act of scrutiny of the Knesset as the body that supervises the actions of the Government. The other aspect is of a normative-ethical nature, with quasi-judicial overtones; it reflects the ethical outlook of the Knesset as to the competence of someone who has been convicted of a criminal offence to hold office as a minister in the government. The first aspect concerns the relationship between the Knesset and the Government, and it involves ‘a significant political component in which the judicial branch should not interfere, in order to prevent, in so far as possible, the “politicization of the judiciary” ’ (Sarid v. Knesset Speaker [2], at para. 7). The other aspect involves the Knesset in making an ethical and principled decision regarding the competence of a candidate to serve as a cabinet minister from the viewpoint of his ethics and character. This determination has a normative significance that concerns the determination and application of proper ethical and moral criteria to the holding of a very high office in the Government of Israel. This aspect of the Knesset’s decision with its ethical dimension opens the Knesset’s decision to more rigorous judicial review, since where the Knesset’s decision leaves the purely political sphere and addresses a question relating to considerations of public ethics as applicable to the office of elected representatives in government institutions, the scope of judicial intervention may become broader in so far as the ethical dimension is concerned (HCJ 306/81 Flatto-Sharon v. Knesset Committee [22]; Miari v. Knesset Speaker [20], at p. 127; HCJ 1843/93 Pinchasi v. Knesset [23], at p. 496; Amitai, Citizens for Good Government and Integrity v. Prime Minister [10]; HCJ 1139/06 Arden v. Chairman of the Finance Committee [24], at para. 5 of the opinion of President Emeritus Barak; Sarid v. Knesset Speaker [2], at p. 202 {56-57}; HCJ 9156/06 Pollak v. Members of the Seventeenth Knesset [25]; HCJ 12002/04 Makhoul v. Knesset [26]; HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [27], at pp. 899-900).

The limits of judicial review of a decision of the Knesset to bring  a minister into the government, who has been convicted of a criminal offence, are therefore influenced by the dual aspect of such a decision, which features both a manifestly political dimension and an ethical-normative one. The nature of the Knesset’s decision requires, on the one hand, the accepted degree of judicial restraint with regard to Knesset decisions, and, on the other hand, it may require a judicial examination of the ethical determination contained in it. This balance means that when a decision of the Knesset to approve the appointment of a minister to the cabinet amounts to an extreme and unusual departure from proper ethical criteria, it is likely to justify judicial intervention.

A judicial determination in a criminal trial

27. The court in which MK Ramon’s criminal trial took place directly addressed the question of the appropriate consequence of his Ramon’s criminal conviction with respect to the continuation of his path in public and political life. In the balance that the court struck when passing sentence, it held that a distinction should be made between the question of sentencing, in which MK Ramon should be held accountable, and the question of his public activity. According to its express and implied determination, Ramon’s act, despite the wrongdoing and impropriety inherent in it, is not supposed to impair the continuation of his public activity, either as a member of the Knesset or as a cabinet minister. As I have said, the court’s approach in the criminal trial does not mean that the body making the appointment is exempt from exercising independent and rigorous discretion with regard to the propriety of the appointment, even when the court has held that the offence should not be regarded as involving moral turpitude and the candidate should not be prevented from complying with the minimum requirements for the appointment. But it would appear that the court’s position has weight and significance within the context of the balances that the body making the appointment should strike when making a decision concerning the appointment. The position expressed by the court when it left the door open for MK Ramon to continue his public activity affects and influences the margin of discretion of the person making the appointment, and consequently also the scope of judicial review as to the reasonableness of that discretion.

The court in which the criminal trial was held was aware of all of the legal, moral and public aspects of the case that it tried. By virtue of its authority, the Magistrates Court is trained in striking the proper balance between the various considerations and conflicting interests in the complex case being heard before it. A final judgment that a criminal offence committed by a public figure neither warrants a custodial sentence nor involves moral turpitude, and in which the court clearly states its intention not to curtail the defendant’s public activity, has considerable significance and weight in guiding the discretion of the body making the appointment and it affects the limits of judicial review exercised with regard to his decision.

28. Regarding the margin of discretion given to the Prime Minister and the Government when appointing MK Ramon as a cabinet minister and the nature of the Knesset’s approval of this appointment, it is possible to summarize as follows:

In determining the margin of discretion, there are two forces that pull in opposite directions. On the one hand, the identity of the person making the appointment, the criteria determined by the statutory qualifications and restrictions and the existence of a judicial decision that the criminal act did not involve moral turpitude pull in the direction of broadening the power and discretion of the person making the appointment. On the other hand, the substantive-normative nature of the appointment decision and  its connection to the appropriate proper set of values that should be applied when appointing someone to a high public office expose it in this particular aspect to rigorous judicial review within the broad margin of reasonableness granted to the authority making the appointment. An extreme departure from the proper ethical weight that should be given to the normative-ethical considerations relating to the appointment decision, relative to the other considerations relevant to the appointment, will justify judicial intervention.

From general principles to the specific case

29. The reasonableness of the decision to appoint MK Ramon as a member of the cabinet is subject to judicial review. In this regard, the court should examine whether the authority making the appointment considered all the factors relevant to the matter, and whether it gave them their proper relative weight. At the end of the process, does the decision to make the appointment strike a proper balance between the conflicting considerations that lies within the margin of reasonableness, when taking into account the scope of this margin in the special circumstances of the case? 

30. In the case of MK Ramon, the authority making the appointment considered all of the factors relevant to the matter. On the one hand, it considered the importance of his expected contribution to the Government, in view of his abilities, his considerable experience and his knowledge of the matters required by the position. On the other hand, as can be seen from the statement made by Minister Sheetrit to the plenum of the Knesset, it considered his criminal conviction relating to an offence of an indecent act, with its circumstances and implications. It may be assumed that it also took into account the fact that the criminal trial ended only a very short time earlier. In its decision, the Government balanced the weight of the criminal conviction, its character and circumstances, as determined in the criminal trial, against the considerations relating to the importance of bringing MK Ramon into the Government at this time. In this balance, the scales were tipped in favour of approving the appointment, while having consideration for the weight and significance given to the conviction and its circumstances, and the short period of time that passed since the judgment was given.

In the circumstances of the case, it cannot be said that the Government decision to appoint Ramon as a cabinet member suffers from a manifest lack of reasonableness that justifies judicial intervention by setting it aside.

31. The Government’s approach in making the appointment, which was approved by the Knesset, is characterized by the distinction made, in the special circumstances of this case, between the criminal,  penal and moral aspect of the offence committed by Ramon and its consequences on a public level for an active public figure, whose horizons of activity have yet to be exhausted. Alongside this consideration, the authority making the appointment took into account the needs of the governmental system from a functional and political viewpoint. This approach of the  Government  is consistent with the outlook of the court that considered the matter in Ramon’s criminal trial. It does not conflict with the approach of the Attorney General, who, even though he still believes that the offence does involve moral turpitude, did not file an appeal against the judgment in the criminal trial and accepted the decision of the trial court in this regard.

32. Ramon’s act for which he was convicted in the criminal trial has complex legal, public and moral aspects.  His act was particularly serious and opprobrious not merely because of its actual character, but also because of the special context in which it was committed and his high public office (Minister of Justice), the fact that the complainant was an officer in uniform, and the fact that it occurred in the Prime Minister’s office, the headquarters of the executive branch, where the vital issues affecting Israeli society are decided.

Notwithstanding, the appointment process should consider, inter alia, whether the characteristics of the offence necessarily show the perpetrator as having a fundamental moral defect, which because of its nature should disqualify him from public office, or whether the incident was an isolated one, which,   irrespective of its impropriety, does not necessarily indicate incompetence to hold public office.

This examination is bound up with the question whether public confidence in the person holding office and the government may be significantly impaired by the appointment. An improper act always depends upon the circumstances, and it should be assessed and evaluated against a background of the conditions in which it was committed and in view of an overall examination of the qualities of the candidate, his personal and professional record, and the needs of the governmental network in which he is being asked to serve (Schussheim v. Minister of Public Security, para. 20 [8]; Hass v. Deputy Chief of Staff, General Dan Halutz [7]).

Despite the impropriety of the offence committed by MK Ramon, it was regarded both by the court in the criminal trial and by the authority making the appointment as an isolated incident that does not reflect any fundamental moral defect requiring his disqualification from public office. It was regarded as a momentary expression of human weakness, the result of special isolated circumstances, and did not indicate an innate aberration of conduct and character or a misguided set of values, which might indicate a fundamental incompetence to holding public office. On the other hand, the Prime minister and the Government thought that despite the difficulties inherent in the appointment because of the criminal conviction, the systemic needs of the Government justified bringing MK Ramon into the cabinet. His personal and professional contribution was required, in their opinion, to strengthen and promote the Government’s ability to carry out its various tasks.

As can be seen from Minister Sheetrit’s statement to the Knesset, in making the appointment the Prime minister and the Government assessed the special abilities of MK Ramon against the wrongdoing in the improper act of which he was convicted. In the balance that was made between the facts of the criminal conviction and the human weakness that it revealed, as well as the brief period of time that had passed since the sentence was completed, on the one hand, and the abilities and professional skills of the candidate, his expected contribution to public life and the importance of bringing him into the Government for various general reasons, on the other, decisive weight was given to the latter. In the circumstances of the case, the balance that was struck did not involve any defect that indicates extreme unreasonableness in the discretion exercised by the authority making the appointment. In striking the balance, there was definitely consideration of the question of whether the appointment was likely to substantively damage public confidence; in the special circumstances of this case, this question was mainly answered in the negative, since public confidence also recognizes the concepts of rectification and repentence in appropriate cases (Schussheim v. Minister of Public Security [8], at para. 29; Sarid v. Knesset Speaker [2]).

It follows, therefore, that within the margin of reasonableness given to the Government and the Knesset in the circumstances of the case under consideration, there are no ground for judicial intervention in the appointment of MK Ramon as a cabinet member.

Before concluding

33. Before concluding, I have read the remarks written by my colleague Justice Grunis with regard to the place and status of the ground of reasonableness among the grounds for judicial review of decisions of a public authority. I do not see eye to eye with my colleague on the question of the current and ideal scope of the ground of reasonableness in administrative law. It seems to me that we should leave this ground within the limits outlined by case law in recent decades. I do not intend to set out a wide-ranging response to the legal thesis set out in my colleague’s opinion, if only for the reason that it seems to me that addressing this complex issue is not essential for deciding the issue in the specific circumstances of the present case. I will content myself with discussing the very crux of the difference of opinion between us.

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. This ground is used to examine the rationality of government decisions as a normative concept, and the court has laid down criteria that it should consider when examining this. First, did the administrative authority consider all the relevant issues, and no irrelevant ones, or did it perhaps consider irrelevant and extraneous matters? Second, did the authority give each of the relevant considerations its proper relative weight, and did it thereby strike a balance that lies within the margin of reasonableness given to it? This margin of reasonableness may vary from case to case, according to the circumstances and characteristics of the specific case. Without any safeguard that the administrative decision is reasonable and rational, the individual and the public may be seriously harmed. It is insufficient for the administrative decision to be made with authority and in good faith. The decision should be rational and sensible within the margin of discretion given to the competent authority.

Limiting this tool of judicial review that is intended to examine the rationality of the administrative decision, which is what my colleague proposes, may lead to a revolution in the understanding of the principle of the legality of administrative action and limit the legal tools available to the court for examining the action of a public authority within the scope of the judicial protection given to the individual against executive arbitrariness. 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 in its decision did not consider all and only the relevant considerations, 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.

Needless to say, the existence of the ground of reasonableness, like the other grounds of judicial review of public authorities, requires great care when applying it in practice. It is true that because this ground is wide-ranging and has a high degree of abstraction, there is a concern that its application in the specific case, if  done without proper restraint and sufficient care, may result in the court encroaching upon areas that lie beyond the scope of the law, where it ought not to tread. The concern that the court will replace the ‘unreasonable’ discretion of the administrative authority with its own ‘reasonable’ discretion and thereby appropriate the authority for itself is no empty concern, and should not be ignored. My colleague addresses this in his characteristically analytical way. At the same time, this concern in itself should not, in my opinion, affect the existence of this important tool of judicial review or the scope of its application. This concern should guide the administrative judge day by day and hour by hour when exercising the tool of judicial review, upon being required to decide in a specific case whether the act of the administrative authority satisfies the test of reasonableness. The judge should examine with care whether all the relevant considerations were considered, and no others; he should consider whether the authority arrived at a proper balance as a result of the relative weight given by it to each relevant consideration. There may be more than one balancing point. It may be placed at any point within the ‘margin of reasonableness’ given to the authority, and the breadth of this margin should be determined according to the case and its circumstances, in view of the specific issue under consideration.

The principle that examining the reasonableness of an administrative decision does not mean that judicial discretion replaces administrative discretion is a basic rule in administrative law, and it constitutes an essential element of the judicial review of administrative authorities. It coexists harmoniously with the other criteria for examining the reasonableness of administrative decisions.

Certain types of issue, according to their content, and the character of certain public authorities, according to their status and the nature of their responsibility in the government, may also affect the scope of the judicial discretion that should be exercised within the context of the judicial review of administrative authorities.

The correct and appropriate application of the aforesaid principles within the context of the ground of reasonableness does not create a real danger that the court will usurp the place of the administrative authority and do its work in a particular case. An unbalanced application of the aforesaid principles may lead to an undesirable result of this kind. Therefore the emphasis should be placed neither on the elimination of this tool of judicial review, nor on restricting its scope of application, as my colleague proposes. The emphasis should be placed on the proper methods of implementing and applying the long-established principles of administrative law — methods of implementation and application based on proper assessments and balances that are intended to ensure the rationality of administrative decisions, for the protection of both the individual and the public.

My response to my colleague — with regard to the crux of the difference of opinion between us — is therefore that we should not undermine an essential tool of judicial oversight of administrative authorities because of an inherent concern that it may be applied wrongly. The tool should be left as it is, with its full scope, and it should be protected. At the same time, care should be taken, day by day and hour by hour, to apply the principles on which it is founded correctly and properly. This will maintain the full protection currently given to the citizen in his relationship with the government, protect the status of the administrative authority against incursions into its sphere of activity, and coexist harmoniously with the whole constitutional system whose principles form the basis of Israeli democracy.

Conclusion

34. This court’s judicial intervention is restricted to examining the legal-normative reasonableness of the administrative action under examination. In this field, "the field of law", no ground was found for intervening in the appointment. This does not necessarily preclude a different approach to the issue under consideration from the extra-legal perspective of morality and public ethics, in which the considerations and the methods of striking a balance between them are not necessarily the same as the balance required by the law. Naturally, the individual and the public as a whole have the right to form their own ethical judgment regarding these matters, according to their own standards and moral principles.

35. I therefore propose that we deny the appeals.

 

Justice E. Arbel

The petitions before us concern ‘… imposing the rule of law on the government,’ inasmuch as   they concern  ‘public confidence in the actions of government authorities in general and of the supreme executive organ of state (the government) in particular’ (in the words of Justice Barak in HCJ 6163/92 Eisenberg v. Minister of Housing [1], at pp. 238, 242 {24, 30}; see also Justice H.H. Cohn, ‘The Qualifications of Public Officials,’ 2 Mishpat uMimshal (Law and Government) 265 (1994), where he discusses these remarks).

1.    The Prime Minister sought to appoint MK Haim Ramon as a minister in his government, in the capacity of Deputy Prime Minister. The petitions in this case were filed with the purpose of torpedoing the appointment. In the interim, MK Ramon was appointed to the post, after the Government, pursuant to s. 15 of the Basic Law: The Government  (hereafter, also: ‘the law’ or ‘the Basic Law’) notified the Knesset of the appointment and the Knesset approved it. The petitions therefore are concerned with cancelling the appointment of MK Ramon as a cabinet member.

I agree with the legal analysis and principles set out by my colleague Justice Proccaccia in her opinion. We all agree to the premise that under the Basic Law the Prime Minister has broad discretion in appointing ministers in his government, and that judicial review of this power of the prime minister should be exercised sparingly, carefully and with great restraint. In addition, I agree that there are several obstacles that stand in our way when we consider whether we should intervene in this decision of the prime minister: the limited scope of intervention in decisions of the prime minister relating to the formation of the government; the fact that, as required by law, the Knesset gave its approval to the Government notice regarding the appointment of MK Ramon as a minister; and the finding of the Magistrates Court that the act did not involve moral turpitude, when read together with s. 6(c) of the Basic Law. Notwithstanding, unlike my colleague, I am of the opinion that these three obstacles are countered by significant considerations that were not properly taken into account at the time the decision was made to appoint MK Ramon as a minister. These mainly concern the significance of the criminal conviction and the findings of the Magistrates Court in his case, the short period of time that has passed since the conviction and the nature and lofty status of the position to which he was appointed.

2.    The discretion given to the prime minister in decisions concerning the formation of the government is very broad and encompasses a wide range of considerations (HCJ 3094/93 Movement for Quality of  Government in Israel v. Government of Israel [9], at pp. 423, 427 {284, 290-291}; HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [12], at pp. 58-59; HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], at pp. 846-847 {345-348}, and the references cited there). Notwithstanding, these decisions should satisfy the criteria of judicial review, like all administrative decisions: they should satisfy the requirements of reasonableness, fairness, proportionality and good faith, and they should contain no arbitrariness or irrelevant considerations (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 840, 846-847 {336-337, 345-348; Movement for Quality Government in Israel v. Government of Israel [12], at p. 54, although there the question under discussion was the power to remove a minister from office; HCJ 4668/01 Sarid v. Prime Minister [28], at p. 281). The relevant considerations should be taken into account when making decisions. Ignoring a relevant consideration, giving inappropriate weight to a relevant consideration or striking an unreasonable balance between the various considerations may lead to the decision being found to lie outside the limits of the margin of reasonableness, with the result that it is unlawful (HCJ 1284/99 A v. Chief of General Staff [29], at pp. 68-69).

On appointing a person with a criminal conviction to be a cabinet member and public confidence

3.    The decision under review — a decision to appoint a cabinet member — is governed by s. 6 of the Basic Law, which provides in subsection (c):

‘Qualification of ministers

6. …

       (c) (1) A person shall not be appointed a minister if he has been convicted of an offence and sentenced to imprisonment, and on the date of the appointment seven years have not yet passed since the day on which he finished serving the sentence of imprisonment, or from the date of the judgment, whichever is the later, unless the chairman of the Central Elections Committee determined that the offence of which he was convicted does not, in the circumstances of the case, involve moral turpitude.’

 

(2) The chairman of the Central Elections Committee shall not make a determination as stated in paragraph (1) if the court has held according to law that the offence of which he was convicted does involve moral turpitude.’

According to the ‘minimum requirement’ provided in s. 6(c)(1) of the Basic Law, a conviction in itself is insufficient to prevent someone becoming a member of the government. It is also essential that a custodial sentence was handed down and that the period of time stipulated in the section, which is a kind of purification period, has not passed since the candidate finished serving the sentence or the judgment was given. Indeed, case law has held that the existence of a criminal record in itself does not preclude the appointment of a person to public office, nor does it rule out his competence for the position. It has also been held that ‘in the absence of statutory qualifications, case law qualifications should not be laid down…’ (HCJ 727/88 Awad v. Minister of Religious Affairs [30], at p. 491). This is certainly the case where the legislature has provided statutory qualifications, as was done with regard to the appointment of a minister. Notwithstanding, as my colleague also emphasized, the fact that the law has determined statutory qualifications does not mean that it is possible to appoint as a government minister anyone who is not disqualified by the ‘minimum requirement.’ The arrangement in s. 6(c) of the Basic Law does not exhaust the grounds for disqualifying a person from holding office as a cabinet member, and even when the basic disqualification does not apply, the authority making the appointment should decide the question of the appointment after exercising discretion that includes an examination of all the relevant considerations and striking a balance between them (Movement for Quality Government in Israel v. Prime Minister [11], at p. 867 {374 }; HCJ 4267/93 Amitai, Citizens for Efficient Government  v. Prime Minister [10], at pp. 457-458). In other words, a distinction should be made between the question of whether the minimum requirements laid down by the legislature are satisfied and an examination of the discretion that was exercised in the decision to make an appointment.

This is also relevant to our case. The petitions before us do not concern the question of the power of the prime minister to appoint a minister to his government, since this power exists as long as the candidate satisfies the statutory minimum requirements, and there is no dispute that no statutory disqualification exists in the case of MK Ramon, since he was not given a custodial sentence at all. The petitions address the question of the discretion exercised by the Prime Minister as the person who had the authority to decide to appoint MK Ramon to the Government in the capacity of Deputy Prime Minister. We are not dealing with a question of authority but with a question of the reasonableness of discretion.

4.    My colleague discussed the principles laid down by case law with regard to the discretion that should be exercised when considering the appointment of someone who has been convicted in a criminal trial to a senior public office and the weight that should be attached to this consideration, and I shall therefore refrain from discussing this matter fully except where I need to do so in order to state my opinion.

The fact that a person is a competent candidate for holding office as a cabinet member according to the statutory requirements does not rule out the possibility — and in my opinion the duty — to take into account his criminal record, together with other relevant considerations, when exercising discretion in making the decision with regard to the appointment (Eisenberg v. Minister of Housing [1], at pp. 256-257 {54-56}; Amitai, Citizens for Efficient Government v. Prime Minister [10], at p. 459; HCJ 194/93 Segev v. Minister of Foreign Affairs [31], at p. 60; Movement for Quality Government in Israel v. Prime Minister [11], at pp. 843 {340-341}). A criminal conviction may not disqualify someone from being appointed to public office, but it is always a relevant consideration of paramount importance, since an appointment to public office of a person who has a criminal record has an effect on the functioning of the public authority, and the public’s attitude to it and confidence in it (Eisenberg v. Minister of Housing [1], at pp. 258 {57-58}; Segev v. Minister of Foreign Affairs [31], at p. 61).

This approach is based on the fundamental principle that the public authority is a public trustee (Eisenberg v. Minister of Housing [1], at pp. 256-257 { 54-56}; Movement for Quality Government in Israel v. Prime Minister [11], at pp. 843 {340-341}). The Government, the Prime Minister and the members of the Cabinet are public trustees. ‘They have nothing of their own, and everything that they have, they hold for the public’ (HCJ 1635/90 Jerezhevski v. Prime Minister [32], at pp. 839. 840; Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 461; regarding the duty of trust, see also HCJ 7074/93 Suissa v. Attorney General [33], at pp. 774-776). Trust is the cornerstone of the government’s ability to function. It plays an important role in forming the conceptual and practical outlook regarding the duties that the government owes to its citizens. The duty of trust that the government and each of its members owes to the public is an absolute condition for public confidence in the government, even though it alone is insufficient. Without public confidence in the government and its organs, a democracy cannot survive. A public figure is charged with the duty of trust in all his actions:

‘The duty of trust imposed on the prime minister and the members of the government is closely related to public confidence in the government. This is self-evident: a trustee who conducts himself like a trustee wins confidence, whereas a trustee who does not conduct himself like a trustee does not win confidence. The government needs confidence, not merely the confidence of the Knesset but also the confidence of the entire public. If a government conducts itself like trustees, the public will have confidence in the organs of state. If the government breaches that trust, the public will lose confidence in the organs of state, and in such a case the court will have its say’ (Movement for Quality Government in Israel v. Prime Minister [11], at p. 902 {420).).

The duty of trust is not discharged merely by means of decisions on questions of policy, initiatives, planning and action, but also by preserving a proper and unsullied image of public office and those who hold the highest offices.

5.    As I have said, when making a decision regarding the formation of the government, the prime minister is obliged to consider all of the relevant considerations, including the candidate’s criminal record, to give each of them its proper weight in the circumstances of the case and to strike a balance between them that is consistent with the fundamental principles of our legal system and their relative importance from the viewpoint of the values of society (Segev v. Minister of Foreign Affairs [31], at p. 61; Eisenberg v. Minister of Housing [1], at p. 263; HCJ 5562/07 Schussheim v. Minister of Public Security [8]).

A decision to appoint someone who has a criminal record to public office requires a balance between two sets of considerations: the first set of considerations concerns the principle of repentance. As a rule, a criminal conviction should not become a mark of Cain that the convicted person carries eternally on his forehead; he should not be punished for his crime after he has ‘paid his debt to society’ and amended his ways (see the remarks of Justice Dorner in Sarid v. Prime Minister [28], at p. 286). It is in the interest of both the individual and the public to allow even someone who has been convicted to start afresh. The second set of considerations concerns the major public interest in having an untarnished civil service, which enjoys the confidence of the public. The concept of ‘public confidence’ has become a widely-used expression, but it is precisely for this reason that we need to understand that it is not a theoretical concept, or even worse, merely a cliché. ‘Without trust the State authorities cannot function’ (HCJ 428/86 Barzilai v. Government of Israel [34], at p. 622 {104}). Public confidence is essential if the government is to be able to govern in practice. It is the cornerstone of the proper functioning of the civil service and the existence of a healthy society:

‘… without public confidence in public authorities, the authorities will be an empty vessel. Public confidence is the foundation of public authorities, and it enables them to carry out their function. The appointment of someone with a criminal past — especially a serious criminal past like someone who committed an offence involving moral turpitude — harms the essential interests of the civil service. It undermines the proper performance of its function. It undermines the moral and personal authority of the office holder and his ability to convince and lead. It undermines the confidence that the general public has in the organs of government’ (Eisenberg v. Minister of Housing [1], at p. 261 {64}).

Moreover —

‘The way in which the public regards the civil service, the confidence that the public has in the propriety of its actions and the integrity of its employees are prerequisites for the existence of a proper government…’ (CrimA 121/88 State of Israel v. Darwish [35], at p. 692).

The public’s confidence in the government and its members is derived to a large degree from their conduct and the integrity that can be seen in that conduct. For all of the reasons that I have discussed above, public confidence in its leaders should not be taken lightly. Public leaders are the standard-bearers who lead the nation; they are expected to act as an example and a role-model for the whole public. Public confidence cannot exist when someone who has recently been tainted is found in the rank and file of the civil service and government — and especially in senior positions. Moreover, civil servants who serve under members of the government and under the most senior public officials take their example from them; their conduct contributes to and affects the shaping of basic outlooks and accepted modes of conduct in the civil service, as well as the ethos of the whole civil service (Suissa v. Attorney General [33], at p. 781).

The disqualification in s. 6(c) of the Basic Law also reflects the balance between the two sets of considerations that we mentioned — between the principle of repentance, on the one hand, and the interest of preserving the integrity of the civil service and its officials, and public confidence in them, on the other (Sarid v. Prime Minister [28], at p. 287). But, as has been made clear, this balance does not exempt the person in authority from exercising discretion in each case, even when the disqualification does not apply to the candidate.

6.    The weight of the consideration concerning a candidate’s criminal record for holding office in public service vis-à-vis the other relevant considerations is not fixed or static. It varies from case to case according to the circumstances, inter alia in view of the nature of the criminal record and the character of the office under discussion:

‘Someone who committed an offence in his childhood cannot be compared with someone who committed an offence as an adult; someone who committed one offence cannot be compared with someone who committed many offences; someone who committed a minor offence cannot be compared with someone who committed a serious offence; someone who committed an offence in mitigating circumstances cannot be compared with someone who committed an offence in aggravated circumstances; someone who committed an offence and expressed regret cannot be compared with someone who committed an offence and did not express any regret for it; someone who committed a “technical” offence cannot be compared with someone who committed an offence involving moral turpitude; someone who committed an offence many years ago cannot be compared with someone who committed an offence only recently; someone who committed an offence in order to further his own agenda cannot be compared with someone who committed an offence in the service of the State’ (Eisenberg v. Minister of Housing [1], at p. 261 {64-65}).

It has also been said:

‘… the type of office that the civil servant is supposed to hold also affects the weight of the criminal past in the holding of that office. A minor position cannot be compared with a senior position; a position in which one has no contact with the public cannot be compared with one where there is contact with the public; a position not involving the control, supervision, guidance and training of others cannot be compared with one involving authority over others and responsibility for discipline. Someone who holds the office of a follower cannot be compared with someone who holds the office of a leader; an office that in essence does not make special ethical demands on its holder and on others cannot be compared with an office that is entirely devoted to encouraging a high ethical standard’ (Eisenberg v. Minister of Housing [1], at p. 262 {65}; see also Segev v. Minister of Foreign Affairs [31], at p. 61; HCJ 5562/07 Schussheim v. Minister of Public Security [8]).

Another consideration that has weight when appointing someone with a criminal record to public office is the degree to which the candidate is uniquely qualified for holding that public office. Thus it is customary to distinguish between a candidate who is one of many and a candidate who is unique and may in certain exceptional circumstances be the only person for the job. A distinction should also be made between an emergency, which requires the recruitment even of someone with a criminal record, and an everyday act of the civil administration that as a rule should be done by upright workers (Eisenberg v. Minister of Housing [1], at p. 262 {65}).

I should re-emphasize that although my opinion focuses on the consideration relating to a candidate’s criminal conviction and the findings of the court in his case — since these were not, in my opinion, given proper weight in this case — this is not the only consideration, and the review of the reasonableness of the decision should assume that the person making the appointment balanced this consideration against other considerations, such as the special abilities of the candidate, how suitable he is for the position, the tasks faced by the organization to which he is being appointed, etc. (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 870-871 {379}.

7.    Summing up this point, according to the principles laid down in Eisenberg v. Minister of Housing [1], usually the appointment of someone who committed a serious criminal offence in the past to a senior position in public service is unreasonable. Notwithstanding, this is not a sweeping rule of disqualification from every possible senior position in the public service. Like every administrative decision, this decision should also be based on a proper balance between the various relevant considerations, which should each be given the proper relative weight in the circumstances of the case (Sarid v. Prime Minister [28], at p. 280). But I should make it clear that in the case before us we are not dealing with a conviction for one of the most serious offences. I shall discuss the significance of this below.

The criminal trial that is the background to this case

8.    Was proper weight given to the criminal trial and the judgment relating to MK Ramon when the decision was made to appoint him a cabinet minister and Deputy Prime Minister? In order to answer this question, let us first consider the details of the conviction under discussion, since the petitioners’ claim is that it is because of these that the appointment is unreasonable.

MK Ramon was brought to trial and convicted of an offence of an indecent act without consent, under s. 348(c) of the Penal Law, 5737-1977 (hereafter: the Penal Law), in that, when he was Minister of Justice, he kissed and stuck his tongue into the mouth of the complainant, an IDF officer, who was working for the military attaché in the Prime Minister’s office. The event took place only a short time before MK Ramon went into a cabinet meeting that discussed the kidnapping of two IDF soldiers in the north and at the end of that meeting a decision was taken to go to war (the Second Lebanese War).

In the criminal trial, MK Ramon admitted that the kiss did indeed take place, but he claimed that the complainant was the one who initiated it and that he only responded to her. The Tel-Aviv – Jaffa Magistrates Court (the honourable Judges Kochan, Beeri and Shirizli) convicted him after it held that it regarded the complainant’s credibility as unimpeachable. The court held that MK Ramon’s version of events was mostly consistent and it discussed the emotion he displayed when he testified in the witness box, when he came close to tears because of the occasion and the circumstances. Notwithstanding, the court found that his version of events did not pass the test of logic and reasonableness, since it ‘… did not have a strong foundation, in some parts it was not supported by other testimonies and in other parts it was even in conflict with the evidence…’ (para. 26 of the verdict).

The findings of the Magistrates Court regarding MK Ramon are not flattering ones. Thus, for example, it was held that ‘in our opinion, the defendant’s testimony under cross-examination was a clear and characteristic example of how he tried to distance himself from anything that might implicate him, at the cost of not telling the truth, while at the same time he had no hesitation in besmirching the complainant’ (para. 26(c) of the verdict). His testimony was defined by ‘a distortion and misrepresentation of the truth,’ and the court also found that MK Ramon ‘… was not precise with regard to the facts, to say the least’ (paras. 28-29 of the verdict). In summary the court held:

‘… After reviewing and examining all the evidence, we found that the complainant’s statements are completely true. By contrast, we found that the defendant did not stick to the truth, tried to divert the blame from himself and direct it elsewhere, minimized his actions and his responsibility, and at the same time exaggerated the complainant’s role, distorted and misrepresented the facts in a sophisticated and insincere manner’ (para. 94 of the verdict).

Hardly a flattering description!

9.    In the sentence, the Magistrates Court considered the application made by MK Ramon’s counsel to cancel his conviction. The court discussed MK Ramon’s public standing, his extensive public activity, the distress and pain he suffered ‘as a result of the loss of the public career that was interrupted,’ as well as the considerable price that he paid because of the incident and the personal and professional damage that he was likely to suffer if the conviction stood. The court took into account the fact that this was an isolated incident, ‘which did not show that we are dealing with a sex offender or someone who has developed a criminal way of conducting himself,’ as well as the fact that the act was not one of the more serious sex offences, and it would appear that the lesson had been learnt. Notwithstanding, it was held that the higher the public standing of the defendant, the higher the standards and norms of behaviour that were expected of him. The court also took into account the injury to the complainant, the circumstances in which it was caused and the fact that the regret expressed by MK Ramon for the act at a late stage of the trial was inconsistent with the manner in which he conducted his defence. All of the considerations led the court to the conclusion that the public interest should be preferred to MK Ramon’s personal interest, since ‘cancelling the conviction in this case would obscure the message and blur the criminal nature of the act.’

The court also considered    the prosecution’s application to determine that the circumstances in which the offence was committed involved moral turpitude, but it denied it and held that:

‘… the overall circumstances in which the offence was committed do not justify a determination that the offence involved moral turpitude. The isolated and unplanned act was committed by the defendant following a meaningless conversation, in an emotional state of indifference. The act lasted two to three seconds and ended immediately.’

The court pointed out that ‘The defendant’s conviction is a punishment in itself’ and went on to say:

‘We are aware of the mitigating circumstances… and these have led us to the opinion that the defendant’s sentence should be minimal, so that the future harm that he will suffer will stand in due proportion to the nature of the offence and the circumstances in which it was committed.’

The court therefore sentenced the defendant to 120 hours of community service and ordered him to pay compensation to the complainant, while stating expressly that in passing sentence it had taken into account the provisions of s. 42A(a) of the Basic Law: the Knesset and had tailored the sentence to what is stated in that section. It should be explained that this section concerns the disqualification from the Knesset of any member who has been convicted in a final judgment of a criminal offence that has been held to involve moral turpitude.

Sentencing considerations, judicial review considerations and the issue of moral turpitude

10. As I have said, no one disputes the fact that MK Ramon satisfies the minimum requirements in s. 6(c) of the Basic Law, since he was not given a custodial sentence. He is therefore competent to hold office as a minister in the Israeli government. As I have explained, the question in this case is a different one, namely, did the decision to appoint him as a cabinet member — and in this case as Deputy Prime Minister — at the present time, fall within the scope of the margin of reasonableness?

MK Ramon was convicted of an offence that is one of the less serious sex offences. It was an act that does indeed appear to be an isolated incident that only lasted for several seconds. In view of all the circumstances, even though the conviction relates to a sex offence, I too share the opinion of the Magistrates Court that he should not be regarded as a sex offender. These considerations had a major effect on the sentence that the court handed down to MK Ramon and on the finding that the act did not involve moral turpitude.

Notwithstanding, these sentencing considerations, and even those that determine whether an act involves moral turpitude, are not identical to the considerations that should be taken into account when examining the reasonableness of appointing someone who has been convicted in a criminal trial to public office. The sentence is dictated by penal considerations, such as retribution, rehabilitation and deterrence of the individual and the public. The balance between these, when it is made against the background of the personal circumstances of the defendant and the circumstances in which the offence was committed, determines the sentence. Even if the sentence takes the interests of society into account, even if the court considers the message that may be conveyed by handing down a particular sentence to a convicted defendant, the principle of individual justice still lies at the heart of the sentencing decision. The individual who has been convicted is the focus of the decision, not the public or the public interest. Regarding the issue of moral turpitude, it has been held many times that the expression ‘offence involving moral turpitude’ does not address the elements of the offence of which the defendant was convicted but a serious moral flaw that was involved in its commission in view of the purpose of the legislation that speaks of that ‘offence involving moral turpitude’ (HCJ 11243/02 Feiglin v. Chairman of Election Committee [36], at p. 160; HCJ 251/88 Oda v. Head of Jaljulia Local Council [37], at p. 839; HCJ 103/96 Cohen v. Attorney General [38], at p. 326; R. Gavison, ‘An Offence Involving Moral Turpitude as Disqualification for Public Office,’ 1 Hebrew Univ. L. Rev. (Mishpatim) 176 (1968)). Our concern is with an ethical evaluation of the nature of the act:

‘ “Moral turpitude” accompanying an offence gives it a negative aspect that goes beyond the mere dimension of breaking the law. This is a concept that contains a negative moral-ethical judgment, a kind of moral stigma, which derives from ethical outlooks and moral criteria that are accepted by society.

This is a multi-faceted concept that takes on different forms when it is applied to the character of a specific offence and its circumstances, and the special context in which it is being considered…’ (per Justice Procaccia in Feiglin v. Chairman of Election Committee [36], at p. 162).

A decision as to whether an offence involves moral turpitude is made with reference to whether the public regards the offence as one that carries with it a stigma, which affects the ability of the person who was convicted to serve the public. The court deciding the question of moral turpitude is aware that from the viewpoint of the defendant its decision is likely to act as an exclusion from, or a readmission into, public life and public service. The focus of the consideration is the nature of the act against the background of the circumstances in which it was committed and against the background of society’s values and outlooks.

Whereas an offence involving moral turpitude emphasizes the immoral element in its commission, a criminal offence that may make it unreasonable to appoint its perpetrator to public office does not necessarily need to have an immoral aspect (Eisenberg v. Minister of Housing [1], at p. 266 {71}). Moreover, unlike the discretion exercised when sentencing someone and determining whether the offence involves moral turpitude, examining the reasonableness of discretion in a decision to appoint someone to office is different for the reason that it concerns judicial review of administrative discretion. Judicial review is carried out ‘… from the perspective of the fundamental principles of the legal system, as they are reflected in legislation and case law, and from the perspective of the fundamental values and norms of society’ (A v. Chief of General Staff [29], at p. 69). The offence and the circumstances in which it was committed are only one of many considerations that the person making an appointment should consider and that judicial review should take into account. Moreover, as I have said, in order to determine that an appointment to public office of someone convicted in a criminal trial is unreasonable, it is not essential that the act shows the person who committed it to be tainted by a moral stigma or moral turpitude. Sometimes it is sufficient that the nature of the position and the need to preserve public confidence in it do not allow someone convicted of a particular offence to hold that office. It follows that the fact that the court held that an act does not involve moral turpitude cannot rule out a finding that an appointment is unreasonable because of the conviction.

Everything said hitherto was merely intended to say that the mitigating circumstances discussed by the Magistrates Court in the sentence, as well as the finding that the act did not involve moral turpitude, cannot in themselves decide the issue in this case.

11. Admittedly, the act was one of the less serious sex offences and of short duration. It was an isolated event and the lesson has been learned. But all this cannot obscure and blur the fact that MK Ramon was convicted in a criminal trial. He no longer enjoys the presumption of innocence. He is not one of those persons who fell under the shadow of a criminal investigation that was opened against them but were never charged. At the end of a trial, he was found guilty (see and cf. Movement for Quality Government in Israel v. Government of Israel [12], at p. 57). As a rule, in such circumstances, when we are dealing with someone who has been convicted or has made a confession, the proper weight that should be attached to the question of public confidence is greater than the weight that it would be, were we speaking of someone who has merely been indicted and who protests his innocence (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at pp. 462, 467-468). The premise, therefore, is that when exercising discretion, the consideration of public confidence should be given considerable weight in the circumstances of the case. Was it indeed given the proper weight?

The time factor

12. Only a short period — several months — passed between the time when MK was convicted and served his sentence and his appointment to the position of Deputy Prime Minister. The time that passes from the conviction and serving the sentence until the appointment is relevant when considering the reasonableness of a decision to appoint someone to public office. The more time that has passed since the conviction and serving the sentence, the greater the tendency to prefer the considerations of repentance and rehabilitation and to think that the appointment will not undermine public confidence in public officials, and vice versa. The period of time that should pass from the time when the offence was committed and the sentence was served until the appointment varies according to the circumstances: ‘Certainly it is not measured in a few years. But decades also should not be required. The pendulum of time will swing between these two extremes, and it will stop in accordance with the circumstances of time and place’ (Eisenberg v. Minister of Housing [1], at p. 266 {72}; A v. Chief of General Staff [29], at pp. 73-74). In our case, only a few months passed from the time that sentence was passed on MK Ramon until he was appointed a minister in the Israeli Government. The relative lack of seriousness of the offence of which he was convicted cannot instantly efface the stigma inherent in the conviction. The appointment to the position of cabinet minister in the circumstances of the case, before the ink has even dried on the verdict and the sentence, and before the air has cleared, reflects an internalization, or at least an acceptance, of improper norms of conduct that should not be regarded as deserving of public forgiveness, as if they were mere acts of youthful impudence. I accept that the nature of the offence and the circumstances in which it was committed, as well as the fact that it is not one of the most serious offences, do not mean that decades should pass before MK Ramon’s appointment to a senior public office will be appropriate. But it is not right that only a few months pass before he returns to a senior position in public service.

The seniority of the position and the rule of law

13. The criminal conviction and the fact that the appointment decision was made a very short time after MK Ramon completed serving his sentence represent in my opinion the main difficulty in the discretion that was exercised in the appointment decision. Insufficient weight was given to the harm that the appointment would cause to public confidence in the Government and its members. An additional consideration that in my opinion was not given proper weight concerns the seniority of the position to which MK Ramon was appointed.

As I have said, in this case, where the conviction is a very recent one, considerable weight should attach to the question of public confidence. What is the picture that is conveyed to the public? Let us return to the beginning of the affair. When the police investigation against him began, MK Ramon suspended himself from the position of Minister of Justice. In doing so, it should be said, he acted properly. MK Ramon’s job was ‘kept for him’ and two ministers held office in his stead as Ministers of Justice on a temporary basis until it was known how his trial would end. A short time after MK Ramon finished serving his sentence, he returned to the cabinet, this time in a more senior position of Deputy Prime Minister. It should be remembered that the importance of the position requires considerable weight to be given to the consideration of preserving public confidence (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 471).

As I have said, the more important the office, the greater the weight of the consideration concerning the criminal record of the candidate. It has been held in the past that the importance of the position is not determined merely on the basis of formal tests such as seniority and job description, but also in accordance with the extent to which the public identifies the office holder with public service and the damage that will be caused to public confidence in public service if the appointment takes place (Eisenberg v. Minister of Housing [1], at p. 267 {72}). The importance of the position to which MK Ramon was appointed, namely Deputy Prime Minister, requires us to consider that this is a position that involves representation of the whole government. The role of Deputy Prime Minister, even though it is not defined in legislation, is a very senior position. Whoever holds this position represents the government and the state, and therefore very careful consideration should be given to the question of public confidence in view of his appointment to hold the post and to represent the whole government. This is a position that requires a special degree of confidence that the public will feel towards the person holding the position and towards the whole institution to which he belongs and which he represents. In such circumstances, a distinction should be made between the possibility of allowing someone who has been convicted to rehabilitate himself and to return to live a normal life after he has completed his sentence, and between placing him ‘… at the top of the administrative pyramid’ (Eisenberg v. Minister of Housing [1], at p. 266 {69}).

The short period of time and the appointment to such a senior position both convey a message to the public that the criminal trial is unimportant, and that a criminal conviction has no significance in the public sphere.

14. The findings of the Magistrates Court in MK Ramon’s case are serious, and as stated they include findings with regard to distortion and misrepresentation of the truth, not telling the truth and conduct intended to besmirch the complainant. Indeed, not only are the conviction and the judicial findings regarding the offence important, but so too is the defendant’s conduct during the trial. The fact that someone who was convicted after such serious findings were reached in his case nonetheless returned to public office immediately after he finished serving his sentence and was even given a more senior and more prestigious office is unreasonable. It reflects a normative approach that it is hard to accept. Prima facie, it does not take into account the need to maintain public confidence in public service and its integrity. A decision of an authority to appoint someone to public office while treating a criminal conviction, de facto, as insignificant, as if it had never happened or was carried away by a gust of wind, cannot be regarded as a decision that gave proper weight to the interest of maintaining public confidence in public office. The requirement that the more senior the office of a public figure, the stricter the standard of conduct that he is expected to follow, was drained of all significance in the case before us. Such a decision cannot be regarded as a decision based on a commitment to the rule of law. The following remarks should be taken to heart by the general public, and by authorities and persons in charge of them:

‘… The rule of law is not created ex nihilo, nor is it something intangible. It should be reflected in a tangible and daily observance of binding normative arrangements and in their de facto application to everyone, in the realization of basic freedoms, in guaranteeing equality and in creating a general atmosphere of trust and security. The rule of law, public welfare and the national interest are not contradictory or conflicting concepts. They are intertwined, interrelated and interdependent.

The court is specially charged with the practical realization of these expectations, but every state authority has the duty to act to realize these goals.

A sound administration is inconceivable without care being taken to uphold the rule of law, for it is this that protects us against anarchy and guarantees the stability of the system of government. This order is the basis for the existence of political and social frameworks and the safeguarding of human rights, none of which can exist in an atmosphere of lawlessness’ (Barzilai v. Government of Israel [34], at p. 554-555 {53}).

The message that the appointment conveys is that even if a criminal trial takes place, and even if it ends in a conviction, it may be said, possibly by way of hyperbole, that no one is accountable. The criminal stain that MK Ramon carries at this time is capable of tarnishing the whole Government, and this was not given proper weight. The quick appointment to a senior position, only a short time after the criminal trial ended and the sentence was served, sends a message to the public that there are no values, that one organ of Government has no respect for the work of the others, nor does it act in concert with them, even though all of these are essential for the existence of a democracy.

The nature of the offence and the effect it has on the public

15. Moreover, an additional consideration that should have been considered concerns the nature of the offence of which MK Ramon was convicted. The offence of an indecent act is relatively low on the scale of sexual offences, in view of all the circumstances. Notwithstanding, this does not diminish the seriousness of the act. As the Magistrates Court said: ‘… An offence was committed which, in other circumstances, might have been considered an offence that was not especially serious, but in view of all of the circumstances in which the offence was committed, it becomes more serious and acquires a dimension that has considerable public significance’ (para. 91 of the verdict).

An offence of an indecent act involves not only an injury to the person but also to the dignity of the victim of the offence as a human being, and to the victim’s autonomy as an individual, two things that are interrelated and closely intertwined. The existence of more serious sex offences in the statute books does not diminish the injury to dignity, nor to the autonomy of the individual:

‘Every woman and man is entitled to write his or her life’s story as he or she wishes and chooses, as long as no one encroaches upon the domain of another. This is the autonomy of free will. When a person is compelled to follow a path that he did not choose to follow, the autonomy of free will is undermined. Indeed, it is our fate — the fate of every man — that we constantly act or refrain from acting for reasons other than that it is our own free will, and in this way the autonomy of our will is found wanting. But when the injury to the autonomy of free will is a major one, then the law will intervene and have its say’ (per Justice Cheshin in CrimA 115/00 Taiev v. State of Israel [39], at pp. 329-330, even though that case concerned more serious offences).

The protection of the dignity and person of women is a social interest. No civilized society exists in which the dignity of women — or the dignity of any other person — is trampled without a murmur or without any proper response. The protection of society’s values, of which the value of human dignity is one, is not effected merely by prosecuting criminal trials and holding defendants accountable. It should be expressed wherever such expression is required by the nature of the matter. In our case, what is the message sent to the whole public — men, women and children — when they see that a cabinet minister was convicted of a sex offence that he committed against a young woman officer and then, within a short time, albeit after serving a sentence, he returns to a position that is at least equal to the one he held before his conviction, if not a more important one? It is a message that not only makes the criminal trial and the judicial ruling meaningless, but also erodes the values of respecting the person, dignity and wishes of women, especially in situations involving a disparity of forces (see also in this regard the remarks of Justice Strasberg-Cohen in A v. Chief of General Staff [29], at p. 76). It is a message that elected public officials do not need to be held to the high standard of ethics and the high standard of conduct that might be expected of them as persons who are supposed to serve as examples and models for the whole public (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470; Cohen v. Attorney General [38], at p. 326). How can the appointment be reconciled with the need to uproot norms that have no place in a civilized society? What message is sent to potential complainants that see the trials and tribulations endured by the complainant, who suffered denials and slanders, who underwent cross-examination ‘in a manner deserving of our respect’ (para. 10(a) of the verdict), who is found by the court to be a witness whose veracity is undoubted, and yet after her testimony is accepted, the conviction is reduced to nothingness?

16. I have not overlooked the fact that in sentencing MK Ramon the Magistrates Court expressly left open the possibility of his returning to the Knesset. But the Government went much further. It did not merely re-establish the status quo ante but it completely disregarded the explicit verdict and promoted someone who was recently convicted. The sentence handed down in the Magistrates Court sought to balance between the seriousness of the acts and the conduct of MK Ramon during the trial, as described above, and between the nature of the act and the circumstances in which it was committed. The Magistrates Court sought to achieve this balance by leaving the conviction as it stood, while imposing a light sentence and rejecting the proposition that the offence involved moral turpitude. The court expressly stated in its verdict that this balance was based on a premise that the MK Ramon suffered considerably as a result of the criminal trial and was likely to continue to do so as a result of the court refusing to cancel the conviction. Notwithstanding, the balance that the court struck does not, as I have said, make the exercise of discretion redundant when considering the appointment of MK Ramon to the cabinet.

I should emphasize that the decision in the petitions before us does not concern the competence of MK Ramon to serve as a member of the Knesset, which would give rise to the difficulty of undermining the will of the electorate. Intervening in a decision to appoint someone to the position of cabinet minister does not give rise to a similar difficulty, since it concerns a decision of the person in charge of the executive branch of government, in judicial review of his discretion, and it does not undermine the will of the electorate. Indeed, in the past when this court has considered petitions that sought to cancel the appointment of MK Raphael Pinchasi as chairman of one of the Knesset committees, it was held: ‘A distinction should therefore be made between the competence of a member of the Knesset to carry out his duties as a member of the Knesset and his competent to act in contexts outside the Knesset, such as in the context of the executive branch’ (HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [40], at p. 557; see also H. Cohn, ‘The Competence of Public Servants,’ Selected Writings (2001), at pp. 391, 402). This is also the position in this case.

I should clarify that I do not belittle the damage and mental anguish that MK Ramon certainly suffered as a result of being prosecuted in the criminal trial. Nor do I ignore the fact that the sentence was served in full or that the offence of which he was convicted was a relatively light one. But it is inconceivable that in the case of a public figure, who is expected ‘… to serve as an example to the people, to be loyal to the people and deserving of the trust that the people place in him’ (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470), where the damage that he suffered to his standing was a mitigating factor in his sentence, the outcome should be as it is in this case.

17. It should be emphasized that nothing in the aforesaid casts even the smallest doubt on the professional experience and abilities of MK Ramon to carry out the role given to him by the Prime Minister. In this respect, the offence of which he was convicted does not, in my opinion, have any effect or ramification on his ability to carry out this office. I am not questioning at all the additional considerations that were taken into account, and my assumption is that the Prime Minister, as the person who made the appointment, made the decision regarding the appointment after considering the tasks that confronted the Government and understanding the talents required of the ministers serving in the Government for the purpose of carrying out those tasks (see also Schussheim v. Minister of Public Security [8], at p. 846). I am prepared to accept that MK Ramon has the appropriate and proper qualifications and experience for the position. Nonetheless, it is well-known that disqualifying a candidate from holding public office does not depend only upon a connection between his criminal record and its effect on his professional ability to carry out the job for which he is a candidate, but also on his ethical and moral capacity to carry it out, unless a ‘real and urgent’ state of emergency makes it essential to appoint him as the only candidate (Sarid v. Prime Minister [28], at p. 280). In our case no such argument was made, and that is sufficient to prevent the conviction from being denied its proper weight.

A determination that a government decision to appoint a minister suffers from unreasonableness that goes to the heart of the matter creates a tension between the world of law and the world of politics, between two separate worlds that are governed by different sets of laws and different game rules. ‘The law is based, to a large extent, on ethics; democracy is based, first and foremost, on representation’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 63). When deciding petitions concerning the formation of the government, the court has the task of carefully balancing, with an approach of maximum restraint, the need to allow the public to be represented as it wishes by someone who was successful in an election and the need to preserve public confidence in government institutions and the proper moral standards of elected representatives (see CSA 4123/95 Or v. State of Israel [4], at p. 191; Movement for Quality in Government in Israel v. Government of Israel [9], at p. 429 {293-294}; HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [41], at p. 186).

This court has already, on several occasions in the past, considered the relationship between law and ethics, and between legal norms and ‘government culture’ norms (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 917-918 {440}; Movement for Quality Government in Israel v. Prime Minister [41], at pp. 157-158, 176-177). Petitions concerning the formation of the government — the appointment of a minister or his removal from office — often give rise to questions concerning the location of the border between the ethical sphere and the legal sphere, which decisions are determined by government culture norms and which are also determined by legal norms. The remarks made by Justice Cheshin in another case are pertinent in this regard:

‘… We should be always mindful of the fact that we are speaking of a government culture that is steeped in law — in norms from the field of criminal law — and the question we should ask ourselves is whether in this sphere that contains both government and law, the weight of law is so minimal that we will shrug it off and continue on our way without law. Surely allowing the demands of law to recede… is tantamount to giving up norms to which we, as people of law, regard ourselves as being committed, and which, moreover, we regard ourselves as obliged to disseminate and impose on those around us?’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 176).

He also held:

‘When we realize that the culture of “it simply isn’t done” has been undermined and that our standards have fallen very low, should the law not make itself clearly heard? Surely its voice should not sound merely like a piccolo, “clear and pure, but drowned out by the tumult?” ’ (ibid. [41], at p. 177).

President Barak also discussed the relationship between the rules of ethics and the rules of law and the proper place of the principle of reasonableness in regard to them, when he said:

‘One of the ways in which the rules of ethics become rules of law, in so far as the public authority is concerned, is through the value of reasonableness. An unethical act may, in certain conditions, be an unreasonable act. Indeed, I am of the opinion that a comprehensive application of the principle of reasonableness to all the acts of the executive branch — including acts that harm the integrity of the administration — is proper. Of course, in countries where the government exercises self-restraint, it is possible that there is no need to develop the principle of reasonableness and apply it to the field of governmental ethics. But in countries where this self-restraint is lacking — and the concept of “it simply isn’t done” is not sufficiently developed — the principle of reasonableness and the concept of the margin of reasonableness should be extended to all government acts’ (A. Barak, The Judge in a Democracy (2004), at p. 369).

There is no statutory restriction upon the appointment of MK Ramon, but it would appear that the appointment, in the circumstances described above, undermines those principles that support the rule of law, are essential to the existence of a civilized society, and ensure that public service enjoys and deserves public confidence. In such circumstances, I am of the opinion that this court has no alternative but to intervene in the appointment decision, in order to protect the norms to which our legal system is committed.

Postscript

19. I have read the opinion of my colleague Justice A. Grunis and the remarks of my colleague Justice Procaccia in response thereto. I agree in full with her remarks concerning the place and status of the ground of reasonableness in our law, and I would like add to them a few brief remarks:

a.     The premise of judicial review is the principle of the separation of powers. The separation of powers is essential for the existence of democracy. At the same time, the separation of powers does not imply that there is no connection between the branches of government. On the contrary, there is a connection between them: ‘… there is a reciprocal relationship between the different powers, so that each power checks and balances the other powers’ (HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [42], at p. 786; see also Barak, The Judge in a Democracy, at pp. 103-105). One of the expressions of the separations of powers lies in the principle, which has been mentioned innumerable times in the case law of this court, that the court will not intervene in a decision of the authority as long as it falls within the margin of reasonableness. 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. Notwithstanding, it is obvious in my opinion that the principle of the separation of powers and the respect that each power shows the others — which also lie at the heart of my opinion — cannot render the function that the power has been authorized to exercise devoid of any real content. In our case, the rule of very narrow intervention in the decisions of the executive branch and the legislative branch cannot result in the decisions of those branches having a de facto immunity against judicial review. Moreover, where the court does not exercise its judicial review, it errs with regard to the principle of the separation of powers, the checks and balances that the powers owe to one other. In my opinion, restricting judicial review to various forms of procedural failures and questions of authority presents a real danger to the future of Israeli society and the proper functioning of the organs of government, since it leaves the court with a function that is almost totally technical and rules out real judicial review in which the court protects and promotes the values of society. In my opinion, restricting judicial review by an almost complete rejection of the ground of reasonableness leaves the public exposed to danger, since it is the public that will pay the price of those decisions that fall outside the margin of reasonableness.

b.     The difficulties raised by my colleague Justice Grunis in his opinion are indeed real ones, but as my colleague Justice Procaccia also says, the solution to them does not require complete or almost complete abandonment of the use of the ground of reasonableness, only great caution and maximum restraint that the court should adopt when exercising judicial review. Particularly in the case before us, I am of the opinion that the difficulty discussed by my colleague — the court being no better placed than any citizen of the state to assess the reasonableness of the decision — does not really arise. The reason for this is that the court has expertise with regard to assessing the weight of a criminal conviction, the time that has passed from the conviction and the serving of the sentence until the appointment, and the other considerations that I have discussed. No one can assess their weight as well the court. Moreover, even if it is true that determining the unreasonableness of the decision solely from the outcome that was reached — an outcome-based decision — gives rise to considerable difficulty, in the case before us the weight given to these considerations in making the decision can be seen not only from the outcome but also from the proceedings of the Knesset and all of the material presented to us. I should re-emphasize that ultimately I saw no reason to reconsider the approval given by the Knesset to the Government’s notice of the appointment, since this has been discussed in detail in the opinion of my colleague Justice Procaccia, it is not the subject of dispute in my opinion and I only saw fit to address the issues on which my opinion is based.

My remarks above address only a very small part of my position regarding the place and status of the ground of reasonableness as a tool of judicial review. The matter will, no doubt, arise in the future, and when it does, I shall discuss it in full.

Summary

20. The government’s ability to rule is based not only on the confidence expressed in it by elected representatives. The government’s ability to rule also depends ultimately on public confidence in it. As such, even if we assume that political and parliamentary considerations have considerable weight in determining the composition of the government, an essential condition for its proper functioning is a proper standard of principles, values and morality. When the court is called upon to exercise judicial review with regard to a decision that concerns the composition of the government, it should be guided, not only by the principles and rules that my colleague discussed, but also by the values and principles that society cherishes. Even in such a case it needs to strike a balance, which is merely a balance between different considerations:

‘When striking this balance, idealism that has no normative basis should be avoided. The judge does not aspire to the lofty and the pure that are unattainable. He does not contemplate an ideal society that has no real existence and cannot be achieved. He does not rely upon a perception of man as an angel. At the same time, the court should avoid a pragmatism that is based on market morality. The judge does not reflect the distorted views that are widespread in society. He does not direct his gaze at a sick society that is sinking into the abyss. He does not rely on a perspective that man is an animal… He takes current reality into account, but he does not regard it as the whole picture. The fact that “everyone does it” is not a criterion for the proper conduct of a civil servant. The fact that it is customary, commonplace and normal to act in a certain way does not make it the proper way to act…’ (Suissa v. Attorney General [33], at p. 781; see also H. Cohn, ‘Thoughts on Integrity,’ Selected Writings 417 (2001), at p. 451).

These remarks that were made in a different context are also apt in our case.

I have not overlooked the public debate surrounding the appointment in the prevailing circumstances and following the differences of opinion that surrounded the decision to bring MK Ramon to trial. Notwithstanding, judicial determinations are made in accordance with legal criteria, according to the basic principles of the State of Israel as a democratic state that espouses the rule of law and a culture of law, and the court has a duty to stand guard and protect these (see also Barzilai v. Government of Israel [34], at p. 585-586 {68-69}).

The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the Government and its members. As I have said, we are dealing with an issue that focuses on imposing ‘the rule of law on the government,’ to use Justice Barak’s expression in Eisenberg v. Minister of Housing [1], at p. 238 {23}. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. At the same time, I would emphasize that these remarks relate to the present moment, a short time after the events and the trial. Obviously, when a proper period of time has passed since the conviction and the serving of the sentence, the shadow cast by the criminal conviction and the disparaging remarks made by the Magistrates Court will fade, and it will no longer stand in the way of an appointment to a senior public office. I see no reason to consider the question of what should be the proper period of time that should pass before the appointment would be a proper one, since it has already been said in the past that ‘… any period of time that is determined contains an element of arbitrariness’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 175). We are not dealing with a question of mathematics, and in any case the determination depends inter alia on the nature of the position, the unique abilities of the candidate and the nature of the offence of which he was convicted, and these differ from case to case. Notwithstanding, a period of a few months, as in this case, is insufficient.

For all the reasons set out above, I am therefore of the opinion that it was right to issue an order nisi in the petitions. However, in view of my colleagues’ position, I have sought to set out my position, which, in essence, is that at the present time there is no alternative but to revoke the decision to appoint MK Ramon to the cabinet.

In conclusion I would like to refer to the remarks of Justice Türkel in A v. Chief of General Staff [29], where he cited remarks made originally by Justice Silberg:

‘If we seek to be a model state, a society that is a light unto the nations and a chosen people, we should remember — as Justice M. Silberg put it so well — that:

“Morality is the ideological basis of the law, and the law is the external, concrete form of some of the principles of abstract morality… The provisions of the law are — in the eyes of the legislature — the minimum moral standard that is required and expected of every citizen.

The desired ideal is that they will… coincide with one another to the fullest extent, as the water covers the sea’ (M. Silberg, Kach Darko Shel Talmud (1964), at pp. 66-67; emphasis in the original).”

This ideological basis is the infrastructure that enables the court to enforce legal norms that embody moral values. In my opinion, more than any other consideration, this is the cornerstone on which our decision stands’ (A v. Chief of General Staff [29], at pp. 77-78).

The image of society and the state is fashioned by decisions of the government in practical matters. Words are not enough. This consideration should be given a proper weight when making a decision to appoint someone to public office, and this is what should have been done in this case.

 

 

 

Justice A. Grunis

1.    With respect to the difference of opinion between my colleagues, I agree with the opinion of Justice A. Procaccia that the petitions should be denied. However, my approach is different from that of my colleague. According to my approach, in a case of this kind, where the Knesset approves the addition of a new cabinet minister, following a proposal of the Prime Minister and a decision of the cabinet, it is doubtful whether there is any basis for intervention by the High Court of Justice. Even if the court does intervene, it will do so only in a very rare and exceptional case. The present case does not justify intervention.

2.    Section 15 of the Basic Law: The Government sets out how a new minister can be brought into an existing government. The process begins with a proposal of the Prime Minister that is brought before the cabinet. The cabinet may decide to add a new minister. The Government is required to notify the Knesset of the decision and of the position that the new minister will hold. However, these steps alone are not sufficient. It is also necessary for the Knesset give its approval to the Government’s notice. In other words, the process of adding a new minister to the cabinet is not complete without a decision of the Knesset. The need for the Knesset’s approval is a characteristic of our parliamentary system, in which the formation of a government and its continuation in office depend upon the confidence of the Knesset. Thus, s. 13(d) of the Basic Law: The Government  provides that ‘The Government is constituted when the Knesset has expressed confidence in it,…’, whereas s. 28(a) of the Law states that ‘The Knesset may adopt an expression of no confidence in the Government.’

3.    In any case of court intervention in a decision of another branch, we need to take into account the relationship between three factors: the identity of the person or body that made the decision, the nature or classification of the decision and the error  tainting the decision or the ground for intervention. We shall address each of these, but we should emphasize that in this case we are not dealing merely with a challenge to a decision of an administrative authority. The addition of a minister to the government requires, as aforesaid, a decision of the Prime Minister, a decision of the Cabinet and a decision of the plenum of the Knesset. ‘The Government is the executive authority of the State’ (s. 1 of the Basic Law: The Government ). The government is the most senior administrative authority in the state. Of course, the rules applicable to judicial review of decisions of administrative authorities also apply in principle to decisions of the government. Nonetheless, the court will exercise great caution when intervening in a government decision (see HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], especially at pp. 836-837, 840-841 {316-328, 321-323}, per Justice E. Rivlin, at pp. 867-868 {359-360}, per Justice T. Or; I. Zamir, Administrative Authority, vol. 1 (1996), at pp. 89-91). Bringing a new minister into the cabinet does not take effect until the Knesset has made a decision. It follows that the success of the petition to the court depends on the court setting aside not only a decision of the most senior administrative authority, but also a decision of the Knesset. Naturally there should be a difference between judicial review of a decision of an administrative authority, and even of the Government, and judicial review of a decision of the Knesset. In our case, we are speaking of a decision of the Knesset that does not take the form of statute. Statutes are also the result of Knesset decisions, but the decisions to which we are referring give rise to different and separate questions. We are speaking of decisions of various kinds. Some of them have normative effect and may be made by various bodies in the Knesset, such as the Speaker, one of the Knesset committees, or the plenum. Since the ‘The Knesset is the parliament of the state.’ (s. 1 of the Basic Law: The Knesset), it follows that judicial review of its decisions should not be exercised in the same fashion and in the same manner as it is with regard to an administrative authority. Decisions made by the parliament, which was elected by the whole body of citizens, should not be treated in the same way as decisions of administrative authorities, even if we are speaking of the most senior authorities (see, for example, Movement for Quality Government in Israel v. Prime Minister [11], especially at p. 848 {332-333}, per Justice E. Rivlin; HCJ 73/85 Kach Faction v. Knesset Speaker [43], at pp. 158-159). When we speak of the identity of the body making the decision, we should distinguish between a situation in which a decision is made by the Knesset, such as in the present instance, and a case in which the Knesset takes no action and for that reason the administrative decision requiring the approval of the Knesset is not valid. Let us assume that the Prime Minister decides to bring a new minister into the cabinet and also that the cabinet makes a decision approving this. Were the minister to begin to act in the ministry over which he has been given responsibility before the Knesset has given its approval, we would say that the minister is acting ultra vires. If a scenario of this kind occured, it is possible that the court would act, since the seriousness of the defect is so blatant that prima facie little weight would be attached to the fact that the most senior administrative authority — the Government — has approved the appointment. Since the law requires the approval of the Knesset, if such approval was not given, it would appear that there would be a strong basis for the intervention of the court. The court’s intervention in such a case would constitute support and backing for the Knesset’s role, as opposed to intervention in a decision of the Knesset.

4.    In addition to examining the identity of the body that made the decision being challenged before the court, we should examine the decision in accordance with the nature of the act or decision. On this subject, it has been said in the past that the activity of the Knesset should be divided into three categories: legislation, decisions regarding internal parliamentary affairs, and quasi-judicial decisions (see, for example, HCJ 652/81 Sarid v. Knesset Speaker [2], at pp. 201-202 {55-56}; HCJ 1956/91 Shammai v. Knesset Speaker [44], at pp. 315-316; HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19], at pp. 141-142; HCJ 12002/04 Makhoul v. Knesset [26], and many other cases; A. Rubinstein & B. Medina, The Constitutional Law of the State of Israel (vol. 1, 2005), at pp. 235-259). Alongside the aforesaid three categories, there is another category of decisions — namely, decisions concerning parliamentary scrutiny of the Government. The main decision of this kind is a decision expressing confidence in the Government when it is formed. In addition to this decision, we should mention a decision of no less importance, which is the opposite decision — expressing no confidence in the Government (regarding the importance of such a decision in a parliamentary system, see Kach Faction v. Knesset Speaker [43]; C. Klein, ‘On the Legal Definition of the Parliamentary System and Israeli Parliamentarianism,’ 5 Hebrew Univ. L. Rev. (Mishpatim) 309 (1973), at pp. 312-313). Less significant powers given to the Knesset with regard to the formation of the government, its structure, and its composition, are the approval of government decisions regarding a change in the division of functions between members of the government (s. 31(a) of the Basic Law: The Government); transferring a power given by law from one minister to another (s. 31(b) of the Basic Law: The Government); combining, separating or eliminating government ministries; establishing new ministries (s. 31(c) of the Basic Law: The Government); and, of course, adding a new member to the cabinet.

5.    In addition to the aforementioned powers of the Knesset relating to the Government, the Knesset has additional powers of supervision. The ultimate possibility of exercising supervision is by means of primary legislation. The Knesset can pass various laws that increase or limit the powers of the executive branch. In this way, it is possible to exercise supervision of this branch. Another possible type of supervision is introducing a condition that the validity of subordinate legislation depend upon a decision of the Knesset (usually, one of the Knesset committees). The authority for such a requirement arises from an express provision in a Basic Law or an ordinary statute (for a general discussion of the Knesset’s supervisory role regarding subordinate legislation, see B. Bracha, ‘Towards Parliamentary Supervision of Subordinate Legislation? The Draft Basic Law: Legislation, Chapter 3,’ 7 TAU L. Rev. (Iyyunei Mishpat) 390 (1979)). In this context we should mention that this court has held that the scope of judicial review with regard to subordinate legislation that has received the approval of the Knesset is narrower than that exercised with regard to ordinary subordinate legislation that does not require such approval (see, for example, HCJ 108/70 Manor v. Minister of Finance [45], at p. 445; HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [46], at p. 774; HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [47], at p. 172; for a general discussion of the grounds for intervening in subordinate legislation, see HCJ 156/75 Daka v. Minister of Transport [48]). It follows that the fact that the Knesset approved an administrative decision — in that case subordinate legislation — narrows the scope of the scrutiny. In addition to supervision that has normative force, the Knesset has additional means at its disposal. We should mention the possibility of tabling motions, debates in the plenum or in one of the Knesset committees, submitting questions, and the activity of the Knesset (and especially the State Control Committee), with regard to reports and opinions of the State Comptroller (see chapter four of the State Comptroller Law [Consolidated Version], 5718-1958; for a general discussion of the Knesset supervision of government actions, see Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 2), at pp. 745-756).

6.    We therefore need to ask how we should rank the various types of Knesset decisions — legislation, parliamentary supervision, internal parliamentary matters, and quasi-judicial acts — from the viewpoint of judicial review. In other words, when will judicial review be relatively broad and when will it be narrow? There is no doubt that, with regard to primary legislation, judicial review is very limited. The court does not have the power to set aside a statute, except in those cases where there is a conflict between an ordinary statute and a Basic Law. At the other extreme of the spectrum lie quasi-judicial decisions of the Knesset or of one of its committees. Between these lie the decisions on internal parliamentary matters and decisions concerning parliamentary supervision of the executive branch. It can be said that insofar as a decision concerns the essence of the parliamentary function, namely legislation and parliamentary supervision of the executive branch, the court will tend to refrain from intervention. The relatively broad scope of intervention in quasi-judicial decisions is founded, it would appear, on the idea that the parliamentary minority needs to be protected against the excessive power of the majority (regarding the protection of a parliamentary minority, even with regard to a decision that is not quasi-judicial, see Kach Faction v. Knesset Speaker [43]; Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 1), at pp. 241-242). The difference in the scope of judicial review exercised with regard to different decisions is also explained on the basis of the political element in the decision under consideration. The greater the political element in a decision, the greater the restraint that is required of the court. This can be shown by means of a comparison between intervention in subordinate legislation that has received the approval of the Knesset and exercise of judicial review with regard to a vote of confidence in a new government. Clearly the court will intervene in a decision of the latter type only in extreme cases (see Movement for Quality Government in Israel v. Prime Minister [11]), and in cases where forgery, fraud, or a similar voting impropriety determined the result (see and cf. HCJ 5131/03 Litzman v. Knesset Speaker [49]). Decisions within the framework of parliamentary supervision are often decisions in which the political element is considerable. The court ought to distance itself from intervention in decisions of this kind (see the opinion of the majority justices in Movement for Quality Government in Israel v. Prime Minister [11]).

7.    Another factor that may affect the intervention of the court and its scope in decisions of the Knesset is the ground for the intervention or the defect in the decision or in the decision-making process. Broadly speaking, the defects can be divided into three types: ultra vires, procedural impropriety, and unreasonableness. In addition to these we should mention other defects such as discrimination, conflict of interest, incorrect interpretation of the law, and disproportionality.

8.    The defect of a procedural impropriety, in the context of judicial scrutiny of Knesset decisions, presents a special problem. The court has recognized expertise on the subject of procedural improprieties. Sometimes a claim is raised in the court that an administrative decision should not be allowed to stand because of an impropriety in the decision-making process. The willingness of the court to intervene in a decision because of a procedural impropriety is relatively high. One reason for this is that intervention on the ground of a procedural impropriety does not consider the question whether the decision on its merits was right, reasonable, or logical, since the court is not the competent body to make that decision. Another reason is that the court, and especially an appeals court, is responsible for correcting procedural improprieties that are found in the actions of lower courts. When the court sets aside an administrative decision because of a procedural impropriety, it compels the authority to act in accordance with the law. It tells the authority that it should comply with the provisions of the law in the process of making the decision. It follows that there is great justification for judicial intervention when a decision is not made in accordance with the proper procedure. On the other hand, insisting upon every detail of the proper procedure, no matter how minor, may make it difficult for the authority making the decision to function. Not every procedural defect is significant, nor should every impropriety in procedural matters result in judicial intervention. The problem is particularly obvious with regard to procedural improprieties in acts of the Knesset. There is a natural desire to refrain from judicial involvement in the activity of the Knesset, in view of the fact that the Knesset is the body elected by all the citizens of the state. This reluctance is highlighted in cases of internal parliamentary matters. This term often refers to procedural matters and the everyday proceedings of the Knesset. Therefore the court does not intervene with regard to the time at which a debate on a no-confidence motion in the government will be held (Sarid v. Knesset Speaker [2]), a petition against a decision of the Speaker of the Knesset to include a certain matter in a debate at the request of the Government when it is claimed that insufficient notice has been given (Shammai v. Knesset Speaker [44]), or a decision of the Speaker to postpone the holding of a vote on a draft law when the delay is a short one (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]). Notwithstanding, procedural defects may be very harmful, even when we are speaking of the actions of the Knesset. One example of this is the lifting of a Knesset member’s immunity without giving him an opportunity to state his case (see Pinchasi v. Knesset [23]). The justification for judicial intervention here derives from the fact that this was a quasi-judicial proceeding in which there was a serious flaw. It is possible that even when we are not speaking of a quasi-judicial proceeding in the Knesset, the court will intervene if the procedural flaw seriously harms an opposition party in the Knesset. Case law has held, in a very broad fashion, that the court will intervene if major values of the constitutional system are undermined (as in Sarid v. Knesset Speaker [2], at pp. 203-204). For example, if a decision of the Speaker of the Knesset denies an opposition party the right to address the Knesset, thereby committing a flagrant and ongoing breach of the rules of the Knesset, it is possible that the court ought to intervene. If the court does not grant relief, there would be no other body that could help to enforce the law upon the parliament. Thus, in my opinion, by intervening here the court would fulfil its classic role in the field of public law — the protection of minorities — which in this case concerns a parliamentary minority.

9.    The defect on which the petitioners base their petition against the decision to bring MK Ramon into the Government is unreasonableness. My colleague, Justice E. Arbel, accepts this argument and holds that the decision was unreasonable. My opinion is different. We should recall that in this case we are not speaking merely of a challenge to a decision of the Prime Minister and of the Government to appoint MK Ramon as a cabinet minister, but also of a challenge to a decision of the Knesset. The ground of unreasonableness is essentially different from the defects of ultra vires and procedural defect. When the court examines these two defects, the advantage and unique role of the court are self-evident. The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws. We should point out that questions of authority and procedural flaws arise also in the fields of criminal law and civil law. By contrast, the court has no special advantage or expertise on the subject of unreasonableness. Admittedly, the ground of unreasonableness is not new to our law and it was recognized in the early years of the state (see, for example, CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [50]). Notwithstanding, in recent decades, especially since the judgment of Justice A. Barak in HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], it has undergone a change and has almost developed into a kind of ‘supreme norm’ (like good faith and public policy). 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. The development of the law in common law countries is done by the courts, inter alia by means of doctrines and subtests that apply very abstract norms, whether founded on statute or case law, on a more specific level. The ground of reasonableness is different in the sense that the passage of time has not resulted in the development of norms on a lower level of abstraction, which would make it easier for us to find a concrete solution and to reduce uncertainty when a claim of unreasonableness is raised. In this it differs, for example, from the ground of disproportionality (regarding the subtests of disproportionality, see for example HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [51] (opinion of Justice A. Barak); HCJ 3379/03 Mustaki v. State Attorney’s Office [52], at pp. 907-908; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [53], at pp. 839-840 {296-297}, and many other cases). 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 (see Daka v. Minister of Transport [48], at pp. 105-106; HCJ 935/89 Ganor v. Attorney General [14], at pp. 514-516 (per Justice A. Barak); HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at pp. 420-421 (per President M. Shamgar); HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 464, and many other cases). 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. The problem is particularly acute when the authority making the decision is a collective body.

10. The decision to approve the appointment of MK Ramon to the cabinet was approved by a majority of members of the Knesset, 46 versus 24. Where a decision is made by a body composed of a number of members, it is difficult to examine the considerations that were taken into account. Even if each of the members of the body publicly stated his reasons, it is impossible, or at least very difficult, to determine the relative weight that was given to each consideration in reaching the final result, which is a collective decision. This is the reason that the duty to give reasons, which usually applies to administrative authorities and other authorities, has not been applied, at least not in full, to authorities that are collective bodies (see, for example, HCJ 89/64 Greenblatt v. Israel Bar Association [54], at pp. 409-410; HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [55], at pp. 329-330; HCJ 306/81 Flatto-Sharon v. Knesset Committee [22], at p. 133). In the case before us, only a small number of Knesset members expressed their opinions during the debate in the plenum, and even they did not address the appointment of MK Ramon in specific terms but only in general statements (minutes of the 138th session of the seventeenth Knesset (4 July 2007). Clearly, in such circumstances it cannot be said with certainty what were the considerations that were taken into account by each of the members who voted to approve the decision. It is even harder to determine the weight given to each consideration. Therefore, what is done de facto by the judge who thinks that the decision is tainted by unreasonableness is to examine the outcome, i.e., the ramifications of the decision. Sometimes what is done in such cases can be referred to as ‘reverse engineering.’ In other words, the court examines the outcome, i.e., the decision, and in a process of hindsight it lists the considerations that it imagines were taken into account by the body that made the decision. If the final decision is unacceptable to the court, it will say that one of the considerations was given excessive weight or that a certain consideration was not taken into account at all. We therefore need to take with a grain of salt the remark that is sometimes made in this regard, that the court does not replace the discretion of the authority authorized by the law to make the decision with its own discretion (for use of this formula, see for example HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [56], at p. 69 (per Justice I. Zamir); HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [57], at p. 125; HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security [58], at para. 7(c) (per Justice E. Rubinstein); for a case in which, despite this statement, it was decided to intervene in the authority’s discretion, see Zidan v. Minister of Labour and Social Affairs [47]). It would therefore appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is indeed replacing the discretion of the authority with its own discretion. In this case we should remember that we are dealing with a collective body of 46 members of Knesset who voted for the decision to bring MK Ramon into the Government.

From our deliberations hitherto we see that the use of the ground of unreasonableness is highly problematic, especially when a decision of a collective body is challenged on this ground.

11. I do not intend to say that we should ignore or cancel the ground of unreasonableness. In my opinion, the use of relatively narrower and more concrete grounds — such as irrelevant reasons, irrelevant purposes, or discrimination — should be preferred. These grounds or defects have a lower level of abstraction and therefore their use will reduce the scope of judicial discretion and increase legal certainty. The use of the ground of unreasonableness will be justified in extreme cases, only when all the possibilities of judicial review on the basis of more precise grounds have been exhausted, and especially when the case involves a violation of human rights. It is possible that we should return to the use of the term extreme unreasonableness, which it would appear has been forgotten to some extent. Of course, this verbal test also suffers from imprecision and involves a significant amount of judicial discretion. Notwithstanding, the use of the adjective ‘extreme’ acts as a warning to the court. The court should refrain from replacing the authority’s discretion with its own discretion, not merely as a matter of rhetoric but also in practice.

12. The petition before us raises a claim of unreasonableness with regard to a decision of the plenum of the Knesset, which gave its approval to a decision of the Prime Minister and the Government to add a minister to the cabinet. The new minister is MK Ramon, who was convicted a few months ago of a sex offence. MK Ramon was sentenced. The sentence he was given and the determination of the court that the act does not involve moral turpitude lead to the result that the conditions provided in the law were not violated by the appointment (I am, of course, referring to the provisions of s. 42A of the Basic Law: The Knesset, and s. 6 of the Basic Law: The Government). Should this court determine that the decision of the Knesset, when it approved the appointment, was unreasonable? My answer to this question is no. The body that made the ultimate decision that completed the appointment process was the parliament. The decision to approve the appointment is clearly a political one. Naturally, the members of the Knesset had a duty to take into account the fact that the new minister had been convicted of a sex offence. We cannot say how this consideration compared with other relevant considerations. The alleged defect in the decision is not one of ultra vires. The defect on which the petitioners rely does not concern a procedural impropriety in the process in which the Knesset reached its decision. We are not even dealing with a question of the interpretation of statute, nor with a decision that violated an existing right of an opposition minority. The claim is that the decision to bring MK Ramon into the Government is unreasonable. As stated, this ground is very amorphous, because of its high level of abstraction. In these specific circumstances, the court is no better placed than any citizen of the state to determine the question of the reasonableness of the decision. We are not dealing with a matter that requires legal expertise. On the basis of all the aforesaid, my conclusion is that the court should refrain from intervening in the decision.

13. The determination that the court will not set aside the decision to bring MK Ramon into the Government does not amount to a ratification of that decision (see and cf. Movement for Quality Government in Israel v. Prime Minister [11]). Non-intervention is not equivalent to giving approval or legitimizing a decision. All that the court is saying is: ‘In the circumstances of the case, it is not for the court to determine whether the decision is improper.’ The court leaves the question in the public domain. It may be assumed that there will be citizens who will think that the appointment of a cabinet minister who has committed a sex offence is absolutely wrong. They may think that such an appointment is a stain on the Government. Even if this is the case, the matter does not require the court to intervene. We are distinguishing between our opinion as citizens and our thinking as justices. Public opinion and judicial opinion are not necessarily the same thing, and it is right and proper that they should not be.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

26 Kislev 5768.

6 December 2007.

 

H.C.J. 282/61

 

           

MAHMUD EL-SARUJI et al.

v.

MINISTER OF RELIGIOUS AFFAIRS AND THE MOSLEM COUNCIL. ACRE

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 6, 1963]

Before Silberg J., Landau J. and Berinson J.

 

 

 

Administrative law - consultative body appointed by Minister- judicial review of its powers and activities.

 

The petitioners complained generally of the alleged interference of the Minister of Religious Affairs in matters affecting the Moslem Community of Acre and more particularly of the activities and powers of the local Moslem council appointed by the Ministry.

 

Held. The departure from the country of Moslem leaders and officials as a result of the events of 1948 had led to a complete collapse of all Moslem institutions and their ceasing to function. In order to remedy the situation and recreate these institutions the Ministry had not proceeded under any express statutory provision but by virtue of general power vested in the Government and within the framework of the State budget. In the course of doing so, it appointed the second respondent with which to consult and to act as its agent in the distribution of necessary funds for various public Moslem purposes. No evidence of misuse of funds had been adduced. In all these circumstances, the High Court of Justice would not intervene to control the action by the Ministry or its agent, either generally or specifically, in its choice of advisers or in resolving the public political problems with which it is faced.

 

M.N. Huari for the petitioners.

Z. Bar-Niv, State attorney, Z. Terlo and M. Cheshin for the first respondent.

E. Berenblum for the second respondent.

 

LANDAU J. The order nisi granted to the three petitioners, residents of Acre and members of the Moslem community there, calls upon the Minister of Religious Affairs and the Moslem Council of Acre to show reason "why the first respondent should not cease from interfering in matters affecting Moslems, their charitable trusts, courts of law and personal situation, and why he should not procure that the activities and powers of the Moslem Council in Acre, appointed by him, should not cease and it be dispersed."

 

The petitioners' application, as formulated in the order nisi, contained two separate complaints, one general, regarding the position of the Moslem Council in the country as a whole, and one regarding the powers and activities of the Moslem Council of Acre (or more precisely the Consultative Council for Moslem Religious Affairs of Acre).

 

            Under the first complaint, petitioners' counsel tried to show the lack of organisation and neglect which in his opinion prevail in respect of the affairs of the Moslem community in the country. Let it be said at once that this Court is not the suitable forum for voicing general complaints of this kind. The affidavit on behalf of the first respondent, made by Mr. S.Z. Kahana, the director-general of the Ministry of Religious Affairs, describes the changes that have occurred with regard to the country's Moslem Community, in the following terms:

           

"Upon the termination of Mandatory rule and the outbreak of the War of Independence the religious institutions of the Moslem Community in the country collapsed. Senior religious personnel, muftis and qadies - except for the late Sheikh Ta'ahar Tabri (who died in 1959), Mufti and Qadi of the Tiberias district - fled from the country. The system of religious jurisdiction broke down completely. Most of the officials concerned in religious services fled. The communal educational system and social welfare and health institutions ceased to exist. Among those who left the country were also the members of the Supreme Moslem Council and its Wakf Committee (bodies founded at the beginning of Mandatory rule) and the members of the Governmental Awkaf Commission, appointed by the High Commissioner by virtue of the Palestine (Defence) Order in Council, 1937. Israeli Moslems thus remained without religious organisation and religious leadership."

 

            We accept this as an accurate description of the situation created as a result of the War with which the State of Israel on its foundation was fettered by the Arab states and the flight of a large part of the Moslem population from its territory. Mr. Kahana's affidavit goes on to describe the steps taken by his Ministry to repair as far as could be the organisational breakdown of the Moslem Religious Community in Israel: the jurisdiction of the Moslem religious courts was restored on a new legal basis by the Sharia Courts (Validation of Appointments) Law, 1953, and the Qadis Law, 1961. These courts continue to act under the powers granted to them by article 52 of the Palestine Order in Council. Petitioners' counsel did not dispute that in his summation and so retracted the deprecatory remarks about the Qadis of these courts which he had permitted himself to indite in paragraph 10(c) of the petition.

 

            Mr. Kahana went on to detail in his affidavit the different measures taken by the Ministry of Religious Affairs in order to fill the vacuum created in the provision of religious requirements, religious education, charity, social welfare and so on for the country's Moslem Community. In so doing, the Ministry of Religious Affairs did not act under express statutory provision but by virtue of general governmental powers resting in the Government and its Ministries, within the financial framework of the State's Budget approved by the Knesset.

           

            The petitioners and those for whom they speak are not pleased with the existing order of things. I assume that in complaining they express the view of some part of the members of Acre's Moslem community, although I do not know whether they constitute a majority of the community. They would prefer the autonomy of the Moslem community regarding all the matters raised in their petition, but that is certainly a public-political problem not for this Court to be concerned with. Under the democratic regime existing in our country, the Knesset is the arbiter in matters of this kind and it possesses the authority to initiate changes in the existing position through the enactment of new laws, if it finds it proper so to do.

           

            The main burden of the petitioners' complaints, to all appearances, concerns the administration of Moslem charitable and religious trusts (awkaf). Under the British Mandate these trusts were administered by the Supreme Moslem Religious Council, set up by an order of the High Commission of 20 December 1921 (N. Bentwich, The Laws of Palestine, vol. 2, pp. 395 ff.). Among the functions of the Council, appointed in the manner prescribed by the order, was the control and administration of Moslem charities (paragraph 8(1)(a)). There were also set up a General Awkaf Committee and local awkaf committees under paragraphs 10 ff. In 1937, the administration of Moslem charitable trusts was transferred to a Commission appointed by the High Commissioner under the Defence (Moslem Awkaf) Regulations, 1937 (Official Gazette 1937, Suppl. 2, No. 730-731). That continued to be the position until the end of the Mandate when members of the Commission left the country and became absentees. The original order of 1921 was wholly repealed by section 25 of the Qadis Law, 1961; petitioners' counsel was mistaken in maintaining that the repeal went only to the provision relating to the appointment of qadis. It is questionable, however, whether as a result of the repeal, the said Regulations of 1937 were also repealed. In his summation, the State Attorney argued that these also were repealed by implication. It seems to me that this argument is inconsistent with what is said in paragraph 3(k) of Mr. Kahana's affidavit. What emerges from the latter is that the 1937 Regulations were not repealed and that the administrative powers of the appointed Commission became "absentee property" in the sense of section 1(a) ad finem of the Absentees' Property Law, 1950, upon its members becoming absentees. I hesitate from ruling definitively on this question which was not exhaustively argued in these hearings, but I incline to the latter view, that the 1937 Regulations exist independently, without being linked to the 1921 Order, although the Commission replaced the body instituted by the 1921 Order. The Regulations indeed vest in the Commission the powers of the Council under the old order (see regulation 5) but they are not, for that reason alone, to be regarded as an enactment intended merely to amend the Order. The result, it would appear, is that the Government to which the powers of the High Commissioner passed may but is not bound to appoint a new Commission under the 1937 Regulations and, so long as it does not, public Moslem religious and charitable trusts continue to be managed by the Custodian of Absentees' Property who took the place of the Commission that existed on the eve of the establishment of the State. I have found no basis for the vague submission of petitioners' counsel in his summation, that the right to control the funds of these trusts lies in any event with the Moslem residents now living in the country. No precedent was cited to base this view.

 

            The petitioners' complaints about the second respondent's activities are in the main that it acts without authority and has no proper concern for Moslem religious matters in Acre. The petition also alleges misuse of funds entrusted to its members. From the affidavits in reply by Mr. Muhmad Habashi, one of such members, and by Mr. Kahana it emerges that the council was established by the Minister of Religious Affairs as a consultative body on matters of religious, social welfare and educational services. The Ministry of Religious Affairs is also assisted by the Council in implementation of the activities initiated by the former for the benefit of the Acre Moslem community. To this end money is on occasion passed to the Council intended for the requirements of the city's Moslem community and the Council lays out the money in accordance with the directions and under the prescribed supervision of the Ministry. When the said affidavits were made on behalf of the respondents, the members of the consultative Council were Sheikh Mussa Tabri, the principal Qadi, who acted as chairman, Sheikh Jemal Saadi, Imam and preacher of the Aljezar Mosque, Ahmad Edalbi, a notable of the community, and the deponent Muhmad Habashi who is also a deputy mayor of Acre.

 

            This is not a commission appointed under enacted law but, as I have said, a consultative council which the Minister of Religious Affairs appointed in order to maintain contact with the Moslem community of the city. In so far as the council is entrusted with the allocation of money for the community's requirements, it acts as agent of the Ministry of Religious Affairs. The Minister of Religious Affairs is interested in choosing advisers in this field, whom he considers to be fit for the task of representing the community, and this Court will not direct him to choose other fitter advisers. As for the activity of the Council, we allowed petitioners' counsel to cross-examine at length but in spite of his protracted assault on the witness, Mr. Habashi, his efforts were in vain as regard the matters touched upon in cross-examination. The impression one obtains from the cross-examination is of conflict between contending groups of community workers. No indication was given to us of misuse of funds or of other acts contrary to good order on the part of members of the Council. In my opinion, the order nisi should be discharged.

 

SILBERG J. I agree.

 

BERINSON J. I agree.

 

            Order nisi discharged.

            Judgment given on February 6, 1963.

HCJ 6163/92

1.       Yoel Eisenberg

2.       Advocate Avraham Oren

v.

1.       Minister of Building and Housing

2.       Appointments Committee for the Civil Service Office

3.       Civil Service Commissioner

4.       Government of Israel

5.       Prime Minister

6.       Yosef Ginosar

7.       Tarak Abed Al Hai, Mayor of Taibeh

8.       Zeidan Muhammed, Head of Kefar Manda Local Council

 

The Supreme Court sitting as the High Court of Justice

[23 March 1993]

Before Justices A. Barak, E. Goldberg and E. Mazza

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The sixth respondent (Ginosar) was formerly a member of the General Security Service. He was involved in the ‘300 bus’ affair and the ‘Nafso’ affair.

In the ‘300 bus’ affair, a bus was seized by terrorists. The army stormed the bus, rescued the passengers and two of the terrorists were arrested alive. It was later announced that all the terrorists died in the rescue. A commission of enquiry was appointed, and Ginosar was one of its members. He acted in this capacity to cover up the involvement of some of the General Security Service personnel in the case. Ginosar received a pardon with regard to this from the President of the State and was not indicted.

In the ‘Nafso’ affair, a suspected terrorist was interrogated by a team headed by Ginosar. The interrogators acted improperly in the interrogation and perjured themselves in the trial in which Nafso was convicted. The matter was subsequently investigated by the Landau Commission, which recommended not indicting Ginosar.

Ginosar was recently appointed director-general of the Ministry of Building and Housing. The petition argues that in view of his involvement in the ‘300 bus’ affair and the ‘Nafso’ affair, he was unfit to be appointed to such a senior position in the Civil Service.

 

Held: An administrative body making an appointment must take into account the criminal past of the candidate, notwithstanding the absence of a criminal conviction and notwithstanding the granting of a pardon by the President, if there is reasonable evidence of a criminal past. In the circumstances of the present case, Ginosar was not a suitable candidate for a senior position in the Civil Service, and his appointment was therefore disqualified.

 

Petition granted.

 

Legislation cited:

Basic Law: Administration of Justice, 5744-1984, s. 15(c).

Basic Law: Government, 5752-1992, s. 1.

Basic Law: Human Dignity and Liberty, 5752-1992, s. 1.

Basic Law: President of the State, 5754-1994, ss. 1, 11(b).

Civil Service (Appointments) Law, 5719-1959, ss. 12, 17, 19, 46, 46(a).

Commissions of Enquiry Law, 5729-1968, s. 1.

Courts Law, 5717-1957, s. 7(a).

Courts Law [Consolidated Version], 5754-1984, s. 40(2).

Criminal Register and Rehabilitation Law, 5741-1981, ss. 1, 2, 3, 4(a)(1), 5(a), 16(a), 16(c), First Schedule s (c).

Labour Court Law, 5729-1969, s. 24(a)(1a).

Labour Court Law (Amendment no. 18), 5750-1990.

Law of Return, 5710-1950.

Local Authorities (Elections) Law, 5725-1965, s. 7(6).

Military Jurisdiction Law, 5715-1955, ss. 73, 537.

Penal Law, 5737-1977, ss. 22, 24(a)(1).

 

Israeli Supreme Court cases cited:

[1]      HCJ 264/77 Moshe v. National Insurance Institute [1978] IsrSC 32(1) 678.

[2]      HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [1991] IsrSC 45(5) 445.

[3]      HCJ 3/73 Kahanoff v. Tel-Aviv Regional Rabbinical Court [1985] IsrSC 39(1) 449.

[4]      HCJ 403/71 Alkourdi v. National Labour Court [1972] IsrSC 26(2) 66.

[5]      HCJ 40/74 Barkol v. Minister of Education and Culture [1984] IsrSC 38(1) 785.

[6]      HCJ 578/80 Genaim v. Muasi [1981] IsrSC 35(2) 29.

[7]      HCJ 221/69 A v. Minister of Defence [1970] IsrSC 24(1) 365.

[8]      HCJ 7/70 Agai v. Minister of Agriculture [1973] IsrSC 27(1) 127.

[9]      HCJ 344/69 Kadouri v. Tel-Mond Local Council [1969] IsrSC 23(2) 620.

[10]    HCJ 991/91 David Pasternak Ltd v. Minister of Building and Housing [1991] IsrSC 45(5) 50.

[11]    HCJ 209/68 Simchi v. Civil Service Commissioner [1968] IsrSC 22(2) 673.

[12]    HCJ 10/59 Levy v. Tel-Aviv Regional Rabbinical Court [1959] IsrSC 13 1182; IsrSJ 3 161.

[13]    HCJ 453/84 Iturit Communication Services Ltd v. Minister of Communications [1984] IsrSC 38(4) 617.

[14]    CA 436/62 Ramat-Gan Municipality v. Tik [1963] IsrSC 17 1262.

[15]    HCJ 341/80 Duick v. Bachar, Postal Services Manager [1981] IsrSC 35(2) 197.

[16]    HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [1980] IsrSC 34(3) 729.

[17]    HCJ 688/81 Migdah Ltd v. Minister of Health [1982] IsrSC 36(4) 85.

[18]    HCJ 653/79 Azriel v. Director of Licensing Department, Ministry of Transport [1981] IsrSC 35(2) 87.

[19]    CrimA 22/89 Azva v. State of Israel [1989] IsrSC 43(2) 592.

[20]    CrimA 124/87 Nafso v. Chief Military Prosecutor [1987] IsrSC 41(2) 631; IsrSJ 7 263.

[21]    HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[22]    HCJ 88/88 Nafso v. Attorney-General IsrSC [1988] 42(3) 425.

[23]    HCJ 727/88 Awad v. Minister of Religious Affairs [1988] IsrSC 42(4) 487.

[24]    HCJ 58/68 Shalit v. Minister of Interior IsrSC [1969] 23(2) 477.

[25]    CA 165/82 Kibbutz Hatzor v. Assessing Officer, Rehovot [1985] IsrSC 39(2) 70.

[26]    HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

[27]    CA 752/78 Authority under the Nazi Persecution Victims Law 5717-1957 v. Frisch Estate [1979] IsrSC 33(3) 197.

[28]    HCJ 1635/90 Jerezhevski v. Prime Minister [1991] IsrSC 45(1) 749.

[29]    HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [1971] IsrSC 25(1) 325.

[30]    HCJ 669/86 Rubin v. Berger [1987] IsrSC 41(1) 73.

[31]    HCJ 4566/90 Dekel v. Minister of Finance [1991] IsrSC 45(1) 28.

[32]    HCJ 531/79 Petah-Tikvah Municipality Likud Faction v. Petah-Tikvah Municipal Council [1980] IsrSC 34(2) 566.

[33]    CrimA 884/80 State of Israel v. Grossman [1982] IsrSC 36(1) 405.

[34]    HCJ 313/67 Axelrod v. Minister of Religious Affairs [1968] IsrSC 22(1) 80.

[35]    HCJ 1601/90 Shalit v. Peres [1991] IsrSC 45(3) 353; IsrSJ 10 204.

[36]    BAA 18/84 Carmi v. State Attorney [1990] IsrSC 44(1) 353.

[37]    BAA 1/68 A v. Attorney-General [1968] IsrSC 22(1) 673.

[38]    CA 254/64 Hassin v. Dalyat al Carmel Local Committee [1965] IsrSC 19(1) 17.

[39]    CrimA 521/87 State of Israel v. Einav [1991] IsrSC 45(1) 418.

[40]    CrimA 121/88 State of Israel v. Darwish [1991] 45(2) 633.

[41]    HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

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

[43]    HCJ 156/75 Daka v. Minister of Transport [1976] IsrSC 30(2) 94.

[44]    HCJ 127/80 Odem v. Mayor of Tel-Aviv [1981] IsrSC 35(2) 118.

[45]    FH 9/77 Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [1978] IsrSC 32(3) 337.

[46]    CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [1963] IsrSC 17 1319; IsrSJ 5 120.

[47]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[48]    HCJ 10/48 Zeev v. Acting District Commissioner of Tel-Aviv [1948] IsrSC 1 85; IsrSJ 1 68.

[49]    HCJ 732/84 Tzaban v. Minister of Religious Affairs [1986] IsrSC 40(4) 141.

[50]    HCJ 251/88 Oda v. Head of Jaljulia Local Council [1988] IsrSC 42(4) 837.

[51]    HCJ 436/63 Ben-Aharon v. Head of Pardessia Local Council [1967] IsrSC 21(1) 561.

[52]    BAA 2579/90 Bar Association District Committee, Tel-Aviv v. A [1991] IsrSC 45(4) 729.

[53]    HCJ 94/62 Gold v. Minister of Interior [1962] IsrSC 16 1846; IsrSJ 4 175.

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

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

[56]    HCJ 31/81 Moshav Beth Oved Workers Commune for Cooperative Agricultural Settlement Ltd v. Traffic Supervisor [1982] IsrSC 36(3) 349.

[57]    CA 492/73 Schpeizer v. Council for Regulating Sports Gambling [1985] IsrSC 39(1) 22.

[58]    HCJ 5684/91 Barzilai v. Government of Israel [1992] IsrSC 46(1) 536.

 

American cases cited:

[59]    May v. Edwards 529 S.W. 2d. 647 (1975).

[60]    State ex rel. Wier v. Peterson 369 A. 2d 1076 (1976).

 

Jewish Law sources cited:

[61]    Maimonides, Mishneh Torah, Laws of Repentance 7, 6.

 

For the first petitioner — E. Ben-Tovim.

For the second petitioner — S. Baruch.

For respondents 1-5 — A. Mandel, First Senior Assistant to the State Attorney.

For the sixth respondent — A. Zichroni.

For respondents 7-8 — D. Cohen.

 

 

JUDGMENT

 

 

Justice A. Barak

The Government appointed Yosef Ginosar as director-general of the Ministry of Building and Housing. Ginosar was involved in the ‘300 bus’ affair. As a member of the Zorea Commission, he was instrumental in covering up the part played by General Security Service (GSS) personnel in the affair. He was granted a pardon by the President for his part in this affair and was not put on trial. Ginosar was also involved in the ‘Nafso’ affair. He led the interrogation team. The interrogators used improper interrogation methods against Nafso and committed perjury before the special military tribunal that convicted Nafso. For this behaviour he was not put on trial. The question that we must decide is whether, in view of Ginosar’s past, the Government’s decision to appoint him is lawful.

The problem of jurisdiction

1.    The petitioners in this case — whose interest in the subject of the petition lies in imposing the rule of law on the Government — complain that the appointment of Ginosar (hereafter — ‘the respondent’) is unlawful. At the beginning of the hearing, the respondent’s attorney raised an argument that the only court competent to decide the subject-matter of the petition is the Regional Labour Court, not the High Court of Justice. We must therefore consider this argument first. The argument is based on s. 24(a)(1a) of the Labour Court Law, 1969, as introduced by the Labour Court Law (Amendment no. 18), 5750-1990. The text of the provision is as follows:

‘(a) The Regional Labour Court shall have exclusive jurisdiction to try —

(1a) An action arising from negotiations towards making a contract to create an employee-employer relationship, an action arising from a contract as stated before an employee-employer relationship is created or after termination of the said relationship, or an action arising from accepting someone for employment or refusing to accept him.’

Counsel for the respondent argues that the petition before us is essentially an action ‘arising from accepting someone for employment…’ and therefore the Regional Labour Court has exclusive jurisdiction to try it. This argument is unacceptable both to the petitioners and to the counsel for the other respondents, the Minister of Building and Housing, the Appointments Committee, the Public Service Commissioner, the Government of Israel and the Prime Minister (hereafter — ‘the respondents’). According to counsel for the petitioners, the purpose of the new jurisdictional provision was to give the Labour Court jurisdiction that was in the past vested in the civil courts (the Magistrates or District Court). The provision is not intended to negate the jurisdiction of the High Court of Justice. According to counsel for the respondents, the change of jurisdiction applies only to matters raising issues that are closely related to labour law. In this case, the substantive issue that the court is asked to examine is the exercise of executive power. The consequence whereby employee-employer relations are created is marginal. Therefore the High Court of Justice has the jurisdiction to try the petition before us, whether this is exclusive jurisdiction or concurrent jurisdiction.

2.    Section 24(a)(1a) of the Labour Court Law extends the jurisdiction of the Labour Court. This exists now not only for actions arising from an employee-employer relationship but also for actions arising from events that preceded the creation of an employment relationship or that took place after the employment relationship ended. Within this framework, it was also provided that the Labour Court has jurisdiction to try actions arising from accepting someone for employment. It seems to us that the case before us falls into this category, and that the Labour Court — as well as the High Court of Justice — has jurisdiction to try the action which is the subject of the petition. When the respondent was appointed by the Government, he was accepted for employment. An employee-employer relationship was created between him and the State as a result of the act of the Government as the competent authority. There is no material difference, formally, between accepting the respondent for employment and accepting other candidates for employment in the Civil Service. It is true that other employees are sometimes chosen by tender (s. 19 of the Civil Service (Appointments) Law, 5719-1959 (hereafter — ‘the Appointments Law’) and the authority acting on behalf of the State is not the Government. Notwithstanding, at the end of the process, irrespective of the form of selection, an appointment is made by the Civil Service Commissioner (s. 17 of the Appointments Law), and an employee-employer relationship is created between the State and the appointees. The same applies to the appointment of employees in other executive bodies, such as municipalities and local councils. The same law applies, of course, to the appointment of employees by private employers (corporations and individuals). In all these situations there is a candidate who is accepted (or not accepted) for employment, and an action arising from improprieties that occurred in accepting a person for employment or not accepting him is tried by the Labour Court. When the jurisdiction of the Labour Court was extended, there was a corresponding narrowing of the jurisdiction of the District Court. Its jurisdiction is residual (‘any matter that is not in the exclusive jurisdiction of another court…’: s. 40(2) of the Courts Law [Consolidated Version], 5744-1984). When exclusive jurisdiction was given to the Labour Court to try actions arising from accepting someone for employment, the jurisdiction of the District Court was automatically reduced at the same time (unlike the jurisdiction of the High Court of Justice).

3.    The key question is, what impact does the extension of the exclusive jurisdiction of the Labour Court have on the jurisdiction of the High Court of Justice? When the jurisdiction of the Labour Court was extended, was there a corresponding narrowing of the jurisdiction of the High Court of Justice? Indeed, were the High Court of Justice a court of residual jurisdiction, its status would then be — for the purpose of the narrowing of jurisdiction — like that of the District Court. But in matters where it has jurisdiction, the High Court of Justice does not have residual jurisdiction. It follows that the precise question is whether extending the exclusive jurisdiction of the Labour Court has the effect of reducing the jurisdiction of the High Court of Justice. In my opinion, the answer to this is no. The reason for this is three-fold: first, the intention of the legislator was not to affect the jurisdiction of the High Court of Justice. The intention was to extend the jurisdiction of the Labour Court’s authority and to take this jurisdiction away from the civil courts (see the draft Labour Court (Amendment no. 16) Law, 5748-1988, at p. 284). Second, the presumption is that the jurisdiction of the High Court of Justice can only be negated in clear and unambiguous language (HCJ 264/77 Moshe v. National Insurance Institute [1], at p. 687; HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [2]). This presumption is particularly strong when the jurisdiction is taken away from the court system and conferred on a non-judicial body. This presumption is weaker when the change occurs in the framework of the jurisdiction of the regular courts between themselves. The presumption is of medium strength when the jurisdiction is taken away from the regular courts and moved to ‘special’ courts from which there is no appeal to the Supreme Court (such as from regular court to the Rabbinical Court, or to the Labour Court — see HCJ 3/73 Kahanoff v. Tel-Aviv Regional Rabbinical Court [3], at p. 453). Justice Berinson rightly pointed out that:

‘This Court is charged with preserving the legality, propriety and reasonableness of the acts of Israeli public authorities, and this role has supreme constitutional and public importance. Any harm to this may undermine one of the foundations of the rule of law in the public life of the State and strike at the most vulnerable spot of the judiciary in Israel’ (HCJ 403/71 Alkourdi v. National Labour Court [4], at pp. 72-73).

Third, the jurisdiction of this court under the provision of section 15(c) of the Basic Law: Administration of Justice is particularly wide. Under this provision the jurisdiction of the High Court of Justice has been recognized even where another court or tribunal has jurisdiction in a matter, provided that there are special circumstances that justify this. Justice Berinson discussed this with regard to the Labour Court in particular, pointing out that:

‘… when sitting as the High Court of Justice, we have decided several times, under s. 7(a) of the Courts Law, 5717-1957, to bring within our review a matter within the jurisdiction of another court or tribunal, when the remedy that can be expected there is not sufficiently effective or speedy (HCJ 40/74 Barkol v. Minister of Education and Culture [5], at p. 788).

For this reason it seems to me that the mere act of conferring jurisdiction on a special court to try matters which the High Court of Justice has jurisdiction to try does not amount to clear and unambiguous language that the jurisdiction of the High Court of Justice is negated. Such a conferral of jurisdiction is therefore interpreted as creating concurrent jurisdiction.

4.    I am aware that this approach of mine constitutes a departure from several judgments made by this court in the past (mostly by majority opinion), including case-law with which I myself was associated (see HCJ 578/80 Genaim v. Muasi [6]). In those judgments the question posed was whether the High Court of Justice or the Labour Court had exclusive jurisdiction (see, for example, HCJ 221/69 A v. Minister of Defence [7]; HCJ 7/70 Agai v. Minister of Agriculture [8]; HCJ 344/69 Kadouri v. Tel-Mond Local Council [9]). If I regard myself as justified (objectively) in re-examining this question, this is merely because of the new approach prevailing in this court that the proper view is the one that recognizes the existence of concurrent jurisdiction, such that in certain cases both the High Court of Justice and another court or tribunal will have jurisdiction (see HCJ 991/91 David Pasternak Ltd v. Minister of Building and Housing [10]). This viewpoint creates the proper balance between the various considerations that have been examined in extensive case-law with regard to the reciprocal relationship between the High Court of Justice and other courts and tribunals in Israel. It should be noted that this judgment is restricted merely to the interpretation of section 24(a)(1a) of the Labour Court Law, and we are not adopting any position with regard to any jurisdiction arising from other provisions of the Labour Court Law.

5.    Thus an action arising from accepting a person for employment is in the jurisdiction of the Labour Court. When the decision about accepting a person for employment is made by an executive authority acting under a law, the High Court of Justice also has jurisdiction with regard to the legality of the decision (Barkol v. Minister of Education and Culture [5]; HCJ 209/68 Simchi v. Civil Service Commissioner [11]). Jurisdiction with regard to the legality of accepting a person for employment is therefore concurrent. Nonetheless, the decision on the question of venue is not dependent on the choice of the plaintiff or petitioner. It is true that we do have jurisdiction to hear a petition arising from accepting someone for employment. However, our jurisdiction is ‘discretionary’ (in the language of Justice Sussman’s in HCJ 10/59 Levy v. Tel-Aviv Regional Rabbinical Court [12], at p. 1194 {173}). In accordance with this discretion (‘discretionary jurisdiction’: HCJ 453/84 Iturit Communication Services Ltd v. Minister of Communications [13]), we will not hear a petition as long as the petitioner has an alternative remedy (see CA 436/62 Ramat-Gan Municipality v. Tik [14], at p. 1266). Therefore we have referred petitioners, who complain of invalid decisions of executive authorities within the framework of proceedings in a tender, to the civil court, for that is where alternative relief can usually be found (David Pasternak Ltd v. Minister of Building and Housing [10]). Note that:

‘The question of the alternative remedy does not raise the question of jurisdiction. Instead, it raises the question of judicial discretion. Where an alternative remedy exists, the High Court of Justice is likely to exercise its discretion to refrain from considering the petition.’ (ibid., [10], at p. 60).

6.    How should we exercise our judicial discretion in this case? As in similar cases, we must find a balance between conflicting considerations. In principle, disputes arising from accepting a person for employment — just like the other matters listed in section 24(a)(1a) of the Labour Court Law — should be tried by the Labour Court, which is properly equipped for deciding the dispute. It will do this on the basis of both labour law and the rules of administrative law. Indeed, when considering an action arising from acceptance of a person for employment, based on a decision of an executive authority, the Labour Court will examine the legality of the act of the executive authority according to the same criteria that the High Court of Justice would adopt if it were to consider the matter. This is the ‘normative duality’, which characterises the proceedings of any judicial forum in the country with regard to any matter with an executive aspect (see HCJ 341/80 Dueck v. Bechar, Director of Postal Services (Jerusalem District) [15]; HCJ 840/79 Israeli Contractors and Builders Centre v. Government of Israel [16]; HCJ 688/81 Migdah Ltd v. Minister of Health [17]). Notwithstanding, we are always prepared to exercise our authority in exceptional cases that justify this. In a similar case we determined the following standard for exercising our discretion:

‘The case is exceptional if it raises a problem that, because of its nature, ought to be tried in the highest administrative court as a court of first instance. This will certainly be a petition that does not raise a need to decide a real dispute of factual matters, but which raises a difficult and important legal problem. Such a question may arise either in the absence of case-law in the matter under discussion or because of conflicting decisions in the civil courts in this matter or because of conflicting decisions in the Supreme Court itself. Similarly, a case will be deemed special if it raises an especially urgent issue that the civil court is unable — despite the temporary remedies available to it — to deal with effectively. Finally, we will treat a case as exceptional if the context in which it arises is “an expression of a struggle between powerful forces and the citizen, and it is desirable that it should be heard by the court which is recognized by the public and the Government as the highest judicial authority” …’ (David Pasternak Ltd v. Minister of Building and Housing [10], at p. 64).

It need not be said that this list is not closed ‘and it is merely an expression of the legal policy considerations underlying the alternative remedy itself’ (ibid., see also Barkol v. Minister of Education and Culture [5], at p. 788).

7.    On the basis of these criteria, we think that this petition should be heard by us, and that we should not refer the petitioners to the Labour Court. It is sufficient to point out that the case before us, on the one hand, does not raise any factual dispute and, on the other, it raises a legal problem that has not yet been decided in Israeli law. Moreover, we are dealing with a significant and central issue, which has profound ramifications on the rule of law (both formal and substantive) and the public’s confidence in the actions of Government authorities in general and of the supreme executive organ of State (the Government) in particular. For these reasons we have decided to consider the petition on its merits.

8.    The result, therefore, is that both the High Court of Justice and the Regional Labour Court have jurisdiction to try a certain petition. The High Court of Justice has discretion to decide when it will exercise its jurisdiction and when it will refrain from hearing a petition and refer it to the Labour Court. In the case before us, we have decided — for the reasons given — to consider the petition on its merits. We will begin by presenting the normative framework; then we will review the chain of events before and after the appointment. Finally, we will consider the essence of the petition, which is whether the Government’s discretion in appointing the respondent was lawful.

The general normative framework: the authority and procedure for making appointments

9.    The Appointments Law addresses the Government’s authority to appoint a director-general of a Government ministry. The Appointments Law does not include any provision about the qualifications of a candidate for the office of director-general. It has no provision about his criminal past and the effect thereof on the appointment. However, it does have a provision about the appointment procedure. Section 12 of the Appointments Law stipulates:

‘Subject to the provisions of this law and conditions that it may determine, the Government shall appoint a director-general for each ministry, on the recommendation of the minister responsible for that ministry, and the appointment shall not be subject to a compulsory tender under section 19.’

By virtue of its authority under s. 12 of the Appointments Law, the Government determined conditions for appointing directors-general. These conditions stipulate, inter alia, that the Prime Minister shall appoint the Civil Service Commissioner and five persons who are not civil servants, who will form an appointments committee that will express an opinion about all the candidates for the office of director-general. The appointments committee shall have three members: the Civil Service Commissioner, who is the chairman, and two members selected by him for each case from the list of five in rotation, in alphabetical order of their surnames. A recommendation to appoint someone to the office of director-general shall be submitted to the Government by the minister responsible for the ministry having the relevant position, together with the opinion of the appointments committee.

The chain of events before and after the appointment

10. The Minister of Building and Housing (the first respondent) referred the appointment of the respondent to the position of director-general of the Ministry of Building and Housing with the appointments committee. The members of the committee were the Civil Service Commissioner (Mr M. Gabbay), Dr Moshe Mandelbaum and Adv M. Wagner. The committee interviewed the candidate. It considered his professional qualifications and experience. The respondent’s involvement in the ‘300 bus’ affair as a member of the Zorea Commission was neither presented to the appointments committee nor was it discussed. Similarly the respondent’s involvement in the ‘Nafso affair’ was not presented to the appointments committee nor was it discussed. In any case, no questions were asked at the appointments committee about these matters. When it ended its deliberations, the appointments committee unanimously recommended appointing the respondent to the proposed position.

11. At this stage — before the Government considered the appointment — the petition in HCJ 6163/92 was filed. The Minister of Building and Housing was asked to explain why he should not retract his recommendation to the Government to appoint the respondent as director-general in his ministry. The appointments committee was asked to retract its recommendation. The Government was asked to refrain from appointing the respondent to the proposed position. At the same time, an interim order prohibiting the Israeli Government from considering the respondent’s appointment was sought. The petition was referred to a panel of three judges. All the parties were summoned to the hearing. It was determined that the application for an interim order would be heard by the panel. At the beginning of the hearing on the interim order before the panel, counsel for the petitioner restated his application that an interim order should be made to stop the appointment process. On the other side, counsel for the respondents argued that the petition was premature. The Government should be allowed to discuss and decide the matter. The Government’s decision is reversible and it is unable to change the petitioner’s legal status. At the end of the parties’ arguments about the interim order, we made (on 27 December 1992) the following decision:

‘After hearing the arguments of the parties, we are satisfied that the decision regarding the interim order should be given by the panel that will hear the petition. We have noted for the record the statement of counsel for respondents 1-4 that an appointment will not constitute a change in the legal position, and that the petitioner will subsequently be able to raise all the arguments that he may raise today.’

The hearing about issuing a show cause order was postponed to another date, after the Government made a decision. Meanwhile an additional petition (HCJ 6177/92) was filed, with the same contents.

12. Since no interim order was made, the Government held a discussion, on the very same day, about the proposal of the Minister of Building and Housing to appoint the respondent to the position of Director-General of the Ministry of Building and Housing. The Government held a long and thorough discussion about the questions relating to the acts of the respondent in the past. At the end of this discussion, a decision was made to appoint the respondent to the proposed position. After the Government made its decision, the hearing before us was set down for continuation (on 31 January 1993).

13. At the beginning of the hearing on the question of issuing a show cause order — but before the various problems arising were examined — we raised the following question: the appointments committee dealt only with the respondent’s personal qualifications for carrying out the position. Unlike the Government, the appointments committee did not hold any discussion about the effect of the respondent’s past on his appointment. Is not this omission sufficient to render the decision of the appointments committee and the Government defective? In the petitioners’ opinion, the decision of the appointments committee was indeed defective as stated. As we have seen, this was the main complaint of the petitioners in their petition. In their opinion, the appointments committee ought to reconsider the matter anew, with a different panel. In contrast, counsel for the respondents thought that the defect that occurred did not influence the Government’s decision. In her opinion, the appointments committee is not a statutory committee, but an internal committee that was appointed by virtue of a Government decision. In these circumstances, the comprehensive discussion that took place in the Government was sufficient. Counsel for the respondent agreed with this view. He pointed out in addition that the information about the respondent’s past is public knowledge, and was doubtless considered by the appointments committee as well. In view of this disagreement — and in order to resolve it — we asked the parties whether they were prepared to regard the petition as though a show cause order had been issued. The respondents and the respondent rejected the proposal. We set down the continuation of the hearing with regard to the show cause order for an early date (2 February 1993).

14. On 2 February 1993, we held a hearing with regard to issuing a show cause order. We heard the arguments of the parties about the jurisdiction of the High Court of Justice and about the merits of the case. We immediately decided to grant a show cause order as requested. We allowed seven days for a reply. We then considered the application of the petitioners to grant an interim order, suspending the activity of the respondent as director-general until the petition was decided. We reached the decision that the interim order should be granted as requested. We ordered the suspension of the respondent’s activity as director-general of the Ministry of Building and Housing pending judgment in the petition. Several days later (on 8 February 1993), before hearing the case on its merits, we were asked by the respondents to cancel the interim order. We dismissed the application. On 10 February 1993 we decided that the question of revoking the interim order ought to be considered within the framework of the hearing of the petition itself. This hearing was set down for 16 February 1993.

15. At the beginning of the hearing of the petition (on 16 February 1993), we were told that in view of our comments during the case, and in order to remove all doubt about the validity of the appointment, the Minister of Building and Housing decided (on 1 February 1993), with the approval of the Prime Minister and the Attorney-General, to return the matter to the appointments committee for reconsideration, so that it might give its opinion about the candidate after considering all of the relevant aspects. The Government appointed an appointments committee with a different panel (D. Vinshal, H. Koversky and Prof. Z. Lev). The appointments committee convened (on 3 February 1993) and interviewed the candidate. It considered his qualifications and experience for filling the position. It was presented, by the legal adviser of the Prime Minister’s office, with factual and legal material relating to the respondent’s service in the General Security Service, and the candidate was asked questions about this matter. The committee heard arguments from the respondent’s attorney. After examining the various aspects, the committee unanimously reached a decision to recommend that the Government appoint the respondent. The committee’s position was presented to the Government, and it decided once again to appoint the respondent.

16. The new decision of the appointments committee makes it unnecessary to make a decision about the propriety of the original proceedings before the appointments committee and the effect of that impropriety on the decision of the Government. Notwithstanding, in view of the respondents’ position in principle that even if there was a defect in the decision of the appointment’s committee, this was insufficient to make the Government’s decision defective, we ought to take a position on this matter. The premise is that the appointments committee was not established by the Appointments Law. Nonetheless, it was established by virtue of a decision of the Government, acting under s. 12 of the Appointments Law. The Government may, of course, change its decision without needing to change the law, if it thinks that the arrangement with regard to the appointments committee needs to be amended. However, as long as the Government has not decided otherwise, the decision — enshrined in s. 12 of the Appointments Law — that the procedure for making a decision about the appointment of a director-general of a ministry has three stages, remains in force. These stages are: the proposal of the responsible Minister; the opinion of the appointments committee; the decision of the Government. Each of these stages is essential for making the final decision about the appointment. Admittedly, the Government is not bound to accept the recommendation of the appointments committee. But it must consider this opinion ‘with an open mind’ (HCJ 653/79 Azriel v. Director of Licensing Department, Ministry of Transport [18], at p. 96). The opinion of the appointments committee is an important factor in the Government’s decision-making process. It is not a mere ‘formality’. My colleague, Justice Mazza, rightly pointed out that:

‘… it is insufficient to hold a consultation, as though it were a religious ritual, merely in order to satisfy the formal requirement of the law that requires it to be held. A ‘consultation’ that is an empty shell does not discharge the competent authority of its duty’ (CrimA 22/89 Azva v. State of Israel [19], at p. 597).

From this we can also see that it is important for the appointments committee to consider the matter properly, since the Government relies on its opinion. It is possible that as a result of a proper consideration — during which the whole picture would have been presented to the first appointments committee — its opinion would have been different. A different opinion of the appointments committee would possibly have led to a different decision of the Government. But the consideration that was made by the appointments committee was not a proper one. It was not shown the whole picture. It was not presented with all the facts. The recommendation focused on the respondent’s qualifications, and did not take into account at all his part in the ‘300 bus’ affair or the ‘Nafso’ affair. In these circumstances, had this recommendation and the Government’s decision that followed it remained as they were, there would have been no alternative but to invalidate the recommendation (of the appointments committee) and the decision (of the Government). However, as stated, the defect was repaired. A new appointments committee reconsidered the matter. Its opinion was considered anew by the Government. Now we must examine the legality of the decision of the Government itself.

The respondent and the Nafso affair

17. Nafso was an IDF officer, holding the rank of lieutenant. He was arrested (in 1980) on suspicion of treason, grave espionage, assisting the enemy and assisting the enemy during wartime. He was interrogated by a team of the General Security Service. The respondent headed the team. At the end of the interrogation, he made a handwritten confession. On the basis of this confession, together with ‘something extra’, Nafso was convicted by the Special Court Martial. He was sentenced to eighteen years imprisonment, was discharged from the army and was stripped of his military rank. His claim that his confessions were inadmissible, because they were elicited from him by improper means, was rejected by the trial court. His interrogators (including the respondent) testified in the Special Court Martial that the confession had been made freely and voluntarily, without any means of pressure being exerted on him. His appeal to the Appeals Court Martial was denied. An appeal by leave was heard in the Supreme Court (CrimA 124/87 Nafso v. Chief Military Prosecutor [20]). At the beginning of the appeal hearing, the Chief Military Attorney notified the court that before the appeal hearing, the GSS had conducted an investigation of the claims that Nafso had raised in his trial about improper means used against him during his interrogation. The Military Attorney himself conducted his own investigation. According to the results of the investigation, there was truth in most of Nafso’s claims about pressures that had been exerted on him with regard to his confessions, and which he alleged had affected his free will. According to Nafso, acts of violence had been perpetrated against him, which included pulling his hair, shakings, throwing him on the ground, kicks, slaps and humiliations. He had been ordered to undress and was sent to have cold showers. He was deprived of sleep for long periods during the day and especially at night. He was forced to stand in the prison yard for many hours, even when he was not being interrogated. He was also threatened with the arrest of his mother and wife and with the publication of intimate information about him that was in the possession of his interrogators. According to the Military Attorney’s notice to the court, apart from the claim that he was hit or slapped, the truth of most of Nafso’s claims about the method of his interrogation was confirmed. In view of these findings, the Military Attorney agreed that Nasfo’s conviction should be overturned. Within the framework of an agreement between Nafso and the Chief Military Attorney, Nafso confessed to a crime of overstepping his authority to a degree endangering State security (an offence under s. 73 (first part) of the Military Jurisdiction Law, 5715-1955). The Supreme Court allowed the appeal, overturned the conviction and the sentence imposed by the Special Court Martial and it convicted Nafso of an offence under section 73 (first part) of the Military Jurisdiction Law. He was sentenced to twenty-four months imprisonment from the date of his arrest and was relegated to the rank of sergeant-major.

18. In his opinion, President Shamgar said: ‘It became clear to us from the statement of the learned counsel for the State that, in his opinion, the General Security Service interrogators exceeded, in view of the cumulative effect of their acts, what was permitted and went from bad to worse when, in testifying before the Special Court Martial about the interrogation of the appellant, they lied by denying the main claims of the appellant about the interrogation methods’ (ibid., at p. 636). In assessing this behaviour, President Shamgar noted:

‘We should not minimize the seriousness of this conclusion, which shows the indifference of the aforesaid witnesses to the duty to tell the truth when testifying before a court. These acts involve extreme damage to the integrity of the agents of the said branch of Government. In this way, the court was prevented from deciding the appellant’s case on the basis of true facts, and the standing and authority of the court that was led astray by the statements of the interrogators were damaged.

The grave act discovered in this case, which led the court to base its findings on confessions after incorrect facts were given to the court about how they were obtained, requires decisive measures be taken in order to uproot this kind of phenomenon, and we therefore draw the attention of the Attorney-General to it’ (ibid.).

19. In the wake of the ‘Nafso’ affair, the Government decided (on 31 May 1987) ‘that the issue of the interrogation methods of the General Security Service regarding hostile terrorist activity is a matter of critical public importance at this time, and it requires investigation.’ On this basis it was decided to establish a commission of enquiry, under s. 1 of the Commissions of Enquiry Law, 5729-1968, ‘about the interrogation methods and procedures of the GSS with regard to hostile terrorist activity and testifying in court about these interrogations.’ The president of the Supreme Court appointed a Commission of Enquiry (Justice (ret.) Moshe Landau, chairman of the Commission, Yaakov Malz (then State Comptroller) and General (res.) Yitzchak Hofi) (hereafter — ‘the Landau Commission’). The Landau Commission submitted a report to the Government (The Commission of Enquiry regarding interrogation methods of the General Security Service regarding hostile terrorist activity — Report, Part 1). One of the chapters of this report was devoted to the Nafso affair. The Commission reiterated the determinations of the Supreme Court. Furthermore it pointed out that in the internal investigation conducted in the Security Service before the hearing of Nafso’s appeal, Nafso’s interrogators claimed that ‘in using means of pressure they did not deviate from what they were permitted in the guidelines of the Service that existed at that time, and what was worse, they claimed that when they perjured themselves in the trial court, where they denied using these means of pressure, they had not deviated from what was accepted practice in the Service, and this was done with the knowledge of their superiors’ (p. 7). The Commission determined that ‘to our great regret and shame, we must find that these claims about the permission to use pressure, and the “norm” of committing perjury in court in this respect, have been proved to us to be correct’ (ibid.).

20. Later on in the report, the Landau Commission noted that the General Security Service takes great care:

‘not to accept from persons being interrogated false confessions based on untrue facts. The aim is to obtain true confessions, even if with psychological pressure, and sometime even with physical pressure, as was used against Nafso. Any false confession mistakenly thought to be true obviously undermines the Service’s efforts to frustrate hostile terrorist activity. For this reason, a thorough comparison is made between information obtained in a confession and information received from other persons being interrogated and information received by the Service from confidential sources that cannot be disclosed in court’ (ibid.).

This background emphasizes the difference between the Service’s normal interrogations and the interrogation of Nafso:

‘Fundamental differences of opinion emerged between the eight interrogators who participated in the interrogation at various stages: two of them believed that Nafso was entirely innocent, and there was one who held that he committed all the offences of which he was accused, whereas the head of the team himself had doubts about Nafso’s guilt in the most serious indictment, about the smuggling of the weapons into Israel’ (ibid., at p. 8).

In summing up the Nafso affair, the Commission of Enquiry pointed out:

‘This affair should shock and terrify us, not merely because of the miscarriage of justice towards Nafso personally, but no less because of the corruption of values in committing perjury, which was brought out into the open and which must now be completely eliminated’ (ibid., at p. 9).

At the end of the report several recommendations were made. We will address these below. Now we will turn to the ‘300 bus’ affair and the respondent’s involvement in that matter.

The respondent and the ‘300 bus’ affair

21. The Landau Commission mentioned the ‘300 bus’ affair. But its mandate did not relate to this affair, and the Commission’s report does not contain detailed findings about this matter. We will base our findings mainly on the judgment of this Court in HCJ 428/86 Barzilai v. Government of Israel [21] and the ‘Opinion about the Investigation of the 300 Bus Terrorist Incident’; this opinion was prepared by a team (Y. Karp, E. Arbel, and Y. Elisof) appointed by the Attorney-General, Mr Y. Harish. The opinion was submitted to us by the petitioner (in HCJ 6163/92), and no claim was raised by the respondents in this respect. We are not analysing all aspects of the ‘300 bus’ affair; we are limiting ourselves merely to the respondent’s part in this affair.

22. On 12 April 1984, a group of four terrorists hijacked an Egged bus on line 300 and threatened the lives of its passengers. The bus was stopped by the security forces. At dawn the next day, military personnel stormed the bus. In the first burst of fire, two of the terrorists were killed. The remaining two terrorists were beaten by soldiers immediately after they stormed the bus in order to stun them, because of a fear that they might detonate an explosive device in their possession. The two were removed from the bus alive. Later it was reported that they had died. It was not reported that the two were shot dead by General Security Service agents, who acted on the orders of the Head of the Service. A demand arose to investigate the circumstances of the two terrorists’ deaths. The Minister of Defence at that time, Moshe Arens, established a commission of enquiry (under s. 537 of the Military Jurisdiction Law). The members of the Commission were General (Res.) M. Zorea, chairman, and the respondent, who was at that time a senior employee in the General Security Service. The Zorea Commission’s mandate was ‘to determine the facts relating to the cause of death of the terrorists, to draw conclusions and make recommendations, including conclusions and recommendations on a personal level.’ The Head of the Service initiated activity to prevent a leak of information about the circumstances of the case and for this activity he recruited a number of secret partners. Among the secret partners was the respondent, who was appointed a member of the Zorea Commission. Upon the appointment of the respondent as a member of the Zorea Commission, he was ordered by the Head of the Service to find out the circumstances of the killing of the terrorists. Members of the Service gave him full details about what actually happened at the time of the event. They agreed on a cover story for the Zorea Commission and on a briefing of the witnesses. The Head of the Service issued a directive not to speak about the killing before the Commission. The respondent knew of the directive. Throughout all the deliberations of the Commission, the Security Service personnel denied the role of the Security Service in the killing of the terrorists. Throughout the whole period of the activity of the Zorea Commission (26 April 1984 – 18 May 1984), meetings took place each night between Security Service personnel involved in the affair. The respondent also participated in those meetings. He apprised the participants of the Commission’s deliberations, and the versions of the events to be testified by the Service personnel before the Commission were formulated and coordinated, all for the purpose of distancing the investigation from the issue of the killing. According to the understanding reached in these meetings, the various witnesses who testified before the Zorea Commission received briefings. When the Zorea Commission finished its work, it submitted a report (on 20 May 1984). The report of the Zorea Commission was not made public. From a note written by Prof. Zamir, the Attorney-General at the time, we learn that the Zorea Commission —

‘reached the conclusion that no-one gave an order to kill the two terrorists, but they were beaten to death by enraged soldiers during their interrogation. Only one suspect was identified by the Commission — the Chief Paratroopers Officer’ (I. Zamir, ‘The Attorney-General at a Time of Crisis: The General Security Service (GSS) Affair’ Sefer Uri Yadin, Boursi, vol. 2, A. Barak and T. Shapnitz eds., 1990, 47, 50).

On the basis of the Zorea Commission’s report it was decided to conduct an investigation in order to clarify the suspicion about the commission of offences with regard to the death of the two terrorists. It was decided to establish a team, headed by State-Attorney, Mr Blatman. The team (appointed on 4 June 1984) took statements and collected evidence. Here too, instructions were given to conceal the role of the Security Service in the killing of the terrorists. According to the affidavit of the respondent before this Court, he had no connection with the Blatman team. The team focussed on a suspicion against Brigadier-General Mordechai, since there was no evidence against Security Service personnel with regard to their part in the killing of the terrorists. In July 1985, the Blatman team submitted a report to the Attorney-General. As a result of the report, disciplinary proceedings were initiated against military personnel and members of the General Security Service (who were acquitted on 6 September 1985).

23. After these events, the Attorney-General, Prof. Zamir, received information that the facts, in so far as they related to the role of the Security Service personnel with regard to the death of the two terrorists, were entirely different from the statements and testimonies given by the General Security Service personnel before the Zorea Commission, the Blatman team and the disciplinary tribunal of the General Security Service. After examining the matter, the Attorney-General (on 18 May 1986) filed a complaint with the Commissioner-General of the police, to the effect that information had been brought to his attention that there were grounds for suspecting that criminal offences had been committed by persons who held offices in the General Security Service. At this stage, the President of the State (on 25 June 1986) granted a pardon to the head of the General Security Service and to ten of its employees, for all of the offences involved in the so-called ‘300 bus’ affair. The respondent was also included among those who received a pardon. In the pardon document, the President said: ‘By virtue of my authority under s. 11(b) of the Basic Law: President of the State, I pardon Yossi Ginosar for all of his offences involved in the so-called ‘300 bus’ affair, from the time of the incident on the night between the 12th and 13th of April 1984 until my signing this document.’ In wording the pardon to the head of the General Security Service and to its ten interrogators, the President wrote:

‘My decision was made as a result of a profound recognition that the public interest and the State’s interest require protecting our security and saving the General Security Service from the damage that will ensue if the affair continues…   

As President of the State, I feel obliged to stand by the GSS agents, knowing as I do the devoted, strenuous and secret efforts they make day by day and hour by hour, and to prevent demoralization in the intelligence community and in the security and anti-terror establishment.

The State of Israel’s special circumstances do not allow us, nor may we allow ourselves, to undermine or hinder the security establishment and the good people who protect the nation’ (from Barzilai v. Government of Israel [21], at pp. 517-518 {6}).

In his affidavit of reply, the respondent wrote that he had initially opposed submitting an application for a pardon. He thought ‘that he had acted in the affair in accordance with clear instructions and principles identical to those practised by the Service in other cases, both before the affair and after it.’ In the end, the respondent agreed to submit the application for a pardon, because of the pressure exerted by Government representatives, who explained this pressure in light of the desire ‘to prevent an investigation during which important state secrets would be disclosed’ (affidavit of reply, at p. 6). The validity of the pardon was confirmed in the judgment of this court in Barzilai v. Government of Israel [21]. The police investigation continued and the investigation material was submitted (on 18 September 1986) to the Attorney-General, Mr. Charish. After receiving the opinion of the Karp Commission, the Attorney-General decided (on 29 December 1986) that with regard to the liability for the killing of the terrorists the pardon prevented any indictment. With regard to the obstruction of the investigation and justice, the Attorney-General pointed out that ‘the persons in the GSS personnel who orchestrated, directed and perpetrated the obstruction were also pardoned by the President of the State, and for this reason they cannot be put on trial for those offences.’ The Attorney-General also decided not to put on trial the GSS agents who were suborned to give improper evidence before the investigation authorities, since ‘as those who had suborned them were pardoned, it is not just that only they should be punished by being brought to a criminal trial.’

24. Additional details about the respondent’s share in the ‘300 bus’ affair may be obtained from the affidavit that he submitted within the framework of the proceeding regarding the legality of the President’s pardon. Details of the affidavit were included in the petition (and they also appear as an appendix to the article of M. Kremenitzer: ‘The GSS Pardon – Did the High Court of Justice Pass the Test?’ 12 Iyunei Mishpat, 595, 620), and they state the following:

‘I, the undersigned ( — ), after being warned that I must tell the truth and that I shall be liable to the penalties provided by law if I do not do so, hereby declare in writing as follows:

1.            I am the head of a department in the General Security Service.

2.            After the affair known as the ‘300 bus’ affair occurred, I was appointed, on 26 April 1984, as a member of a Commission of Enquiry into the circumstances of the deaths of two of the terrorists who took control of the bus.

3.            As a member of the Commission, I acted to conceal the part of General Security Service agents in the killing of the terrorists; thus I committed an offence or offences under the laws of the State of Israel (hereafter — ‘the offences’).

4.            I committed the offences for the purpose of carrying out my job.

5.            On 24 June 1986, the head of the General Security Service told me that he had approached the President of the State and told the President about the details of the ‘300 bus’ affair and the interrogation proceedings thereafter, including the offences that had been committed — by myself and others — in the process.

The head of the General Security Service suggested that I submit an application to the President for a pardon.

6.            As a result, on 25 June 1986 I submitted an application for a pardon to the President of the State of Israel (hereafter — ‘the application’); in signing the application and submitting it to the President, I intended to confess — and I even did confess — to committing those offences and I asked the President to pardon me for them.

7.            I argued in my application that all of my actions had been done on the instructions and with the approval of my superiors, for the sake of State security and protecting its secrets; in saying this I did not intend to claim before the President any defences that nullified those offences.

8.            I said this — as the reason for the pardon application and in order that the President and anyone else who might see my application would know — because all my actions and deeds were done in order to carry out my job and in full confidence that they were intended to serve the interests and security of the State of Israel.

9.            I hereby declare that this is my name, this is my signature and everything stated in this affidavit is true and accurate.

( — ).’

25. As we have seen, the ‘300 bus’ affair was not the focus of the deliberations of the Landau Commission. Nonetheless, the Commission did note that there was a link between the ‘300 bus’ affair and the Nafso affair:

‘… their most serious failure, with respect to the criminal conspiracy that they made to pervert the deliberations and mislead the Commissions which investigated that case — was what laid the foundation for the revelations that accompanied the Nafso affair: after trust was so severely undermined in the first case, it was impossible any longer to cover up the phenomena that were exposed in the Nafso appeal’ (ibid., at p. 3).

In discussing the ‘300 bus’ affair, the Landau Commission stated:

‘The second affair, known as the ‘300 bus’ affair, differs significantly from the practice of giving false testimony in trials within a trial. It is different, and in our opinion, far more serious. Here, in addition to the commission of perjury, there was a deliberate and intentional perversion of an investigation of a Commission by a member of the Service who was appointed as a member of that Commission. Suffice it to say that it is almost certain that an act of unparalleled gravity such as this could not have happened, and could not even have been conceived by anyone, had there not been a background of a long-standing policy of giving false testimony in the courts, which succeeded in misleading the courts in so many cases’ (ibid., at p. 30).

The Landau Commission briefly considered the respondent’s part in the ‘300 bus’ affair, stating:

‘A short time before judgment was given in the Appeals Court Martial, a criminal conspiracy was exposed between several senior members of the Service, for perverting the proceedings of Commissions that investigated the bus affair, which occurred on 12 April 1984. In the course of this conspiracy, a senior member of the Service, Mr Yossi Ginosar, acted as a “Trojan horse” on the Zorea Commission, as a member of the Commission alongside General (res.) Zorea’ (ibid., at p. 6).

26. On 30 October 1987, the Landau Commission submitted a report to the Government. On 8 November 1987, the Government decided to accept the report and all of its recommendations. The Commission’s recommendations were many and far-reaching. They deal with the proper methods of interrogation, which were intended —

‘to comply with the credo of the State, as a State governed by law and based on the foundations of morality. Any harm to these basic concepts, even against those seeking to destroy the State, is liable to repay us by corrupting internal morals’ (ibid., at p. 71).

The Commission points out that —

‘An interrogator who is summoned to testify before a court or a tribunal or any other authority that is authorized to collect evidence, shall tell only the truth and only the whole truth. This is a basic principle and in no way may it be compromised’ (ibid., at p. 75).

There are also many other recommendations. Within the framework of the petition before us, we will only consider the recommendations of the Commission about legal proceedings because of the behaviour of the Service’s interrogators in the past. With regard to all aspects of physical or psychological pressure that interrogators used against persons suspected of hostile terrorist activity, the Commission thought that as long as the acts did not deviate from the guidelines prevailing in the Service at the time of the interrogation, the interrogator who carried out the acts would have a defence of justification (under s. 24(a)(1) of the Penal Law, 5737-1977) and a defence of necessity (under s. 22 of the Penal Law). This was not the case with regard to the perjury committed by interrogators of the Service before courts or tribunals. Here the investigator would not have a defence of necessity or of obeying the orders of superiors, since ‘committing perjury is a serious criminal offence and a manifestly illegal act, over which there flies a black flag saying that it is forbidden’ (ibid., at p. 82). In this matter the Landau Commission considered the matter at some length before making a recommendation that ‘the criminal indictment of interrogators for perjury should be avoided’. The reasons of the Landau Commission for this were two: first, ‘the motive of the investigators was not a selfish one of procuring a benefit for themselves, but the thought — even if a totally improper thought — that even in this behaviour they were serving the public’ (ibid.); second — and this was the decisive reason for the position of the Landau Commission —

‘Indicting interrogators, even in some of these cases, may cause deep shock among interrogators, and moreover in the whole Service, and cause serious damage to the ability of the Service to function effectively in frustrating hostile terrorist activity. It must be taken into account that most of the interrogators liable to have criminal complaints filed against them are still members of the Service, and some of them currently hold senior positions. This is a small and close-knit group of people, who have considerable expertise that they have acquired over the years. Replacements for these persons will neither be found easily nor overnight. But the activity of the interrogation unit must continue day by day, without respite... we believe that today these interrogators, at all levels, are strongly motivated to learn the lessons of the past. It is better to allow them to concentrate on providing their essential service to the public. Perhaps this is needed less for their own interest than for the public interest. Also on the personal level, therefore, we should take a path of healing wounds rather than amputating the body of the Service, for who knows what consequences that will bring. We could not reconcile ourselves to the thought that if we were to recommend a response along the lines of “let justice run its course”, this could paralyse the interrogation work of the Service, and it is almost certain that innocent victims would die in acts of terror that the Service is capable of frustrating’ (ibid., at pp. 82-83).

In order to implement this approach, the Landau Commission made a recommendation to the Attorney-General that he should instruct ‘the police that any complaint against an interrogator of the Service for perjury in a trial with regard to the methods of interrogation that the Service used against someone interrogated by them (and also with regard to exerting improper pressure in an interrogation) should be transferred ab initio to the Attorney-General, so that he can decide whether there is a public interest in holding a trial about this matter’ (ibid., at pp. 84-85). The Landau Commission further pointed out that:

‘For the reasons we have given, we think that not only is there no public interest in holding such a trial (and the police investigation that might lead to initiating such a trial), but, on the contrary, holding such a trial would harm the public by weakening its protection from acts of terror, as a result of damage to the functioning of the Service in frustrating such acts’ (ibid., at p. 85).

This recommendation extends both to members of the Service who continue to be employed in the Service and to those whose have stopped working for it. The Commission pointed out that ‘for the same reasons of public interest, we are refraining from making a recommendation that disciplinary measures should be initiated personally against employees who continue to work for the Service’ (ibid., at p. 85).

27. As stated, the Government accepted the recommendations of the Landau Commission. The Attorney-General also accepted the report in so far as it related to his spheres of authority. During the deliberations of the Government about the conclusions of the Commission, the Attorney-General expressed his position to the Government —

‘that measures would not be taken against members of the General Security Service, who in the past were involved in improper activities committed in the course of investigating hostile terrorist activity. He also expressed his position that the police investigation, which at that time was pending against interrogators of the General Security Service with regard to the petitioner’s case should be stopped. This position was acceptable to the Government’ (from my judgment in HCJ 88/88 Nafso v. Attorney-General [22], at p. 427).

The end of the investigation with regard to the respondent and the petition relating thereto

28. As we have seen, the Attorney-General accepted the recommendations of the Landau Commission. As a result, the investigation against Nafso’s interrogators was stopped. Nafso petitioned this court against this decision of the Attorney-General (Nafso v. Attorney-General [22]). His claim was that the recommendations of the Landau Commission do not expressly refer to his interrogators. His claim was that ‘his case was not one of the cases with regard to which the Landau Commission made its recommendation’ (ibid., at p. 428). This claim was rejected by the Supreme Court. It was held that —

‘The petitioner’s case was known to the Commission, and it did not distinguish in its recommendations between his interrogators and other interrogators. The logic in the Commission’s recommendations also applies to the petitioner’s case. Thus, for example, it was not argued before us that the petitioner’s interrogators acted out of a selfish motive of obtaining a benefit for themselves. Consequently, it is clear from examining the Commission’s report that its recommendations relate to all of the Service’s interrogators, including the interrogators of the petitioner. The Commission wanted to distinguish between the past and the future, but it did not want to distinguish between different interrogators in the past’ (ibid., at p. 429).

Developments until the appointment of the respondent by the Government

29. As a result of the recommendations of the Landau Commission, no legal proceedings were initiated against interrogators of the Service who were involved in the Nafso affair, the ‘300 bus’ affair or any other cases whatsoever. The head of the Security Service at that time resigned from the Service. The other interrogators included in the President’s pardon, including the respondent, remained in the Service. From the respondent’s affidavit — which was not contradicted — we learned that some of these interrogators received promotions in the course of their employment. Most of them work in the Service in top security positions. In the affidavit in reply, the respondent pointed out that —

‘In the deliberations that preceded the granting of the pardon and which took place in the presence of the Attorney-General and the Minister of Justice at that time, Mr Yitzchak Modai, in the office of Advocate Yaakov Neeman in Jerusalem, those requesting a pardon were promised that they could remain in the employment of the GSS without any loss of rank and without any “stain on their future”. During that meeting, the Minister of Justice at the time told those requesting a pardon that the matter had already been discussed at the President’s residence and in discussions with the Prime Minister, at which the Deputy Prime Minister, the Foreign Minister, the Minister of Defence, the Minister of Justice and additional ministers participated’ (ibid., at p. 7).

30. In November 1986, the respondent left the Service. He left on his own initiative. He received a letter wishing him success from the Prime Minister and the head of the Service. The Prime Minister said that he was sorry to hear —

‘of your decision to leave your work in the Service, but this does not of course prevent me from conveying my best wishes and wishing you success in your new position, which is very important and requires a high degree of responsibility. I hope that after many years of strenuous and dedicated work for the security of the State, you will be successful and find satisfaction in everything you do’ (letter of 30 December 1986, appendix ‘C’ of the respondent’s affidavit).

The respondent was appointed, on the recommendations of the Minister of Industry and Trade, as director-general of the Israel Export Institute. He held that position for two and a half years. Recently he was appointed chairman of the board of directors of Amidar.

Proceedings of the Government with regard to the appointment

31. After receiving the (first) opinion of the appointments committee, the appointment of the respondent was submitted for Government approval. The Government discussed the respondent’s appointment at length. The Attorney-General informed the Government of the respondent’s involvement in the ‘300 bus’ affair and the granting of the pardon by the President of the State. The recommendations of the Landau Commission were also brought to the attention of the members of the Government. It was emphasized that the Commission held that what was done by the interrogators of the General Security Service in the Nafso affair was part of a practice prevailing in the Service. The Attorney-General read out to the members of the Government parts of the judgment of the Supreme Court in Nafso’s criminal appeal. The Attorney-General reported on Nafso’s petition about proceedings not being initiated against the respondent and his other interrogators. With respect to the ‘300 bus’ affair, the Attorney-General made it clear that the respondent was not involved in the incident itself, but as a member of the Zorea Commission he acted to conceal the role of GSS personnel in the affair, and with regard to this he received, at his request, a pardon from the President.

32. The Government held a thorough discussion of the issues relating to the past actions of the respondent. The Government was asked to examine whether the fact that the respondent did what he did in the past as a result of an erroneous outlook that prevailed at that time among persons who held office in the GSS, should be held against him in the long term, whereas in his favour was his work as a civil servant and his lengthy and devoted service to the Security establishment. The Attorney-General pointed out that the respondent had not acted for his own advantage, nor out of a desire for money or prestige. The Government was advised that it should weigh up the points in favour and against the respondent. A long and profound discussion took place. The respondent’s qualifications, suitability, personality and past were considered. The various considerations were balanced against one another. At the end of the deliberation, a decision was made to appoint the respondent to the position of Director-General of the Ministry of Building and Housing. The Government reached the same decision after receiving the recommendations of the second appointment committee. The petitions before us are directed against these decisions.

The arguments of the parties

33. The main argument of the petitioners is that in view of the respondent’s involvement in the Nafso affair and the ‘300 bus’ affair, he is unfit to be appointed as director-general of a Government Ministry. He lacks those moral and ethical qualities required of a civil servant at such a senior level. The petitioners emphasize that the director-general has disciplinary powers over employees of the Ministry. According to them, giving these powers to someone who was involved in acts involving moral turpitude was ‘outrageous and absurd’. The appointment of the respondent was inconsistent with the norms of behaviour required of civil servants, and a director-general ought to set an example in observing these. It sends the wrong message to the security establishment involved in interrogations, for it is likely to be interpreted as legitimizing improper interrogation methods and perverting judicial proceedings. The respondent showed contempt for the rule of law, and his appointment was inconsistent with the goal of ensuring the subservience of the civil administration to the law. The appointment of the respondent would set a precedent for appointments of candidates with doubtful pasts to senior positions in the Civil Service, something that would impair the service’s moral calibre and the public’s confidence in it. The Government’s use of its discretion in appointing a person who committed offences involving moral turpitude to the position of director-general of a Government ministry was improper. The use of this discretion was unreasonable in the extreme. With regard to the recommendations of the Landau Commission, the petitioners emphasize that these recommendations related only to a (criminal or disciplinary) indictment and they were intended to prevent damage to the General Security Service. The recommendations are totally irrelevant to the respondent’s appointment to a senior administrative position in the Civil Service. When the respondent chose to leave the General Security Service and enter public life, he must comply with the accepted behavioural norms of the Civil Service.

34. The premise of the respondents is that the Government’s power of appointment, with regard to senior positions in the Civil Service, encompasses wide discretion in matters of public ethics, which the representatives of the people are charged to protect. In view of the status of the authority making the decision (namely the Government) and the nature of its powers, the scope within which the Government may act is broad. The appointment of the respondent does not step beyond the limits of reasonableness. The Government made its decision after being apprised of all the facts, and all the relevant considerations were considered. The Government considered the question whether the fact that the respondent did what he did as a result of a very mistaken belief that prevailed in the past among persons holding positions in the Security Service should be held against him in the long term. The Government took into account the respondent’s work as a civil servant and that he served the security establishment for many devoted years and that he acted not for his own advantage nor out of a desire for money or prestige. The Government considered the points in favour and against the respondent. The respondents argue that the Government was permitted to take into account those actions for which he received a pardon, but in addition it was also bound to take into account the fact that the pardon was granted and its circumstances. The respondents emphasize that there is no prohibition in law against the appointment of a person with a criminal past to the position of director-general in a Government Ministry and that the Government’s decision did not step beyond the limits of reasonableness.

35. The respondent’s argument is that the Government’s decision is reasonable. With regard to the ‘300 bus’ affair the respondent received a pardon. The purpose of the pardon was to prevent an investigation and exposing secrets critical to State Security. In deliberations prior to the granting of the pardon, the Attorney-General and Government representatives promised those receiving pardons that their rank would not be affected and their future would not be stained. Because the pardon was given, the respondent was denied the possibility of facing the charges against him. This position is now working against him. The respondent points out that many of those who received pardons continued to serve in the Service, including those directly responsible for the killing of the terrorists, and they were promoted in the course of their employment and they serve today in top security positions. With regard to the Nafso affair, the respondent refers to the findings of the Landau Commission, that the interrogation methods of the respondent were part of the norms that had become accepted in the Service for many years and which were known and accepted at the executive and political levels. Acting according to these norms did not disqualify any of those involved in this affair from serving in the General Security Service nor did it prevent their promotion. Against this background, the respondent claims that the appointment is not unreasonable in the extreme. The contrary is true: setting the appointment aside would be unreasonable in the extreme and would be contrary to basic legal principles. Setting the appointment aside would amount to adopting a double standard in comparison with other appointments in the Civil Service, which do not receive the publicity caused by exposing the identity of the respondent. The disqualification would amount to a reopening of a debate that was closed and sealed and would prejudice the respondent’s right to the finality of proceedings. Since the respondent was not given his day in court with respect to the affairs in which he was involved, his disqualification would contradict the basic principle that a person is innocent until proven guilty. Disqualification of the respondent would amount to discrimination against him as compared with the other members of the Service who were anonymous and who held many positions in the Civil Service, just as in the General Security Service. For this reason, disqualification of the respondent amounts to prejudice and arbitrariness. From a viewpoint that encompasses all the details and the facts, disqualifying the respondent would place the responsibility for the failings of the whole establishment on a single individual who had left it, and even taint him personally. The enquiries made in both cases were on the level of the establishment; using them for drastic measures on a personal level is not only unjust but is even erroneous from a legal viewpoint.

36. At the beginning of the proceedings in the petition, the seventh respondent (Tarek Abed Al Chai) and the eighth respondent (Zeidan Muhammed) applied to join the petition as respondents. We granted the application. These respondents presented themselves as leaders of the Arab community in Israel. They pointed out that the Arab population is necessarily more sensitive than any other community in the State to the interrogations and activities of the General Security Service. Against this background the request of these respondents is not to disqualify the appointment on grounds of extreme unreasonableness. Within the framework of the faith that the Arab community has for the Government establishment, and knowing the positions of the respondent, which are in favour of a relationship of absolute equality and preventing differences between the Jewish and Arab citizens of the State, it is the opinion of the seventh and eighth respondents that reasonableness demands the approval of the appointment of the respondent as director-general in the Ministry of Building and Housing.

The general normative framework: Government discretion

37. The power of the Government to appoint a director-general of a ministry is enshrined in s. 12 of the Appointments Law. This law does not include provisions about the appointment of an employee with a criminal past. It does not contain any provision restricting the Government’s power of appointment, or disqualifying a person from being appointed as a civil servant if he has a criminal past. Provisions disqualifying candidates for public office because of a criminal past (in general) or offences involving moral turpitude (specifically) exist in many countries (see: 63A Am. Jur. 2d, Rochester and San Francisco, 1984, 690; 67 C.J.S., St. Paul, 1978, 253; and also ‘The Collateral Consequences of a Criminal Conviction,’ 23 Vand. L. Rev., 1969-1970, 929). In Israel too there are provisions of this kind in various laws (see s. 7(6) of the Local Authorities (Elections) Law, 5725-1965); a provision in this vein was also included in the draft Civil Service Law, 5713-1953, which stipulated, inter alia, that ‘anyone convicted of an offence which in the opinion of the Civil Service Commissioner involved moral turpitude…’ would not be appointed as a civil servant (section 14(a)). This provision does not appear in the Appointments Law. It follows that the existence of a criminal past does not, in itself, negate the Government’s authority to make an appointment or the fitness of the candidate. The courts should also not create a restriction of (the Government’s) power or a restriction of (the candidate’s) fitness: ‘in the absence of statutory conditions of competency, we should not stipulate conditions of fitness in case-law…’ (HCJ 727/88 Awad v. Minister of Religious Affairs [23], at p. 491).

38. Notwithstanding, we must distinguish between questions of competence (or authority) and questions of discretion. The absence of an express statutory provision regarding the disqualification of someone with a criminal past establishes the candidate’s competence, but it does not preclude the possibility of considering his past within the framework of exercising the administrative discretion given to the authority making the appointment. Indeed, the criminal past of a candidate for public office is a relevant consideration, which the authority making the appointment is entitled and obliged to take into account before making the appointment. I discussed this with regard to the appointment of a candidate with a criminal past as a member of a religious council, where statute did not provide any disqualifying provisions, pointing out:

‘...even someone convicted of an offence involving moral turpitude is competent to be appointed as a member of a religious council… Nonetheless, the competency of the candidate is distinct from the administrative discretion of the person making the appointment. Therefore, even if a person convicted of an offence involving moral turpitude is competent to be appointed as a member of a religious council, this does not legitimize the use of administrative discretion to appoint a person who committed an offence involving moral turpitude as a member of a religious council. It is true that the absence of any provision about the competence of someone convicted of an offence involving moral turpitude implies the absence of an absolute bar to the appointment of such a person as a member of a religious council. Nonetheless, the appointment of a person as a member of a religious council must be made after weighing up all the relevant considerations, and only these considerations.

A conviction for an offence involving moral turpitude is, without doubt, a relevant consideration that any authority making an appointment is permitted and obliged to take into account before making the appointment’ (Awad v. Minister of Religious Affairs [23], at p. 491).

Indeed, no-one has a natural or constitutional right to be appointed to a public office. A person’s right is that he is able to present his candidacy for a public office, and that in his appointment only lawful considerations will be considered. Among the lawful considerations that the public authority must take into account is also the consideration relating to the past of the candidate, including his criminal past. The legal basis for this determination is twofold:

39. First, there is a presumption with regard to all legislation granting an executive authority a power to make an appointment that the power shall be exercised after considering the criminal past of the candidate. One should not assume that the legislator — when empowering the executive authority to exercise the power of appointment — allowed this power to be exercised without taking into account the fact that a candidate has a criminal past. Indeed, all legislation is made within the framework of a ‘normative environment’. ‘An expression in a statute is an entity that lives in its environment’ (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [24], at p. 513). The environment of the statute is not merely other laws relating to the same issue. The environment of the statute is a whole range of attitudes, values, principles and interests that a legal norm in that legal system is intended to realize (see CA 165/82 Kibbutz Hatzor v. Assessing Officer, Rehovot [25], at p. 75). This environment influences the interpretation of every piece of legislation. It is a kind of ‘normative umbrella’ that extends over all legislation (see HCJ 14/86 Laor v. Film and Play Review Board [26], at p. 433). This ‘normative umbrella’ includes, inter alia, the democratic nature of the State (CA 752/78 Authority under the Victims of Nazi Persecution Law, 5717-1957 v. Frisch Estate [27], at p. 208), the need to maintain law and order and the belief that every executive authority must act reasonably and fairly (Israel Contractors and Builders Centre v. Government of Israel [16]). From these principles we derive the principle that a public authority is the trustee of the public, and its every action and decision must be made while taking this duty of trust into account.

40. Indeed, the duty of the public authority to take into account among its considerations the criminal past of the candidate when it is appointing a person to public office derives from the status of the public authority. The public authority is a trustee of the public. It has nothing whatsoever of its own. All that it has, it has for the public (see HCJ 1635/90 Jerezhevski v. Prime Minister [28], at p. 840). Justice H. Cohn discussed this and pointed out:

‘… the private domain is not like the public domain, for the one acts with regard to its own property; if it wishes, it may give, and if it wishes, it may refuse. The other was entirely created merely to serve the common good, and it has nothing of its own: everything that it has is deposited with it as a trustee, and as for itself, it has no rights or duties that are in addition to, or different and distinct from, those that derive from this trust or that were conferred on it or imposed on it by virtue of statutory provisions (HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [29], at p. 331).

Indeed, ‘the public figure is a trustee of the public; he does not act for himself but he acts for the public interest’ (HCJ 669/86 Rubin v. Berger [30], at p. 78). This status of trust imposes special duties on the executive authority. It is not free in its considerations. The duty of trust gives rise to a duty to exercise executive discretion fairly, honestly, reasonably and without discrimination. I discussed this in one case, pointing out:

‘Through those acting on its behalf, the State is the trustee of the public, and the public interest and public property have been entrusted to it to be used for the common good…

This special status is what subjects the State to the duty to act reasonably, fairly, in good conscience and in good faith. It is forbidden for the State to discriminate, act arbitrarily or without good faith or to be in a position of a conflict of interests. It must comply with the rules of natural justice. In short, it must act fairly’ (Israel Contractors and Builders Centre v. Government of Israel [16]).

In a similar vein, Vice-President Justice Elon said:

‘A public authority that appoints an employee of the Civil Service, acts as a trustee of the public. It is one of our greatest principles that this duty of trust must be exercised fairly, honestly, without improper considerations and for the public good, for the appointing authority is given its power of appointment by the public and for the public’ (HCJ 4566/90 Dekel v. Minister of Finance [31] at p. 33).

41. From the status of the public authority as trustee this court has derived a series of specific obligations that bind the authority. Thus, for example, because the public authority is the trustee of the public it must make information in its possession available to the public (Shapira v. Bar Association District Committee, Jerusalem [29]); it is forbidden to be in a situation of a conflict of interests (HCJ 531/79 Petah-Tikvah Municipality Likud Faction v. Petah-Tikvah Municipal Council [32], at p. 570; CrimA 884/80 State of Israel v. Grossman [33], at p. 416); it must honour promises and agreements that it made (Jerezhevski v. Prime Minister [28]). From the duty of trust imposed on the executive authority we derive its obligation not to make an appointment merely because of the political affiliation of the candidate (HCJ 313/67 Axelrod v. Minister of Religious Affairs [34], at p. 84). ‘When a public figure appoints an employee of the Civil Service in accordance with improper considerations of party-political interests, such an appointment is improper, and it involves a breach of trust against the public who empowered the authority making the appointment’ (Vice-President Justice Elon in Dekel v. Minister of Finance [31], at p. 35). Similarly, ‘the duty of trust gives rise also to a duty of disclosure’ (HCJ 1601/90 Shalit v. Peres [35], at p. 365 {221}), such as the duty to disclose political agreements. The duty of trust gives rise to the duty of the executive authority ‘to act in accordance with professional ethics’ (Shalit v. Peres [35], citing I. Zamir, ‘Political Ethics’, 17 Mishpatim, 1987-1988, 250, 261. See also Y. Eliasof, ‘The Ethics of Civil Servants in Israel’, 2 Labour Law Annual, 1991, 47). In summarizing this issue I said:

‘Indeed, the duty of trust requires fairness, and fairness requires honesty, objectivity, equality and reasonableness. This list of principles deriving from the status of trust is not exhaustive, nor is this list of values deriving from the duty of fairness frozen. It is the nature of principles and values that they are both stable and evolving. They are rooted in the soul of the nation and do not bend in temporary, passing trends. They are full of vitality and evolve in order to provide fitting solutions to new problems…’ (Jerezhevski v. Prime Minister [28], at p. 841).

42. From the trustee status of the public authority we derive its duty to consider the criminal past of a candidate before making the appointment. An appointment of a civil servant with a criminal past affects the functioning of the public authority and the attitude of the public to it. It has (direct and indirect) ramifications on the public’s confidence in the public authority. The authority making the appointment must take these considerations into account. An individual running his own business who has no duty of trust to another may employ any worker, whatever his criminal past. He may even decide that he wishes to rehabilitate criminals and that in doing so he is even making an important contribution to the society. A public authority does not run its own business, and it has a duty of trust to the public. It too may employ workers with a criminal past, and the consideration of rehabilitating the criminal is also a consideration that should be taken into account. Nonetheless, it is not the only consideration that must be taken into account. The public authority must consider an intricate and complex array of considerations, including the consideration relating to the effect of the appointment on the Civil Service and the public’s confidence in it. That is why we said that the duty of trust that binds the public authority imposes on it the duty to include among its considerations the criminal past of the candidate. An indication of this can be found in the Criminal Register and Rehabilitation Law, 5741-1981. Under this law, the police maintain a criminal register, containing records of convictions and sentences (ss. 1 and 2). The register is secret and information can only be transferred from it in accordance with the Register Law itself (s. 3). The register is obviously available for police activity (s. 4(a)(1)), and the police may transfer information from it to the Government ‘for the purpose of the appointment of office-holders whom it is obliged to appoint…’ (s. 5(a) of the Criminal Register and Rehabilitation Law, and s (c) of the First Schedule to that law). The police may also transfer information to the Civil Service Commissioner, with regard to State employees, and to additional public authorities stipulated in the First Schedule for the purpose of appointments that they make.

43. Until now I have examined the first legal basis from which we derive the duty of an executive authority — every executive authority — as trustee of the public, to include among its considerations, when appointing a civil servant, the criminal past of the candidate. This is a general legal basis, from which derives the duty of every executive authority. This duty is of course also imposed on the Government as one of the executive authorities. It is imposed on it especially, since it is ‘the executive authority of the State’ (s. 1 of Basic Law: The Government), which has a duty of trust to the entire public in Israel. It seems to me that the Government’s duty to take the candidate’s criminal past into account derives also from an additional source. Indeed, there is a second, specific legal basis, from which it can be inferred that in making an appointment of a director-general the Government must take the criminal past of the candidate into account. This specific obligation derives (indirectly) from the provision of s. 46(a) of the Appointments Law. This provision stipulates:

‘Notwithstanding anything stated in this law, the Civil Service Commissioner may refrain from appointing a person as an employee of the State in each of the following cases:

(1) The person committed an offence against this Law in order to obtain the appointment or has a criminal past;

(2) The person was dismissed by virtue of a decision in a disciplinary proceeding held in accordance with statute; and if he appointed such a person, he may revoke the appointment.’

Section 46 of the Appointments Law empowers the Civil Service Commissioner to prevent certain appointments, including the appointment of a person with a criminal past. It seems to me that this provision applies to the appointment of any person as an employee of the State. In this respect, it is irrelevant to ask whether the appointment was made by appointing the successful candidate in a tender, or without a tender by virtue of a Government decision or with the Government’s approval. In every appointment, the substantive decision is not within the jurisdiction of the Civil Service Commissioner, but that of various bodies on whom the law confers the power to make the substantive decision. Nonetheless, ‘the appointment of an employee of the State shall be made in writing, signed by the Civil Service Commissioner, and he shall also sign the letters of appointment of those appointed by the Government under this law…’ (s. 17), and before the Civil Service Commission does so — as a final barrier before the appointment — he may, and he is obliged, to examine whether the appointment was obtained by means of an offence, and whether the candidate was not dismissed by virtue of a decision in a disciplinary proceeding or ‘has a criminal past’, and if the Civil Service Commissioner appointed such a person, ‘he may revoke the appointment’. This is an important power — a kind of objective brake before an appointment — that the law confers on the Civil Service Commissioner.

44. According to its wording, the provision of s. 46(a) of the Appointments Law does not apply to the Government. Nor does it apply to the various tender committees that select State employees. The provision of s. 46(a) applies directly to the Civil Service Commissioner, and to him alone. Nonetheless, the provision of s. 46(a) of the Appointments Law applies indirectly also to the other executive authorities that make appointments within the framework of the Appointments Law. Indeed, if the Civil Service Commissioner may refrain from appointing a person as a State employee if he has a criminal past, it is fitting that the other authorities making appointments or approving them under the Appointments Law should also consider this factor. It seems to me that in accordance with the substance of the text, we should regard the Service Commissioner as a kind of a last filter, considering factors that should have been considered in the past, but which were forgotten or not given the proper weight. One should not assume, in view of the nature of the considerations, that we are dealing with a consideration that is exclusive to the Civil Service Commissioner and which only he — because of his special status — may consider. Indeed, the power of the Service Commissioner to prevent an appointment of a person with a criminal past reflects on the range of considerations for authorities that make decisions about appointments and it gives them the right and the duty to take this consideration into account.

The weight of the factor of a criminal past in the appointment decision

45. We have seen that the criminal past of a candidate for public office is a relevant consideration, which the executive authority making the appointment must take into account among its considerations. Against this background — and assuming that the candidate is found suitable in all other respects — what weight should be attached to the consideration of the criminal past? In order to answer this question, we must ascertain the reasons why the criminal past of a candidate is a factor that should be taken into account. On the one hand, there are considerations relating to the need to rehabilitate offenders and to help them integrate into society. Neither the conviction nor the sentence is death, and at the end of the criminal proceeding the offender should be allowed to find his place in the community and society. The principle of ‘repentance’ is one of the principles of our legal system, which we have received from the tradition of our past (see BAA 18/84 Carmi v. State Attorney [36], at p. 375). The Civil Service must make its contribution to a person’s rehabilitation and his rebuilding as a loyal citizen. Indeed, ‘a person should not be reminded of his sin all his life, and we should allow him to turn over a new leaf in his life and encourage his rehabilitation and full reintegration into society’ (draft Criminal Register and Rehabilitation Law, 5741-1981, at p. 218). He should be allowed to ‘integrate into society as one among equals’ (Vice-President Justice Elon in Carmi v. State Attorney [36], at p. 375). ‘We should not lock the door against sincere and genuine penitents; on the contrary, in the absence of a serious reason, they should be allowed to return to their normal lives, professions and even to their jobs’ (Justice Kister in BAA 1/68 A v. Attorney-General [37], at p. 679). ‘Yesterday this person was hated by the All-present, detested, distant and an abomination, and today he is beloved, pleasant, nearby and a friend’ (Maimonides, Mishneh Torah, Laws of Repentance 7 6 [61]). Indeed, a civilized society does not pursue its criminals to destruction but extends to them a hand, for their benefit and its own benefit (see S.Z. Feller ‘Rehabilitation: A Special and Necessary Legal Institution’ 1 Mishpatim, 1968, 497). The Civil Service must make its contribution to this mission.

46. The rehabilitation of the offender is not the only consideration to be taken into account. It is opposed by important considerations relating to the Civil Service. The Civil Service is, as we have seen, a trustee of the public. It must ‘maintain and safeguard the interests of the public as a whole’ (Justice Agranat in CA 254/64 Hassin v. Dalyat al Carmel Local Council [38], at p. 25). Entrusting a public office to a civil servant with a criminal past may affect the proper discharge of the office. But beyond this, it is the public interest that there should be a ‘Civil Service that is orderly, responsible and has a fitting public standing…’ (Petah-Tikvah Municipality Likud Faction v. Petah-Tikvah Municipal Council [32], at p. 571); the civil servant must be of proper moral standing, and a State employee who has a criminal past is likely to harm these goals of the Civil Service. This ‘requires the public’s faith in the fact that the decisions of civil servants are objective, and are made honestly and fairly’ (ibid.). Indeed, the key to the existence of a Civil Service worthy of the name is the public’s faith in the integrity of the Civil Service. The prestige of public administration and the public’s faith in it are a public interest of great importance (cf. CrimA 521/87 State of Israel v. Einav [39], at p. 434). We must ‘protect the Civil Service from corruption, ensure its proper activity on the one hand and the public’s respect for the Civil Service and trust in the propriety of its activities on the other…’ (Vice-President Justice Elon, in CrimA 121/88 State of Israel v. Darwish [40], at p. 682). Indeed, there is a continuing public interest in the rectitude of the Civil Service and the need to ensure public trust in the organs of Government (Awad v. Minister of Religious Affairs [23], at p. 492). In fact, I discussed this in one case, and pointed out that:

‘Without public trust Government authorities cannot function. This is the case with regard to public trust in the courts… this is also the case with regard to public trust in other Government authorities’ (Barzilai v. Government of Israel [21], at p. 622 {104}).

Indeed, without public trust in public authorities, the authorities will be an empty vessel. Public trust is the foundation of public authorities, and it enables them to carry out their function. The appointment of someone with a criminal past — especially a serious criminal past like someone who committed an offence involving moral turpitude — harms the essential interests of the Civil Service. It undermines the proper performance of its function. It undermines the moral and personal authority of the office holder and his ability to convince and lead. It undermines the trust that the general public has for the organs of Government. In the language of Prime Minister David Ben-Gurion, when presenting the draft Civil Service Law in the Knesset at the first reading, the Civil Service must be —

‘a haven for every citizen, a stronghold for the State and a credit to itself’ (Knesset Proceedings 14 (1953) 1425).

The weight attaching to a criminal past

47. The criminal past of a candidate for public office must be taken into account among the considerations of the authority making the appointment. The weight attaching to this consideration varies in accordance with its effect on the reasons which require it to be taken into account. Someone who committed an offence in his childhood cannot be compared with someone who committed an offence as an adult; someone who committed one offence cannot be compared with someone who committed many offences; someone who committed a minor offence cannot be compared with someone who committed a serious offence; someone who committed an offence in mitigating circumstances cannot be compared with someone who committed an offence in aggravated circumstances; someone who committed an offence and expressed regret cannot be compared with someone who committed an offence and did not express any regret for it; someone who committed a ‘technical’ offence cannot be compared with someone who committed an offence involving moral turpitude; someone who committed an offence many years ago cannot be compared with someone who committed an offence only recently; someone who committed an offence in order to further his own agenda cannot be compared with someone who committed an offence in the service of the State.

48. Moreover, the type of office that the civil servant is supposed to hold also affects the weight of the criminal past in the holding of that office. A minor position cannot be compared with a senior position; a position in which one has no contact with the public cannot be compared with one where there is contact with the public; a position not involving the control, supervision, guidance and training of others cannot be compared with one involving authority over others and responsibility for discipline. Someone who holds the office of a follower cannot be compared with someone who holds the office of a leader; an office that in essence does not make special ethical demands on its holder and on others cannot be compared with an office that is entirely devoted to encouraging a high ethical standard.

49. Finally, the question to what degree is it essential that the candidate for a public office holds that office must be taken into account. A candidate who is one of many cannot be compared with a candidate who is unique, such that only he can, in certain unusual circumstances, carry out the office. One must also consider the question whether there exists a real situation of emergency that requires recruiting everyone, including those with a criminal past, or whether we are dealing with the ordinary activity of public administration, which must derive its strength from upright employees.

Balancing the conflicting interests

50. Sometimes the legislator stipulates that a person with a criminal past cannot hold a certain office. In such a case, the legislator has balanced the various considerations that must be taken into account with regard to the appointment of a person with a criminal past to a public office. In such a balance the legislator determines that the considerations of the integrity of the Civil Service shall prevail. A person with a criminal past cannot be appointed to that office. The court, when required to interpret such a provision, may not determine a balance which is different to the one determined by the legislator. All that remains for the court to do is to determine whether the candidate has ‘a criminal past’. The court deals with the process of sorting and categorization (see K.M. Sullivan, ‘Post-Liberal Judging: The Roles of Categorization and Balancing’ 63 U. Colo. L. Rev., 1992, 293). Note that in order to determine the existence of a category (‘a criminal past’) an act of balancing may be required. This will be a balance between the various aims that make up the purpose underlying the expression ‘criminal past’ in a particular context. This will not be a balance between the various aims that prevail in determining the law with respect to the appointment of someone with a criminal past to a public office.

51. In the petition before us there is no legislative norm establishing statutory rules of competence. There is no legislative norm providing that a person with a criminal past cannot be appointed director-general of a Government ministry. The normative framework merely provides that in making the appointment of director-general, the Government must take into account, inter alia, also the consideration that the candidate has a criminal past. This is not the only consideration. Alongside it there are considerations relating to the personal qualifications of the candidate and his ability to carry out the office in the best possible way. The Government must take all the considerations into account. Since some of the considerations tend to favour the appointment (the suitability of the candidate, the need to rehabilitate him) and others tend to oppose it (the undermining of the fulfilment of the office because of the criminal past, the harm to the public’s confidence in the executive authority), the executive authority must balance the conflicting considerations. This balancing must be done reasonably and it may not be extremely or manifestly unreasonable. Indeed, a basic principle of administrative law is the one that requires an executive authority to act reasonably (see HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [41], at p. 445). The meaning of reasonableness is that the executive authority must balance the different interests in accordance with the proper weight of each of these. ‘A balance may be deemed reasonable if the competent authority accords the proper weight, i.e., the weight required by interpreting the legislative norm which the administrative authority is carrying out, to the various interests that are taken into account’ (Golden Pages Ltd v. Broadcasting Authority [41], at p. 445). ‘Reasonableness means considering all of the relevant considerations, and attaching the proper weight to these considerations’ (HCJ 935/89 Ganor v. Attorney-General [42], at p. 513). Indeed, reasonableness is neither a physical nor a metaphysical concept. Reasonableness is a normative concept. Reasonableness is a process of evaluation. It is not a theoretical process. It is not a concept encompassed only by deductive logic. It is not merely rational. Reasonableness means identifying the relevant considerations and balancing them in accordance with their weight (see HCJ 156/75 Daka v. Minister of Transport [43], at p. 105; HCJ 127/80 Odem v. Mayor of Tel-Aviv-Jaffa [44], at p. 121). Professor MacCormick discussed this concept, pointing out:

‘What justifies resort to the requirement of reasonableness is the existence of a plurality of factors required to be evaluated in respect of their relevance to a common focus of concern. Unreasonableness consists in ignoring some relevant factor or factors, in treating as relevant what ought to be ignored. Alternatively, it may involve some gross distortion of the relative values of different factors, even though different people can come to different evaluations each of which falls within the range of reasonable opinions in the matter at hand’ (MacCormick, ‘On Reasonableness’, Les Notions A Cantenu Variable En Droit (H. Perelman and Vander Lest ed., 1984, 131, 136).

The decision is reasonable if it is made by giving the proper weight to the various values that must be taken into account. The decision to appoint a candidate with a criminal past to the position of director-general of a Government ministry is reasonable if it gave the proper weight to the various considerations that should be taken into account, and it balanced the various considerations in accordance with their weight.

52. What is the weight that should be attached to the criminal past of a candidate, when a decision is being made about his employment in a public office? As we have seen, the answer is that this weight is determined by the weight of the considerations that underlie the requirement to take the criminal past of a candidate into account before he is appointed to public office. As we have seen, these considerations relate, on one hand, to the principle of ‘repentance’ and the candidate’s aptitude for the office, and on the other, to ensuring the proper functioning of the Civil Service and the public’s confidence in it. But what is the weight of these considerations? The answer to this question is determined by the relative social importance that Israeli society gives to the values, principles and interests that make up the various considerations. Of course we speak of ‘weight’ and ‘balancing’ metaphorically. The act of ‘weighing’ is not a physical act but a normative one, which is designed to give the various considerations their place in the legal system and their social value within the whole spectrum of social values. Justice Shamgar rightly pointed out that:

‘... the process of placing competing values on the scales describes the starting point for interpretation, but it does not establish a criterion or ethical weights with which the work of interpretation can be done’ (FH 9/77 Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [45], at p. 361).

In a similar vein I pointed out in another case:

‘These expressions — “balancing” and “weight” — are only metaphors. Behind them lies the belief that not all principles are of identical importance in society’s opinion, and that in the absence of legislative guidance, the court must evaluate the relative social importance of the various principles. Just as there is no person without a shadow, similarly there is no principle without weight. Determining the balance on the basis of weight means making a social assessment as to the relative importance of the various principles’ (Laor v. Film and Play Review Board [26], at p. 434).

In determining ‘the relative social importance’, the court is a ‘faithful interpreter of the accepted attitudes of the enlightened public, in whose midst it dwells’ (Justice Landau in CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [46], at p. 1335 {135}). These are the attitudes enshrined in basic values and basic conceptions, and not in temporary, passing trends. They reflect the ‘social awareness of the people in whose midst the judges dwell’ (Justice Landau in ‘Law and Discretion in Administering Justice’ 1 Mishpatim (1969) 292, 306). They are an expression of ‘the national way of life’ (Justice Agranat in HCJ 73/53 Kol HaAm Co. Ltd v. Minister of the Interior [47], at p. 884 {105}). They reflect ‘the nation’s vision and its basic credo...’ (President Smoira in HCJ 10/48 Zeev v. Acting Director of Tel-Aviv Municipal Area [48], at p. 89 {72}). They are not the product of judicial subjectivity. In attaching weight to the various considerations, the judge aims, to the best of his ability, for judicial objectivity. He does not reflect either his subjective values or his personal considerations. The judge reflects ‘the values of the State of Israel as a Jewish and democratic State’ (s. 1 of the Basic Law: Human Dignity and Liberty). In this context, he will take into account the weight given to the various considerations in similar situations, for similar situations justify a similar solution. He will also take into account legislative and judicial arrangements, from which he may learn the proper weight that should be given to the various considerations in the case before him.

53. The need to rehabilitate offenders is an important consideration in the legal system. An offender who was tried and punished should be allowed to reintegrate into society (see Carmi v. State Attorney [36], at p. 375). Notwithstanding, the strength of this consideration decreases if the offence is serious in its circumstances or if the position that the candidate seeks to fill is a position that requires an aura of confidence towards him and an aura of confidence to the system in which he seeks to be appointed a leader. It is one thing to rehabilitate a criminal who has served his sentence. It is another thing to place him at the top of the administrative pyramid.

54. The public’s confidence in the system of Government is a central consideration in our legal system. Without this confidence, a democratic society cannot function. In discussing the public’s confidence in the judicial authority, I pointed out:

‘The public’s confidence in the judicial authority is the most valuable asset that this authority has. It is also one of the most valuable assets of the nation. De Block’s saying that a lack of confidence in the administration of justice is the beginning of the end of society is well-known’ (HCJ 732/84 Tzaban v. Minister of Religious Affairs [49], at p. 148).

These remarks apply, albeit to a lesser degree, to all executive authorities. Public confidence in government organs is one of the most precious assets of the executive authority and the State. When the public loses its confidence in the organs of Government, it loses its belief in the social contract forming the basis of communal life. Significant importance should be given to considerations that are designed to maintain, preserve and promote a feeling among the public that its servants are not its masters and that they do their work for the public, honestly and without corruption. Indeed, the integrity of the service and of its members is the foundation of the Civil Service and the basis of our social structure. I discussed this in a certain context, where I said:

‘... in an enlightened democratic society, a public figure, who is chosen by the people and needs the trust of the people, must maintain a proper moral standard in his behaviour — both private and public — so that he may continue to serve in his office’ (HCJ 251/88 Oda v. Head of Jaljulia Local Council [50], at p. 839).

This is a central consideration, and it should be accorded significant weight in the overall balancing process which is the basis of a reasonable decision regarding the appointment of a candidate with a criminal past to public office.

55. The conclusion arising from the various considerations is the following: as a rule, it is unreasonable to appoint a candidate who has committed offences in grave circumstances to a senior office in the Civil Service. For this purpose, the gravity of the offence is determined not by its ‘position’ in the Penal Law, but by its implications on considerations that underlie the appointment. Consequently, an offence should be regarded as serious where its very essence and the circumstances of its commission not only undermine law and order in general (e.g., murder, robbery, rape) but also the foundations of Government structure (e.g., bribery, fraud and breach of trust, perjury, fabricating evidence, obstructing the course of justice). A candidate who has committed these offences and holds a senior office in the Civil Service undermines the public trust in the executive authority and the Civil Service. He will have difficulty in serving as an example and a model for his subordinates. He will have difficulty requiring of them what is required of every civil servant but he himself has profaned. He will have difficulty in radiating fairness, trust, prestige, honesty and integrity to the general public. All of these will affect, to a large degree of certainty, the status, functioning and position of the Civil Service in a democratic society. Indeed, an offence is serious if ‘from the circumstances in which it was committed it can be concluded that the public figure displayed in his behaviour a moral standard so low that he is no longer worthy of holding his public office’ (ibid.). This is the same offence that in the circumstances in which it was committed involves ‘moral turpitude that testifies to the fact that its owner is unworthy of being counted amongst honest people and at any rate is unfit to have public responsibility for decisions and acts on which the affairs of the community and public harmony are dependent’ (Justice H. Cohn in HCJ 436/63 Ben-Aharon v. Head of Pardessia Local Council [51], at p. 564). This last ruling explained the term ‘offence involving moral turpitude’ which appears in a number of laws. In our case, the seriousness of the offence in its circumstances should not be identified with an offence involving moral turpitude, for in our case there is no express statutory arrangement to this effect. Notwithstanding, it seems to me that the two are not far apart. Indeed, the term ‘involving moral turpitude’ is vague and connecting it with the reasonableness of a decision of a public authority making an appointment will not help to clarify the criteria. Nevertheless, connecting the two can indicate the type of factors to be taken into account. In both cases, we are dealing with a criminal past where ‘the crux of the decision is not based on the formal aspects of the offence, but in the circumstances in which the offence was committed…’ (Oda v. Head of Jaljulia Local Council [50], at p. 839). In both cases, we are dealing with a criminal offence, the weight of which is determined in accordance with ‘the outlooks and ethical criteria prevailing in society at that time, in order to protect those interests that the law is designed to protect…’ (BAA 2579/90 Bar Association District Committee, Tel-Aviv v. A [52], at pp. 732-733). Nonetheless, the two should not be considered identical. ‘An offence involving moral turpitude’ emphasizes the immoral element in committing the offence (see R. Gavison, ‘An Offence involving Moral Turpitude as Disqualification for Public Office,’ 1 Mishpatim, 1969, 176). A criminal offence, which may negate the reasonableness of appointing its perpetrator to a high public office, does not need to be specifically of an immoral nature.

56. In principle, the seriousness of the offence is determined by its circumstances (cf. Ben-Aharon v. Head of Pardessia Local Council [51]). Thus, for instance, someone who committed an offence, before the State was established, that undermined the Government of the British Mandate but which was intended to further the establishment of the State, may reasonably be appointed to a senior Government office in the State. The effect of the commission of the offence on the public’s confidence in the executive authorities depends on the circumstances in which it was committed, and not on its elements in the statute book (see Gavison’s article, supra, at p. 180). Therefore someone who committed an offence for financial gain and a desire to enrich himself cannot be compared with someone who committed the same offence out of a (mistaken) desire to further the interests of the State. The offence is identical, but the circumstances in which it was committed are different. The difference in circumstances affects the weight of the criminal past and the reasonableness of the decision to appoint someone with a criminal past to a Government office. Furthermore, the more senior the position, the more weight ought to be attached to the factor of a criminal past. The position’s seniority is determined not only in accordance with formal criteria of seniority and position, but also in accordance with the degree to which the public identifies the holder with the Civil Service itself and the degree of damage inflicted on the public confidence in the Civil Service if the appointment is implemented. Finally, the time that passed from the commission of the offence until the proposed appointment is an important factor. The longer the passage of time, the weaker the link between the person and the criminal offence, and his appointment to the public office will not affect his carrying it out and the public’s confidence in him and the Civil Service. Indeed, a criminal past, even with regard to a serious offence, is not an absolute bar to an appointment to a public office, even a senior one. Time has its effect. Wounds are healed. The candidate is rehabilitated. The ‘enlightened public’ will no longer regard his appointment as an act that harms the integrity of the service and its capacity to function, but rather as vindictiveness and excessive punishment. In such circumstances, there will be no basis for regarding an appointment of such a candidate to a public office as an unreasonable act. The period of time that should pass between committing the crime and serving the sentence and the appointment varies according to the circumstances. Certainly it is not measured in a few years. But decades also should not be required. The pendulum of time will swing between these two extremes, and it will stop in accordance with the circumstances of time and place.

A Criminal Past and a Criminal Conviction

57. Hitherto I have assumed that a candidate has a criminal past because he was convicted in a trial and served his sentence. This is certainly the usual case. However, a criminal past for the purpose of making an appointment is not to be regarded as identical with a criminal conviction. We are dealing with an administrative decision of the Government to appoint someone to a public office, and we are not dealing with a decision to impose on someone penalties prescribed by law. There is no criminal punishment before a criminal conviction. The same is not the case with regard to an appointment. Here it is relevant to examine all the facts that were before the authority making the decision. If from all these facts a reasonable authority could have concluded that a criminal offence was committed, this is sufficient to establish a ‘criminal past’ for the purpose of deciding whether the appointment is reasonable. Indeed, for the purpose of the reasonableness of the decision of the executive authority making the appointment, the decisive factor is the commission of the criminal acts attributed to the candidate. A criminal conviction naturally constitutes a desirable ‘proof’, but other methods of proof may be possible, such as an admission before a competent authority. Justice H. Cohn rightly pointed out that:

‘...the said rule presuming a person to be innocent of a crime, in the absence of rebutting evidence, does not provide — nor do I know of any other legal rule that does provide — that an administrative authority that needs to be convinced of someone’s past is only competent to determine that he has a criminal past when he has been convicted in a trial.

…………………………

Shall we disqualify the refusal of the Commissioner to appoint a candidate as a civil servant when the refusal was based on evidence proving, to a reasonable degree, his criminal past, for the reason that these proofs are defective in that they lack a guilty verdict? Let us assume that this candidate wishes to be accepted into the Civil Service and the Commissioner refuses to admit him for that reason; would we compel the Commissioner to accept him, and disqualify the refusal because of the absence of a criminal conviction?

…………………………

…if the authority to make a decision regarding a person’s past is given to an administrative authority which is not competent to swear witnesses and take evidence in the way that evidence is given in Court, the administrative authority need only base its decision on evidence that would be sufficient to convince a reasonable person about the applicant’s past, even if that evidence would not have been admissible in court and even if it would have been of insufficient weight in a judicial proceeding’ (HCJ 94/62 Gold v. Minister of Interior [53], at pp. 1856-1857 {186-187}).

Indeed, the rule applicable in our case is the  ‘rule of administrative evidence’. A Government authority may base a finding on evidence, if the evidence is such, in view of the circumstances, ‘that any reasonable person would regard it as having probative value and would rely on it’ (President Agranat in HCJ 442/71 Lansky v. Minister of Interior [54], at p. 357). An administrative finding can be based on ‘material whose probative value is such that reasonable people would regard it as sufficient for reaching conclusions about the nature and occupation of the persons concerned...’ (President Shamgar in EA 2/84 Neiman v. Chairman of Central Elections Committee for Eleventh Knesset [55], at p. 249 {100}).

A Criminal Past and a Pardon

58. How does the granting of a Presidential pardon affect the appointment of a candidate who committed an offence (whether convicted in a trial or not)? This question raises serious problems. The ‘institution’ of the pardon is a complex one and its implications have not yet been examined comprehensively in the rulings of this court. With regard to the petition before us, we do not need to examine this issue in depth. The reason for this is that, whatever the general effect of a pardon, it cannot prevent the Government, in making an appointment under the law, from considering the criminal past of someone who has been pardoned for the purpose of that appointment. This is directly implied by the provisions of the Criminal Register and Rehabilitation Law. Under this law, when the President gives a pardon to someone convicted in a trial, the pardon is equivalent to a conviction that was deleted (s. 16(c)). When a conviction has been deleted, information about it may only be given to a limited number of bodies (s. 16(a)). One of these bodies is the ‘Government — for the purpose of appointing holders of offices whom it is obliged to appoint…’ (First Schedule, s. (c)). Thus, even after the deletion of a criminal conviction, the Government can still obtain information about the criminal past, for the purpose of making statutory appointments. This information is not provided for academic purposes, but so that it may be included among the considerations of the Government in making the appointment. In the explanatory notes to the draft Criminal Register and Rehabilitation Law, it was stated (at p. 217):

‘The draft sets out several limitations on the right of an offender that his crimes should not be remembered — because of the gravity of the offence, because of an office the holder of which must set a personal example to the public, or because of a position that requires trust of its holder and the trust required is prejudiced as a result of the offence.’

This conclusion can be seen also from the rulings of this court. With regard to the term ‘someone with a criminal past’ in the Law of Return, 5710-1950, Justice Sussman pointed out:

‘The State of Israel was established, as the Declaration of Independence says, so that it would be open to Jewish immigration and the ingathering of exiles. It was not established to be a centre of attraction and to establish a community of persons who have broken the law in the countries where they live, and for this reason wish to escape justice, even if they are Jews. What difference is there — for the purpose of immigrating to and settling in Israel — between someone who committed a crime and was convicted of it and someone who committed a crime but was not convicted of it, because, for example, the act was too long ago or an amnesty law was issued where it was committed, or because the legal proceeding against him ended or was not begun for another reason of the kind that does not absolve him of his past?’ (Gold v. Minister of Interior [53], at p. 1855 {185}).

Indeed, in this case, as in other cases, the determining factor is the purpose underlying the normative arrangement. When the normative arrangement deals with Government appointments to an executive office, a pardon does not prevent the Government from having the right and the duty to consider the acts which are the subject of the pardon. The need to ensure the public’s confidence in the authorities overrides the need to delete the candidate’s criminal past. This is also the law in other countries (see: May v. Edwards (1975) [59]; State ex. rel. Wier v. Peterson (1976) [60]; 67 C.J.S. supra, at p. 268; G.L. Hall, ‘Pardon as Restoring Public Office or License or Eligibility Therefor,’ 58 A.L.R. 3d., 1974, 1191).

From the general to the specific

59. The respondent committed a number of offences. He gave false evidence in court (in the Nafso affair). He obstructed legal proceedings (in the ‘300 bus’ affair). These are particularly severe crimes in their circumstances. Particular serious was the behaviour of the respondent in the ‘300 bus’ affair and the cumulative effect of all of his behaviour. All of these undermine the administration of justice and so harm the foundations of society and the legal system. They damage the public’s confidence in the legal system and the law enforcement system. It is fitting to recall the remarks of President Shamgar in describing the behaviour of the interrogators in the Nafso affair (of whom the respondent was the chief investigator):

‘These actions involve far-reaching harm to the trustworthiness of the agents of the said branch of State. In this way the tribunal was prevented from deciding the case of the appellant on the basis of true facts, and the standing and power of the tribunal that was misled by the statements of the interrogators were impaired.

The serious act… makes it necessary to take decisive measures in order to uproot this phenomenon…’(Nafso v. Chief Military Prosecutor [20], at p. 636 {267}).

With regard to the same case, the Landau Commission noted:

‘This affair is frightening and shocking, not merely because of the miscarriage of justice towards Nafso personally, but no less because of the corruption of values in giving false testimony, which has been exposed in broad daylight and which must now be totally uprooted’ (ibid., at p. 9).

The same applies to the ‘300 bus’ affair. The Landau Commission pointed out the special gravity of this affair in general, and of the behaviour of the respondent (‘the Trojan horse’) which was described as ‘an incomparably serious act’ (ibid., at p. 30). The Landau Commission emphasized time and time again the need to prevent any harm to the State as a State governed by law, based on the foundations of morality — harm that ‘is liable to repay us by corrupting internal morals’ (ibid., at p. 71).

60. The appointment of the respondent to the office of director-general of a Government ministry seriously harms the Civil Service. It is almost certain that it will adversely affect the functioning of the service. But most of all, it seriously undermines the public’s confidence in the public authority and the Civil Service. How can someone who gave false testimony and perverted the course of justice, and by so doing prejudiced the freedom of the individual, head a Government ministry? What is the personal example that he is likely to show to his subordinates? What requirements of honesty and integrity can he demand of them? How can a criminal who gave false testimony and perverted the course of justice and prejudiced the freedom of the individual, maintain the confidence of the public as a whole in the fairness, honesty and dignity of civil servants? What example does the Civil Service give to each individual when such a person is one of the heads of the Civil Service? Is it possible to maintain a relationship of trust between the citizen and the Government when the Government speaks to the citizen through the respondent? What social and moral message does the Government thereby send to the citizen, and will the citizen return to the Government? Indeed, an appointment to a senior position in the Civil Service of someone who by his offences undermined the foundations of the social structure and the ability of judicial or quasi-judicial institutions to do justice is an unreasonable act in the extreme. Furthermore, twelve years have passed since the Nafso affair. Eleven years have passed since the ‘300 bus’ affair. The wound has not yet healed. The events are still a part of the public consciousness. Considerations of rehabilitating the respondent, which are normally relevant to the appointment of a person with a criminal past to a public office, are not significant in this case. The respondent was rehabilitated before his appointment to the Civil Service. The office to which the respondent was appointed is prestigious and considerations of rehabilitation with regard to it are of minor weight. Notwithstanding all of the respondent’s qualifications — which no-one has disputed — it was not argued before us that he is the only person capable of fulfilling the office of director-general in a way that no-one else can. Against this background, the question of the weight that should be attributed to the effect of the respondent’s criminal past on the Civil Service and the public’s confidence therein remains a most compelling one.

61. In their pleadings before us, counsel for the respondent and counsel for the respondents raised three main arguments, which in their opinion justify the appointment of the respondent. The first argument is that the respondent did not commit his offences for pecuniary gain or to promote his own interests, but for the security of the State. Indeed, the respondent did not act for himself, but for the general public. He took into account the needs of the State and its security. His outlook was erroneous and damaging, but it cannot be ignored that he did not act for his own interests but for the security interests of the residents of the State. This consideration must be taken into account. It is not a minor matter. From the viewpoint of the elements of an offence it is not usually relevant. But from the viewpoint of the considerations at the basis of the reasonableness of the appointment it is very relevant. Nonetheless, this consideration is insufficient — both on its own and together with other considerations — to turn the scales. The Landau Commission rightly pointed out that we must at all costs protect the State as a State governed by law based on basic concepts of morality. ‘Any deviation from these basic concepts, even towards those who wish to destroy the State, is likely to repay us by corrupting internal morals’ (ibid., at p. 71). Whatever the motive, nothing can justify perjury, perverting the course of justice and prejudicing the freedom of the individual. Security is valuable, but it is security which operates within the framework of the law. When those who maintain security break the law, law and security are both prejudiced. Security without law is anarchy. Without law, there is no purpose to security. These are first principles. They are simple and elementary. This is the first lesson of national democratic life. The offences of the respondent harmed all of these. The offences which the respondent committed were so grave in their other circumstances, and the injury to the social fabric is so serious, that the motive of the respondent in committing the acts cannot sufficiently alleviate the damaging effect of his actions on the functioning of the Civil Service and the public’s confidence in it.

62. The second argument raised before us — by counsel for the respondent — is the claim of discrimination. The respondent’s colleagues, who committed crimes as he did and who remained in the service, were promoted. Their criminal past did not hurt them. Why should a different rule apply to the respondent, who left the General Security Service? The answer to this argument can be found in the report of the Landau Commission. This Commission recommended that the members of the General Security Service (including the respondent) who committed various offences in the course of their duties should not be put on (criminal or disciplinary) trial. The main reason underlying this recommendation was the need to prevent a ‘deep shock to the ranks of the interrogators, and in addition to the Service as a whole, and to cause severe damage to the ability of the service to operate effectively in order to frustrate hostile terrorist activities’ (ibid., at p. 82). The Commission emphasized that ‘we could not reconcile ourselves to the thought that if we were to recommend a response along the lines of “let justice run its course”, this could paralyse the interrogation work of the Service, and it is almost certain that innocent victims would die in acts of terror that the Service is capable of frustrating’ (ibid., at p. 83). The Commission pointed out that in its opinion the holding of (criminal or disciplinary) trials against those agents who had committed crimes would cause ‘damage to the public by weakening the protection given to it against terrorist acts, as a result of harm to the ability of the Service to frustrate such acts’ (ibid., at p. 85). It is therefore clear that had the respondent continued his activity with the Service, he would not have suffered. The reason for this is not related to the respondent, but to the Service, whose proper functioning is in the interest of the whole State. But when the respondent left the Service, that reason can no longer help him. Now he stands on his own merits. The proper comparison is no longer between him and his colleagues in the Service who are being promoted. He is not a victim of discrimination in comparison with them, for they are not equal in their relevant characteristics. The proper comparison is between him and any other candidate with a similar criminal past. The appointment of the respondent to the office of director-general would be an act of discrimination against all of the many candidates who are rejected by the Civil Service Commission because of their criminal past.

63. The third argument raised before us relates to the pardon that the respondent received from the President of the State. This pardon, as the respondent’s counsel argued, deletes his criminal past, and it may not be taken into account again for the purpose of the appointment. Moreover, because of the pardon the respondent was not indicted, and his guilt was not determined by the court. Therefore we must presume that he is innocent of every crime. Even the circumstances in which the respondent committed his offences were not determined judicially, and therefore we must make presumptions in his favour. As we have seen, the Government is entitled to take account of a candidate’s criminal past, if that criminal past is proven to it under ‘the rules of administrative evidence’. In the case before us, such evidence exists. Admittedly, the respondent was not convicted in a trial, but there is evidence on which a reasonable executive authority could base a finding. Indeed, the respondent did not deny the facts in principle and did not contest his involvement in criminal acts. Moreover, one can learn about the criminal past of the respondent from the judgment in the Nasfo affair, and from the extensive material that was accumulated with regard to the ‘300 bus’ affair, including the respondent’s application to the President of the State for a pardon, which includes a confession of the facts that constitute the offences for which he was pardoned by the President. The President’s pardon cannot prevent the Government from taking the criminal past into account, and in any event this pardon does not apply to the Nafso affair. Notwithstanding, the Government ought to take into account the fact that the President of the State, who is ‘the Head of State’ (s. 1 of Basic Law: the President of the State), saw fit to grant a pardon to the respondent. The President’s considerations in granting the pardon should also be taken into account, in so far as these relate to the interests of the respondent. The President based his decision on the need ‘to prevent additional serious harm to the General Security Service’ (quoted in Barzilai v. Government of Israel [21], at p. 517 {6). His decision was given:

‘as a result of a profound recognition that the public interest and the State’s interest require protecting our security and saving the General Security Service from the damage that will ensue if the affair continues…            the Israeli public is totally unaware of the debt that we owe all of those anonymous fighters, members of the General Security Service, and how many Israeli lives have been saved because of them’ (ibid.).

The President concluded his decision by noting that:          

‘As President of the State, I feel obliged to stand by the GSS agents, knowing as I do the devoted, strenuous and secret efforts they make day by day and hour by hour, and to prevent demoralization in the intelligence community and in the security and anti-terror establishment.

The State of Israel’s special circumstances do not allow us, nor may we allow ourselves, to undermine or hinder the security establishment and the good people who protect the nation’ (ibid., at pp. 517-518).

This reasoning focuses mainly on the Security Service and on the need to ensure the continuation of its proper functioning. This reasoning does not have any real implication for the appointment for someone who received a pardon to a senior public position outside the Security Service itself. In any event, the weight of such a consideration cannot be compared to the damage to the Civil Service and the confidence that the public will have in it if the appointment is carried out.

Government Discretion and Judicial Review

64. The appointment of the respondent as director-general of the Ministry of Building and Housing is within the authority of the Government. In the absence of a statutory provision negating the competence of the respondent, he is competent to be appointed to the senior position. The Government considered all the relevant factors. It was not argued before us that it had any irrelevant consideration, nor have we found any. Nonetheless, the Government’s decision is invalid. It is manifestly and extremely unreasonable. The Government did not properly balance the various relevant considerations. It did not attach the proper weight to the damage that would be suffered by the Civil Service as a result of the respondent’s appointment. It did not make a proper balance between the considerations supporting the respondent’s appointment (mainly his qualifications and capabilities) and those opposing this appointment (primarily the damage to the public’s confidence in the executive authority).

65. It was argued before us that once the Government decided to make the appointment, there is no basis for judicial intervention. The Government balanced the various considerations, and once it decided that in the overall balance the respondent should be appointed, the court should not replace the Government’s discretion with its own discretion. Indeed, had the balance made by the Government fallen within the scope of reasonableness, there would have been no room for our intervention. The case before us falls into the category of those cases where a decision of the executive authority deviates in the extreme and substantially from the scope of reasonableness. In such instances, the court is not at liberty to refrain from setting the administrative authority’s decision aside (see HCJ 31/81 Moshav Beth Oved Workers Commune for Cooperative Agricultural Settlement Ltd v. Traffic Supervisor [56], at p. 354). In such situations, the question is not whether the decision of the executive authority is wise or not, but whether the decision of the executive authority is lawful or not. Since we have reached the conclusion that the decision deviates in the extreme from the scope of reasonableness and is tainted with illegality, there is no alternative but to declare it void. 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. Every executive authority may make an unreasonable decision that will be disqualified by the court, and the Government is no exception to this rule (see CA 492/73 Schpeizer v. Council for Regulating Sports Gambling [57], at p. 26; HCJ 5684/91 Barzilai v. Government of Israel [58]). 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 executive 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 balances between the proper considerations (see Barzilai v. Government of Israel [21], at p. 621 {103}).

The result is that we are making the show cause order absolute, in the sense that the appointment of the respondent as director-general of the Ministry of Building and Housing is void as of today. The State will pay the petitioners’ costs in a total amount of NIS 7,500 to each petitioner.

 

 

Justice E. Goldberg: I agree.

 

 

Justice E. Mazza: I agree.

 

 

Petition granted.

23 March 1992