Basic Law: The Government

Adalah Legal Center for Arab Minority Rights in Israel v. State Attorney’s Office – Cyber Department

Case/docket number: 
HCJ 7846/19
Date Decided: 
Monday, April 12, 2021
Decision Type: 
Original
Abstract: 

The petition addressed the question of the authority to conduct “voluntary enforcement” activity for the removal of harmful content from the internet, the manner and configuration of the activity of the Cyber Department of the State Attorney’s Office, and the lack of express statutory authority for the activity.

 

Background: In accordance with the Work Procedure established by the State Attorney’s Office, the Cyber Department initiates referrals to online platform operators, content providers, and other internet platforms (like Facebook and Google), reporting publications that the State Attorney’s Office deems as constituting an offense under Israeli criminal law, and that also breach the Terms of Use of the platform itself. According to the Department’s preliminary response to the petition, such referrals are sent to online platform operators only when there are additional considerations to justify the referral, among them the severity of the content, the scope of its distribution and its “viral” potential. In practice, the Department concentrates primarily upon publications that relate to terrorism and extreme violence, and incitement to violence and terrorism. Referrals are also sent in regard to content that threatens harm to minors, certain public servants, or to the integrity of Knesset elections.

 

The High Court of Justice denied the petition (per Deputy President H. Melcer, Justice A. Stein concurring, over the dissenting opinion of President E. Hayut that the petition should be denied in limine), subject to a number of observations for the future, for the following reasons:

 

The petition suffered from two serious defects that could justify dismissal in limine, as follows:

 

A.  An insufficient factual foundation for the argument that the Department acts without authority. This, inter alia, due to a lack of evidence as to the scope of the violation of freedom of expression and access to information; uncertainty as to whether the publishers who are the subjects of the referrals are human or “bots”; whether they are located in the State of Israel or abroad; and whether the online platform operators independently decide whether or not to remove content or whether their decisions are influenced by the fact that the referring body is the State Attorney’s Office.

 

B. A failure to join the online platform operators as respondents to the petition. The question of exercising independent discretion by those entities could have material consequences for the primary questions addressed by the proceedings.

 

However, due to the material arguments raised in regard to the Cyber Department’s activities, the importance of matters raised and their possible consequences, and in view of the subject being a matter of first impression, Deputy President Melcer decided to address the Petitioners’ arguments on the merits so as not to leave the constitutional and administrative law issues hanging in the air.

 

According to the State Attorney’s Office, because the Department’s activity is limited to sending voluntary referrals to the online platform operators, which leave the issue of enforcement to the discretion of the platform operators, the Cyber Department’s activity should be viewed as lacking any governmental force. Therefore, they are not subject to the doctrine of administrative legality and do not require any statutory conferral of authority. Justice Melcer disagreed.

 

In his opinion, the Department’s activity constitutes a governmental act. One cannot compare a referral to online platform operators by a private individual to one sent by a government agency that interacts with the platform operator as a “repeating player” that may also act against them in other ways. Where there is a possibility that the Cyber Department’s voluntary referrals may serve as a trigger for enforcement by the platform operators (regarding whom the Court had no data), and that the Department’s referrals may influence their discretion, there is a need for statutory authority, even if only general, for the sake of establishing that the Department’s referral activities are lawful.

 

Justice Melcer concluded that the Department could rely upon the residual power granted to the government under sec. 32 of Basic Law: The Government, as long as its activities do not infringe fundamental rights, inasmuch as residual power cannot ground such violations.

 

In view of the foundation before the Court in regard to the Cyber Department’s activity and the consequences of that activity for the online platform operators, and in view of the serious deficiency of that foundation, Justice Melcer was of the opinion that it could not be said that it is the government that infringes freedom of expression. In this regard, Justice Melcer emphasized the significant difficulty inherent in recognizing the possibility of violating the right to freedom of expression of a non-human actor (e.g., “bots” and “avatars”). He further emphasized that it is the platform operator – not the government – that holds the power to decide whether or not to remove content.

 

Justice Melcer therefore held that “as long as it has not been proven that it is the activities of the Cyber Department that directly and certainly lead to a violation of fundamental rights, and as long as no evidentiary foundation has been laid showing that the discretion of the online platform operators is not actually independent, a voluntary referral from the Department to the online platform operators is not prohibited. In these cases, it is difficult to view the authority’s actions as a form of intentional infringement of fundamental rights in a manner that would negate the authority of the Cyber Department to act to frustrate publications that amount to a prima facie criminal offense.”

 

The voluntary method by which the Cyber Department acts in this regard is not, however, free of difficulties, primarily in regard to the problem of the absence of specific authority for its activity in primary legislation. However, until the enactment of detailed legislation on the matter (as has been done in some countries), the current situation can continue by virtue of residual power or auxiliary authority.

 

Looking to the future, Justice Melcer noted  a number of overall problems that should be addressed and remedied by the Respondents, as detailed in paras. 73-74 of his opinion, among them: a lack of documentation of the content of the publications that the Cyber Department seeks to remove, inadequate details in the transparency reports produced by the Department (subject to the exigencies in regard to security offenses), and not publishing the Work Procedure. In addition, there is a problem in clarifying the role of the online platform operators (which might have been clarified had those operators been joined as respondents to the petition), and the agreements between them and the Department. In making its referrals to the online platform operators, the Department should guide itself in accordance with the case law of the Court, which supersedes residual authority. Also, a legislative initiative should be weighed to provide a detailed arrangement of the voluntary enforcement mechanism, as has been done in some other countries. There is also a need for establishing a post facto oversight and supervision mechanism for the Department’s activities, and it was recommended that this be considered.

 

President E. Hayut concurred with Deputy President Melcer’s conclusion that the Cyber Department’s activity constitutes a governmental act that requires a conferral of authority. However, deciding whether there is sufficient authorization for the activity of the Cyber Department is largely contingent upon whether that activity infringes fundamental rights. In her opinion, the two material defects addressed by Deputy President Melcer – the failure to join the online platform operators as respondents, and the insufficiency of the factual foundation – frustrate any possibility of deciding the petition on the merits. She was, therefore, of the opinion that the petition should be dismissed in limine. The President joined Deputy President Melcer’s comments in para. 73 in regard to the problems presented by the Cyber Departments activity, and his call to publish the Cyber Department’s Work Procedure.

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

HCJ 7846/19

 

 

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

                                    2.         Association for Civil Rights in Israel

 

                                                            v.

 

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

                                    2.         Attorney General

 

Requests to Join:         1.         Lori Shem Tov

                                    2.         Movement for Freedom of Information

 

Petition for order nisi

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

The Supreme Court sitting as Hugh Court of Justice

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

 

 

Judgment

(April 12, 2021)

 

Deputy President H. Melcer:

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

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

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

 

Background and summary of relevant facts

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

 

The statutory enforcement track

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

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

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

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

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

 

The voluntary enforcement track

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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

 

Arguments of the parties in the petition before the Court

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

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

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

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

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

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

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

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

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

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

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

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

 

Additional developments

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

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

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

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

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

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

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

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

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

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

 

Discussion and Decision

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

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

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

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

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

Insufficient Factual Grounds

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

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

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

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

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

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

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

Failure to join relevant respondents

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

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

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

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

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

The question of authority

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

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

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

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

            I will clarify this point.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

Diagram 1:

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

Diagram 2:

 

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

            I will explain this in detail below.

“Inverse Regulation” and the Activity of the Cyber Department

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            I will address this immediately, below.

 

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

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

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

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

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

            Moreover, in this situation, again quoting my colleague:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            However, it is important to note that until the enactment of the General Security Service Law, 5762-2002, it appeared that the general authority of the General Security Service to act in its sphere of activity derived from the residual power doctrine (see: Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity, p. 41 (1987)), and the authorities of the Institute for Intelligence and Special Operations [the “Mossad” – ed.] rely upon that source of authority to this day).

61.       Specifically, in the matter of infringing freedom of expression, it was previously held in the Federman case that this vested right cannot be infringed by virtue of the general authority under the residual principle:

There are actions that are not within the scope and power of the government because exercising them without legal authority is contrary to fundamental normative concepts that derive from the nature of our regime. So it is in regard to basic rights that are part of our positive law, whether it has or has not yet been included in a Basic Law. Thus, for example, the government does not have the authority to close a newspaper on the basis of an administrative order if there is no express legal provision that addresses such a matter, and even were there not a Basic Law that defines freedom of speech. Such an act would be contrary to our fundamental concepts regarding human liberty inherent to our regime, which can only be limited by statute […] therefore, the basic right to freedom of speech, which is part of our positive law, creates a restriction that ties the executive’s hands and does not permit it to deviate, without legal authority, from the prohibition upon infringing a freedom it grants. (ibid., p. 652; emphasis added – H.M.; and see Zamir, pp. 421-423).

            Indeed, these restrictions upon the residual power of the government were intended to ensure that the broad general authority granted under this provision of Basic Law: The Government will not completely erode the principle of administrative legality, and does not replace the constitutional values grounding the system (see: Barak-Erez, pp. 139-143).

62.       The answer that should be given to this question is negative in the circumstances. At present, and in accordance with the evidentiary foundation presented in the petition, there are no grounds for finding that the Cyber Department’s activity is unconstitutional. In my opinion, while we cannot deny the possibility that the Cyber Department’s activity has operative force, in that it initiates a process that may result in a real act of removing publications or preventing access, I do not believe that there is a violation of basic rights, in the usual sense,  in most of the areas in which the department acts (as for the exceptional cases, see my comments in para 73(b), below).

            I will now explain in detail.

63.       What is an infringement of a constitutional right? A review of the case law of this Court reveals that the question of the infringement of the constitutional right has not raised any real problems to date. For example, in LCA 3145/99 Bank Leumi v. Hazzan [29], 398, it was held that infringement concerns the absence of ability to realize the full scope of the constitutional right (and see: Aharon Barak, The Constitutional Right and its Violation: The Three-Step Theory, 19 Mishpat Umimshal 119 (2018) (Hebrew) (hereinafter: Barak, The Constitutional Right)). According to Prof. Barak, examining an infringement of a constitutional right is almost independent of the circumstances, stating:

An infringement occurs in every situation in which the authority forbids the holder of a right to realize it fully or prevents him from doing so. An infringement is any detraction from full realization of the right. There is no significance to the question whether the infringement was the result of fault (intention, recklessness, willful blindness, negligence) or without fault, whether it was serious or minor, at the heart of the right or its periphery, by an omission or by an act, or whether it was certain or that there was but a possibility – that is not de minimis – for its realization. Every infringement, regardless of its scope, moves the constitutional review from the first step to the second, unless the infringement is de minimis. (Barak, The Constitutional Right, p. 148).

64.       However, some resonances of a view that disagrees with the broad scope of the concept of infringement of right, as defined above, can be found in the case law. Thus, for example, in CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village [30], President Shamgar noted in regard to the right to property: “Violation of the right to property, for our purpose, was illustrated by reference to constitutional acts possessing substantive personal repercussions, for example, those by virtue of which the property of a person is confiscated without proper compensation, in an arbitrary or other substantive breach of his rights.” (ibid., p. 332 [para. 38]; and see the opinion of Justice A. Procaccia in HCJ 10203/03 Hamifkad Haleumi v. Attorney General [31], 852-854; and see the opinion of President A. Grunis in HCJ 2442/11 Shtanger v. Speaker of the Knesset [32]).

            Another possible criticism if the broad view proposed by Prof. Aharon Barak was mentioned by Prof. Barak Medina. In accordance with the deontological-necessity approach presented in his book, an infringement of a constitutional right does not refer to the consequences of the act, alone (that is, the restriction of the full realization of the right), but also concerns evaluating the nature of the act and the reasons for diminishing the protected interest. In the context of the matter before us, Prof. Medina explains that in order for an act by a governmental agency to rise to the level of an infringement of a vested right, the infringement must be “a violation by virtue of an intentional act, whose consequences are certain, and under the circumstances of the matter, comprise some breach of a moral constraint concerning the proper relationship between the government and the individual” (Barak Medina, Human Rights Law in Israel, 88 (2016) (emphasis added – H.M.).

65.       Of course, the above debate might be relevant to the sufficiency of the government’s residual power as a source of authority for the activity of the Cyber Department, however, we have no need to decide among the various approaches for a number of reasons:

A)        In the present case, it would appear that there is no disagreement that, as earlier noted in para. 21, robots and avatars do not enjoy human rights, and therefore infringement of their right to freedom of expression is not relevant, and some of the harmful publications derive from such bots and avatars. Nevertheless, in my opinion, where there is doubt as to whether the act is likely to lead to a real violation of fundamental rights, extreme caution must be exercised, as stated in para 73(b), below.

            The situation of enforcement in regard to social networks is unique and differs in its very nature from the constitutional or classic administrative paradigms in which the individual stands in opposition to the government (see and compare: Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, 8 Va. J.L. & Tech, 48-54 (2003)). As Prof. Balkin describes it, on questions of freedom of expression and other issues in the scientific age, there is a triangular relationship: The state is at one vertex, the private internet companies and various platforms are at another vertex, while the speaking individual (or organization) is at the third (see: Balkin, p. 2014). In my opinion, in such a unique power triangle, where the state does not demand or impose removing or restricting expression, and the online platform operator is the one who removes the publication at its discretion, it cannot be said that it is the state that infringes the right, and in any case, those harmed have other remedies, including against the online platform operators.

B)        In the present case, the state’s involvement in protecting or restricting political expression is slight, as it plays no role in providing the infrastructure for political expression (which is provided, as noted, by the online platform operators).

66.       As for the lack of authorization – the Petitioners brought the example of the Israel Internet Association case, which held, as noted, that a police officer lacks authority to order the closure of a “gambling site” operating on the internet, inter alia, in view of the possibility that it might lead to a violation of the right to occupation and freedom of expression of the website operator and its users. However, in my opinion, the said case is entirely different from the one before us for several reasons:

            First, because that matter concerned a closure actively imposed by an administrative organ where it, and it alone, had discretion as to how to act, and to order the provider of access to the gambling site not to permit access to that site. In the case before us, there is no disagreement that the authority to exercise discretion is given to the civil organ to whom the matter is referred – the online platform operators (on the possibility that this is a prohibited delegation of authority, compare: the Israel Internet Association case, para. 15 of the opinion of Justice U. Vogelman).

            Second, and pursuant to our discussion of the infringement of freedom of expression as a fundamental constitutional right, even in the Israel Internet Association, Justice Vogelman held: “With respect to gambling websites, and only to them, my opinion, as mentioned above, is that the infringement of free expression that resulted from blocking lawful content on the gambling websites, is of a limited degree, if at all” (ibid., para. 10).

            Parenthetically, I would note that even the Mor case (which held that authority to issue an order for revealing the identity of an anonymous internet user should not be established by “judicial legislation”) cannot be of aid to the Petitioners as a source for establishing that the absence of legislative authorization for the restricting activity nullifies the conduct. That affair addressed the limits of interpretation, and in particular, the limits of “judicial legislation”, exercised by the court, and not the authority of the executive branch.

67.       Similarly, we should distinguish the other cases referenced by the Petitioners, as follows:

A)        The Kahane case concerned prior restraint, whereas in the case before us, the alleged offenses have already been committed, and the purpose is to frustrate their continued perpetration and their harm (on this distinction, see: Avigdor Klagsbald, Criminal Offense and Prior Restraint, 2 Plilim 93 (1991) (Hebrew)).

B)        The Manaa case concerned activities that restricted freedom of movement (placing roadblocks) by the police. Here, the infringement, to the extent that there is one, is performed by the internet platform operators and not by a governmental organ, not to mention that the potential victims are deemed to have agreed to the “community rules” (assuming that they are a type of adhesion contract, as held in the Facebook case).

C)        The Hof Azza Regional Council case interpreted sec. 32 of Basic Law: The Government, and approved the payment of advances to those seeking to evacuate the Gaza Strip and Northern Samaria voluntarily, as it concerned an executive authority for which there is no legislative arrangement and the government’s residual authority therefore applied. This is also the case in the matter before us in regard to the Department’s voluntary referrals to the internet platform operators (and compare: HCJFH 9411/00 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion [33], 64-65). Even the Prevention of Crimes Law is not a negative arrangement in this regard, as it does not in any way address the subject of voluntary referrals.

68.       Moreover, in those cases in which residual power cannot be of help, the auxiliary authority under sec. 17(b) of the Interpretation Law comes into play. In such cases, and in the circumstances appropriate to the case before us, primary authority for performing voluntary enforcement derives from the general enforcement authority of the Attorney General by virtue of the criminal procedure laws, the Penal Law, and sec. 13 of the Interpretation Law (as argued by the Respondents), or by virtue of the general authority of the Minister of Justice under the Prevention of Crimes Law, including sec 16 therein (and compare: MApp 1190/18  Ethics Committee v. David Yedid, Adv. [34]).

            There are also no grounds for the claim that the executive is trespassing, so to speak, the boundaries of the judiciary in finding that a prima facie offense has been committed by the publisher. The State Attorney’s Office holds such authority and exercises it as a matter of course, as for example, in filing an information when there is a reasonable expectation of a conviction. Moreover – ever since the judgment in HCJ 442/71 Lansky v. Minister of the Interior [35], the accepted view is that a “criminal past” can be established on the basis of the administrative evidence test, even in the absence of a conviction (for a comprehensive survey of the subject, see: Ron Shapira, From Criminal to Administrative Enforcement: Administrative Evidence of the Commission of a Criminal Offense – the Need for a Fair Administrative Process (2019) (Hebrew)), and indeed, at times it is not possible to find the offender or bring him to justice, and yet it would appear that a crime has been committed, consequences can be attributed to it, and it is certainly possible to attempt to prevent the harm or its continuation.

            This is the appropriate place to add that in most of the above cases, the granting of a right to be heard prior to taking administrative action is irrelevant, as the victim (whether because anonymous or unreachable) is not available (see and compare: CA 5739/18 Operators of the Website www.oligarchescorts.com v. State of Israel [36]; Barak-Erez, p. 499).

69.       And now to return to the matter before us.    

            In my opinion, as long as it has not been proven that it is the activities of the Cyber Department that directly and certainly lead to a violation of fundamental rights, and as long as no evidentiary foundation has been laid showing that the discretion of the online platform operators is not actually independent, a voluntary referral from the Department to the online platform operators is not prohibited. In these cases, it is difficult to view the authority’s actions as a form of intentional infringement of fundamental rights in a manner that would negate the authority of the Cyber Department to act to frustrate publications that amount to a prima facie criminal offense.

            This is the place to reiterate that a very high percentage of the publications whose removal or restriction was requested by the Cyber Department concerned offenses of violence and terrorism, and it was not argued that those who committed the offenses are subject to Israeli law. The offenses that the Cyber Department seeks to frustrate by restricting publications that incite violence or terrorist acts are therefore at the heart of the residual powers granted to the government in the areas of security and foreign relations (see: Shetreet, pp. 567-597; Cohn, p. 164).

            In all that concerns offenses of incitement to violence or terrorist acts, this conclusion derives a fortiori from the conclusions of the Arbel Commission Report, in which the majority recommended expanding the voluntary enforcement mechanism even beyond its present state, so that voluntary referrals by the government would be permitted even when a criminal offense is not concerned. As opposed to this, the minority was of the view that the provisions of the Work Procedure are appropriate to the desirable situation. We are treating of the Work Procedure as it is, and we were not asked for any expansion. That is sufficient in the present matter.

70.       Moreover, although the “principle of legality” in administrative law takes on different forms from state to state (and certainly between a state and a supra-national body), the citations and examples appended to the Respondents’ supplementary brief show that at least in a number of western democracies, the authority to initiate the “voluntary” removal of harmful publications is not conferred upon the administrative agencies by virtue of express authorization to act in the said manner.

71.       In addition, I cannot accept the argument that residual power is displaced in the matter before us due to the express legislative provision treating of the authority to investigate and bring charges as detailed above, or by virtue of sec. 17(b) of the Interpretation Law. As noted above, enforcement of the type before us is entirely different from the criminal process – its purpose is not penal, but rather it attempts to prevent publication of material whose affect is immediate and requires speedy action for its removal in order to minimize ongoing harm (respectively): to public safety, public order, protection of the vulnerable, or the proper, fair conduct of elections.

 

A View to the Future

72.       To summarize what has been stated thus far – in my opinion, the Respondents stand, although at times just barely, within the bounds of the law. It cannot be denied that the Cyber Department’s activity, as presented in the preliminary response to the petition, is vital to the protection of national security and social order. The voluntary method by which the Cyber Department acts in this regard is not, however, problem free, primarily in regard to the absence of specific authority for its activity in primary legislation. However, until the enactment of detailed legislation on the matter (as has been done in some countries), the current situation can continue by virtue of residual power or auxiliary authority.

73.       Beyond that, a number of overall problems have been uncovered that the Respondents should consider and correct, as set out below:

A)        The Cyber Department should consider what was stated in the Movement’s request to join, which described a series of defects in the Department’s work, among them: a lack of documentation of the content of the publications that the Cyber Department seeks to remove, inadequate details in the transparency reports produced by the Department, and the non-publication of the Work Procedure (for example: the type of criminal offense grounding the voluntary act; a more detailed account of the alleged offenses related to the publication; the identity of the publisher and its relationship to the State of Israel, to the extent known to the Department). In addition, there is a problem in clarifying the role of the online platform operators (which might have been clarified had those operators been joined as respondents to the petition), and the agreements between them and the Department.

            In view of the fact that most of the Cyber Department’s activity concerns security offenses, exposing the full extent of the Department’s activity certainly presents a problem. However, I believe that the Cyber Department should present paraphrases and examples of the character of the referrals it sends and its discussions with the online platform operators in its transparency reports.

B)        In making its referrals to the online platform operators, the Department should guide itself in accordance with the case law of this Court, which constitutes law that supersedes residual authority in this regard, including the judgments given in CrimFH 7383/08 Ungerfeld v. State of Israel [37]; LCrimA 5991/13 Segal v. State of Israel [38]; LCrimA 7052/18 State of Israel v. Rotem [39] (further hearing pending)).

C)        A legislative initiative should be weighed to provide a detailed arrangement for the voluntary enforcement mechanism, as has been done in some other countries.

74.       Another argument, which was not addressed in the framework of this petition, is the need for establishing a post facto oversight and supervision mechanism for the Department’s activities, and it is recommended that this be considered (on the need for regulating the sphere of activity of actors on the internet in terms of procedure and proper constitutional balances, see my opinion in the Premier League case).

            The above problems are not insignificant, but they do not, in themselves, justify issuing an order nisi in this petition in its present state. Nevertheless, the Respondents must draw conclusions for ameliorating the system in regard to all the aspects set out above.

 

Conclusion

75.       In view of all the above, if my opinion be accepted, we will order the dismissal of the petition in all its parts, subject to my comments in paras. 73 and 74, without an order for costs.

 

Justice A. Stein:

I concur.

 

President E. Hayut:

1.         In his comprehensive, in-depth opinion, my colleague Deputy President H. Melcer well described the uniqueness and complexity of the questions raised by this petition, among them the question of defining a governmental act; the question of the incidence of Basic Law: Human Dignity and Liberty beyond the borders of the state; the question of the rights of computer-generated fictitious users (“bots”), where it is unclear whether and to what to extent a human agent stands behind them; as well as questions related to the area of the regulatory relationship between the state and private bodies operating online. They are unprecedented to a large extent, and even according to the Respondents, the activity that is the focus of the petition “is of a character unlike the usual activity of the State Attorney’s Office” (see the letter of the Ministry of Justice of Jan. 10, 2019, Appendix R/9 of the Respondents’ response to the petition).

            I will, therefore, begin by saying that in my opinion, it is very difficult to examine these substantive questions of first impression given the partial picture presented to us. Therefore, if my opinion were accepted, the petition would be dismissed in limine.

2.         The activity that is the subject of the petition is that of the Cyber Department of the State Attorney’s Office (hereinafter: the Cyber Department or the Department) in the “voluntary” enforcement track. As my colleague the Deputy President explained, in accordance with a Work Procedure that it established, the Department initiates referrals to online platform operators (social networks, search engines, and website hosting providers) to report publications that, in the opinion of the State Attorney’s Office, constitute an offense under Israeli law and also breach the Terms of Use of the platform itself. According to the Department’s preliminary response, such referrals are sent to the online platform operators only when there are additional considerations that justify the referral, among them the severity of the publication, the scope of its distribution and its “viral” potential. In practice, the Department focuses primarily upon publications related to the operations of terrorist organizations and in the matter of inciting violence and terror. Referrals are also sent in regard to publications that may harm minors, certain public servants, or the integrity of Knesset elections.

            My colleague the Deputy President noted that the petition suffers from two defects that are sufficient for its dismissal in limine. They are the failure to join the online platform operators as respondents to the petition, and an insufficient factual foundation for the argument that the Cyber Department acts without authority. This, inter alia, in view of the uncertainty as to the questions of whether the publishers that are the subjects of the referrals are people or “bots”; whether they are located in the country or abroad; and whether the online platform operators decide to remove publications independently or are perhaps influenced by the fact that the referring body is the State Attorney’s Office. However, my colleague was of the opinion that in view of the fundamental constitutional questions raised by the petition, they should be addressed on the merits. In his opinion, the activity of the Cyber Department constitutes a governmental act, and where there is a possibility that the Department’s referrals may influence the decisions of the online platform operators whether to remove the publications, there is a need for some form of authorization for the Department’s activity. Therefore, my colleague addressed the question whether it is possible to discover a source that authorizes the Cyber Department to act in this manner, and concluded that it can be premised upon the residual power granted to the government under sec. 32 of Basic Law: The Government, as long as the Cyber Department’s activity does not infringe fundamental rights, inasmuch as residual power cannot serve as the basis for such infringement.

3.         On the basis of the foundation laid out before us in regard to the manner of the Cyber Department’s activity and its consequences for the online platform operators, and in view of the significant deficiencies in that foundation, my colleague is of the opinion that it cannot be said that the state is the entity that infringes a constitutional right. In this regard, he emphasizes the significant difficulty inherent in recognizing the possibility of the infringement of freedom of expression of a non-human entity (e.g., “bots” and “avatars”). He further emphasizes that the entity that holds the power to decide whether or not to remove the publication is the platform operator and not the state. Therefore, my colleague holds that “as long as it has not been proven that it is the activities of the Cyber Department that directly and certainly lead to a violation of fundamental rights, and as long as no evidentiary foundation has been laid showing that the discretion of the online platform operators is not actually independent, a voluntary referral from the Department to the online platform operators is not prohibited” (para. 69 of his opinion).

4.         I concur with the conclusion of my colleague the Deputy President that the activity of the Cyber Department that is the subject of the petition constitutes a governmental act. In this context, the words of Justice I. Zamir in regard to the definition of “administrative authority” are apt:

When an administrative agency exercises its authority, […] it fulfils a public function under law. That being so, it is subject to the special system of laws that is the system of administrative law […] It is possible that this is the simple and appropriate way to define administrative authority: Administrative authority is a public function in accordance with law (Izhak Zamir, Administrative Authority, vol. I, The Public Administration, 205 (2nd expanded edition, 2010) (Hebrew) (emphasis added).

            In the matter before us, as my colleague the Deputy President noted in his opinion, the Cyber Department’s referral activity is systematic, focused, broad, and organized: Attorneys of the State Attorney’s Office send referrals to the online platforms in regard to publications that are prima facie criminal offences, regarding which there is a public interest in their removal, and that prima facie breach the Terms of Use of the platform. This is part of a declared plan of the State Attorney’s Office, and in in accordance with a dedicated procedure established for the purpose (see para. 15 of the Respondents’ supplementary brief). In these circumstances, it is clear that the Cyber Department’s activity constitutes a “public function”, and thus is a form of decision or exercise of authority on behalf of the state.

5.         The center of gravity of the petition, in its present form, is the question of infringement of a fundamental right. According to the Respondents, even if the Cyber Department’s activity constitutes a governmental act, and therefore requires a conferral of authority, it is possible to suffice in this regard with the government’s residual power (sec. 32 of Basic Law: The Government, which my colleague the Deputy President discussed at length), or the authority of the State Attorney’s Office as the representative of the Attorney General, who holds the auxiliary authorities required for the performance of his role (based upon secs. 3 and 17 of the Interpretation Law, 5741-1981). Auxiliary authority and residual power cannot form the basis of an infringement of a fundamental right (see HCJ 5128/94 Federman v. Minister of Police [16], 652; sec. 8 of Basic Law: Human Dignity and Liberty, according to which any violation of rights under that law requires express authorization by a law or by virtue thereof; and see Daphne Barak-Erez, Administrative Law, vol. 1, 146 (2010) (Hebrew); HCJ 4455/19 Tebeka Advocacy for Equality and Justice for Ethiopian Israelis v. Israel Police [40], paras. 14 and 34)). Deciding whether there is sufficient authorization for the activity of the Cyber Department is, therefore, largely contingent upon whether that activity infringes fundamental rights. According to the Respondents, the “informing” and recommending referrals by the Cyber Department to the online platform operators do not amount to a violation of rights. That is so because the platform operators exercise independent discretion in all that concerns the removal of the content that is the subject of the referrals, whereas the Cyber Department only makes recommendations.

            The petition before us suffers from two material defects that my colleague the Deputy President addressed, each of which – and a fortiori cumulatively – frustrate the possibility of deciding this fundamental question on the merits. Therefore, in my opinion, there is no recourse but to dismiss the petition in limine. These defects are, as noted, the failure to join relevant respondents, and a lack of a factual foundation. I will address these respectively.

6.         Failure to join relevant respondents – as has been held on more than one occasion, refraining from joining those who may be affected by the decision upon the petition constitutes a material defect that can justify dismissing the petition in limine. This, inter alia, because the respondents who were not joined can shed essential light on the issues to be addressed: “In order for the court to ground its decision upon a full, reliable picture of the situation, there is no one better to present the opposing view than one who is related to the matter and may be harmed by a court order” (HCJ 1901/94 MK Landau v. Jerusalem Municipality [41], 415 (hereinafter: the Landau case); and also see Izhak Zamir, Administrative Authority, vol. III, Judicial Review – Threshold Rules, 1747 (2014) (Hebrew)). This defect is particularly salient when the petitioner has been granted the opportunity to correct the omission and chose not to do so (HCJ 151/11 Ruth and Emanuel Rackman Center v. Minister of Justice [42], para. 17; and compare: HCJ 384/82 Pachmas Metal & Plastic v. Minister of Finance [43], 300-301)).

            In their preliminary response to the petition, the Respondents raised several arguments in regard to this threshold requirement, and the Petitioners’ attorney was even asked about this in the course of the hearing on Aug., 8, 2020, responding:

We considered whether to join, we considered before whom to petition. We are not arguing against Facebook or any other company. We are arguing that we have here a governmental act by the state that refers to the content providers in this entire sphere of removal of content without connection; the governmental act here is that of initiated referral by the Cyber Department – that is an act that requires authorization. […] We do not believe that there is harm [to the operators] (p. 4, lines 29-32 of the transcript).

7.         I am unable to accept this argument. The Cyber Department’s Work Procedure lists a “mixed multitude” of “online platforms”, and the differences outnumber what they share in common in no few aspects (see sec. 1 of the Procedure). The online social networks (Facebook, etc.) are unlike online search engines (like Google) or website “hosting” providers (like WordPress). And an online social network, in which mostly text and pictures are shared (like Facebook and Twitter) is unlike a social network for sharing only videos (like YouTube). These platform operators are differentiated by a number of criteria that have consequences for the questions at the heart of this petition, among them: the type of contents regarding which the Cyber Department sends notifications; the policy for treating those referrals; and the importance that each operator assigns to the identity of the party requesting the removal of content. The question whether and to what extent these operators are expected (all or some) to be harmed by the granting of the petition was also not sufficiently examined, and I am not convinced that the Petitioners succeeded in showing that those operators cannot be expected to be harmed at all by a decision on the merits in this petition. As my colleague the Deputy President noted, we have before us a “triangular relationship” or a “power triangle” with three vertices: the state, the publishers (in whose names the Petitioners argue), and the online platform operators. Without representation for one of the vertices of the triangle, it is impossible to decide material questions that affect the entire triangle.

            Indeed, at times the Court is willing to address a petition on the merits despite the defect of not joining relevant respondents, for example, “if the harm to the third party is negligible, if there are grounds for assuming that he is not interested in arguing before the Court, or if it is clear that one of the Respondents will fully and adequately present the arguments in regard to that party” (the Landau case, p. 415). Without expressing an opinion on the question of the scope of the harm that would be caused to the platform operators if the petition were granted, it is clear that there are no grounds for assuming that all of these operators are not interested in voicing their position on the matter at the heart of this petition, or for assuming that the parties to the petition can present the full picture in regard to those operators.

8.         Thus, we find that this petition suffers from a material defect of not joining respondents who may be harmed by the decision rendered, and the information they have may even materially affect the decision on the merits of the Petitioners’ arguments. This is particularly so in regard to the question whether the Cyber Department’s activity infringes constitutional rights, and the question of the scope of the alleged infringement. The Petitioners were confronted with the said defect at the preliminary stage and chose not to remedy it.

            Even if one were to argue that this defect can be remedied by alternative means, such as joining the respondents at the Court’s initiative, that would be to no avail as the petition, in its current state, suffers from an additional, no less material defect in regard to the insuffciency of the factual foundation necessary for deciding upon it.

9.         As my colleague the Deputy President emphasized in his opinion, we were not presented with data on the scope of the infringement of fundamental rights caused as a result of the operators’ acceding to the Cyber Departments referrals. In particular, it was not made clear what part of the referrals concern publications that originate beyond the borders of the state, anonymous publications, or publications that were not uploaded by human beings – in which case, as my colleague noted, material questions arise in regard to the applicability of Basic Law: Human Dignity and Liberty to those publications. In addition, although the Respondents presented data in regard to the total number of referrals issued by the Cyber Department over the last few years (see para. 17 of the opinion of my colleague the Deputy President) and asked to present ex parte “a number of concrete examples of the Cyber Department’s reports to the online platforms in various areas” (para. 26 of the preliminary response), it appears from the Movement for Freedom of Information’s request to join that the Cyber Department does not maintain a database of all the publications regarding which it sends referrals. The activity reports published by the Cyber Department present only laconic information about the publications regarding which referrals are sent, the identity of the publishers and the reasons for sending the referrals (see para, 73(a) of the opinion of my colleague the Deputy President).

10.       The absence of a factual foundation in regard to the activity of the Cyber Department does not fall upon the Petitioners but rather upon the Department itself, and the relevant data is in its possession or can be obtained by it. However, the Petitioners did not focus their arguments upon the transparency of the Cyber Department’s activity, did not request an operative remedy in this regard, did not exhaust the procedures with the Respondents in this regard, and it is not clear whether they submitted requests in this matter under the Freedom of Information Law, 5758-1998. In these circumstances, and given the factual gaps addressed in the opinion of my colleague the Deputy President, I do not believe that it is possible to continue to examine the petition on the merits in its current state.

11.       The primary question raised by the petition before us is, as stated, whether the referral activity of the Cyber Department – as expressed in the Work Procedure that it established – leads to a violation of fundamental rights. To the extent that the answer is in the negative, it is possible to suffice with the sources of authority cited by the Respondents, and hold that this activity does not constitute a deviation from authority, while to the extent that the answer is positive, the Respondents will be required to find some alternative source of authority, in the absence of which there will be no recourse but to hold that the Cyber Department acts ultra vires. A significant component of the Petitioners’ argument thus treats of the alleged infringement of freedom of expression. The Petitioners further argue that the Cyber Department’s activity also involves an infringement of the right to due process and the right to be heard, because it does not afford the publishers the right to be heard prior to sending the referral, which includes the Department’s position that the publication constitutes a prima facie criminal offense.

            My colleague the Deputy President is of the opinion that there is no violation of a constitutional right in this case, without seeing a need to decide the question of the criteria for the existence of an infringement of a constitutional right (paras. 63-65 of his opinion). To my mind, the accepted approach, long established in the case law of this Court, is that when there is an infringement of a constitutional right that is not de minimis, the constitutional review moves from the first step – that of the violation – to the second, i.e., examining the justification for the violation in the framework of the tests of the Limitation Clause. In any event, under the circumstances of the matter before us, the insufficient factual foundation in regard to the manner in which the Cyber Department operates, together with the insufficient factual foundation in regard to the conduct of the online platform operators, which largely derives from their not being joined to the petition (particularly the question of the importance they assign to the fact that the referrals are sent by the Cyber Department of the State Attorney’s Office of the State of Israel), all lead, in my opinion, to the conclusion that, at this point in time, it is not possible to decide the question whether the Cyber Department’s activity leads to an infringement of freedom of expression or of the right to be heard and the right to due process. In other words, in view of the partial picture of the necessary facts presented to us, and in view of the absence of the online platform operators as parties to the petition, it is not possible, in my opinion, to examine the material questions raised by the petition, and there is no alternative but to dismiss it in limine. I would also join the comments in para. 73 of the opinion of my colleague the Deputy President in regard to the difficulties presented by the activities of the Cyber Department, and his call for the publication of the details of the Work Procedure of the Cyber Department (para. 12 of his opinion). Therefore, were my opinion accepted, we would order the dismissal of the petition in limine, without an order for costs.

 

The petition is denied.

Given this day, the 30th of Nissan 5781 (April 12, 2021).

 

 

 

[1] Sanctions established in the 12th century by Rabbi Jacob ben Meir “Tam”, which may be imposed upon a “recalcitrant husband” who refuses to grant a divorce.

[2] Now referred to in English as the Israel Security Agency – ed.

Dweikat et al. v. State

Case/docket number: 
HCJ 390/79
Date Decided: 
Wednesday, October 10, 1979
Decision Type: 
Original
Abstract: 

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

 

For this petition, we must consider the legality of establishing a civilian town (settlement) in Elon Moreh, on the outskirts of the city of Nablus, on land privately owned by Arab residents. On the morning of June 7, 1979, Israeli citizens, assisted by the IDF, began to settle on a hill east of the Jerusalem-Nablus road. The hill is entirely on rocky and undeveloped land. The land was privately owned by, and registered to, the petitioners in the Nablus registry. Two days before the settlers arrived on the land, the Commander of the Judea and Samaria area, signed an Order for the possession of land that declares the lands were possessed for military needs.

 

The petitioners approached this court on June 14, 1979, and on June 20, 1979, an order nisi was granted against the respondents, ordering them to show cause why the court should not declare the Orders of Possession invalid. An interim order was also issued to prohibit any additional digging, construction, or settlement of additional citizens on the relevant land.

 

In the responding affidavit, the Chief of the General Staff explained that a civilian settlement at that location was required for security purposes, because in a time of war, military forces may leave the base in order to execute mobile missions or attacks, whereas the civilian settlement remains in its place. Being properly armed, it controls its surroundings in observation and protection of nearby traffic arteries, in order to prevent the enemy from seizing control. Opposing the Chief of General Staff, the Minister of Defense believed that these security needs could have been met in ways other than a settlement at the relevant site. Additionally, according to Lieutenant General (Res.) Bar-Lev, during wartime, IDF forces would be grounded to secure the civilian settlement, instead of engaging in combat with enemy forces.

 

The main issue the court considered (in a majority opinion by Deputy President Landau), was whether it may be legally justifiable to build a civilian settlement on the relevant site, despite having taken possession of private property for such purposes. For each and every case it must be examined whether military needs – as this term must be interpreted – did indeed justify taking possession of private land.

 

The legal framework for deciding this petition is defined first and foremost by the Order of Possession issued by the area commander, an order that is directly rooted in the powers that international law grants a military commander in territories occupied by his forces during a time of war. Additionally, the discussion is framed by the tenets of the law that has been implemented by the Israeli military commander in the Judea and Samaria area – this too according to the laws of war under international law. Substantively, we must examine under domestic Israeli law whether the Order of Possession was issued lawfully according to the authorities granted to the Government and the military by Basic Law: The Government and by Basic Law: The Military. Customary international law is in any event part of Israeli law to the extent it does not conflict with domestic legislation.

 

The court discussed the Beit El case (HCJ 606/78), in which a civilian settlement was found to comply with Article 52 of the Hague Regulations, which allows taking possession of land “for the needs of the army of occupation”, and held that temporary use of private land is permissible when it is necessary “for all kinds of purposes demanded by the necessities of war.” Here, the Court interpreted military needs to include “ensur[ing] public order and safety” under Article 43 of the Hague Regulations, as well as – under Article 52 – what is necessary for the military in order to fulfill its role in protecting the occupied territory from hostile activity, which may come both from outside and from within. It must be demonstrated, according to the facts of the case, that military needs were those which effectively motivated the decision to build a civilian settlement at the relevant site. The court found that here, the professional opinion by the Chief of the General Staff, in itself, did not lead to the decision to build the settlement of Elon Moreh, but that the propelling force behind the decision of the Ministerial Committee for National Security Affairs and of the Government was actually the strong desire of the people of Gush Emunim to settle the heart of the Land of Israel, as closely as possible to the city of Nablus. Both the Ministerial Committee and the Government majority were determinatively influenced by reasons that are of a Zionist worldview as to the settling of the entire Land of Israel.

 

Military needs, under international law, cannot be construed, by any reasonable interpretation, as including national security needs in their broad sense. Where the needs of the military are concerned, one would expect military officials to initiate the settlement on that particular site, and that the Chief of the General Staff would be the one to bring, according to such initiative, the military’s needs before the Government for approval of the settlement. Here, it is clear that the process was inverted: the initiative came from the political level and the political level reached out to the Chief of the General Staff for his professional opinion. The fact that those charged with assessing the military needs were not those who initiated the process to settle that particular site, but that, instead, their approval of that site was given only after the fact, in response to the initiative of the political level, demonstrates that there, in fact, was no military necessity to take private property in order to build a civilian settlement, as required by the terms of Article 52 of the Hague Regulations. It was not proven that in establishing this civilian settlement, the military preceded the act of settlement with thought and military planning. Instead, the pressure exerted by the people of Gush Emunim was what motivated the Ministerial Committee. Military considerations were subordinate to the political decision to build the settlement. As such, this does not meet the strict demands of the Hague Regulations as to preferring military needs over the individual’s right to property.

 

The Court also addressed the issue of how a permanent settlement can be established on land that was possessed only for temporary use. The decision to establish a permanent settlement that is intentionally designed to stand in its location in perpetuity – and even beyond the duration of the military rule in Judea and Samaria – meets an insurmountable legal obstacle, because a military administration cannot create within its territory “facts on the ground” for the purposes of its military needs that were, in advance, intended to exist past the end of the military rule in that area, when the fate of the territory after the end of the military rule is yet unknown.

 

The concurring opinion by Justice Witkon reiterated that the legal framework is the state authorities’ actions both in light of the domestic (or “municipal” as it is commonly termed in this context) law and in light of international law. There is no dispute that the force of the orders, in terms of the domestic law and really also in terms of customary international law (Hague Convention), is contingent upon their being “for military needs.” Here, however, even the experts charged with state security are divided as to the need for settlement in the relevant location

 

Basic Law: The Military addresses the order of the chain of command between three bodies – the Government, the Minister of Defense and the Chief of the General Staff. In terms of the hierarchy between them there is indeed no doubt that the Chief of the General Staff is below the Minister and they are both below the Government. But here the question is not whose order trumps, but rather whose opinion is more acceptable to the court.

 

In such a situation of a draw, when the opinion of the giver of the respondents’ affidavit should not be presumed to be superior to the opinions of other experts, the court asks: who bears the burden of proof? Justice Witkon held that the burden is placed upon the respondents. The law does not give the commander’s assertion that the taking of possession in required for military needs the force of a presumption – let alone that of conclusive evidence – that indeed it is so. Moreover, it is not sufficient that the commander sincerely and subjectively believes that the taking of possession was essential, in order to place the question beyond judicial review. The court need not be convinced of the sincerity of the consideration, but rather of its correctness.

 

The Court must not allow a serious infringement of property rights unless it is satisfied that it is necessary for security purposes. Here, as noted, the Minister of Defense himself was not persuaded this possession was necessary. It is not the court’s business to engage in political or ideological debates; but it is the court’s duty to examine, whether pure security considerations justify taking possession of land for the purposes of settling at that location. To determine this, Justice Witkon thought it important to know what the settlers’ position was. If they were not motivated, primarily, by security purposes, the court struggled to accept that this indeed was the purpose of their settlement.

 

Included within customary international law are the rules of the Hague Convention, so this Court should examine the lawfulness of the taking of possession in light of Article 52 of the Hague Regulations. Here, too, the test is the military need, and when one is not persuaded such need exists under the criteria of municipal law, one would not be persuaded, in any event, that it exists under the criteria of the Hague Convention either.

 

The question whether voluntary settlement falls within the prohibition over “transfer[ring] parts” of a “population” for the purposes of Article 49(6) of the Geneva Convention is not easy, and, as far as we know, it has yet to be resolved in international case law.

 

In his concurring opinion, Justice Bechor found that, had the court reached the conclusion that the military commander operated in this case in order to ensure military needs, and that he initiated that action for the purposes of ensuring such needs, which were the dominant factor in his decision, in light of all the circumstances and the timing as described in detail in the Deputy President’s opinion, he would have endorsed his action. But, as the Deputy President demonstrated in his opinion, the action of the military commander exceeded in this case the limits of its power under international law.

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

[Emblem]

 

In the Supreme Court as High Court of Justice

 

   HCJ 390/79

 

Before:                                    The Honorable Justice Landau – Deputy President

                                    The Honorable Justice Witkon

                                    The Honorable Justice Asher

                                    The Honorable Justice Ben Porat

                                    The Honorable Justice Bechor

           

 

The Petitioners:

 

                                    ‘Izzat Muhamamad Mustafa Dweikat et al.

 

                                    versus

 

The Respondent:

 

  1. The State of Israel
  2. The Minister of Defense
  3. The Military Commander for Judea and Samaria
  4. The Military Commander for Nablus Sub-District
  5. Felix Menahem
  6. Shvut Avraham

                                   

                                    Objection to Order Nisi of date 25 Sivan 5740 (June 20, 1979)

 

Adv. E. Khouri

                                    On behalf of Petitioners 1-16

 

                                    Adv. A. Zichroni, Adv. A. Feldman

                                    On behalf of Petitioner 17

 

                                    Adv. G. Bach, State Attorney

                                    On behalf of Respondents 1-4

                                   

                                    Adv. R. Cohen, Adv. M. Simon

                                    On behalf of the Respondents 5-6

 

 

 

 

Abstract

 

For this petition, we must consider the legality of establishing a civilian town (settlement) in Elon Moreh, on the outskirts of the city of Nablus, on land privately owned by Arab residents. On the morning of June 7, 1979, Israeli citizens, assisted by the IDF, began to settle on a hill east of the Jerusalem-Nablus road. The hill is entirely on rocky and undeveloped land. The land was privately owned by, and registered to, the petitioners in the Nablus registry. Two days before the settlers arrived on the land, the Commander of the Judea and Samaria area, signed an Order for the possession of land that declares the lands were possessed for military needs.

The petitioners approached this court on June 14, 1979, and on June 20, 1979, an order nisi was granted against the respondents, ordering them to show cause why the court should not declare the Orders of Possession invalid. An interim order was also issued to prohibit any additional digging, construction, or settlement of additional citizens on the relevant land.

In the responding affidavit, the Chief of the General Staff explained that a civilian settlement at that location was required for security purposes, because in a time of war, military forces may leave the base in order to execute mobile missions or attacks, whereas the civilian settlement remains in its place. Being properly armed, it controls its surroundings in observation and protection of nearby traffic arteries, in order to prevent the enemy from seizing control. Opposing the Chief of General Staff, the Minister of Defense believed that these security needs could have been met in ways other than a settlement at the relevant site. Additionally, according to Lieutenant General (Res.) Bar-Lev, during wartime, IDF forces would be grounded to secure the civilian settlement, instead of engaging in combat with enemy forces.

 

The main issue the court considered (in a majority opinion by Deputy President Landau), was whether it may be legally justifiable to build a civilian settlement on the relevant site, despite having taken possession of private property for such purposes. For each and every case it must be examined whether military needs – as this term must be interpreted – did indeed justify taking possession of private land.

 

The legal framework for deciding this petition is defined first and foremost by the Order of Possession issued by the area commander, an order that is directly rooted in the powers that international law grants a military commander in territories occupied by his forces during a time of war. Additionally, the discussion is framed by the tenets of the law that has been implemented by the Israeli military commander in the Judea and Samaria area – this too according to the laws of war under international law. Substantively, we must examine under domestic Israeli law whether the Order of Possession was issued lawfully according to the authorities granted to the Government and the military by Basic Law: The Government and by Basic Law: The Military. Customary international law is in any event part of Israeli law to the extent it does not conflict with domestic legislation.

 

The court discussed the Beit El case (HCJ 606/78), in which a civilian settlement was found to comply with Article 52 of the Hague Regulations, which allows taking possession of land “for the needs of the army of occupation”, and held that temporary use of private land is permissible when it is necessary “for all kinds of purposes demanded by the necessities of war.” Here, the Court interpreted military needs to include “ensur[ing] public order and safety” under Article 43 of the Hague Regulations, as well as – under Article 52 – what is necessary for the military in order to fulfill its role in protecting the occupied territory from hostile activity, which may come both from outside and from within. It must be demonstrated, according to the facts of the case, that military needs were those which effectively motivated the decision to build a civilian settlement at the relevant site. The court found that here, the professional opinion by the Chief of the General Staff, in itself, did not lead to the decision to build the settlement of Elon Moreh, but that the propelling force behind the decision of the Ministerial Committee for National Security Affairs and of the Government was actually the strong desire of the people of Gush Emunim to settle the heart of the Land of Israel, as closely as possible to the city of Nablus. Both the Ministerial Committee and the Government majority were determinatively influenced by reasons that are of a Zionist worldview as to the settling of the entire Land of Israel.

 

Military needs, under international law, cannot be construed, by any reasonable interpretation, as including national security needs in their broad sense. Where the needs of the military are concerned, one would expect military officials to initiate the settlement on that particular site, and that the Chief of the General Staff would be the one to bring, according to such initiative, the military’s needs before the Government for approval of the settlement. Here, it is clear that the process was inverted: the initiative came from the political level and the political level reached out to the Chief of the General Staff for his professional opinion. The fact that those charged with assessing the military needs were not those who initiated the process to settle that particular site, but that, instead, their approval of that site was given only after the fact, in response to the initiative of the political level, demonstrates that there, in fact, was no military necessity to take private property in order to build a civilian settlement, as required by the terms of Article 52 of the Hague Regulations. It was not proven that in establishing this civilian settlement, the military preceded the act of settlement with thought and military planning. Instead, the pressure exerted by the people of Gush Emunim was what motivated the Ministerial  Committee. Military considerations were subordinate to the political decision to build the settlement. As such, this does not meet the strict demands of the Hague Regulations as to preferring military needs over the individual’s right to property.

The Court also addressed the issue of how a permanent settlement can be established on land that was possessed only for temporary use. The decision to establish a permanent settlement that is intentionally designed to stand in its location in perpetuity – and even beyond the duration of the military rule in Judea and Samaria – meets an insurmountable legal obstacle, because a military administration cannot create within its territory “facts on the ground” for the purposes of its military needs that were, in advance, intended to exist past the end of the military rule in that area, when the fate of the territory after the end of the military rule is yet unknown.

The concurring opinion by Justice Witkon reiterated that the legal framework is the state authorities’ actions both in light of the domestic (or “municipal” as it is commonly termed in this context) law and in light of international law. There is no dispute that the force of the orders, in terms of the domestic law and really also in terms of customary international law (Hague Convention), is contingent upon their being “for military needs.” Here, however, even the experts charged with state security are divided as to the need for settlement in the relevant location

Basic Law: The Military addresses the order of the chain of command between three bodies – the Government, the Minister of Defense and the Chief of the General Staff. In terms of the hierarchy between them there is indeed no doubt that the Chief of the General Staff is below the Minister and they are both below the Government. But here the question is not whose order trumps, but rather whose opinion is more acceptable to the court.

In such a situation of a draw, when the opinion of the giver of the respondents’ affidavit should not be presumed to be superior to the opinions of other experts, the court asks: who bears the burden of proof? Justice Witkon held that the burden is placed upon the respondents. The law does not give the commander’s assertion that the taking of possession in required for military needs the force of a presumption – let alone that of conclusive evidence – that indeed it is so. Moreover, it is not sufficient that the commander sincerely and subjectively believes that the taking of possession was essential, in order to place the question beyond judicial review. The court need not be convinced of the sincerity of the consideration, but rather of its correctness.

 

The Court must not allow a serious infringement of property rights unless it is satisfied that it is necessary for security purposes. Here, as noted, the Minister of Defense himself was not persuaded this possession was necessary. It is not the court’s business to engage in political or ideological debates; but it is the court’s duty to examine, whether pure security considerations justify taking possession of land for the purposes of settling at that location. To determine this, Justice Witkon thought it important to know what the settlers’ position was. If they were not motivated, primarily, by security purposes, the court struggled to accept that this indeed was the purpose of their settlement.

Included within customary international law are the rules of the Hague Convention, so this Court should examine the lawfulness of the taking of possession in light of Article 52 of the Hague Regulations. Here, too, the test is the military need, and when one is not persuaded such need exists under the criteria of municipal law, one would not be persuaded, in any event, that it exists under the criteria of the Hague Convention either.

The question whether voluntary settlement falls within the prohibition over “transfer[ring] parts” of a “population” for the purposes of Article 49(6) of the Geneva Convention is not easy, and, as far as we know, it has yet to be resolved in international case law.

In his concurring opinion, Justice Bechor found that, had the court reached the conclusion that the military commander operated in this case in order to ensure military needs, and that he initiated that action for the purposes of ensuring such needs, which were the dominant factor in his decision, in light of all the circumstances and the timing as described in detail in the Deputy President’s opinion, he would have endorsed his action. But, as the Deputy President demonstrated in his opinion, the action of the military commander exceeded in this case the limits of its power under international law.

 

Judgment

Deputy President Landau

For this petition, we must consider the legality of establishing a civilian town (settlement) in Elon Moreh, on the outskirts of the city of Nablus, on land that is privately owned by Arab residents. A similar issue was decided by this Court in HCJ 606/78, Suleiman Taufic Ayuv et al. v. the Minister of Defense and 2 Others; Jamil Arsam Mataua and 12 Others v. the Minister of Defense and 3 Others, IsrSC 33(2) 113, 127, 124-129, 128-129, 131, 132-133, 120, 126, 116, 118, 119 (hereinafter for brevity: the Beit El matter), on March 13 1979. We ruled there that the establishment of two civilian towns on private lands in Beit El near Ramallah and in the B Valleys by Tubas violated neither domestic Israeli law nor customary international law, which constitutes part of domestic law, as both towns were established for military purposes, as we interpreted the term.

It was said in the Beit El case (bottom of page 128), in terms of the justiciability of this issue, that the problem of the settlements “is in dispute between the government of Israel and other governments, and that it is liable to be at issue at fateful international negotiations in which the Government of Israel is involved.” Meanwhile, the intensity of the dispute has not since subsided in the international arena; moreover, it has intensified within the Israeli public discourse, as well, as reflected in the very decision to build a civilian settlement in Elon Moreh, which was adopted by a majority vote in the Israeli cabinet. This, therefore is a pressing issue that is hotly debated within the public. In HCJ 58/68, Binyamin Shalit v. Minister of Interior , IsrSC 23(2) 477, 521, 530 (the issue of “who is a Jew”), I wrote (at the bottom of page 521) of “… the grim result in which a court seemingly abandons its rightful place, above the disputes that divide the people, with its justices themselves entering the fray…”, and on page 530, I explained – as one of the minority justices – that the Court must refrain from ruling on the dispute there, when it has no valid source for its ruling. I added that even in such case, “there may be instances where a justice sees himself as compelled to respond with his personal position on matters pertaining to his own worldview, though it is controversial.” This time we have valid sources for our ruling and we need not, and further – must not, when adjudicating, involve our personal views as citizens. Still, there is great concern that the Court might be seen as having abandoned its rightful place in entering the fray of public controversy, and that its decision might be received by part of the public with applause and by the other part with complete and passionate rejection. In this sense, I see myself here as obligated to rule in accordance with the law, in any matter lawfully brought before this Court. That is what compels me, knowing full-well in advance that the public at large would pay no attention to the legal reasoning, but only to the ultimate conclusion, and that the Court, as an institution, could have its rightful stature compromised, beyond the disputes that divide the public. But what can we do? This is our role and this is our duty as justices.

On the morning of June 7, 1979, Israeli citizens, assisted by the Israel Defense Forces (IDF), began to settle on a hill, located about 2 kilometers east of the Jerusalem-Nablus road, and about the same distance south east of the intersection of that road with the road descending from Nablus toward the Jordan Valley. The operation was carried out with the assistance of helicopters and heavy machinery. A road was forged from the Jerusalem-Nablus road to the hill. The entire hill is rocky and undeveloped land (aside from a small plot on the site’s north-west side, which was plowed and planted only recently, and in the opinion of the respondent’s expert, this was done out of season, at a location where there is no prospect of any financial gains from the produce). However, forging the 1.7 kilometer road, required harming the existing sorghum crops, in a territory of about 60 meters long and 8 meters wide, as well as about six four-year-old olive plants.

The hill is located within the lands of the Rujeib village, which is located nearby to the northwest. The seventeen petitioners, who are residents of the village, hold plots registered to their names in the Nablus registry after having gone through a process of land regulation. The total area of their plots is about 125 Dunams. The petitioners hold no rights of ownership in the land of the forged road.

On June 5, 1979, two days before the settlers arrived on the land, Brigadier General Binyamin Ben Eliezer, the Commander of the Judea and Samaria area, signed an Order for the possession of land number 16/79 (hereinafter: “Order of Possession” or “Order of Possession n. 16/79” – ed. note). The heading of the Order of Possession reads: “Under my authority as area commander, and because I believe it to be required for military needs, I hereby order as follows:…”. And in the body of the Order the signer declares a territory of about 700 dunams, defined by a map that was appended to the order, as “possessed for military needs.” Petitioners’ plots are included within this territory. Section 3 of the order stipulates that any lawful owner or holder of the land included in the territory would be permitted to submit, to a Claims Department Officer, a claim for periodical use fees, due to the possession of the land, and for compensation for any real damage caused in the course of the taking of possession. Under section 5, “notice of the contents of the order will be given to owners or holders of land located in the territory.” A similar order pertaining to the terrain of the road to the hill (number 17/79) was signed only on June 10, 1979 – three days after the settlement on the land. As for giving required notice to the land owners, including the petitioners, it turns out that only on the actual day of the settlement on the land, at 8 am, around the time the works on the site began, a notification of the order was given to the leaders (mukhtars) of the Rujeib village, who were summoned to the office of the Nablus military ruler. Written notices were given to the leaders only on June 10, 1979, for delivery to the land owners. In the responding affidavit for this petition, Lieutenant General Raphael Eitan, the Chief of the General Staff, says that it would have been appropriate to give advance notice to the land owners of the intent to possess the land, as is customary as a general rule in similar cases, and that he has instructed that, in the future, such notices be given to the relevant land owners at an appropriate time before the possession of the land. It is unclear why those in charge deviated from the prevailing custom this time. It seems that the arrival on the land was organized,  as if it were a military operation, exploiting the element of surprise, with the intent of preempting the “risk” of this Court’s intervention, as some the land owners had already approached the Court prior to the commencement of the work on the site.

The petitioners approached this Court on June 14, 1979, and on June 20, 1979 an order nisi was granted against the respondents – the Government of Israel, the Minister of Defense, the regional Military Commander of Judea and Samaria, and the Military Commander of Nablus – ordering them, inter alia, to show cause why the Orders of Possession should not be invalidated and why the instruments and structures on the land should not be removed in order to prevent the building of a civilian settlement on the land. Additionally, an interim order was issued to prohibit any additional excavation or construction on the relevant land, as well as the settlement of any additional citizens on it, in addition to those who settled on it before the interim order was granted. This interim order is in effect until today, with certain changes made at the request of the settlers over the course of the hearing of the petition.

In the responding affidavit, the Chief of the General Staff explained that in his opinion establishing a civilian settlement at that location is required for security purposes, and that his position as to the security significance of the territory and the settlement on it was brought to the knowledge of the Ministerial Committee for National Security Affairs,. The Ministerial Committee resolved in its meetings on May 8, 1979 and May 10, 1979 to approve the possession of the land through an Order of Possession for the purposes of building the settlement, and, following these decisions, which were approved by the Cabinet in its meeting on June 3, 1979, the area Commander of Judea and Samaria issued the Order of Possession in question. Lieutenant General Eitan, in his affidavit, elaborated on the important contribution of civilian settlements to the protection of the Jewish population, dating back to before the establishment of the state, as well as during the War of Independence. He discussed the security purposes that these settlements fulfill in terms of regional defense and in terms of the IDF’s organization, both in periods of calm and in times of emergency. With great emphasis, the Chief of the General Staff expressed his unequivocal opinion regarding the importance of regional defense, suggesting serious criticism of those who neglected regional defense, bringing it to an “all time low,” in his words, by the 1973 Yom Kippur war, when the military’s mindset still rested on the laurels of the victory in the Six Day War. However, “after the 1973 War, regional defense was restored to its greatness, which it was denied by hubris and fundamentally wrongful consideration as to its contribution.” Today, the regional defense communities are armed, fortified, and properly trained for their mission to protect the area where they live, and their location on the ground is determined with consideration for their contribution to controlling the area and assisting the IDF in its various missions. The Chief of the General Staff explained the unique importance attributed to a civilian settlement, as opposed to a military base, because in war time, the military units may leave the base for the purposes of executing mobile missions or attacks, whereas the civilian settlement remains in its place. Being properly armed, it controls its surroundings, in observation and protection of nearby traffic arteries, in order to prevent the enemy from seizing control. This is particularly pertinent when reserves are recruited in a time of war – and in this case, in a time of war on the eastern front. At such a time, the military units must move toward their designated locations, which are spread out. The import of controlling traffic arteries in order to ensure quick and uninterrupted movement, therefore grows. Nablus and its surroundings sit at an irreplaceable crossroad, rendering control of nearby roads especially important. Elon Moreh sits over a number of such roads; these are the Ramallah-Nablus road, the Nablus-Valley road through Jiftlik, and an additional road to the Valley through Aqraba and Majdal, which also runs close by to the south.

There is no doubt, and even the petitioners’ attorneys – Mr. Elias Khouri on behalf of petitioners 1-16 and the respected sirs A. Zichroni and A. Feldman for petitioner 17 – do not dispute, that Lieutenant General Eitan is absolutely sincere and deeply convinced of his positions, which are a matter of his professional expertise as the highly experienced military man that he is. But he does not conceal that there is dispute over his conclusion as to the crucial importance of building a civilian settlement on the site chosen for Elon Moreh. In paragraph 23(d) of his affidavit he says as follows:

“I am aware of the opinion of respondent no 2, who does not dispute the strategic significance of the relevant area, but believes that security needs may be met in ways other than a settlement at the relevant site.”

Respondent no. 2 is the Minister of Defense. An usual circumstance has arisen in which the respondents themselves hold diverging opinions on the subject matter of the petition, such that the Chief of the General Staff’s affidavit must be viewed as representing the opinions, both of the military authorities as well as of the Israeli Government, which decided this matter by a majority vote on an appeal submitted by the Deputy Prime Minister challenging a decision by a ministerial committee (the Deputy Prime Minister too, like the Minister of Defense, is a clear authority on military matters, having previously served as the second Chief of General Staff of the IDF). The petitioners were also permitted to submit additional expert opinions, one by Lieutenant General (Res.) Haim Bar-Lev, and the other by Major General (Res.) Mattityahu Peled. Lieutenant General (Res.) Bar-Lev expressed his professional assessment that Elon Moreh does not contribute to Israel’s security as it is unhelpful, both in combatting acts of terror and sabotage in times of calm, as well as in times of war on the eastern front, because a civilian settlement located on a hill about 2 kilometers from the Nablus-Jerusalem road cannot facilitate securing this traffic artery, and in any event there is a large military base located close to the road itself, which controls central traffic arteries to the south and to the east. In fact, according to Lieutenant General (Res.) Bar-Lev, hostile activity against the settlement during wartime, would necessitate the deployment of forces to secure the settlement, at the expense of engaging those forces in combat with enemy forces. The apparent response to these misgivings in Lieutenant General Eitan’s affidavit is that the primary significance of a civilian settlement on the relevant site is not for the purposes of combating hostile terrorist activity, and that this was not the Chief of the General Staff’s reason for taking possession of the site, but that the main importance may be revealed specifically during wartime, because, in war, the very  base that Lieutenant Bar-Lev speaks of would be vacated, and that there is no comparison between a civilian settlement that is currently integrated into the regional defense strategy and  the civilian settlements of the past, in terms of the quality of its ammunition, equipment and level of training. The opinion of Major General (Res.) M. Peled is detailed and his conclusion is that “the argument as to the security value attributed to the ‘Elon Moreh’ settlement is made in the absence of good faith and for one purpose alone – to justify taking possession of land that cannot be justified otherwise.” I did not find in Peled’s opinion any discussion of Lieutenant General Eitan’s primary reason, that is the role of a settlement located in the relevant area to safeguard the freedom of movement on nearby roads as reserves forces are spread along the eastern front during wartime. As for the opinion of Lieutenant General Bar-Lev and other military experts who share his position, I have no intention to insert myself between experts. It will suffice for me to say here, too, as we said in HCJ 258/79 (unpublished) as follows:

“In such a dispute regarding military-professional questions, in which the Court has no well founded knowledge of its own, the witness of respondents, who speaks for those actually responsible for the preservation of security in the administered territories and within the Green Line, shall benefit from the assumption that his professional reasons are sincere reasons.  Very convincing evidence is necessary in order to negate this assumption.”

 

And it was also said there that:

“In matters of professional military assessment, the Government would surely guide itself primarily by the counsel it receives from the Chief of the General Staff.”

Indeed, we mentioned there the “giver of the respondents’ affidavit,” whereas here the respondents are divided in their opinions. But as we have heard from Mr. Bach, the learned State Attorney, who argued on behalf of respondents 1-4, that despite his difference in opinion, the Minister of Defense accepted the decisions of the cabinet majority and – complying with his constitutional duties as the government-appointed supervisor of the military under section 2 of Basic Law: The Military – passed the Government’s decision on to the Chief of the General Staff for its implementation.

At the core of the discussion in this petition must stand a factual analysis, insofar as these facts have been uncovered by the evidence before us, in light of the law, and particularly in light of our ruling in the Beit El case. But before I turn to that, I must first complete the presentation of the facts themselves, as we have received additional factual material in the Chief of the General Staff’s written response to a questionnaire we drafted, after hearing the main oral arguments by the parties’ attorneys, in order that he respond to it, instead of to an oral cross examination that petitioners’ attorneys sought. The responses to the questionnaire and other documents that the learned State Attorney was permitted to submit shed additional light on the facts of the case, expanding and deepening our understanding and evaluation of these facts, beyond what was included in Lieutenant General Eitan’s affidavit and the first affidavit by Mr. Aryeh Naor, the Government Secretary, which mentioned decisions by the Ministerial Committee for National Security Affairs and by the Government in the Ministers’ Committee’s appeal. The following is the picture that is ultimately revealed:

  1. On January 7, 1979, following an unlawful protest (“an unauthorized protest” as the Government secretary puts it in his affidavit) of people from “Gush Emunim” on a road in the Nablus area, the Ministerial Committee for National Security Affairs convened, resolving the following:
    1. The Government sees the “Elon Moreh” group as a candidate for settlement in the near future.
    2. The date and location of the settlement will be determined by the Government in accordance with appropriate considerations.
    3. When determining the site for the Elon Moreh settlement the Government will take into considerations, to the extent possible, the group’s wishes.
    4. The people of “Elon Moreh” must now return to the camp from which they came.
  2. Following this resolution of the Ministerial Committee for National Security Affairs, representatives of the Ministerial Committee on Settlement Affairs conducted a preliminary tour of the area, in order to find a proper site for the “Elon Moreh” group to settle. Five alternative locations in the area were suggested, each submitted for examination by the IDF. The entities charged with the matter in the Judea and Samaria Area command and at the General Staff examined each of the proposed locations and decided, based on IDF considerations, that two of the suggested locations should be thoroughly explored. One of these locations was a site recommended by the Minister of Agriculture, who is the Chair of the Ministerial Committee on Settlement Affairs and a member of the Ministerial Committee for National Security Affairs. The second site is the site that was ultimately chosen by the IDF and is the subject of this petition (para. 2(d) of the Chief of the General Staff’s answers to the questionnaire.)

The Judea and Samaria Area command examined the possibility of finding some territory in the area that is not privately owned, but no such location was found (Ibid., para. 2(e)).

  1. On April 11, 1979 (likely after the abovementioned preliminary tour and as a result thereof) the Chief of General Staff gave his approval that General Staff authorities charged with the matter take possession of the area for military purposes (Ibid, para. 2(b)).
  2. In anticipation of a hearing that was to be held by the Ministerial Committee for National Security Affairs, the Chief of the General Staff was asked as to his opinion, and on May 3, 1979 he once more notified the above authorities at the General Staff, through his bureau chief, that in his view there is a military need for taking possession of the territory. (Ibid., loc. cit..)
  3. The opinion of the Chief of the General staff was brought to the attention of the Ministerial Committee for National Security Affairs while it discussed the settlement in its session on May 8, 1979 (Ibid., loc. cit., and the first affidavit by the Government Secretary, para. 4.) In that session, the Ministerial Committee for National Security Affairs decided to support the Order of Possession for military necessities (first affidavit by the Government Secretary, para. 3(a)).
  4. On May 30, 1979, the Ministerial Committee for National Security Affairs reaffirmed its decision from May 8, 1979 (Ibid, para. 3(b)).
  5. The Deputy Prime Minister appealed the decision by the Ministerial Committee for National Security Affairs before the Government Cabinet and on June 3, 1979 the Cabinet rejected his appeal by a majority vote and upheld the decision of the Ministerial Committee.
  6. On June 5, 1979 Brigadier General Ben Eliezer signed the Order of Possession, and on June 7, 1979 the settlers arrived on the site, assisted by the military, as recounted above.

Here, I will discuss two arguments by Mr. Zichroni on behalf of petitioner no. 17, in order to dispose of them before delving into the core matters of this petition. He argues that there was a constitutional flaw in the decision-making process in regards to the settlement, because under Basic Law: The Military, the Minister of Defense is the Chief of the General Staff’s superior, so his opinion on military matters is prioritized over the opinion of the Chief of the General Staff, as well as over the opinion of the Ministerial Committee for National Security Affairs and that of the Government itself, both of which operate under Basic Law: The Government. Consequently, the Government (or the Ministerial Committee for National Security Affairs) was unauthorized to decide contrary to the position of the Minister of Defense. This argument must be rejected. Indeed, the Minister of Defense is the supervisor of the military on behalf of the Government under section 2(b) of Basic Law: The Government, but the military is subordinate to the Government as a body, according to section 2(a) of that same Basic Law, and so the Chief of the General Staff is subject to the authority of the Government under section 3(b), though he directly answers to the Minister of Defense, as that same section provides. Therefore, as long as the Government has not decided on a particular matter, the Chief of the General Staff must follow the instructions of the Minister of Defense. However, once a matter was brought before the Government, a decision by the Government binds the Chief of the General Staff, as the Minister of Defense is but one of the members of the Government. As long as he remains a member of the Government he bears, together with his fellow ministers, joint responsibility for its decisions, including decisions made by a majority against his own opinion. Such  is also the case for decisions by ministerial committees appointed by the Government, either as a permanent committee or for a certain issue according to section 27 of Basic Law: The Government, because in the absence of an appeal to the Government, even were an appeal submitted and rejected, the fate of a decision by a ministerial committee is as the fate of a decision by the Government in its meeting, as provided by section 32(c) of the Government Operations Regulations.

The road is now open to discussing the main issue: whether it may be legally justifiable to build a civilian settlement on the relevant site, despite the taking of possession of private property for such purposes. In the Beit El case, we resolved a similar question in the affirmative, both under domestic, municipal Israeli law, as well as under customary international law, because we were persuaded that military needs required building the two civilian settlements in question, on the very sites where they were built. It is self-evident, and Mr. Bach also notified us that this was well explained during the meetings of the government, that this ruling does not constitute the Court’s endorsement of all takings of possession of private land for the purposes of civil settlement in Judea and Samaria, but that for each and every case it must be examined whether military needs – as this term must be interpreted – did indeed justify taking possession of private land.

At the outset of this discussion stands now – unlike in the Beit El case – the argument by two settlers of the “Elon Moreh” site who are the members of the settlers’ council and who were permitted (Motion 568/79) to join this petition as respondents, since Justice Y. Cohen who decided the motion found them to have a material interest in the petition. In their affidavits and pleadings, these additional petitioners painted a broad picture, far beyond what was argued by the original respondents. In the affidavit given by Mr. Menachem Reuven Felix, it was explained that the members of the group settled in Elon Moreh because of the divine commandment to inherit the land given to our forefathers and that “the two elements therefore of our sovereignty and settlement are interlinked” and that “the act of settling the people of Israel in the land of Israel is the act of security that is most real, most efficient, and most true. But the settlement itself… does not stem from security purposes or physical needs but from the force of a calling and from the force of Israel’s return to its homeland.” And he later declares:

“Elon Moreh is located in the heart of hearts of the Land of Israel in the deepest sense of the word, indeed both geographically and strategically, but first and foremost it is the place where this land was first promised to our first forefather and it is the place where the first property of the father of our nation, which this Land – the Land of Israel – is his namesake, was acquired.

Therefore, with all due respect to security considerations, and though its sincerity is not doubted, in our view it neither adds nor detracts.”

And after citing Numbers, 33, 53: “And you shall take possession of the land and settle in it, for I have given you the land to possess”, he adds as follows:

“Whether some of the settlers of Elon Moreh will be incorporated into regional defense according to IDF plans, or not, settling the Land of Israel , which is the calling of the People of Israel and the State of Israel, is in any event in the safety, wellbeing, and in the best interest of the People and of the state.”

Regarding petitioners’ arguments, which are based on international law, including various international treaties, he has adopted an explanation received from his attorney, that international law bears no relevance because the conflict is an internal dispute between the People of Israel returning to their homeland and the Arab residents of the Land of Israel and that this is not an “occupied territory” or “held territory” but the heart of the Land of Israel, our right over which is undisputed, and second – because even factually and historically we are concerned with Judea and Samaria which were part of the British Mandate and were conquered by physical force by our neighbor to the east – an act of conquest and annexure never recognized by anyone (except for England and Pakistan.) This is the crux of the affidavit.

Even those who do not share the views of the giver of the affidavit and his cohort must respect their profound religious faith and the spirit of devotion that motivates them. But we who preside in a state committed to the rule of law, where religious law is applied only to the extent permitted by secular law, must apply the laws of the state. As to the  giver of the affidavit’s views regarding property rights in the land of Israel, I assume he does not mean to say that under Jewish law it is permissible to void the private property, for any reason, of anyone who is not of our religion. After all, our scriptures state explicitly that “the foreigner living among you will be as a citizen and you shall treat him as your own as you were foreigners in the land of Egypt” (Leviticus 19:34.) In the literature submitted to us by the other respondents, I found that the Chief Rabbi, I.Z. Hertz, of blessed memory, mentioned this verse when the British Government solicited his opinion on the draft of the language of the Balfour Declaration. In his response, he said that referencing the civil and religious rights of the non-Jewish communities in the Declaration’s draft was but a translation of that same fundamental principle from the Torah (Palestine Papers 1917-1922, Seeds of Conflicts (John Murray) p. 13). This was the authentic voice of Zionism, which insists upon the Jewish people’s right of return to its homeland that was also recognized by other nations, for instance in the preamble to the Mandate for Palestine, but never sought to strip the residents of the land, members of different peoples, of their civil rights.

This petition includes a compelling response to the argument which seeks to interpret the historical right guaranteed to the People of Israel in the Torah as violating property rights under private property law. After all, the legal framework for deciding this petition is defined first and foremost by the Order of Possession issued by the area commander and this order is, by all accounts, directly grounded in the powers that international law grants a military commander in territories occupied by its forces during a time of war. Additionally, the discussion is framed by the tenets of the law that has been implemented by the Israeli military commander in the Judea and Samaria area – this too according to international humanitarian law. These tenets are found in Proclamation No. 1 published by the military commander on June 7, 1967 whereby on that day the IDF entered the area and assumed control and the establishment of security and order, as well as in Proclamation No. 2 from that day that establishes in its section 2 that:

“The law that applied in the area on June 6, 1967 will remain in effect, to the extent it does not conflict with this Proclamation or any other proclamation or order issued by me and with appropriate changes resulting from establishing the rule of the IDF in the area.”

Also, section 4 of that same proclamation should be mentioned, where the commander of the Judea and Samaria area declared:

“Movable and immovable property… that was owned or registered to the Jordanian Hashemite state or government or a department or agent thereof or any part thereof, located in the area, will be passed into my exclusive possession and will be managed by me.”

These proclamations are the legal basis for the military rule in Judea and Samaria, which still exists there to this day, without having been replaced by another form of rule. Mr. Rahamim Cohen, on behalf of the additional respondents (the people of the Gush Emunim group) directed our attention to the Jurisdiction and Powers Ordinance, 1948, which establishes in section 1 that “any law that applies to the State of Israel in its entirety will be considered to apply to the entire territory which includes the territory of the State of Israel and over the Land of Israel which the Minister of Defense defined by proclamation as being held by the IDF.” Although the Minister of Defense did not issue a proclamation defining Judea and Samaria as occupied by the IDF for the purposes of this section, but – as Mr. R. Cohen says – the main point is that the Provisional State Council, as the sovereign legislature of the State of Israel, authorized the Minister of Defense to issue orders as to any part of the Land of Israel: this mere authorization is testament to the fact that the Provisional State Council as the legislature, saw the State of Israel as sovereign over the entire Land of Israel.

This is a forceful point, but it must be rejected. The fact of the matter is that the Minister of Defense did not issue an order based on his authority under section 1 of the above Ordinance in terms of the area of Judea and Samaria (and the Government of Israel did not even extend the law of the State of Israel onto that area, as it did in terms of East Jerusalem, in a decree based on section 11 of the Law and Administration Ordinance, 1948.) When addressing the legal foundations of Israeli rule over Judea and Samaria, we are concerned with the legal norms actually, and not merely potentially, in effect. The fundamental norms upon which Israeli rule in Judea and Samaria were in fact enacted were and are, as said, to this day, norms of military rule rather than the application of Israeli law, which involves Israeli sovereignty.

Here we must command again to memory, like in previous petitions that came before this court, an important argument that Israel expresses in the international arena. This argument is based on the fact that at the time that the IDF entered Judea and Samaria this area was not held by any sovereign whose possession of it received general international recognition. Mr. Rahamim Cohen reiterated this argument with much force. In the Beit El case I said (on page 127) the following:

“This petition does not require our consideration of this problem, and we therefore join this dispute here to that bundle of disputes which I discussed in HCJ 302/72, 306/72, Sheik Suleman Hsain Udah Abu Hilo v. the Government of Israel; Sheik Sabah Abud Ala Oud Al Salima v. the Government of Israel, IsrSC 27(2) 169, 179, 176, 177, 184, there on page 179 which remain open in this Court.”

I believe that in the petition before us, as well, that it can be resolved only according to the presumption at the basis of the Order of Possession. These presumptions indicate the bounds of the discussion for the additional respondents as well.

We therefore must examine the legal force of the relevant Order of Possession under international law from which the military commander who issued it derives his authority. In addition, we must examine whether the order was issued lawfully under Israeli law, because – as was in the Rafah Approach case (HCJ 302/72, p. 169 on p. 176) – we must assume here, too, that the authority for such review exists personally in regards to officials in a military administration who belong to the state’s executive branch as “people who fulfill public functions under law” and who are subject to the review of this Court under section 7(b)(2) of the CourtsLaw-1957. On the merits, we must examine under domestic Israeli law whether the Order of Possession was issued lawfully according to the powers granted to the Government and the military by Basic Law: The Government and by Basic Law: The Military. In the Beit El case, we conducted each examination – that according to domestic Israeli law and that according to international law –separately. I have already discussed above, according to the mentioned Basic Laws, the argument about the decision making process regarding the possession of the land, taken on the Governmental level. I can now conduct the primary discussion combining the two examinations together, as customary international law is, in any event, part of Israeli law to the extent it does not contradict domestic law (see, the Beit El case, at 129.).

Counsel for all the parties focused their arguments on comparing the matter before us to the facts of the Beit El case and to the ruling there, with one side seeking to reveal the similarities between the two, and the other side emphasizing the distinctions. Mr. Bach added to this and reiterated the non-justiciability claim that he made already in the Beit El case and that was already rejected there in no uncertain terms, in the words of my honorable colleague Justice Witkon (at the top of page 124):

“I was not impressed by this argument whatsoever… assuming – an assumption that indeed was not confirmed in this case – that one’s property was harmed or was completely denied to them, it is hard to believe that a court will wash its hands from that person because their rights may be subject to dispute in a political negotiation. This argument did not add weight to the respondents’ other arguments…”

For my part, I added that (on p. 128-29) although the special aspect of the case requiring interpreting section 49(6) of the Geneva Convention must be seen as non-justiciable, petitioners’ claim is generally justiciable before this court, as it involves property rights. Mr. Bach maintained his argument was misunderstood, because, in this opinion, the matter of justiciability is merely a function of the matter at hand, and the matter is on one hand bitterly controversial politically and on the other hand concerns undeveloped and rocky land at some distance from the Rujeib village itself. And he again quotes an article by Professor Jaffe published in in 74 Harvard Law Review, 1265, pp. 1302-1304.

The argument was well understood even at the time; repeating it does not add to its force. At the time, I excluded section 49(6) of the Geneva Convention from the discussion entirely, because as part of treaty-based international law, it is not binding law in an Israeli Court, but I joined the opinion of my honorable colleague as to the matter’s justiciability in terms of the Hague Regulations, because, as customary international law, they do indeed bind the military administration in Judea and Samaria. I will act similarly here and refrain from discussing the matter before us in terms of section 49(6) of the Geneva Convention. But concerning an individuals’ property rights, we cannot dismiss the matter with a claim of the right’s “relativity.” Under our legal system, the individual’s property right is of significant legal value which is protected by both civil and criminal law, and it does not matter, as far as a land owner’s entitlement to protect their property under law is concerned, whether the land is cultivated or rocky.

The principle of the protection of private property applies also in the laws of armed conflict, as expressed in Article 46 of the Hague Regulations. A military administration that wishes to infringe upon private property rights must demonstrate legal authority and cannot exempt itself from judicial oversite on the grounds of non-justiciability.  

For his part, Mr. Zichroni attempted to distinguish our ruling in the Beit El case, because there the court justified the civilian settlement with military needs tied to combating hostile terrorist activity in times of calm, whereas, here, the Chief of the General Staff emphasizes in this affidavit primarily the military need in a civilian settlement on the relevant site in case of actual war on the eastern front. But there is no basis for this distinction. The Beit El case, too, concerned the needs of regional defense designed to be integrated into the general system of defending the country specifically in times of war – and see the quote from Major General Orly there, at 125, as well as my comment at the top of page 131, that “the military’s powers at times of active war and at times of calm cannot  be strictly distinguished. Even if today there is quiet in the area near Beit El, it is best to take preventative measures.” My honorable colleague, Justice Ben Porat, said this with additional emphasis (Id, at 132-33.) And again in the Matityahu case, HCJ 258/79 (unpublished) on p. 4 of the opinion, we said that such matters cannot be viewed from a static perspective, ignoring what might happen in the future, whether as a result of hostile activity from outside or from within the occupied territory, and proper military planning must account, not just for existing dangers, but also for dangers that might be created as a result of dynamic developments in the area.

The question then circles back: Have respondents demonstrated sufficient legal authority to take possession of the petitioners’ lands? The Order of Possession was issued by a military commander and states at the outset that the Order was issued “under my authority as commander of the area and because I believe it to be required for military needs.” It should be recalled here that in this Order the area commander chose at the outset language that was less determinate than that used in the order given in the Beit El case. The Order of Possession stated that possession of the land where the Beit El base stands, and on whose outskirts the construction of a civilian settlement commenced only eight years later – was “imperatively and overwhelmingly demanded by military needs.” There, we justified the civilian settlement on the basis of Article 52 of the Hague Regulations, which allows taking possession of land “for the needs of the army of occupation.” On page 130 I also referenced the words of Oppenheim who believes that temporary use of private land is permissible when it is necessary “for all kinds of purposes demanded by the necessities of war.” I mentioned the British Manual of Military Law, which supports the temporary use of the privately owned land and buildings for the purposes of “military movements, quartering and the construction of defence positions.”

We also rejected (on page 130) the argument by Mr. Khouri that the phrase “for the needs of the army of occupation” includes only the immediate needs of the military itself, and noted (at the bottom of page 130) that the “primary role of the military in an occupied territory is to ‘ensure…public order and safety,’ as provided by Article 43 of the Hague Regulations. What is necessary for this end, is in any event necessary for the needs of the occupying military in terms of Article 52.” In a similar fashion. we might say here, too, that what is necessary for the military in order to fulfill its role in protecting the occupied territory from hostile activity. which may come from outside and from within, this, too, is necessary for military needs in terms of Article 52.

Thus far I concur with Mr. Bach that possession of privately owned land for the purposes of a civilian settlement is potentially justified under Article 52 of the Hague Regulations  – and we found no other source for this in international law. Under what circumstances? When it is proved, according to the facts of the case, that military needs were those which in practice brought upon the decision to build a civilian settlement at the relevant site. I reiterate that there can be no doubt that according to the professional view of Lieutenant General Eitan, building a civilian settlement at this location accords with the needs of regional defense, which has particular significance in ensuring the safety of the traffic arteries when military forces must disperse at times of war, but I have concluded that the Chief of the General Staff’s professional opinion would not, in itself, have led to the decision to build the settlement of Elon Moreh, but for further reason that was the propelling force behind the decision of the Ministerial Committee for National Security Affairs and of the government cabinet, that is – the strong desire of the people of Gush Emunim to settle the heart of the Land of Israel, as closely as possible to the city of Nablus. As for the discussions in the Ministerial Committee and the cabinet, we could not investigate them through reviewing their minutes, but even without them we have sufficient indication in the evidence before us, that both the Ministerial Committee and the cabinet majority were determinatively influenced by reasons stemming from a Zionist worldview as to the settling of the entire Land of Israel. This worldview is clearly revealed from a notice by Mr. Bach on behalf of the Prime Minister during the Court’s hearing on September 14, 1979, in response to additional respondents’ affidavit in paragraph 6 of his affidavit, to which I called attention during the Court’s hearing on the previous day. I recorded Mr. Bach’s words verbatim, for their significance and the status of the person on whose behalf Mr. Bach spoke, as following:

“I spoke to the Prime Minister yesterday and he authorized me to state, after the matter was raised during yesterday’s session – that on many occasions, in Israel and abroad, the Prime Minister emphasizes the right of the People of Israel to settle in Judea and Samaria and this is not necessarily related to discussions taking place in the Ministerial Committee for National Security Affairs concerning national and state security , when what is up for discussion is a specific matter of taking possession of some site or another for security purposes. In the Prime Minister’s view, these matters are not in conflict, but they are still distinct. As for what was said about the Prime Minister’s intervention, this was in the form of raising the issue for discussion before the Ministerial Committee for National Security Affairs, of which the Prime Minister is the chair and where section 37(a) of the Government Operations Regulations, concerning deliberations of the Ministerial  Committee for National Security Affairs, mandates that the Prime Minister determines the topics on the agenda, by his initiative or at the request of Committee members. He took part of the discussion in the Committee and expressed his clear and unequivocal opinion there in favor of issuing an Order of Possession for the purposes of building that settlement. This, as noted, considering, inter alia, the opinion of the Chief of the General Staff.”

The view as to the People of Israel’s right, which is expressed in these words is based on the tenets of Zionist theory. But the question again before this court in this petition is whether this worldview does indeed justify the taking of private property in a territory that is subject to military administration. As I attempted to clarify, the answer depends on the correct interpretation of Article 52 of the Hague Regulations. I believe that the military needs discussed in this article cannot be construed to include, by any reasonable interpretation, national security needs in their broad sense, as I have just described them. I shall again bring the words of Oppenheim, id., in section 147, at 410:

“According to Article 52 of the Hague Regulations, requisitions may be made from municipalities as well as from inhabitants, but so far only as they are really necessary for the army of occupation. They must not be made in order to supply the belligerent’s general needs.”

Military needs for the purposes of Article 52 may therefore include the needs that the Chief of the General Staff discussed in his responding affidavit, that is the needs of regional defense and of securing traffic arteries to allow reserves forces to disperse uninterruptedly at time of war. At the meetings of the Ministerial Committee the resolution was undertaken “considering inter alia the opinion of the Chief of the General Staff,” in the language of Mr. Bach’s notice (emphasis added – M. L.). The decision of the Ministerial Committee from January 7, 1979 guarantees Gush Emunim that the time and location of the settlement would be decided by the cabinet “in accordance with appropriate considerations,” and that while determining the location for the settlement the government would consider, as much as possible, the wishes of the Elon Moreh group. I would not be mistaken were I to assume that what Mr. Bach said on behalf of the Prime Minister reflects the spirit of the discussion in the Ministerial Committee. I do not doubt that indeed the Chief of the General Staff’s position was among the other factors that the Committee considered. But I believe this to be insufficient in order uphold the decision under Article 52, and these are my reasons:

I.                When it comes to military needs, I would expect that military officials initiate the establishment of a settlement on a particular site, and that the Chief of the General Staff would be the one to bring, according to such initiative, the military’s needs before the political echelon for approval , should it find no political reasons barring it. The Chief of the General Staff’s affidavit of response does seem to indicate that this was the decision-making process. But from the more complete picture that emerged after the Chief of the General Staff responded to the questionnaire presented to him, as well as from the additional documents submitted by Mr. Bach, it was made clear that the process was inverted: the initiative came from the political echelons, which then reached out to the Chief of the General Staff for his professional opinion. The Chief of the General Staff then expressed a positive opinion, in accordance with the conception he has always held. This is entirely clear from the responses of the Chief of the General Staff to the questionnaire, in paragraph 2:

“1. To the best of my knowledge, the body that initiated the settlement in the Nablus area was the Ministerial Committee for National Security Affairs.

2. I did not approach the political echelons with a proposal to build the settlement in Elon Moreh.

3. There was no preexisting plan to build a civilian settlement on the relevant site approved by a competent military authority.”

It also became evident from one of the additional documents that on September 20, 1973 then GOC of the Central Command, Major General Rehavam Ze’evi submitted to the then Chief of the General Staff a detailed proposal for settlement in the occupied territories. The proposal said, in regard to agricultural settlements in Samaria, that it would be “difficult, because of a shortage of available land.” This teaches us that the prevailing view at the time was still that private property ought not be taken for the purposes of settlements. And indeed, Major General Orly argued in July 1978 in HCJ 321/78 (unpublished) (the Nabi Salah case) as follows:

“7. When identifying the location that would be settled near the village of Nabi Salah, those acting on respondents’ behalf were guided by the principle laid out by government policy not to take possession of private property for the purposes of settlement.”

In the petition before us we find something of a change in this position, as the first affidavit by the Government Secretary, in paragraph 5, addresses this matter as follows:

“In response to the petitioners’ claims… as to the Government policy in regard to taking possession of the lands:

  1. I hereby clarify that the policy of the Government of Israel not to seize private lands, to the extent possible and consistent with security needs, still stands.
  2. When the government believes that the security needs requires as such, it approves requisition of private land but instructs the military to exclude from the taken property, to the extent possible, cultivated land.”

As for Major Commander Ze’evi’s plan, it should be noted that his proposals did not gain the approval of any authorized military or civilian body. The plan did include a suggestion to establish a Jewish town in the Nablus area, but not on the site now chosen for the Elon Moreh settlement, though not far from it.

In paragraph 4 of his questionnaire answers, the Chief of the General Staff replies to the question:

“Did you approve a civilian settlement on the relevant site because you believed to begin with that it was necessary there for the purposes of regional defense or because you post facto found that, were a civilian settlement to be established on this site, it would integrate into the system of regional defense?”

With:

“I approved taking possession of the land in question in this petition for purposes of the settlement because this fit the military needs in this area, as I saw them to begin with, and it is consistent with my security approach as to the needs of security and protection of the State of Israel as explained in sections 9-20 of the main affidavit.”

But when the perception of the security needs did not initially bring upon the initiative to settle that same site, but, rather, approval only came retroactively, in response to the initiative of the political echelon – I do not believe that this passive approach indicates that from the beginning there was a military necessity to take private property in order to build a civilian settlement, under the terms of Article 52 of the Hague Regulations. This time, therefore, it was not proven that in building the civilian settlement the military preceded the act of settlement with thought and military planning, as we have said in the Beit El case (on page 126.)

II.              And more on the question of the military necessity: I cited above the language of the decision by the Ministerial Committee for National Security Affairs from its meeting on January 7, 1979, as it was quoted in the Government Secretary’s second affidavit. Recall that those deliberations followed a protest by Gush Emunim on a road in the Nablus area. The resolution stated that “when determining a site for the Elon Moreh settlement, the Government will consider, as much as possible, the wishes of the group,” and, as if as in exchange for this promise, the people of Elon More were required to return to the camp from which they came, that is to end their unlawful demonstration. I see this as clear proof that the pressure by Gush Emunim was what motivated the Ministerial  Committee to address the matter of a civilian settlement in the Nablus area in that meeting. Afterwards, the matter was passed to the Ministerial Committee for Settlement Affairs, in order that it send its representatives on a preliminary tour for the purposes of selecting potential locations for settlement by the “Elon Moreh” group in the Nablus area. These representatives selected five locations and, from among the five, the IDF approved the relevant site. It follows, that the IDF did not take part in selecting those five sites, but was given the opportunity to choose among five sites selected by the political level. This process does not comply with the language of Article 52, which in my opinion requires the advance identification of a particular tract of land, because that specific location is necessary for military needs. And as said, it is natural that the initiative for this would come from the military level that is familiar with military needs and plans them in advance with military forethought.

In this regard, Mr. Bach argued that the military must first consider whether there are candidates for a possible civilian settlement willing to go to the location where their settlement is required for military needs. I agree, but again, this is contingent upon military planning that was approved by a competent military authority that would first search for candidates to settle a particular site. Here the opposite occurred: first came the desire of the Elon Moreh people to settle as closely as possible to the city of Nablus, and only then, due to the pressure they exerted, came the approval by the political level to build the settlement on that site. The political consideration was, therefore, the dominant factor in the Ministerial Committee’s decision to establish a settlement on that location, though I believe that the Committee and the Government majority were persuaded that the settlement fulfills military needs as well, and I therefore accept the Chief of the General Staff’s statement that for his part he did not consider governmental or political factors, including the pressure by the people of Gush Emunim, when he prepared to submit his professional opinion to the political level. But the military consideration was subordinate to the primary, political decision to build the settlement. As such, it does not meet the strict demands of the Hague Regulations for preferring military needs over individual property rights. In other words, would the Government’s decision to build the settlement on that site have been made in the absence of pressure from the Gush Emunim people and ideological and political considerations? I have been persuaded that but for these, the decision would not have been made in the circumstances that existed when it was made.

I wish to add several words regarding dominant and subordinate reasons in state authority decision making. In HCJ 392/72, Emma Berger v. Haifa District Planning and Building Committee, IsrSC 29(2) 764, Justice I. Cohen mentioned the debate around the matter of plurality of purposes as it appears in the third edition of De Smith’s book, Judicial Review of Administrative Action, on page 287 onward. Of the five tests proposed there, Justice Cohen opted for the test of whether the wrongful consideration or purpose had a real impact on the authority’s decision. For my part, I am willing to adopt a test more lenient with the authority, as proposed there by De Smith (top of page 289), which is:

“What was the dominant purpose for which the power was exercised? If the actor pursues two or more purposes where only one is expressly or impliedly permitted, the legality of the act is determined by reference to the dominant purpose.”

(In footnote 74, below the line, the author presents examples from English case law where this principle has been applied).

What I explained at length above reveals which outcome this test’s application must bring in the circumstances of the case before us, when the initiative for the settlement did not come from the military level. Thus. I will quote the words of the author there, on page 291, which seem apt to our matter as well:

“… it is sometimes said that the law is concerned with purposes, but not with motives, this view is untenable in so far as motive and purpose share a common area of meaning. Both are capable of meaning a conscious desire to attain a specific end, or the end that is desired. In these senses an improper motive or purpose may, if it affects the quality of the act, have the effect of rendering invalid what is done.”

III.             And I have yet to address and additional reason that must bring the reversal of the decision to take possession of the petitioners’ land – a reason that stands independently, even without regard to the other reasons I have so far detailed. In the Beit El case a serious question was raised: how could a permanent settlement be founded on land that was possessed only for temporary use? There we accepted Mr. Bach’s reply:

“The civilian settlement may exist in that same location only so long as the IDF still holds the territory under the Order of Possession. This possession itself may end someday as a result of international negotiations that may be culminate in a new agreement that would be valid according to international law which will determine the fate of this settlement, as it would the fate of other settlements located in the occupied territories” (Id, p. 131.)

The settlers themselves did not express their own position in that case, as they were not joined as parties. This time we cannot accept this excuse. Here, the submitter of the affidavit on behalf of the settlers explicitly says in paragraph 6 of this affidavit:

“Supporting an Order for Possession with security considerations in their narrow technical sense, rather than their basic and comprehensive sense, as explained above, has but one meaning: the temporary nature of the settlement and the possibility of its being replaceable. We absolutely reject this terrifying conclusion. It also is inconsistent with the Government’s decision in regard to our settlement in this location. In all the discussions, and many assurances we have received from the ministers of the Government, and above all the Prime Minister himself – and the Order of Possession at hand was issued as a result of the Prime Minister’s personal intervention – they all see the settlement of Elon Moreh a Jewish settlement as permanent as Degania or Netanya.”

It should be noted that this paragraph includes two parts. Its first part considers the position of the settlers; the other part what they have heard from ministers. We were not asked to permit the submission of a countering affidavit by the Government or by any minister to rebut the words attributed to them in the second part of this paragraph and thus we must accept them as truthful. This indeed being the case, the decision to establish a permanent settlement that is intentionally designed to stand in its location for all time – and even beyond the duration of the military rule in Judea and Samaria – meets an insurmountable legal obstacle, because a military administration cannot create within its territory “facts on the ground” for the purposes of its military needs that were in advance intended to exist past the end of the military rule in that area, when the fate of the territory after the end of the military rule is yet unknown. This is seemingly a contradiction that joins the other evidence before us in this petition to reveal that the decisive consideration that motivated the government to decide upon the relevant settlement was not the military consideration. In these circumstances, even a legal declaration as to the taking of possession alone, rather than expropriation of the property, cannot change the face of things – that is taking possession that is the core content of property, in perpetuity.

On the basis of all this, I believe the order nisi must be made absolute, in regard to the petitioners’ lands that were taken under Order n. 16/79.

Justice Asher

I agree.                       

Justice Ben Porat:

I agree.

Justice Witkon:

I too believe that the law is with the petitioners.

Like in the Beit El case (HCJ 606, 610/78,) here, too, we must examine the state authorities’ actions both in light of the “domestic” (or “municipal” as it is commonly termed in this context) law and in light of international law. These are two different issues, and as said in the Beit El case (id, p. 116): “The activity of a military rule in an occupied territory may be justified for military, security purposes and yet it is not out of the question that it is flawed under international law.” The domestic law which is subject to discussion here is the law that is relevant to two orders issued by the commander of the Judea and Samaria area under his powers as a commander in an occupied territory (Order n. 16/79 and Order n. 17/79.) In these Orders the commander stated that he “believes it necessary for military needs…” and he declared that taking possession of the lands is “for military needs.” And indeed, there is no dispute that the force of the orders, in terms of domestic law and really also in terms of customary international law (Hague Convention), is contingent upon their being “for military needs.” We elaborated on the content of “the military need” and the extent of our intervention in the discretion of military authorities in Rafah Approach (HCJ 302/72, Abu Hilo v. The Government of Israel) and in the Beit El case. We emphasized and reiterated that the scope of our intervention is limited. In the Beit El case I said (ibid., page 118) that the authority “is vested in the hands of the military officials, and for the Court to intervene in the exercise of their authority, it must be satisfied that this exercise was an abuse of power and a pretext for other purposes.” Similarly, my honorable colleague the Deputy President wrote as follows, ibid., (p. 126):

“We have repeatedly emphasized before, including in HCJ 302/72 (pp. 177, 179, 184) that the scope of this Court’s intervention in the military considerations of the military administration are very narrow, and a Justice would certainly refrain from substituting his personal beliefs in terms of political and security matters for the military considerations of those charged with securing the State and public order in the occupied territory.”

We additionally clarified in the Beit El case that a military, security need and the establishment of a civilian settlement do not necessarily contradict one another. As we said there (p. 119):

“The main point is that in terms of the pure security consideration it is undisputed that the presence of settlements – even ‘civilian’ settlements – of citizens of the occupying power in the occupied territory significantly contributes to the security in that area and facilitates the military’s ability to perform its duty. One need not be an expert in military and security affairs to understand that hostile elements operate more easily in an area that is only populated by a population that is indifferent or sympathetic to the enemy rather than an area where there are also people who may monitor them and notify the authorities of any suspect activity. Terrorists may not find refuge, assistance or supplies with them. This is simple and needs no elaboration. We will only mention that according to the respondents’ affidavits, the settlers are subject to the military authority, whether officially or due to the circumstances. They are there thanks to the military and its permission. Therefore, I still hold the opinion, that seemed to me correct in the Rafah Approach, case that Jewish settlement in an occupied territory – and as long as a state of belligerency continues to exist – fulfills real security needs.”

It need not be emphasized that with everything we said in these two decisions (and in others like them) we did rule that from that point onwards, any civilian settlement in an occupied territory serves a military purpose. We held that each case must be examined according to its particular circumstances. There, we were persuaded that indeed the taking of possession in order to build a civilian settlement served a security purpose. Here I am not persuaded that such was the purpose.

How is this case different from those that came before? The most important difference, is that here, even the experts charged with state security are divided as to the need for settlement in the relevant location. As they did there, here too security authorities presented us with affidavits meant to persuade us as to the security and military needs for taking possession of the land and building a civilian settlement on it. But whereas there the evidence was consistent and unequivocal, here, in terms of Elon Moreh, the evidence reveals that the experts disagree amongst themselves on the military need. On behalf of the Petitioners, we received the affidavit by Major General (Res.) Mattityahu Peled, as well as the letter by Lieutenant General (Res.) Haim Bar Lev, which ought to be quoted in full:

“To the best of my professional estimation, Elon Moreh does not contribute to the security of the State of Israel, and this for the following reasons:

  1. A civilian settlement located on a hill far removed from main traffic arteries has no significance in combating hostile terrorist activity. The mere location as an isolated island in the heart of an area densely populated by Arab residents may facilitate attempts to attack. Securing travel to and from Elon Moreh and securing the settlement itself would divert security forces from essential missions.
  2. In a case of war on the eastern front, a civilian settlement located on a hill about two kilometers east of the Nablus--Jerusalem road would be unable to ease safeguarding this traffic artery. Moreover, there is a large military base located near the road itself, and it controls the traffic arteries to the south and to the east. Indeed, should there be terrorist activity at time of war, the IDF forces would need to stay in place in order to protect the civilian settlement, rather than focus on combating enemy armies.”

More than this, the petitioners stated in their petition that “according to what they learned from the media, respondent 2 (the Minister of Defense) stated there was no security or military need for the land.” Generally, we do not consider information given to us by rumor, but here is confirmation for the disputing position of the Minister of Defense from the giver of the affidavit himself – the Chief of the General Staff, Mr. Raphael Eitan – who said in section 23(d) of this affidavit:

“I am aware of the opinion of the respondent 2, who does not dispute the strategic importance of the relevant area, but believes that it is possible to realize these security needs by means other than building a settlement on the relevant site.”

This situation, of a dispute between the Minister of Defense and the Chief of the General Staff on the mere need of taking possession, is unprecedented in Israeli jurisprudence, and it is also difficult to find examples in foreign countries for where a judge was required to choose between the opinions of two experts – one being the minister charged with the relevant matter and the other being the person heading the executive mechanism. The State Attorney attempted to overcome this difficulty by relying on section 3(b) of Basic Law: The Military, which reads: “The Chief of the General Staff is subject to the authority of the Government and subordinate to the Minister of Defense.” It is true, argued the State Attorney, that the Chief of the General Staff answers to the Minister, but here the matter was subject to the Government’s decision, where the Minister of Defense was among the minority, and thus his disputing position is overruled by the majority, which accepted the opinion of the Chief of the General Staff. I fear this response by the State Attorney is beside the point. Basic Law: The Military addresses the order of the chain of command between three bodies – the Government, the Minister of Defense, and the Chief of the General Staff. In terms of the hierarchy between them, there is indeed no doubt that the Chief of the General Staff is below the Minister and they are both below the Government. When the Chief of the General Staff receives an order from the Minister that conflicts with other orders he receives from the Government, it is possible – and I do not wish to express my opinion in this regard – that he would be obligated to follow the order of the Government over the orders of the Minister. But here the question is not whose order trumps, but rather whose opinion is more acceptable to the Court. It is possible one (for instance, a judge) may withdraw his opinion in light of that of his peers, but the fact that the Minister accepted the decision of the majority does not lead to a conclusion that he withdrew his opinion. On the contrary, we must assume that he stands by his opinion and has left to us the duty to say which of the opinions – his or that of the Chief of the General Staff – should be accepted.

It is well known that courts are asked to determine matters that require special expertise – expertise that is generally beyond the judges’ grasp. We are presented with opinions by respected experts and these completely contradict one another. This happens frequently in trials concerning medical issues, as well as, for example, in cases involving patent infringements, which raise problems in chemistry, physics or other natural sciences. In security affairs, when the petitioner relies on the opinion of a security expert, while the respondent relies on the opinion of someone who is both an expert and responsible for the state of security in the country, it is only natural that we attribute special weight to the opinion of the latter. As the Deputy President Landau said in the Naalin case, HCJ 258/79 (unpublished): “In such a dispute regarding military-professional questions, in which the Court has no well founded knowledge of its own, the witness of respondents, who speaks for those actually responsible for the preservation of security in the administered territories and within the Green Line, shall benefit from the assumption that his professional reasons are sincere reasons.” According to this rule, I could possibly have seen myself obligated to prefer the opinion of Lieutenant General Eitan over the opinion of Lieutenant General (Ret.) Bar-Lev, though in terms of their expertise, I do not know who is preferable. But when the choice is between the Chief of the General Staff and the Minister of Defense, I believe this rule should not be applied. There is no way to say that one is charged with ensuring safety whereas the other is not. They are both responsible.

In such a situation of a draw, when the opinion of the giver of the respondents’ affidavit should not be presumed to be superior to the opinions of other experts, we must ask ourselves: who bears the burden of proof? Must the petitioners satisfy us that the land was taken for non-military or security purposes, or shall we demand that the respondents – the military authorities – persuade us that this taking of possession was necessary for this purpose? I believe that the burden is upon the respondents. The law does not give the commander’s assertion that the taking of possession is required for military needs the force of a presumption – let alone that of conclusive evidence – that indeed it is so. Moreover, it is not sufficient that the commander sincerely and subjectively believes that the taking of possession was essential, in order to place the question beyond judicial review. We need not be convinced of the sincerity of the consideration, but rather of its correctness (see the well-known dispute Liversidge v. Anderson (1942) A.C. 206; (1941) 3 All E.R. 338; (1942) 110 L.J.K.B. 724; 116 L.T. 1; 58 T.L.R. 35; 85 S.J. 439 (H.L.), and the article by R.F.V. Heuston, L.Q.R. 86, p. 22. And see also: Ridge v. Baldwin (1964) A.C. 40; (1963) 2 W.L.R. 935; 127 J.D. 295; 107 S.J. 313; (1963) 2 All E.R. 66; 61 L.G.R. 396; 79 L.Q.R.  487; 80 L.Q.R. 105; 127 J.P.J. 251; 234 L.T. 423; 37 A.L.J. 140; 113 L.J. 716; (1964) C.L.J. 83 (H.L.)). And in our law, the Kardush case, HCJ 241/60, Mansur Taufik Kardush v. The Registrar of Companies, IsrSC 15, 1151; and FH 16/61, Registrar of Companies v. Mansur Taufik Kardush, IsrSC 16, 1209. The law I presented at the outset conditions the legality of the possession on the existence of a military need. Obviously,  the Court must not allow a serious infringement of property rights unless it is satisfied that this is necessary for security purposes. The State Attorney himself did not claim he is exempt from the burden of persuasion and labored to present us with all of the materials. As said, had we only had before us the evidence on behalf of the respondents, or had the respondents’ experts disputed the petitioners’ experts, I may very well have given the respondents the benefit of the doubt. But here, as noted, we were told that the Minster of Defense, himself, is not persuaded that this possession was necessary. It is true that the office of a minister is a political office and there is no requirement that the minister himself be an expert in military matters. But here we have the dissenting opinion of a Minister of Defense, who, as a former head of the IDF Operations Directorate and former commander of the air force, himself is a prominent security expert. The State Attorney did not dispute this, either. Where such a minister is not persuaded, how can we – the judges – be expected to be persuaded? When he does not see a military need for building a settlement in this particular location, who am I to question him?

This is also the primary reason that brings me to distinguish this case from all the previous cases and to reach a conclusion different from that reached in those cases. This should be coupled with two more things, though of lesser importance. First, in the cases of Rafah Approach and Beit El, my point of departure was that the Israeli settlements, located on lands taken from their Arab owners, were necessary for the security forces in their daily combat against terrorists. “One need not be an expert in military and security matters,” I said in the Beit El case at 119, “in order to understand that terrorist elements operate more easily in a territory populated only by a population that is indifferent or sympathetic to the enemy, than in a territory where there are also people who may monitor them and notify the authorities of any suspect activity. There, terrorists shall not find refuge, assistance and supplies.” This time the Chief of the General Staff, Lieutenant General Eitan, explained to us that the main security benefit in building the settlement on this site is its integration into the system of regional defense in case of a “total” war. I went back to review the affidavit that Major General Tal submitted to us at the time for the Rafah Approach case, and indeed, there, only prevention of terrorist activity at times of calm was discussed. I similarly reviewed the affidavit of Major General Orly in the Beti El case, although I did find – after additional review of the affidavit – that he also spoke of regional defense needs. These considerations were expressed in the opinion of my colleague Justice Landau (there, p. 124). In any event, in that case, two possessed territories were discussed: one actually on potential terrorists’ path, and the other bordering an important military base (Beit El.) There can be no serious doubt that, in terms of their immense strategic value, these sites – and only they – could have fulfilled the designated security role and that they were irreplaceable. Here, on the other hand, I cannot say the matter is free of any doubt.

The third aspect in which the case before us is different than the previous cases is a result of the settlers’ affidavit. Recall that in the Beit El case the settlers were not joined as petitioners and that they were not given the opportunity to voice their arguments. We presumed that their presence in the area was wholly for the purposes of security and defending the homeland. In the words of my honorable colleague the Deputy President (id., p. 127): “… given that the majority of the military is reserves forces, it is well known that at the time of need the residents of peripheral civilian residential areas become, even in personal matters, subject to military command.” And I said (id., at 119): “… the settlers are subject to the military’s authority, whether officially or by virtue of the circumstances. They are there thanks to the military and by its permission. Therefore, I still hold the opinion, that seemed to me correct in the Rafah Approach, case that Jewish settlement in an occupied territory – and as long as a state of belligerency continues to exist – fulfills real security needs.”

This time we heard from the representatives of the settlers themselves, and it seems we must not ignore the heart of their argument. Let me emphasize: I do not wish to address recent events, which revealed the people of “Gush Emunim” (among which the settlers before us are counted) as people who do not accept the authority of the military and do not hesitate to express their resistance through violence. I do not wish to address these events because we do not have certified knowledge as to the level of the support for the actions of others in other locations by the settlers before us. Therefore, I did not come to question that were the settlers to be called upon for reserve duty, they would be subjected to the military’s authority, as would any soldier. Indeed, the words of the giver of the settlers’ affidavit raise a different question. He says, explicitly, that:

“Members of the Elon Moreh group and myself settled in Elon Moreh because we were ‘commanded to inherit the land given by God to our forefathers, Abraham, Isaac and Jacob and we shall not leave it to other nations or in desolation’ (the Rambam, Book of Commandments.) The two elements, therefore, of our forefathers and our settlement are interwoven with each other.”

He adds and says in that same affidavit:

“Though superficially it seems that there is no link between the motivations of the settlers and the Order of Possession, the truth is that the act of settling the Land of Israel by the People of Israel is actually the real and most efficient security activity. But settlement itself, as inferred from the previous section, is not the product of security reasons and physical needs, but of destiny and of the return of Israel to its homeland.”

It is true that the settlers do not rule out the security considerations but that these are, as they maintain, secondary and completely insignificant. They state in their affidavit:

“Therefore, with all due respect to security considerations, and though its sincerity is not doubted, in our view it neither adds nor detracts.”

Very strong words indeed. Needless to say, the settlers deserve praise for their candor that did not allow them to pretend or to conceal their true motives. But the question plagues me: these settlers, who openly declare that they came to settle Elon Moreh not out of security considerations, and whose contribution to security – to the extent it is positive – is but a byproduct, could it still be said of them, as I said in the Beit El case, that they are there thanks to the military and by its permission? Of course, one can act to benefit another without the latter’s knowledge or involvement, but a privilege or benefit that the beneficiary rejects wholeheartedly, can we enforce it upon him? And let it be clear: without any dispute over the words of my honorable colleague Justice Landau, for my part, I need not argue with the settlers over their religious or nationalist ideology. It is not our business to engage in political or ideological debates. But it is our duty to examine whether pure security considerations justify taking possession of land for the purposes of settling these settlers at that location, and it seems to me that in this context, it is important to know what the settlers’ position is. If they did not come, primarily, for security purposes, I am hard pressed to accept that this indeed is the purpose of their settlement.

It remains for me to briefly address another argument by the settlers. In their view, Judea and Samaria should not be considered to be an “occupied territory” subject to IDF rule, but as part of the State of Israel. They rely, first and foremost, on the historical destiny of the Land of Israel, and in addition, in terms of the law, they claim that when the land was conquered during the Six Day War there was no other sovereign that lawfully held this area. The claim is familiar from the writings of Professor Blum (3 Isr. L. Rev. 279, 293) and was also positively considered by Professor J. Stone (see No Peace No War in the Middle East, published in Australia in 1969). The settlers’ attorney also mentioned the fact that the Israeli legislature never defined the state’s borders and only stipulated in section 1 of the Jurisdiction and Powers Ordinance, 1948, that “any law that applies to the State of Israel in its entirety will be considered to apply to the entire territory which includes the territory of the State of Israel and over the Land of Israel which the Minister of Defense defined by proclamation as being held by the IDF.” He also referenced the amendment to the Law and Administration Ordinance, 1967 (and see in this regard Professor A. Rubinstein, The Constitutional Law of the State of Israel, 1969, p. 46). The implication of this claim is twofold. If it concerns an act that occurs within the territories of the state, surely international law does not apply to it, but then military regulations and orders issued under such regulations are invalid in the area that is part of the state. The State Attorney replied correctly that if the settlers arrived at the site other than by force of the Order of Possession issued by the area commander, their entire presence there is without basis. After all, there was no dispossession under Israeli law here. This response is rooted in good law. Additionally, were there serious doubt as to the status of the relevant area, we would have been compelled to approach the Minister of Foreign Affairs and request an official document that defines the area’s status. This question is not “justiciable” and in such matters the Court must follow Government decisions.

This settles the issues of domestic, municipal law. Because in light of the material before us I am not persuaded that the taking of possession was justified under municipal law, I need not actually examine the legality of the taking of possession under international law as well. But lest my refraining from discussing this aspect be misunderstood, I shall add several comments. The issue is legally complex and warrants clarification. As said in the Beit El case, there is a distinction between customary international law and treaty-based international law. The former is part of the municipal law, whereas the latter is not, unless it has been ratified through national legislation. Included within customary international law are the rules of the Hague Convention, so this Court should examine the lawfulness of the taking of possession in light of Article 52 of the Hague Regulations, as did my honorable colleague, the Deputy President. Here, too, the test is the military need. If one is not persuaded such need exists under the criteria of municipal law, one would not be persuaded, in any event, that it exists under the criteria of the Hague Convention either. On the other hand, the Geneva Convention must be seen as part of treaty-based international law and therefore – under the approach common in common law countries as well as in our system – the injured party has no standing to approach the court of the country against whose government he wishes to raise claims and assert his rights. Such standing is given only to states that are parties to the Convention. Such litigation cannot be conducted in a state court but only in an international forum. Therefore, I said in the Rafah Approach case and reiterated in the Beit El case, any expression of opinion on our part as to the lawfulness of the civilian settlement under the Geneva Convention is merely a non-binding opinion, from which a judge would do well to refrain.

Any yet, here too, the State Attorney invites us to affirm to the authorities that under the Geneva Convention, as well, there is nothing wrong in granting the settlers possession of the land for the purposes of their settlement. As his argument goes, this is not inconsistent with the humanitarian provisions of this Convention that are acceptable to the State of Israel. Recall, we are concerned with Article 49(6) of the Geneva Convention, which prohibits the occupying nation from deporting or transferring parts of its civilian population into the occupied territory. It is a mistake to think (as I have recently read in one of the newspapers) that the Geneva Convention does not apply to Judea and Samaria. It does apply, though, as noted above, it is not “justiciable” in this Court. Nor would I say that the “humanitarian” provisions of the Convention address only protecting human life, health, liberty, or dignity, and not property. No one knows the value of land as we do. But the question whether voluntary settlement falls within the prohibition over “transfer[ring] parts” of a “population” for the purposes of section 49(6) of the Geneva Convention is not easy, and as far as we know, it has yet to be resolved in international case law. Therefore, I prefer, here too, not to settle this matter; moreover, in light of the conclusion I reached on the matter, both under domestic law and under customary international law (Article 52 of the Hague Convention), it requires no determination. But my refraining from determination must not be interpreted as support for either of the parties.

For these reasons – in addition to those detailed by my honorable colleague the Deputy President – I believe the order must be made absolute.

 

Justice Bechor:

I concur with the comprehensive opinion of my honorable colleague the Deputy President (Landau), which contains a thoughtful and persuasive response to some hesitations I had in the matter.

Both the military commander and the Government acted in this case by virtue of the powers international law grants to a military which, as a result of hostilities, occupies a territory that is not part of the state to which the law of the land applies (the municipal law). As my honorable colleague demonstrated, we must adjudicate this case according to the law that applies to the issue and that governed the actions of both the government and the military commander. It is not within our authority to consider policy questions or questions rooted in religious belief or a national and historical worldview. And this is a limit that we must not, and may not, exceed, whatever our personal beliefs and worldviews. The actual language of the Order issued by the military commander is rooted in the powers that international law grants a military that occupies a territory that is not – legally – part of the state’s territory. On this basis then the decision must be made.

My honorable colleague, Justice Witkon, in his opinion, extensively discussed the matter of the disagreement between the Chief of the General Staff and the Minister of Defense. In my opinion, this question, too, has been answered in the opinion of the Deputy President (Landau). In this matter, we must distinguish between the military commander’s decision, within his power under international law, and the power of the Minister of Defense and of the Government, under municipal law. When the discussion revolves around international law, the test is whether the military commander operated out of military reasons in order to ensure the military goal. This is a matter for the military commander, and, in this regard, the opinion of the ministerial level is insignificant, as the power under international law is granted to the military commander alone and not to the minister of defense or to the government. Where the military commander acted within his power, there is no flaw in the exercise of this power, even if the ministerial level, in this case the Minister of Defense, is of a different opinion. It is another situation entirely, when the broader question of the municipal law level arises. On this level, the opinion of the military command is the first port of call but is not the end all be all. On this level, as my colleagues said, the Chief of the General Staff is “subject to the authority of the Government and subordinate to the Minister of Defense”. It is true that the Minister of Defense holds a different opinion than the Chief of the General Staff in this matter, but on the policy level, even the opinion of the Minister of Defense is not the end all be all either, and – as reflected by the words of the Deputy President – the final word is that of the Government.

Had we reached the conclusion that the military commander operated in this case in order to ensure military needs, and that he initiated that action for the purposes of ensuring such needs which were the dominant factor in his decision, in light of all the circumstances and the timing as described in detail in the Deputy President’s opinion, I would not be hard pressed to approve his action, though other opinions – even contradictory ones – exist and though even the opinion of the Minister of Defense differs. But, as the Deputy President demonstrated in his opinion, the action of the military commander in this case exceeded the limits of his powers under international law.

The Deputy President also addressed the question arising from the contradiction between taking possession of the land for military needs, which is temporary, and building a civilian settlement as a permanent settlement. It is well known that civilian settlement has always constituted an integral part of the system of regional defense, within a broader system of regional civil defense, and things to this effect were said also in HCJ 606+610/78, Beit El, and HCJ 258/79, Matityahu. We must distinguish here between two things. Integrating the civilian settlements in the system of regional defense began many years ago, even before the founding of the state, and continued after the state was founded within the state’s territory. In all this time, there has always been the premise that the civilian settlements were permanent settlements and this was of no legal flaw because the settlement followed the founding of the state in territory that was within the territory to which state law applied. Even in the time before the founding of the state the intention was always that such settlement would be permanent settlement on land owned by the settling institutions. Here, we are concerned with temporary possession, and thus the contradiction between it and creating permanent settlements. This question was made more poignant in this petition for the first time, perhaps primarily because respondents 5 and 6 were joined, and because of their clear position.

As noted, I join the opinion of the Deputy President (Landau).

 

It was decided to render the order nisi absolute and declare the Order of Possession n. 16/79 invalid in terms of the lands owned by the petitioners, whose registration details were brought in paragraph 2 of the petition, and to order the respondents 1-4 to vacate from the petitioners’ lands the civilian settlers who settled on them as well as any structure built upon them and any object brought to them. There is no place to issue any order in terms of the road lands taken under Order n. 17/79, as none of the petitioners hold any ownership rights for the road lands.

We grant respondents 1-4 30 days from today in order to comply with the permanent order.

Respondents 1-4 will pay petitioners 1-16 their expenses in this petition, at a total sum of 5,000 Israeli Pounds, and that same amount to petitioner 17. There is no order as to costs for respondents 5 and 6.

Given today, 1 Cheshvan 5740 (October 10, 1979).

                 

 

 

Association for Civil Rights in Israel v. Knesset

Case/docket number: 
HCJ 3091/99
Date Decided: 
Saturday, May 5, 2012
Decision Type: 
Original
Abstract: 

The petition, filed in 1999, concerned the repeated renewal of the declaration of a national state of emergency under sec. 38 of Basic Law: The Government. The petition asked that the Court revoke  the declaration of a national state of emergency.

 

The High Court of Justice (per Justice Rubinstein, President (Emerita) Beinisch and Justice Arbel concurring) dismissed the petition, holding:

 

Although the work is not finished, the petition has exhausted its purpose. The state authorities should be allowed to work toward completing the legislative processes that the Petitioner helped advance by means of its petition. While this was, indeed, a worthy petition, we cannot ignore the fact that Israel has not yet arrived at its safe haven. Israel’s situation was and continues to be sensitive and complex, and it does not allow for depriving the state authorities of necessary emergency powers. However, we cannot abide the long exploitation of the declaration of a state of emergency in situations that require balanced, up-to-date legislation rather than emergency measures.

 

Under the current circumstances, and in light of all the steps that have been adopted, there is no longer a need for the intervention of the High Court of Justice in regard to the authority’s declaration of a state of emergency, but the gates are not barred before future petitions as may be necessary. A special team is currently acting in regard to the matter of the declaration of a state of emergency, which supervises the progress of the government’s work toward disengaging legislation from the declaration of a state of emergency. Additionally, a number of legislative proceedings have reached their appropriate conclusion in the course of the years during which this petition has been pending. Additional bills have passed their first reading, while others that are in various stages of legislation are intended to rescind or amend existing legislation in order to uncouple the historical connection, whose justification has dwindled, to the declaration of a state of emergency. These legislative processes are indicative of a trend and understanding that the time has come to say farewell to the vestiges of emergency legislation that has been with us since the state’s inception. The Court added that, as a rule, it does not replace the discretion of the competent authorities with its own, and that this rule is all the more appropriate when we are concerned with a dynamic security situation that is difficult to predict.

 

The High Court of Justice noted that the procedures for changing the current situation and for disengaging the connection between extant legislation and the declaration of a state of emergency should continue, but for the time being, the continuation of the process should be left to the competent authorities, along with the message that it would be proper that what began over ten year ago should be brought to an end in the not-distant future.

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

 

In the Supreme Court sitting as High Court of Justice

 

HCJ 3091/99

 

Before:                                    President (Emerita) D. Beinisch

                                    Justice E. Arbel

                                    Justice E. Rubinstein

           

 

Petitioner:                    Association for Civil Rights in Israel

 

                                                            v.

 

Respondents:                          1.         The Knesset

2.         Government of Israel

 

Attorney for the Petitioner:    Adv. Dan Yakir

Attorney for the Respondents: Adv. Osnat Mendel

                                   

 

 

Judgment

 

Justice E. Rubinstein:

 

1.This Petition concerns the repeated extension of the declaration of a national state of emergency under section 38 of Basic Law: The Government (hereinafter also: the Basic Law). 

 

General Background

2.As we all know, since the founding of the state, Israel has been under a state of emergency that was originally declared by virtue of sec. 9 of the Law and Administration Ordinance, 5708-1948. It has since continued by virtue of the various amendments to Basic Law: The Government, eventually sections 49-50 of the Basic Law, and ultimately the current source of authority under sec. 38 of the Basic Law:

“(a) Should the Knesset ascertain that the State is in a state of emergency, it may, of its own initiative or, pursuant to a Government proposal, declare that a state of emergency exists.

(b) The declaration will remain in force for the period prescribed therein, but may not exceed one year; the Knesset may make a renewed declaration of a state of emergency as stated.

(c) Should the Government ascertain that a state of emergency exists in the State and that its urgency necessitates the declaration of a state of emergency, even before it becomes possible to convene the Knesset, it may declare a state of emergency. The declaration's validity shall expire upon 7 days from its proclamation, if not previously approved or revoked by the Knesset, pursuant to a decision by a majority of its members; should the Knesset fail to convene, the Government may make a renewed declaration of a state of emergency as stated in this subsection.

(d) The Knesset and Governmental declarations of a state of emergency will be published in Reshumot [the Official Gazette]; should publication in Reshumot not be possible, another appropriate manner will be adopted, provided that notification thereof be published in Reshumot at the earliest possible date.

(e) The Knesset may at all times revoke the declaration of the state of emergency; notification of its revocation will be published in Reshumot (sec. 38 of the Basic Law).

 

The Basic Law limited the declaration of a state of emergency to a period of one year. That is a conceptual statement that expresses hope, but that grants  authority for extension in recognition of reality. The current state of emergency was extended by the Knesset on May 25, 2011, to remain in effect until May 25, 2012, and I am afraid that, conceivably, this extension will not be the last, despite the obvious aspiration that such extensions will become unnecessary. In addition to the provisions of the Basic Law, the Knesset Rules of Procedures (following amendment no. 52 which came into effect on March 16, 1998) include instructions as to the decision-making procedure required prior to a declaration of a state of emergency (chap. 7 of the Knesset Rules of Procedure). The declaration of a state of emergency grants the competent authorities extensive emergency powers designed, according to their titles and headings, to protect state and public safety, and to maintain essential services in times of need (sec. 39 of the Basic Law). The declaration has two operative effects: the first is the authority to make emergency regulations, and the second is the granting of force to  legal arrangements that are contingent upon a declaration of a state of emergency (specific laws and authorities, such as the Commodities and Services (Control) Law, 5718-1957, a pivotal statute in terms of back-to-work orders in cases of strikes in the essential public services sector; the Powers of Search (Emergency) (Temporary Provision) Law, 5729-1969; Emergency Regulations (Control of Ships) (Amendment) (Extension of Validity Law), 5733-1973; and other statutes addressed in the hearings, as detailed below). Thus, the declaration of a state of emergency has had, and continues to have real implications for many of the state’s legal arrangements.

 

The Petition and the Proceedings

3.Against this background, a petition was already filed in 1999, by which we were requested to order the repeal of the declaration of the national state of emergency at the time (which came into effect on February 1, 1999). The Respondent in the original petition was the Knesset of Israel. In brief, the Petitioners claimed there was no actual extreme situation that would justify the declaration of a state of emergency. In their arguments, the Petitioners relied upon this Court’s decision in HJC 6971/98, Paritzky v. Minister of Interior, IsrSC 53(1) 763 (hereinafter: the Paritzky case), in regard to barring the Knesset from enacting legislation in security or other emergency circumstances. The Petitioners further maintained that the consequences of the declaration continually compromise the rule of law, the separation of powers, and basic rights. It was also argued that the declaration of the state of emergency was made without authority, on the basis of irrelevant considerations, without a satisfactory factual foundation, and that it was unreasonable and inconsistent with the state’s international obligations. In the Petitioners’ view, proper emergency legislation – by virtue of it being legislation in extreme circumstances of distress – should allow state authorities to quickly adopt limited legal arrangements in relation to a concrete situation until the storm has passed. As opposed to this, the Petitioners argued that the Israeli emergency legislation, which they challenged, is characterized by creating an ongoing and unrestrained reality in this regard.

 

4.The Respondent’s position was that the Petitioner did not lay an adequate foundation for revoking the declaration of a state of emergency, and thus there are no grounds for judicial intervention. The Respondent noted that we are dealing with a complex issue that should be treated with sensitivity and caution, and that even prior to the filing of the Petition, Israel had been gradually working toward changing the current state of affairs, such that security interests will be protected while the state of emergency will not continue. The Respondent explained that the Knesset recognizes Israel’s unique security situation, as well as the need to afford the Government effective tools to contend with this state of affairs. At the same time, it was argued that the government agencies – led by the Ministry of Justice – are acting to reduce, as far as possible, reliance upon legislation that is contingent upon a declaration of a state of emergency, in order to create the legal infrastructure required for the revocation of the declaration. On the merits, the Respondent argued that the declaration is not inconsistent with the rule of law or the separation of powers. In realizing the Knesset’s authority as a constituent assembly to set the course of the existing arrangement in the Basic Law, there is awareness of the potential for harm and deviation, and therefore there are arrangements in regard to restricting the authority granted to the Government: the legislative branch’s authority to declare a state of emergency, to invalidate the declaration at any time (secs. 38(a) and 38(e)), and to oversee the exercise of authorities through its subsidiary organs under the Knesset Rules of Procedures. These arrangements – so it was argued – provide a justification in principle for emergency legislation. In addition to all this, of course, the declaration is subject to judicial review. Additionally, the Respondent claimed that the arguments as to lack of authority are not grounded, and that the Petitioner erred in terms of the interpretation of the Paritzky decision, which addressed exercising the authority to promulgate emergency regulations and not the actual declaration of a state of emergency by the Knesset. Finally, the Respondent added that the declaration, itself, does not violate basic rights, and that it meets the tests of reasonableness and the state’s international obligations.

 

5.An  order nisi was issued on October 4, 1999, whereby the response must also include “updated information as to the steps taken in the area of legislation…”. At the end of the hearing held on September 20, 2000, the Respondent’s attorneys were requested to give notice of a “working plan and timetable on the subject of the Petition” within 90 days. In a supplementary notice dated January 21, 2000, an update was submitted as to the progress of the legislative processes that were mentioned in the Response to the Petition (however without a detailed plan). Pursuant to that, two further updated notices were submitted on June 14, 2001 and December 20, 2001.

 

6.This Petition originated in 1999, at a time of relative calm. But the situation quickly changed, since the fall of 2000, in light of severe terror attacks on Israel in the course of the events known as “the Second Intifada.” In this period, and thereafter, several chambers conferences were held before President (Emeritus) Barak, and due to the security situation (at the time of the conference on March 25, 2003), the question was raised whether it would be appropriate to dismiss the Petition without prejudice. Since the Petitioner insisted upon maintaining the Petition, it was decided that “in light of the State’s arguments as to the need for the declaration of a state of emergency to remain in force, and upon the recommendation of the Court, the Petitioner shall amend its Petition and consider the possibility of invalidating the declaration of a state of emergency even in the current security situation” (decision dated March 25, 2003). Following this decision, an amended petition was submitted on July 24, 2003, which almost precisely repeated the arguments made in the original petition, while additionally addressing the state of affairs that existed in the country at the time. On May 15, 2004, the Respondents’ Reply was submitted (at this stage the Government of Israel was added as a respondent) arguing that the amended petition added nothing new. Moreover, beyond what the Respondents believed necessary for their reply,  they emphasized the real security need and concern about creating a legal vacuum that would leave authorities without the means to respond to the rising wave of terrorism. The Respondents added that the legislature would continue to work toward completing the process of adjusting legislation that relies on the existence of a state of emergency.

 

7.Pursuant to the above, many decisions that maintained the Petition were handed down, allowing the Court to remain informed about developments. We did this on the assumption that, on one hand, the current situation could not be remain unchanged, and on the other hand, that the ability of the authorities to carry out their duties in protecting state security in regard to  the dynamic security situation must be preserved. In parallel to the hearings and decisions in regard to the petition, the Knesset – primarily the Joint Committee of the Foreign Affairs and Defense Committee and the Constitution, Law and Justice Committee, which oversees the preliminary process for examining the Government’s requests to declare a state of emergency (under the Knesset Rules of Procedures) (hereinafter also: the Committee) – continued to urge the Government’s representatives to report on the progress of the procedures.

 

8.Thus, in a hearing before the Committee on May 29, 2006 (when a hearing was also held before this Court), a representative of the Ministry of Justice described progress in regard to more than ten statutes in civil areas of the law, and reported that the work plan for that year was fully accomplished (minutes of hearing of the Joint Committee, dated 4th Sivan, May 29, 2006). The report that was annexed to the update notice of May 25, 2006 by Adv. Yaacov Shapira, then director of counseling and legislation in the Ministry of Justice, reviewed the inter-ministerial work regarding emergency legislation. The report detailed that the Knesset passed the Powers for Protecting Public Safety Law, 5765-2005, which repealed the abovementioned Powers of Search (Emergency) (Temporary Provision) Law, 5729-1969; passed the Shipping (Foreign Vessels under Israeli Control) Law, 5765-2005, which repealed regulation 7A of the Schedule to the Emergency Regulations (Control of Vessels) (Consolidated Version) Law, 5733-1973; passed an amendment to section 32 of the Annual Leave Law, 5711-1952, in in a first reading. Several statutes, including the Apprenticeship Law, 5713-1953, the Youth Labour Law, 5713-1953, the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954, the Firearms Law, 5709-1949, the Israeli Defence Forces  (Equipment Registration and Mobilisation) Law, 5747-1987 were all in various stages of legislation (a draft law, a legislative memorandum, and  so forth).

 

9.The Respondents continued to submit updating notices. On August 1, 2006, a hearing was adjourned for another six-month period. Our decision noted as follows:

We believe the Petition should not be dismissed or denied, but neither should it be decided at this time. The issue is complex and sensitive. On one hand, contrary to the Petitioner’s view, the state of emergency sadly persists, and the war on terror continues in full force. This cannot be disregarded. On the other hand, the declaration of a state of emergency has been used for legislation that could have long been replaced by balanced legislation, such as the Commodities and Services Control Law, 5718-1957, the Youth Labour Law, 5713-1953 and others, and the Ministry of Justice, and other government ministries, are aware of this, as is the Knesset. The result is that we are adjourning further hearings in the Petition. The Respondents shall submit supplementary notices within six months… (para. 6).

 

The last hearing before us was held on September 8, 2008. The Respondents’ attorney then submitted updated data, which reflected more significant progress in the area of civil legislation. In our last decision (dated December 7, 2011) we held that:

There has been progress in the legislative processes. A portion of the legislation that was contingent upon a state of emergency has been changed and amended, another portion of it is in various stages of legislation, and as for the remainder, there is an intention to address it […] Accordingly, the State’s notice now reveals a willingness and ongoing commitment to readdress the dependence of vast legislation upon a state of emergency regardless of the existence of a pending Petition in this Court.

 

The contribution of this Petition and of the Petitioners to motivating legislative procedures over the years was significant. Still it seemed at the time that the continuation of the proceedings should be reconsidered, and thus we asked the Petitioners to notify the Court whether they wished to insist upon the Petition. As a result of this decision and an additional updating notice from the Respondents, the Petitioner notified the Court (on February 1, 2012) that in light of the infringement of basic rights and the principles of democratic government as detailed in the amended Petition, and the fact that, in over a decade, the legislative processes have not come to an end, the current declaration of a state of emergency must be revoked (while staying the revocation for a period of six months in order to allow the necessary preparations to be completed).

 

10.In summary, there have been twelve hearings on this Petition, and upward of thirty decisions, which led the Respondents to repeatedly provide answers as to the progress of legislative processes and the reexamination of the matter.

 

Discussion and Decision

 

11.Upon review, we have come to the conclusion that the Petition has exhausted its purpose, although, indeed, the work has not been completed. We believe that the state authorities must be allowed to act toward concluding the legislative processes, which the Petitioner helped to advance by its Petition. Indeed, this Petition was worthy, and its core message was not delivered in vain. However, as we noted in the decision dated August 1, 2006, we cannot ignore the fact that Israel has not yet come to its safe haven. Indeed, Israel has enjoyed, and continues to enjoy extended periods of relative security, but the winds of war have never quite calmed, and sadly that relativity persists. This is not the place to elaborate in regard to attacks by air and by land, from the north and the southwest, resulting in loss of life and property, or to elaborate on the relentless threats from our enemies near and far. Even in looking back over the period that this Petition has been pending before Court, we see that the Israeli reality was and continues to be sensitive and complex, and does not permit depriving the state authorities of necessary emergency powers. The Second Lebanon War, Operation “Cast Lead”, the recent events of the revolutions referred to as the “Arab Spring” in neighboring countries, the acts of Hamas and threats by Iran and Hezbollah are ongoing reminders of the security situation. Long ago, Justice Yitzhak Kahan explained:

As stated, the provisions of the Arrests Law came to replace the provisions of the Defence (Emergency) Regulations in regard to arrests and deportations. The preamble of the bill stated that ”in the stage of siege in which the State has been since its founding, we cannot forego special means that would ensure proper defence of the state and the public in the face of whomever conspires to annihilate it.’ According to section 1 of the Law, it is in force when there is a declared state of emergency  under section 9 of the Law and Administration Ordinance, 5708-1948. As known, this state of emergency has been ongoing for over thirty years, and who knows how much longer it may continue. This fact of the ongoing state of emergency requires, on one hand, restricting the emergency measures undertaken by the State in order to defend its existence, such that, to the extent possible, these measures do not violate civil rights, but on the other hand, the fact that the state of emergency persists for well-known reasons and circumstances, points to the fact that, throughout its existence, the State of Israel has been in a situation that is difficult to compare to that of any other state” (ADA 1/80, Kahana v. The Minister of Defence, IsrSC 35(2) 253, 257).

 

This was said over thirty years ago, yet in every generation we face existential threats. As Justice Hayut explained in the first half of the previous decade:

 

The armed struggle waged by the Palestinian terrorist organizations against the citizens of Israel and its Jewish residents requires a proper response. It requires the adoption of all the measures available to us as a state, in order to contend with the security risks to which the Israeli public is exposed as a result of this terrorist activity. Enacting laws that will provide a response to security needs is one of those measures, and this is the purpose of the Citizenship and Entry into Israel Law.… The difficulty in taking risks in matters of security and matters involving human life is clear and obvious and it increases in times of crisis and prolonged danger that necessitate making the security measures more stringent and inflexible (HCJ 7052/03, Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202, paras. 3-4 of the opinion of Justice E. Hayut (Emphasis added – E. R.)

[English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r...).

 

And recently, as Justice Melcer summarized, specifically in a situation of relative calm:

 

The above reveals that, in contrast to the impression regarding the relative quiet which the Petitioners claim exists – the Palestinian terrorist organizations, including those active in the Judea and Samaria Area, constantly attempt to initiate and execute painful attacks in the heart of the State of Israel. In order to execute attacks in the form of mass murder…” (HCJ 466/07, MK Zehava Galon – Former Chair  of the Meretz-Yahad Party v. Minister of Interior, IsrSC 65(2) 44,  para. 13  (hereinafter: the Citizenship Law case) [English summary: http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]).

 

This also arises clearly from both unclassified and classified materials presented to this Court in many security-related cases.

 

12.As opposed to this, as we discussed throughout the proceedings here, there can be no justification for the use made over the years of the declaration of a state of emergency in situations that required balanced, up-to-date legislation that was not emergency legislation. This was also our approach in narrowly construing the authority to issue supervision orders under the Commodities and Services Control Law, 5718-1957, under which many orders were issued (as was  mentioned in the Petition as one of the central difficulties resulting from the current situation). In this regard, see the words of (then) Deputy President Agranat, from nearly half-a-century ago:

[I]t would be well for the Minister possessing the power to consider seriously whether the said state really requires the exercise thereof in this or another concrete situation. … it is desirable that those matters requiring regulation without any connection to the dangers stemming from the state of emergency should be regulated by ordinary legislation of the Knesset which is not necessarily intended for a state of emergency … it would be well for the Ministers to exercise sparingly the broad and drastic powers granted them in the Control Law… (CrimA 156/63, Attorney General v. Oestreicher, IsrSC 17(3) 2088, 2096 [English: http://versa.cardozo.yu.edu/opinions/attorney-general-v-oestreicher).

 

In this regard, see also HCJ 344/89, H.S.A. – International Trade Ltd. v. Minister of Industry and Trade, IsrSC 44(1) 456; HCJ 266/68, Petach Tikvah Municipality v. Minister of Agriculture, IsrSC 22(2); HCJ 2740/96, Aziz Shansi v. Supervisor of Diamonds, IsrSC 51(4) 481; and see and compare in regards to the military censorship under the Defence Regulations, HCJ 680/88, Schnitzer v. Chief Military Censor, IsrSC 42(4) 617 [http://versa.cardozo.yu.edu/opinions/schnitzer-v-chief-military-censor].

 

13.As noted, we are called upon to examine whether there are grounds for our intervention in the authority’s declaration of a state of emergency at present. We are persuaded that under the present circumstances, and in light of all the steps taken, our intervention is no longer necessary at this time, without barring our doors before future petitions, as may be required. As I noted in another case:

 

Naturally, the role of a court such as this is, at times, to serve as a “babysitter” of sorts to state authorities (HCJ 5587/07 Uziel v. Property Tax and Compensation Fund (unpublished)), in order to supervise the following of the provisions of the law and to realize human rights. It seems that in this case, the Petition served as a catalyst for activity of various kinds… This certainly bore certain fruits, and it seems that we can now conclude the adjudication of this Petition, while taking note of the Respondents’ commitments (HCJ 1527/06, Movement for Fairness in Government v. Minister of Transportation (unpublished) para. 12.)

 

14.The State’s last update, dated November 29, 2011, mentioned the establishment of a special taskforce in regard to the declaration of the state of emergency, which began operating on June 22, 2009, and supervises the progress of the governmental work toward unlinking legislation from its reliance upon the declaration of a state of emergency. Additionally, the last update detailed the ongoing legislative processes in many areas – and we shall again make particular note of the matter of the orders issued, inter alia, under the Commodities and Services Control Law, 5718-1957. According to this last update, out of the 160 orders that were in force, some 91 orders have been rescinded during the period that the Petition has been pending, and out of the 69 remaining orders, dozens are expected to be revoked in the near future. This issue was the most painful of all emergency arrangements, in light of the tenuous link between many orders and their origin in matters of emergency. In this area, too, we see the light at the end of the tunnel.

 

15.We would note that a number of legislative processes have come to their conclusion over the years in which this Petition has been pending. For example, the Emergency Regulations Extension (Control of Vessels) Law (Consolidated Version), 5733-1973, was replaced by two new pieces of legislation: the Shipping (Foreign Vessels under Israeli Control) Law, 5765-2005, and the Shipping (Offenses against International Shipping Safety and Sea Facilities), 5768-2008. Another law that is destined for completion is also under legislation (according to the last update, the Shipping (Security) Law Memorandum, 5768-2008, was published and in currently being prepared as a bill). Additional bills passed their first reading, and others are in various legislative stages whose purpose is to repeal or amend existing legislation in order to disconnect the historical link, the validity of which has been gradually reduced, between them and the declaration of a state of emergency.

 

16.At the same time, we have been notified that the legislative processes have penetrated the margins of the hard core of the emergency legislation. A report from the Counseling and Legislation Department of the Ministry of Justice, dated May 19, 2011, stated that the Combating Terrorism Bill, 5771-2011, is in its initial legislative stage and is intended to replace the Prevention of Terrorism Ordinance, 5708-1948, and to amend the Emergency Powers (Detention) Law, 5739-1979, as well as other emergency laws. In this context, a memorandum was recently published regarding the amending of the Defence (Emergency) Regulations,  1945 (hereinafter: the Defence Regulations). As we know, the Defence Regulations were promulgated during the British Mandate for Palestine by the Mandatory Authorities as a means for grounding the powers of the High Commissioner (sec. 6 of Palestine (Defence) Order in Council, 1937, and included provisions regarding many areas, including arrest and deportation, seizure and confiscation of properties by the government, adjudication and penalties in civilian and military courts, military censorship, imposition of taxes, and more. These regulations were incorporated into Israeli law after the Mandate ended, by virtue of section 11 of the Law and Administration Ordinance. These Defence Regulations, despite their name, constitute primary legislation, and their validity is not contingent upon the existence of a declaration of a state of emergency. However, the above move seems to indicate, once again, a mindset and understanding on the part of authorities that the time has come to do away with vestiges of emergency legislation that has accompanied us since the establishing of the state, and that, of course, seems in part to be anachronistic and even draconian after 64 years.

 

17.We should further bear in mind that this Court does not, as a general rule, substitute its discretion for that of the competent authorities. This rule is of greater force when we are concerned with a dynamic, unpredictable security reality. I have previously had the opportunity to say:

 

For years we have been in a fluid situation, shifting sands, which as judges we do not know how to assess correctly. The Hamas takeover of Gaza… long periods of fire on Sderot and the towns around Gaza, the agreement between Hamas and Fatah (from April 2011) whose significance we cannot know, and the events that were termed the “Arab Spring” (beginning in December 2010). Do we have the capability to determine their security significance better than the security agencies and the Government? In my view, the answer to this cannot be in the affirmative. Indeed, this is temporary legislation – and so it should be – in order that it be closely reconsidered from time to time. But, unfortunately, temporary is not short, due to many unknown factors and rapid changes” (the Citizenship Law case, para. 43).

 

18.In conclusion we will state that although we welcome the progress, the work is far from completion, and the pace of change is  not satisfactory. The State declared long ago the need to change the current situation and to decouple existing legislation from the declaration of a state of emergency. It must complete this task, and the sooner the better. In this context, as in many others, the security situation takes a toll on Israeli democracy: “Israel combats a situation that may be the most difficult [among other democratic states – E. R.]; it attempts to do as best it can, even if this is not perfect, and supervision is regularly necessary” (Public Law in Times of Crises and Days of Warin (2003) 16, 20 (Hebrew)). But the cost, as stated throughout this proceeding, is not inevitable in all contexts. There is progress, although the pace can be improved. Much remains to be done, but at this time we must allow the competent authorities to complete the process, with the understanding that what commenced over ten years ago should reach its near conclusion. Israel is a normal country that is not normal. It is normal because it is an active democracy where basic rights, including liberties such as freedom of speech, independence of the courts and legal counsel are preserved and protected. It essentially fulfills its purpose as a Jewish and democratic state. It is not normal because the threats to its existence have yet to be removed. It is the only democratic state that exists under such threats, and its relationship with its neighbors, too, has yet to be arranged, notwithstanding peace agreements with Egypt and Jordan and some agreements with the Palestinians. The struggle against terror persists and will likely continue for the foreseeable future. We do not yet sit every man under his grape vine or fig tree. The “road to normalcy” suffices to ask that emergency legislation be adapted to a 64 year old democracy. The challenge is to design a legal system, even in this regard, that contends with the normal aspect and the abnormal aspect as one. This goal is achievable. It is not in Heaven.

 

19.In conclusion, the order nisi shall be rescinded and the Petition dismissed, subject to the foregoing.

 

 

 

                                                                                               

Justice E. Arbel:

 

I concur.

 

 

                                                                                               

 

President (Emerita) D. Beinisch:

 

I concur with the conclusion reached by my colleague Justice E. Rubinstein, whereby we should, at present, rescind the order nisi because the Petition has exhausted itself and should be dismissed subject to what is stated in paragraph 18 of his opinion, and in view of the possibility to return to this Court should there be no progress in regard to the emergency legislation.

 

Over the course of the many deliberations and hearings that we held in this case, we  found it practical to separate the declaration of a state of emergency from the use made of this state and the extensive legislation dependent upon its continuation. The state of emergency has persisted since the inception of the State of Israel, and following Basic Law: The Government, its extension requires annual reconsideration by the Government and the Knesset. The state of emergency declared under law is, to a large extent, the result of a policy conception, and of status evaluations by the Government and the Knesset. For historical reasons, the approach regarding the state of emergency led to an inappropriate scope of legal mechanisms that need not be addressed here. Sadly, to this day, no proper framework has been established  to express the appropriate relationship between a concrete state of emergency and the possibility of granting the executive tools to act in such circumstances. The Petition, in its various incarnations, remained pending only because we saw the undisputed inadequacy of the long trail of legislation that followed the declaration of a state of emergency since the State’s inception. There is only a tenuous connection between a significant portion of legislation – which comprises orders and regulations issued decades ago  in reliance upon the existence of a state of emergency – and the state of emergency. This Court addressed this as early as some 50 years ago, as was noted in the opinion of my colleague E. Rubinstein. This Court also addressed the need to oversee the separation of the extensive emergency legislation from the framework of a declaration of a state of emergency in the areas of economics and consumer affairs, and even in matters of security. We noted this the past, as well as in our decisions on this Petition.

 

As noted, there was no dispute between the Parties as to the need to disconnect this legislation from the historical declaration of a state of emergency, so that the legislation in the relevant fields stand on its own independent feet, in accordance with proper legislative procedures. This process, as revealed from the updates we received, is taking place, although too little and too slowly. In this regard, I concur in the position of my colleague as expressed in para. 18 of his opinion, and I can only express my hope that the proper legislative processes will continue without the need for the intervention of this Court.

 

 

 

 

 

 

Decided in accordance with the opinion of Justice E. Rubinstein.

 

Given this day, 16 Iyar 5772 (May 5, 2012)

 

 

 

 

Yesh Atid Party v. Prime Minister

Case/docket number: 
HCJ 3132/15
Date Decided: 
Wednesday, April 13, 2016
Abstract: 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

HCJ 3132/15

 

 

Petitioner:                    Yesh Atid Party led by Yair Lapid

 

                                                            v.

 

Respondents:              1. Prime Minister of Israel

                                    2. Attorney General

                                    3. 34th Government of the State of Israel

                                    4. Deputy Minister of Health

                                    5. Deputy Minister of Regional Cooperation

                                    6. Deputy Minister of Foreign Affairs

                                    7. Likud Faction

                                    8. Torah Judaism Faction

 

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

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

Attorney for Respondent 7: Adv. Avi Halevi

Attorney for Respondent 8: No appearance

 

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

 

 

The Supreme Court sitting as High Court of Justice

 

Petition for an order nisi

 

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

 

Abstract:

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

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

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

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

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

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

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

 

 

 

Supplemental Judgment[1]

 

President M. Naor:

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

The Proceedings in a Nutshell

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

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

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

Discussion and Decision

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

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

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

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

Purposive Interpretation of the Current Basic Law

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

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

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

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

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

                        Jerusalem.

                       

                        Mr. Speaker,

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

 

                        And this is the composition of the Government:

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

 

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

 

Respectfully,

M. Begin

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Afterward

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

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

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

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

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

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

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

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

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

 

Justice H. Melcer:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter I: Interpreting the Constitutional Text from Within

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

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

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

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

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

                        What the Government is

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

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

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

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

            From this provision we learn several things:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            I will demonstrate this presently.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter II: The Theory of Implied Constitutional Interpretation

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

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

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

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

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

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

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

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

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

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

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

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

 

Chapter III: The Relevant Constitutional and Case-Law History

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

            I will now elaborate and explain.

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

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

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

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

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

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

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

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

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

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

            In this regard, the authors write as follows:

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

            Further on, they add:

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

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

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

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

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

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

 

B.        The Legality Principle

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

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

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

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

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

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

 

C.        The Subservience of Institutional Basic Laws to Basic Rights

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

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

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

This comprises two flaws:

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

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

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

 

Additional Parallels from Comparative Law

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

Chapter VI: Summary and Conclusions

48.       What follows from all the above is:

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

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

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

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

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

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

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

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

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

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

 

Chapter VII: Responses and Comments to my Colleagues’ Opinions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Conclusion

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

                                    One angel cannot carry out two missions.

 

 

Deputy President E. Rubinstein:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Justice S. Joubran:

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

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

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

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

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

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

 

Justice N. Hendel:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

 

 

 

 

 

[1] This is a supplemental judgment following a partial judgment given on Aug. 23, 2015, “hereby granting an order absolute on the first head of the order nisi, viz., that the institution of ‘Deputy Minister with the Status of a Minister’ has no legal validity … I therefore recommend that we hereby grant an order absolute that Rabbi Litzman cease to serve as Deputy Minister of Health within 60 days from today (recess days inclusive). Of course, he can be appointed to serve as Minister of Health with all its legal ramifications” (per E. Rubinstein DP, S. Joubran, M. Melcer, N. Hendel JJ concurring, M. Naor P concurring with the holding, but dissenting as to the wording of the order absolute, being of the opinion that “I would not prevent Knesset Member Litzman from serving as a regular deputy minister, and not in accordance with the criteria established in the outline … If my opinion were accepted, we would permit Knesset Member Litzman to give notice within 60 days of whether he chooses to be a minister, or whether he chooses to be a deputy minister in the regular sense – without the outline that grants him special status relative to other deputy ministers – or whether he prefers to withdraw entirely”).

[2] Translator’s note: The term “Prime Minister”, employed as the English equivalent of the Hebrew term Rosh HaMemshala does not reflect the literal meaning of the Hebrew term, which is “Head of the Government”.

[3] Trans. note: Yariv Levin was elected to the Knesset in 2009, and was appointed Minister of Public Security and Minister of Tourism after the 2015 elections.

[4] Trans. note: On Israel’s constitution and the Harrari Decision, see: CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper....

[5] Translator:  TB Rosh HaShana 4b; Yoma 80a.

[6] Translator: see, e.g., TB Berakhot 61a. The rabbinic proverb is equivalent to the saying “damned if I do, and damned if I don’t”.

[7] Translator: The date of Israel’s independence.

Movement for Quality Government v. Prime Minister

Case/docket number: 
HCJ 4374/15
Date Decided: 
Sunday, March 27, 2016
Decision Type: 
Original
Abstract: 

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

 

The Petitions disputed the legal validity of the Gas Outline adopted by the Government in the framework of Government Decision 432 in regard to the treatment of the gas reserves (hereinafter: the Gas Outline). The state and the gas companies holding the franchises defended the Gas Outline.

 

The Supreme Court, sitting as High Court of Justice (in an expanded bench of five justices) ruled as follows:

 

The Court majority (Deputy President E. Rubinstein, Justices S. Joubran, E. Hayut, and U. Vogelman concurring, Justice N. Sohlberg dissenting) held that the regulatory stability clause, as set out in sections 5 and 6 of Chap. J of the Gas Outline, could not stand. The clause bound the Government to the Outline – including in regard to legislative changes and opposition to legislative initiatives, and primarily in regard to regulatory changes in the areas of taxation, restrictive trade practices, and export caps – for a period of ten years. The Court held that the arrangement contravened a basic rule of administrative law in regard to prohibiting the restriction of an authority’s discretion. The Court explained that the Outline’s provisions not only bound the hands of the Government – and of future governments – but also of the legislature.

 

In light of the above, and in view of the Respondents’ declaration that the stability clause was a sine qua non, Deputy President E. Rubinstein and Justices S. Joubran and U. Vogelman were of the opinion that the entire Outline must be annulled. However, the state would be granted one year to rectify the matter in accordance with the Court’s decision. If the matter not be rectified, the Gas Outline would be annulled.

 

As opposed to this, Justice E. Hayut was of the opinion that the Court should strike down the stability clause alone. In her opinion, the gas companies should be left to decide whether or not they wish to cancel the Outline under the circumstances.

 

In this regard, the Deputy President explained, inter alia, that when an agency is granted authority by law, that authority also comprises a duty to exercise discretion. Simply put, the Government does not have the authority to decide not to decide and not to act. This is all the more the case when the issue is one that is the subject of real political debate, and where the executive branch apparently seeks to bind the discretion of its successors, whose composition and ideology may differ from those of the incumbent government. Pursuant to that, the Court held that the Government had unlawfully discarded its discretion, and in substance, even hobbled the Knesset’s discretion due to party discipline that is often invoked, particularly in regard to sensitive political issues. The issue was also examined in light of the administrative representation doctrine, that is, the government’s ability to make binding promises (even if they may be rescinded, with sanctions, in extreme cases), in light of the announcement by the Government and the gas companies that the Outline should be viewed as such. The Court held that the promise was ultra vires. I this regard, Justice Vogelman emphasized that the scope and term of the stability clause, as well as the “price tag” attendant to its anticipatory breach create, in practice, an unlawful restriction upon administrative discretion. However, in the opinion of Justice Vogelman, nothing would prevent the Knesset form adopting a legislative solution that would permit the Government to establish the three arrangements addressed by the stability clause for a defined term, whether by specific legislation or by legislation that would expressly enable the Government to do so.

 

Justice Hayut found, inter alia, that the restraining provisions in the Gas Outline are particularly far-reaching, inter alia, because they tie the hands and legs of the Government, which, in practice, controls the Knesset legislative process in regard to initiating legislation. Moreover, according to Justice Hayut, the Government’s active undertaking in the provisions of the stability clause to frustrate any legislative change that would be contrary to the Outline, if enacted by means of a private-members bill, crosses all the acceptable boundaries of parliamentary democracy, and renders the restraining provisions clearly and unequivocally unconstitutional. Justice Hayut further expressed the view that, in practice, and despite the rescission doctrine, the restraining provisions create a regulatory and legislative freeze by exposing the state to a suit for significant damages for an unknown amount by the gas companies in the case of extrication from the Outline or any part thereof.

 

In the opinion of Justice Sohlberg, although the regulatory stability clause restricts the administrative discretion of the Government, the clause could stand. There is no need for legislating the Gas Outline, and the Government’s decision, which was approved by the Knesset plenum, is sufficient. Therefore, in his opinion, the Petitions should be dismissed.

 

In the opinion of Justice Sohlberg, the stability clause does not restrict the Knesset’s legislative power, and the Knesset is sovereign to legislate as it sees fit. The stability clause restricts the discretion of the Government, and it is, indeed, exceptional in its term, scope and the expected economic consequences of its breach. However, even the combined force of those characteristics do not result in the absolute restriction of the Government’s discretion by the stability clause. A restriction of discretion is an inevitable consequence of the very existence of administrative contracts and promises, and the balance is expressed by the administrative rescission doctrine, and the possibility of withdrawing an administrative promise. Thus, the Government continues to enjoy a certain margin of future discretion, and in any case, a stability clause grounded in a governmental decision is more flexible than one grounded in a statute. The government has the authority and the professional tools for deciding upon the optimal approach to exploiting gas resources, which is a decision that requires establishing a multidimensional policy. The subject at hand is at the heart of administrative discretion. The Government is permitted to act in that regard in advancing legislation. The regulatory stability clause is part of a “package deal” that resulted from lengthy, complex professional negotiations conducted between the state and the gas companies. In the case of enormous investments of the type under concern, a ten-year undertaking is reasonable, and is required in order to establish policy and act for the realization of important long-term projects. Moreover, under the State Property Law, the Government can, in principle, sell the gas reserves in whole or in part, and such a sale would constitute an absolute restraint of future discretion. If the Government is authorized to do the maximum (to sell), it can certainly do a lesser part thereof (the Gas Outline, including its regulatory stability clause).

 

By a majority opinion of Justices E. Hayut, U. Vogelman, and N. Sohlberg, against the dissenting opinion of Deputy President E. Rubinstein and Justice S. Joubran, the Court held that the validity of the entire Outline (as opposed to the stability clause) is not contingent upon enacting primary legislation.

 

In this regard, in the opinion of the Deputy President and Justice S. Joubran, the Outline (as distinct from the stability clause) constitutes a primary arrangement that requires that it be grounded, in its entirety, in primary legislation rather than in a governmental decision. In the opinion of Justice Sohlberg, while it is a primary arrangement, the existing legislation suffices to empower the Government to decide upon the matter of the Gas Outline, and no further legislation is necessary. In the opinion of Justice Vogelman, even if it would be proper from a public perspective that the Outline be brought before the Knesset in the form of primary legislation, there is no legal obligation to do so under the circumstances. In the opinion of Justice Vogelman, the question of whether the Outline constitutes a primary arrangement must not be examined in accordance with the “overall picture” that arises therefrom, but rather with attention to its concrete details, while focusing upon the aspects that concern the structural changes that may be expected in the gas market and the promotion of competition. In this regard, Justice Vogelman was of the opinion that inasmuch as the Gas Outline is a framework that unites the activities of all the relevant regulators in the natural gas market, each in its area of expertise – in a sort of pooling of regulatory powers – it is legally possible to arrange it in the framework of a governmental decision. Moreover, Justice Vogelman was of the opinion that it is questionable whether the economic-market importance of the Outline and the public debate that accompanied it require, in and of themselves, a finding that the Outline constitutes a primary arrangement. In any case, even if we assume for the sake of argument that the Outline constitutes a primary arrangement, there is sufficient authority for it to be established without need for primary legislation. This authority derives from the combination of all the legal provisions that expressly authorize governmental agencies to make each and every one of the arrangements established in the Outline individually.

 

Under the circumstances, the Court – with the exception of certain comment by Justice Joubran – did not see any problem in the use made of sec. 52 of the Restrictive Trade Practices Law, which grants the Minister of the Economy authority to exempt a restrictive trade practice from the provisions of the Restrictive Trade Practices Law for foreign relations and security considerations. The Deputy President noted that this is also the case – although not unproblematically – in regard to the issues of taxation, price supervision, and export, each in its own right.

 

In regard to the use of the said sec. 52, the Deputy President explained, inter alia, that in such exceptional situations in which there are significant matters of security and state, those matters must be weighed – after determining the issue of authority – against the harm that may be caused to competition (which is the purpose of the Restrictive Trade Practices Law) by making recourse to the section. The issue that must be addressed is the public good. In other words, once the “bar of exceptions” has been successfully cleared in terms of authority, there is a sort of “parallelogram of force” between the interest in competition and the state and security interests. The greater the harm to competition, the greater the need for weighty state or security interests in order to justify recourse to sec. 52. Under the circumstances, and despite the significant harm to the interest in competition, the Court held that the state and security interests were significant, and it therefore cannot be said that recourse to the section was unreasonable. Although recourse to sec. 52 should be limited to exceptional circumstances, the matter before the Court fell within that scope.

 

In conclusion, the Court struck down the Gas Outline due to the stability clause (without finding cause for judicial intervention in any of the other issues), while holding its ruling in abeyance for a period of one year in order to allow time for rectifying the matter.

 

It should be noted that the Deputy President emphasized throughout his opinion that the Court would not examine the economic wisdom of the Outline, and would not express its opinion on the matter. The issue addressed by the Court was a legal one – the limits of governmental authority in a democratic regime, and the extent to which a government may stretch its residual authority – its general authority to act – in the absence of express authority granted by the legislature in regard to a matter of extraordinary, unprecedented economic consequences.

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

The Supreme Court

 

High Court of Justice 4374/15, 7588/15, 8747/15, 262/16

 

The Movement for Quality Government v. The Prime Minister of Israel

 

Regarding the Gas Outline that was Prescribed in Government Decision 476

 

Summary of Judgment

 

Deputy President E. Rubinstein:

 

These petitions address felicitous discoveries of large natural gas reservoirs in Israel's exclusive economic zone, of which we have been informed in recent years. The petitions dispute the legal validity of an outline that was decided by the Government of Israel in the framework of Government Decision 476 regarding the Matter of Handling the Gas Reservoirs (hereinafter: the "Gas Outline"), and the State and the gas companies, the franchisees of the reservoirs, are defending the Outline. It shall at the outset be emphasized that throughout his opinion Deputy President E. Rubinstein emphasized that the Court is not requesting to examine the economic wisdom of the Outline and does not wish to express an opinion in this matter. The issue that is being examined thereby is a legal question – the limits of the government's power and authority in a democratic regime, and the extent to which its residual power and authority – its general power and authority to act – can be stretched, when the legislator did not explicitly authorize it and when the economic significance is so unprecedentedly immense.

 

The judgment primarily addresses three main issues that were raised in the petitions:

 

First, what are the circumstances in which Section 52 of the Antitrust Law, 5748-1988, which vests the Minister of Economy the power and authority to exempt a restrictive practice from the provisions of the Antitrust Law on grounds of foreign policy and security considerations, can be applied; and was the section applied with authority and in a reasonable manner in the case at hand – whereby the Prime Minister and the Minister of Economy (then as acting minister) relied on this section.

 

Second, was Chapter 10 of the Outline, which grants the gas companies a stable regulatory environment, and in other words, constitutes a Government undertaking not to change the Outline, including by legislative changes and objections to legislative initiatives, and which essentially serves as protection against regulatory changes in the fields of taxes, antitrust and export quotas, for the duration of a decade – prescribed with authority.

 

Third, does the Gas Outline, including all of its aspects, complexity and importance to the economy of Israel, not amount to a "primary regulation", which requires primary legislation, rather than a Government decision.

 

As to the application of Section 52: After examining the Petitioners' arguments relating to the matter of power and authority, the matter of exercising discretion and the issue of proper procedure, Justice Rubenstein reached the conclusion that Section 52 was applied on grounds of foreign policy and security in a reasonable manner and with authority. It was explained that in terms of authority, the Court was convinced that the foreign policy and security considerations are real considerations, which in the case at hand allow entering the scope of Section 52. This was in light of security opinions and opinions in the foreign policy field that were filed, as well as after hearing the position of senior government persons, including the Prime Minister. It was reasoned that in exceptional cases, in which there are significant security and foreign policy considerations, then, after examining the authority aspect, they should be weighed against the infringement that could be caused to competition (the purpose of the Antitrust Law) as a result of exercising the section; and the consideration is the public interest. In other words, once the "exceptionality threshold" has been overcome in terms of the authority aspect, there is the reasonableness aspect, creating a sort of "parallelogram of forces" between the interest of competition and the security-foreign policy interest. The greater the infringement of the competition interest, the stronger the security-foreign policy grounds will have to be, in order to exercise the section; and as mentioned, given these circumstances, despite the significant infringement of the competition interest, it was ruled that the security- foreign policy grounds bear heavy weight, and it follows that it cannot be said that the section was exercised in an unreasonable manner. All after having clarified that Section 52 shall only be exercised in unusual circumstances, but that the matter at hand falls within those grounds.

 

It was further found, although not without difficulty, that each of the taxation policy, the supervision of the prices and the export which appear in the Outline – in and of themselves – were prescribed with authority and in a reasonable manner, however this is not the case with respect to their aggregate impact. This shall be elaborated upon further on.

 

As to Chapter 10 which addresses a stable regulatory environment: Justice Rubenstein's position is that the stability clause in this chapter of the Outline, in which the Government commits to a decade during which it not only will not legislate but will also object to any legislation that is against the provisions of the Outline, was prescribed ultra-vires and is void. This is due to the fact that it was prescribed contrary to the basic administrative law rule regrading prohibiting restricting an authority's discretion. It was explained that when an authority is granted power and authority, the power and authority also create an obligation – the obligation of exercising discretion; simply put, the Government does not have the power and authority to decide not to decide or not to take action. It was emphasized that this is all the more relevant when at hand is a matter that is subject to real political dispute, and when the authority wishes to restrict the discretion of its successors, the composition of which and the ideology it may hold may be different than that of the present government. Furthermore, once it was decided in the Outline that the Government shall avoid regulatory changes in the fiscal field, the antitrust field, and the export quotas that had been prescribed in Government Decision 442, for a period of a decade, the Government has, unlawfully, relieved itself from its discretion. Furthermore, it was ruled that once the Outline which is the subject of this discussion, predetermines that the Government shall object to private bills in the said fields, also for a period of decade, then this, in effect, essentially even restricts the Knesset's discretion in light of the party discipline that is often exercised, especially when at hand are politically sensitive matters. The issue was also examined through the prism of the administrative promise doctrine, i.e. the Government's ability to give binding promises (even if in extreme cases, they can be cancelled with sanctions), this was in light of the notice by the State and the gas companies that the Outline should be viewed as such, and it was ruled that at hand is a promise that was given ultra vires.

 

As to the issue of the primary regulation: Following the above, Justice Rubinstein examined whether it as appropriate to regulate the issues addressed in the Outline by primary legislation, or whether one can suffice with the Government decision. After examining the justifications for all of the primary regulations – i.e. that matters of signal importance should be regulated by legislation – Justice Rubinstein reached the conclusion that the case at hand is a clear case, where the aggregate entirety of aspects which require to be regulated warrant that the matter be regulated by primary legislation, in an orderly and transparent process, which addresses the matter with the participation of the public and of the relevant entities, by the elected authority. It was emphasized that it is possible that with respect to each chapter of the Outline it could be argued that primary legislation is not required, however the essence is the overall impact, and at hand is a case where the whole is greater than the sum of its parts, since at hand is an almost primary regulation of the matter of producing and selling natural gas, and all its various aspects, that has huge economic implications, and which is the subject of deep public dispute. Thus, according to Justice Rubinstein, the Government deviated from the limits of its powers and authorities, when it desired – even if with good intentions – to regulate an important, sensitive, multi-dimensional systematic matter with enormous implications, not by way of legislation, and for this reason as well it was ruled that the Outline was prescribed ultra vires.

 

As to the relief – the operative outcome – according to Justice Rubinstein, in light of that stated above, the Outline should be ruled void, but the date of the voidness should be suspended. The State is given a period of a year during which it can act to regulate the matter of the natural gas. If at the end of a year from the date this judgment is given, there is no such, or other, regulation, the Gas Outline that was prescribed in Government Decision 476 shall be cancelled.

 

 

Justice S. Joubran

 

            Justice S. Joubran concurred with Deputy President E. Rubinstein's judgment and with the outcome he reached.

 

            In the matter of the primary regulation, Justice Joubran emphasized in his opinion that the primary nature of the Gas Outline should be examined in its entirety and not in accordance with the specific regulatory decisions of which it is comprised. This approach is based on the process in which the Outline was adopted by the Government and the Knesset, as a single arrangement that is not separated into parts; and based on its nature and essence as a comprehensive decision that regulates the natural gas market. Justice Joubran emphasized in his opinion that the Gas Outline is an entire policy decision that sets priorities among various interests which relate to the gas market, and he found that the specific regulatory decisions are only a tool to implement the entire Outline. Additionally, Justice Joubran noted the contractual nature of the Gas Outline, which is the outcome of negotiations between the State and the gas companies. In light of the importance of the Gas Outline, its economic implications and the public debate it raises, Justice Joubran joined the position of the Deputy President that the Gas Outline, in its entirety, is a primary regulation, and the regulating thereof by a Government decision requires authorization by primary legislation of the Knesset.

 

            Additionally, Justice Joubran joined the position of the Deputy President that the regulatory stability provisions prescribed in Chapter 10 of the Gas Outline were prescribed without authority, since the Government was not entitled to restrict its own discretion nor the discretion of the Knesset. Justice Joubran added that in his opinion there is a flaw in the sweeping wording of the stability provisions, which could compromise Israel's international standing, if the State were required to renege on undertakings it had previously given.

 

            Finally, Justice Joubran elaborated on flaws, which according to him, occurred in the exercise of Section 52 of the Antitrust Law. First, Justice Joubran found that the factual background, which served as the foundation for exercising Section 52 of the Antitrust Law, was lacking, due to the absence of an expert opinion examining the Gas Outline's impact on competition in the market. Second, Justice Joubran found that the timeframes which were given to the public to express its position regarding the Gas Outline in the framework of the public hearing were insufficient, such that the principle of public participation in the process of reaching the decisions, and of transparency in the political process, were compromised. However, Justice Joubran found that in light of the outcome he reached in the matter of the primary regulation, these matters would be addressed in the framework of the legislative procedure.

 

Justice N. Sohlberg:

 

According to Justice N. Sohlberg's opinion the Petitions should be dismissed, and he disagrees with the opinion of the Deputy President on both matters:

 

1.         The Regulatory Stability Clause – According to Justice Sohlberg the stability clause does not restrict the Knesset's legislative power, and the Knesset is sovereign to do as it wishes; the stability clause limits the Government's discretion, and it is indeed unusual: (a) in its duration – for many years; (b) in its scope – refraining from legislation and an undertaking to change contradicting legislation; (c) in the economic consequences that are expected to derive from the non-fulfillment thereof; However, even considering the accumulation of these characteristics, the stability clause does not constitute an absolute restriction of the Government's discretion. The restriction of discretion is a necessary consequence of the mere existence of administrative contracts and administrative promises, and the balance is expressed in the rules of rescission and in the possibility of withdrawing from an administrative promise. Thus, the Government is left with a certain room for discretion with an eye to the future, and in any event, a stability clause that is anchored in the Government decision, is more flexible than anchoring it in legislation.

 

            The Government is granted the power and authority and has the professional tools to decide on the optimal outline for utilizing the gas resource, a decision that requires prescribing a multi-dimensional policy. The matter at hand is at the core of the discretion of the administrative authority. The Government may act in the matter to promote legislation. The regulatory stability clause is part of an entire 'package deal', which is the result of long and complex professional negotiations that were conducted by the State vis-à-vis the gas companies. In investments of this kind, an undertaking for 10 years is acceptable, and is required in order to prescribe policy and act to realize it by executing long term important projects. It will certainly be very expensive if the Government shall decide in the future not to fulfill its undertaking under the Outline. This depends on the scope of the investments, the degree of deviation from the Outline, the timing thereof, but it still may be an "efficient breach", if the scope of the profit shall exceed the amount of compensation. We are dealing with a unique matter, of a completely different order of magnitude than that to which are accustomed. At hand is a huge economic investment on the part of the entrepreneurs, at a significant risk on their part; there is an economic, political and security need for the implementation of the Outline as quickly as possible; the regulatory stability clause has signal importance within the entirety of the matter and is essential for the gas companies, as a prerequisite for the engagement; and ultimately – the enormous financial consideration which we all hope will be given from the said investment, for the benefit of the entrepreneurs, the State and its citizens. It follows from all of the above that it is only reasonable that the State shall be forced to bear a significant monetary cost to rescind from the administrative promise that is embedded in the Outline, since the greater the reward, the greater the risk. The reasonableness of the restriction of the discretion should be examined through this prism. Furthermore, according to the State Assets Law, the Government, in principle, is entitled to sell all or part of the gas reservoirs, and the actual sale is an absolute restriction of its future discretion. If the Government is permitted to perform a greater act (of selling), then, a fortiori it is permitted to perform a lesser one (the Gas Outline, including its regulatory stability clause).

 

            Based on the grounds he states in paragraphs 8-39 of his opinion, Justice Sohlberg reached the conclusion that the regulatory stability clause is not illegal. The Government is authorized to restrict its discretion as it did, subject to the ability to rescind from the administrative promise.

 

2.         Anchoring the Gas Outline in a Government Decision or Knesset Legislation – the entirety of the Government decision – in the field of export of the gas, taxation, antitrust, along with the regulatory stability clause – creates a primary regulation. However, contrary to the opinion of the Deputy President, Justice Sohlberg is of the opinion that existing legislation, by virtue of which the Government is authorized to decide on the Gas Outline, is sufficient and that there is no need for additional legislation. Section 52 of the Antitrust Law is the source of authority to grant an exemption from the antitrust laws; Section 33(a) of the Oil Law is the source of authority regarding the matter of exporting the gas. Once Justice Sohlberg reached the conclusion that the various components of the Government's decision are properly anchored in authorizing legislation, he raised the difficult question as to how it is possible to prohibit the Government from acting by virtue of such authorizing legislation, due only to the appearance of the 'entirety' thereof? In any event, even if the explicit authorization in the relevant laws with respect to the parts of the Outline are not sufficient, there is also clear authorization with regard to its entirety, in Section 5(a) of the State Assets Law.

 

            The conclusion is that the Government is authorized by law to prescribe the Gas Outline as it did; although the regulatory stability clause indeed restricts the Government's administrative discretion, it is valid; there is no need for legislating the Gas Outline; legislative regulation is expected to encounter difficulties (paragraphs 64-66); a Government decision is sufficient. The natural gas is the property of the State. The Government – as the public's trustee for the State's assets – has the obligation to exercise its power and authority in the matter at hand, which is at the core of governmental actions, in order to preserve the proprietary rights of the State in and to the natural gas, in the optimal manner. Not only was the Government permitted to decide, act and do; it was obligated to do so. This is its responsibility and its duty.

 

Justice U. Vogelman:

 

            Justice U. Vogelman joined the greater part of Deputy President E. Rubinstein's opinion, to which Justice S. Joubran also joined, including the determination that the regulatory stability clause in its current format cannot remain intact. In this regard Justice Vogelman emphasized that the scope and duration of the stability clause, as well as the "price tag" that accompanies its anticipated breach, create a de facto prohibited restriction of administrative discretion. Justice Vogelman added: "I wish to emphasize that I am not in any way ignoring the economic logic underlying the investors' demand for regulatory stability. It is obvious that in consideration for the latter's huge investments, they expect to reduce their risks, in such a manner that will enable them to return their investment and even receive appropriate yield. This interest of the investors must be properly addressed. As my colleague, the Deputy President, clarified in his detailed opinion, there are various possible models to do so. However, as mentioned above, the specific stability clause at hand is not included among such models, in light of its said unique characteristics." Alongside that, according to Justice Vogelman, there is nothing to preclude the Knesset from formulating a legislative arrangement that would allow the Government to anchor the three arrangements which the stability clause addressed, for a defined period of time, either by legislating a designated regulation, or by legislating a provision that would explicitly authorize the Government to do so.

 

            On the other hand, Justice Vogelman did not join the position of the Deputy President and Justice S. Joubran that the Outline (apart from the stability clause) amounts to a primary regulation that warrants – in its entirety – being anchored by primary legislation. According to him, even if it would be appropriate, from a public aspect, that the Outline be brought before the Knesset as primary legislation, given the circumstances of the matter, there is no legal obligation to do so. According to Justice Vogelman's position, the question whether the Outline is a primary regulation should not be examined based on its "entirety" but rather considering its concrete specifics while focusing on the aspects that relate to the anticipated structural changes in the gas market and the promotion of competition. In this context, Justice Vogelman is of the opinion that since the Outline is a framework that consolidates all of the relevant regulators in the natural gas market, each one within his own scope of authority – as a pooling of regulatory forces – it is possible, from a legal perspective – to regulate it in the framework of a Government decision.

 

Furthermore, Justice Vogelman is of the opinion that it is doubtful whether the economic-market significance of the Outline and the public dispute that has accompanied its formulation, in and of themselves warrant the ruling that the Outline amounts to a primary regulation. In any event, even if it is assumed, for the sake of the discussion, that the Outline amounts to a primary regulation, there is sufficient authorization for it to be prescribed not by primary legislation. Such authorization derives from the combination of all of the legislation provisions that explicitly authorize the authorities to prescribe each and every one of the arrangements that were prescribed in the framework of the Outline.

 

As for the relief, Justice U. Vogelman joined the position of the Deputy President E. Rubinstein.

 

Justice E. Hayut

 

Justice E. Hayut is of the opinion that only the restrictive provisions in Chapter 10 of the Outline should be cancelled, and that as long as these provisions are removed from the Outline, there is no need to cancel the rest of its provisions.

 

In her opinion, Justice Hayut states that the Outline does not completely belong to one legal framework, and it in fact constitutes a combination of legal frameworks. It was approved by a Government decision that consolidates the entirety of regulatory aspects that required addressing at that stage and some of the relevant provisions in this context were even drafted in a manner that corresponds with the traditional unilateral and imposing regulation. In this sense it can be classified as an administrative promise and this is how the State and the gas companies chose to classify it in the discussion. However, Justice Hayut further states that throughout the Outline there are more than a few provisions that are drafted as conditions in a contract that are a result of a meeting of the minds between the regulatory entities and the gas companies, and from this aspect, the Outline bears characteristics of a regulatory contract which is a new model of administrative regulation that bases regulatory provisions in various fields on contractual relations and cooperation with the supervised entities.

 

Justice Hayut states that it is possible that the model of a regulatory contract requires certain modification of the traditional administrative law rules in relating to restricting discretion, and she states in this context a modern variation of a stability stipulation in the form of an "economic balancing stipulation" which does not restrict the regulator's discretion and instead prescribes a mechanism of agreed compensation for the commercial corporation for possible regulatory changes. According to Justice Hayut, had the entire Outline been expressed in a regulatory contract that included a provision regarding a known and limited agreed compensation instead of the restrictive provisions, it is possible that that would have managed to overcome the judicial review. However, when it was discovered that in the framework of the Outline, the State was forced to satisfy the gas companies' demand for stability in a different manner, and to include restrictive provisions that do not comply with administrative law criteria, one may wonder what legal advantage, if any, was achieved in choosing the said framework.

 

Justice Hayut ruled that the restrictive provisions are extremely far reaching, inter alia, since they restrict the arms and legs of the Government, as the one that de facto controls the legislative process in the Knesset, in initiating legislation. Additionally, Justice Hayut ruled that the active undertaking of the Government in the framework of the restrictive provisions to frustrate any change in a law that contradicts the Outline, if and to the extent such shall be legislated further to a private bill, crosses all permissible boundaries in a parliamentary democracy and renders the restrictive provisions as clearly and blatantly illegal. Justice Hayut is further of the opinion that de facto, and despite the rules of rescission, the restrictive provisions create a legislative and regulatory freeze due to the exposure to a significant damages claim on the part of the gas companies of an unknown scope, in the event of rescission from the Outline or a part thereof.

 

 Regarding the exercise of the power and authority of the Prime Minister and Substitute Minister of Economy, pursuant to Section 52 of the Antitrust Law, Justice Hayut states that giving the Antitrust Commissioner the chance to reach agreements with the gas companies in a path of an agreed order pursuant to the Antitrust Law, does not contradict the existence of considerations that relate to security and foreign policy, and she further states that it is possible that the period of time that was given to the Commissioner for the purpose of exhausting the said track was too extended and in hindsight it is definitely possible that had Section 52 been exercised earlier, it would have been possible to reach terms of agreement with the gas companies that may have been more convenient for the State in various aspects, and especially in terms of the restriction. However, once the Commissioner decided, after three years during which he negotiated with the gas companies, to renege from the agreement he had formulated therewith, and once he had decided not to present the drafting of the agreed order to be approved by the court, Justice Hayut is of the opinion that there is significant weight to the State's claim that at that stage, it had become urgent to reach understandings with the gas companies, inter alia, since the security and foreign policy considerations had not only not disappeared from the arena – but in certain aspects, it can be said that they became more pressing, and therefore Section 52 of the Antitrust Law was duly exercised at that stage.

 

In conclusion, Justice Hayut is of the opinion that only the restrictive provisions in Chapter 10 of the Outline, are to be cancelled, and that as long as they are removed from the Outline, it is inappropriate to cancel the rest of its provisions. Contrary to the opinion of Justice U. Vogelman, Justice Hayut is of the opinion that the Court should limit itself to the legal conclusion that derives from the analysis it conducted and that it is inappropriate to rush to the conclusion that once the stability clause was cancelled the entire Outline should be ruled void. According to her, the gas companies should be left to decide whether or not in these circumstances, they wish to cancel the Outline.

 

Epilog

 

A.        It was decided by a majority opinion (Deputy President E. Rubinstein and Justices S. Joubran, E. Hayut and U. Vogelman) and against the dissenting opinion of Justice N. Sohlberg, that the stability clause, as drafted in Sections 5 and 6 of Chapter 10 of the Gas Outline, which was prescribed by Government Decision 476 and which addresses "The Existence of a Stable Regulatory Environment" (tying the Government to the Outline, including not changing legislation and opposing legislative initiatives for a period of ten years) – cannot remain intact.

 

B.        Moreover, according to Deputy President E. Rubinstein and Justice S. Joubran and U. Vogelman, in light of that stated in paragraph A above, and in light of the Respondents' declaration that the stability clause is a conditio sine qua non, the entire Outline is to be cancelled; however the State should be given a period of a year during which it can act to regulate that which is required in accordance with our judgment. At the end of a year from the date of the judgment and if and to the extent there shall be no such regulation, the Gas Outline shall be cancelled. In that sense, the order has become absolute.

 

            In contrast, Justice E. Hayut is of the opinion that only the restrictive provisions that are in Chapter 10 of the Gas Outline should be ruled void.

 

C.        According to Justice N. Sohlberg although the regulatory stability clause does limit the Government's administrative discretion, it can remain intact; there is no need for legislating the Gas Outline and the Government decision which was approved by the Knesset plenum is sufficient. Therefore, according to him the Petitions should be denied.

 

D.        By a majority opinion of Justices E. Hayut, U. Vogelman and N. Sohlberg, and against the dissenting opinions of Deputy President E. Rubinstein and Justice S. Joubran, it was decided that the validity of the entire Outline (distinct from the stability clause) is not contingent upon being anchored by primary legislation.

                                      

E.         The Justices of the bench, with the exception of a certain remark by Justice Joubran, did not find flaw, in the circumstances at hand, in the exercise of Section 52 of the Antitrust Law, which exempts the provisions of such law on security and foreign policy grounds.

 

F.         The bottom line thus is as stated in sections (a) and (b) above: it was decided to cancel the Gas Outline due to the stability clause (without having found it appropriate to apply judicial intervention in other matters that were on addressed), while suspending the declaration of voidness for a year in order to allow regulation. 

Bar-On v. Knesset

Case/docket number: 
HCJ 4908/10
Date Decided: 
Thursday, April 7, 2011
Decision Type: 
Original
Abstract: 

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

 

Is it possible to circumvent a constitutional principle enshrined in a temporary provision set to remain in effect only for the duration of the current government’s administration term?

 

Background: on June 22, 2010 Basic Law: The State Budget (Special Provisions) (Temporary Provisions) (Amendment) (hereinafter: “Basic Law Temporary Provision” or “the Law”) was passed to set the budget for years 2011 and 2012, as a biannual budget in one statute. Basic Law Temporary Provision is a continuation of a previous Basic Law that established, also in a temporary provision, that the state budget for years 2009 and 2010 would be a biannual budget (hereinafter: the original temporary provision). Basic Law Temporary Provision, like the original temporary provision, revises the provisions established in sections 3(a)(2), 3(b)(1) and 3A of Basic Law: The State Economy according to which the state budget is to be set for one year only. The Petitioners ask the Court to pronounce Basic Law Temporary Provision void, or alternatively to strike it down. The parties’ arguments raise two primary questions. First, whether Basic Law Temporary Provision is indeed a basic law for all intents and purposes? Does using a temporary provision infringe the validity or status of the Law and a basic law? And assuming that Basic Law Temporary Provision is indeed a basic law, should it be struck down for changing the balance of powers between the Knesset and the Government in the process of approving the state budget?

 

The High Court of Justice (by President Beinisch, with an expanded panel of seven justices) denied the petition for the following reasons:

 

The formal test: the use of the term “basic law” and the fact that the year of its legislation is not noted in the title were adopted in the case law as a test for identifying basic laws. However, the argument that the formal test was overly simplistic and that a substantive test or a combined test designed to identify a basic law were in order has been raised more than once. Still, even this proposal has both advantages and disadvantages. In this petition, there is no need to determine the issue of how to identify a basic law. Moreover, both applying the formal test and applying the combined test lead to the conclusion that Basic Law Temporary Provision is a basic law.

 

Does using a temporary provision infringe the validity or status of the Law as a basic law? As a general rule, “it is highly doubtful whether the motivations for enacting a basic law – even were it possible to argued they are improper – may themselves constitute a legal flaw warranting judicial review.” Therefore, even were the motivation for enacting the Law, as the petitioners argue, the coalition’s desire to avoid needing to approve the Budget Law once a year, this reason in itself does not call for judicial review, particularly where the requested remedy is declaring a basic law void. On a separate level, there is the question whether the mere fact that the Law was enacted as a temporary provision constitutes an “abuse of power” of the constitutive authority, in a way that infringes the validity of Basic Law Temporary Provision as a basic law.

 

In an ideal situation, where there is a regulated and rigid mechanism for changing and amending the constitution, it is doubtful whether changing the constitution by way of a temporary provision would be possible. However under the current state of the law, in the absence of a Basic Law: The Legislation, the restrictions on legislative procedures or the amendments of basic laws are limited, and in order to enact a basic law in Israel there is no need for special procedures in the Knesset. Under these circumstances, it can not be summarily determined that a basic law can never be changed by way of a temporary provision and it cannot be said that the mere fact that the basic law was enacted by way of a temporary provision inherently voids it or puts it in a lower legislative status than a regular statute, as the Petitioners argue.

 

However, in can also not be said that this practice is free of difficulties. Setting a temporary legislative arrangement does indeed harm the status of basic laws and should be done sparingly, if at all. In certain cases, which cannot be detailed or determined in advance, it is possible that enacting a basic law by way of a temporary provision may amount to an “abuse of power” of the title “basic law” in a way that would justify judicial intervention in the basic law’s legislation. In examining each case, we must consider, among others, the existence of extreme circumstances that justify making a temporary arrangement rather than a permanent one, the subject matter regulated by the basic law, and the measure of the temporary basic law’s infringement upon principles of governance and other basic rights.

 

Having said all this, the Knesset would do better to refrain from using temporary provisions to amend constitutional instructions in the future. In any event, as long as no path was established for legislating, changing, and amending basic laws, such a legislative procedure must be reserved for extreme, uncommon and unique circumstances, in light of the status of basic laws.

 

Other arguments regarding the reasonability of the basic law and the majority with which it was passed in the different readings in the Knesset were similarly rejected. Without taking any position on the advantages or disadvantages of a system of biannual budgeting, considerations of the Law’s reasonability are not among the considerations that warrant the Court’s intervention in basic laws. Arguments that the Law should have been passed by a majority of 61 Knesset Members in all three readings are also unsubstantiated, as section 36A of Basic Law: the Knesset is not protected. Any change to it, therefore, does not require a special majority. The argument that Basic Law Temporary Provision explicitly or implicitly changes section 24 of Basic Law: The Knesset, and thus the Knesset must have enacted it with a special majority, must also be rejected. Section 34 is not a general section that defines when the Knesset can be dispersed, but rather a section the addresses the Knesset’s authority to decide to disperse – a decision that may be made by a statute passed by a majority of Knesset Members. Therefore, moving to a biannual budget cannot be considered an implicit change to section 34 of Basic Law: The Knesset.

 

Additionally, the argument that the Law must be struck down because it changes the balance of powers between the Knesset and the Government in the process of approving the budget was also rejected. This argument puts up for discussion the doctrine of the non-constitutional constitutional amendment – the Court’s authority to void a Basic Law because it infringes the basic principles of our legal system. This doctrine was discussed at length in foreign legal systems and it is also mentioned in several obiter dicta of this Court’s jurisprudence, but it has yet to be used in Israel. Indeed, there are several basic principles that may not be altered, which are at the foundation of our existence as a society and as a state, any harm to which may raise hard question of authority, including doubts as to whether they alter the constitution or establish a new constitution. However, in this case, and without determining the question of the application or the scope of the application of the non-constitutional constitutional amendment doctrine in Israel, the harm caused to the Knesset as a result of the move to a biannual budget does not amount to a harm to the over-arching principles of our system in a way that justifies voiding the basic law under the non-constitutional constitutional amendment – regardless of the scope of its application in Israel.

 

Finally, the High Court of Justice called for completing the legislative project and enshrining the procedures for enacting basic laws and their amendment through Basic Law: The Legislation. 

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

 HCJ 4908/10

1. MK Ronnie Bar-On

2. Kadimah Party

v.

1. Israel Knesset

2. Speaker of the Knesset

3. Knesset Finance Committee

4. Joint Committee of the Finance Committee and the Law and Constitution Committee for deliberation of the Economic Efficiency and State Budget for the Years 2009 and 2010 Bill

5.  Chairman of the Finance Committee

6.  Chairman of the Law and Constitution Committee

7.  Government of Israel

8.  Prime Minister of Israel

9.  Minister of Finance

 

The Supreme Court sitting as the High Court of Justice

[January 11, 2011]

Before President D. Beinisch, Vice President E. Rivlin, Justices A. Grunis, M. Naor, E. Arbel, E. Rubinstein, U. Vogelman

 

 

Israeli legislation cited:

Basic Law: Freedom of Occupation

Basic Law: The Government (old and new)

Basic Law: Human Dignity and Liberty

Basic Law: Israel Lands

Basic Law: Jerusalem the Capital of Israel

Basic Law: The Judiciary

Basic Law: The Knesset

Basic Law: The Military

Basic Law: The  President of the State

Basic Law: The State Budget (Special Provisions) (Temporary Provision) (Amendment)

Basic Law: The State Comptroller

Basic Law: The State Economy

Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002,

Basic Law (Temporary Provision)

Budget Law 2012

Elections to the Eighth Knesset and to Local Government (Temporary Provision) Law 1974

Law of Return, 1950

 

Foreign legislation cited:

Basic Law for the Federal Republic of Germany, art. 79(d)

Constitution of the Republic of Turkey, art. 4

 

Israeli Supreme Court cases cited:

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

[2]        HCJ 5160/99 Movement for Quality Government in Israel v. Law and Constitution Committee  [1999] IsrSC 53(4) 92.

[3]        EA 1/65 Yardur v. Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

[4]        HCJ 142/89 La’Or Movement  - One Heart and One Spirit v. Central Elections Committee for the Sixteenth Knesset [1990] IsrSC 44(3) 529.

[5]        CA 733/95 Arpel Aluminium Ltd. v. Klil Industries Ltd. [1997] IsrSC 51(3) 577.

[6]        HCJ 4676/94 Mitral Ltd. v. Israeli Knesset [1996] IsrSC 50(5)  15.

[7]        HCJ 6427/02 Movement for Quality Government in Israel v. Israel Knesset (not yet reported, 11.5.2006).

[8]        HCJ 4124/00 Yekutieli  v. Minister for Religious Affairs (not yet reported, 14.6.2010).

[9]        HCJ 1438/98 Conservative Movement v. Minister for Religious Affairs [1999] IsrSC 53(5) 337. 

 

 

For the petitioners — E. Rosovsky, E Burstein

For respondents 1-6  — E. Yinon, G. Blai

For respondents 7-9 — D. Briskman, Y. Bart

 

Petition to the Supreme Court sitting as the High Court of Justice for an Order Nisi 

 

JUDGMENT

 

 

President D. Beinisch

1. On 22.6.2010, Basic Law: State Budget (Special Provisions) (Temporary Provision) (Amendment) (hereinafter: the Law or Basic Law (Temporary Provision)) passed its second and third readings in the Knesset. Basic Law (Temporary Provision) provides that the state budget for the years 2011 and 2012 will be a biennial one, enacted in a single law. Basic Law (Temporary Provision) is the continuation of an earlier basic law that stated, also as a temporary provision, that the state budget for the years 2009 and 2010 would be a biennial one (hereinafter: Original Temporary Provision). Basic Law (Temporary Provision), like the Original Temporary Provision, changes the provisions of ss. 3(a)(2), 3(b)(1) and 3A of Basic Law: The State Economy, whereby the state budget is to be set for a single year only.

2.    The background to the enactment of the said basic laws, as emerges from the pleadings of the parties, lies in the unfolding of events after the resignation of the then Prime Minister, Ehud Olmert. On 11.2.2009, general elections were held, and a new government was sworn in on 31.3.2009. Parallel to these events, the global economy was experiencing an economic crisis, one whose ramifications for the Israeli economy could not be assessed. These events made it impossible to approve the 2009 budget before the second half of the year, and the budget was based on that of the year 2008. On 5.4.2009 the Government decided to submit to the Knesset for approval a biennial budget for the years 2009 and 2010 by way of a temporary provision. The Explanatory Notes to the Bill stated that due to the unique situation that had arisen as a result of the delay in approving the state budget for the year 2009, and the negative impact of the global crisis on Israel, it was proposed to introduce a special arrangement, one that would apply to the state budget for the years 2009 and 2010.

3.    The introduction of a biennial budget proved to be a successful experiment, as evident from the pleadings of the respondents and from the protocols of the discussions in the Joint Committee of the Finance Committee and the Law and Constitution Committee (hereinafter: the Joint Committee or the Committee). Senior officials in the Treasury were therefore of the opinion that the possibility of transitioning to a system of biennial budgets on a permanent basis should be considered. For this purpose, it was proposed to conduct a trial, for an additional two years, in which the budget would be biennial. Accordingly, a proposal was submitted to amend the Original Temporary Provision to make it applicable to the budget for the years 2011 and 2012 as well. In the Explanatory Notes to the Memorandum of the Basic Law (Temporary Provision) Bill it was noted that following the implementation of the biennial budget, the Government became aware of the advantages of this system of budgeting, leading it to think about changing the budgetary system in Israel. The Memorandum to the Bill lists the advantages of a biennial budget, together with the disadvantages of this system. For example, the creation of greater certainty for the government and the economy, and the freeing up of management resources in order to make long term plans comes up against the difficulty of predicting state income for a period of two years, which requires special professional experience. It was therefore proposed –

‘To conduct a full examination of the application of the biennial system by way of a trial in the years 2011 and 2012, as a temporary provision of the Basic Law, for two main reasons:

1.  In the absence of recognized experience in other states, most of the learning will be done in “real time”, while implementing the first full biennial budget, as proposed.

2.  In the course of the biennial budgetary period it will be necessary to examine the ability to devise a biennial budget and to act upon it, primarily from the perspective of dealing with the difficulties involved in devising a biennial forecast, as well as the need to adapt the provisions of the law, including the adaptations of the Basic Law, according to the experience that has accumulated.’

In the Memorandum to the Bill it was also mentioned that –

‘In view of the significance of the process of fixing the budget from the point of view of the regime, society and the economy, it is important that the process of consolidating a permanent arrangement of this matter and its enactment be done in a wise, orderly fashion, on the basis of the maximum amount of information that has accumulated, and accompanied by an appropriate public investigation. This is also taking into consideration the fact that amendment of basic laws ought to be done in moderation’ (Memorandum to Basic Law: The State Economy (Special Provisions) (Temporary Provision) (Amendment) pp. 4-5).

4.    On 17.3.2010 the Bill was discussed in the plenum of the Knesset and passed its first reading, and on 22.6.2010 it passed its second and third readings.  A few days later, MK Ronnie Bar-On and the Kadimah Party (hereinafter: the petitioners) filed the present petition. The petition raised three main questions in relation to Basic Law (Temporary Provision): first, can the principle stated in Basic Law: The State Economy, whereby the Knesset determines, annually, the priorities of the state in the process of approving the budget, be changed by means of a temporary provision which endures for the duration of the term of office of the present government? Second, is it possible, by means of a temporary provision with limited application, to nullify the constitutional principle whereby if the approval of the Knesset for the budget is not forthcoming once a year, the Knesset will be dissolved and new elections will be held? Third, is it possible to disturb the constitutional balance between the legislature and the executive branch by means of a temporary provision and without obtaining a majority of 61 Members of Knesset at each of the legislative stages?

5.    The petition was first heard before three justices. At the end of the hearing, which was held on 4.10.2010, an order nisi was issued, with the agreement of the respondents, ordering them to appear and to show cause why the Court should not order as follows: that Basic Law (Temporary Provision) is void or alternatively that it should be voided; and that the Israeli Knesset acted ultra vires when it approved the amendment of the Basic Law by means of Basic Law (Temporary Provision) and with a majority of less than 61 Members of Knesset in the first and second readings. It was further decided that the panel of justices should be expanded. Accordingly on 11.1.2011 the Court held a second hearing with an expanded panel of seven justices.

In both the written and the oral pleadings the parties raised serious constitutional questions. A significant number of these questions have not yet been considered or decided in Israeli law. These questions relate, either directly or indirectly, to the status of the basic laws and to the way in which it is possible to refashion constitutional arrangements in Israel. The arguments of the parties also highlight the inherent difficulties in Israel’s constitutional system due to there being no Basic Law: Legislation, and in view of the fact that the formal requirements for amending most of the basic laws are few. Let us mention at this early stage that we believe it is possible at this time to leave some of the questions for future consideration. Although difficulty arises from the arguments of the petitioners, we are not convinced that the present case justifies unprecedented intervention in the legislation of the Knesset in its function as a constituent authority. At the same time, we find it appropriate to outline several principles regarding the legislation and the amendment of basic laws in Israel, in order to lay out a partial roadmap for the Knesset in the absence of Basic Law: Legislation.

Pleadings of the Parties

6.    The petitioners have asked the Court to declare that Basic Law (Temporary Provision) is invalid, or alternatively, to strike it down. According to the argument, Basic Law (Temporary Provision) came about due to considerations connected to the survival of the Government, which sought to take advantage of its parliamentary majority in order to change basic principles of governance. The petitioners argue that approval of the Budget Law on an annual basis is considered a cornerstone of democratic policy, and it is the central tool in the hands of a parliament for overseeing the work of the government and the priorities that it sets. Basic Law (Temporary Provision) detracts from the capacity for oversight by the Knesset, and in fact, it is designed to weaken the Knesset vis-à-vis the government. Basic Law (Temporary Provision), so it is argued, is contrary to the longstanding trend to increase oversight of the government by the Knesset, inter alia by regulation of the specific times at which the government must present the budget to the Knesset plenum. The petitioners add that weakening the power of the Knesset has real practical significance, which manifests itself in preventing the possibility of dissolving the Knesset and toppling the government in the event that the budget is not passed. The petitioners argue that whereas for the purpose of toppling the government by means of a no confidence vote, the opposition must enlist a majority of at least 61 Members of Knesset, for the purpose of dissolving the Knesset and holding new elections by way of non-approval of the State budget, a majority of only 60 Members of Knesset is required. According to the petitioners, this is a very powerful tool, which can bring about a change in the leadership of the State, and it is available to the Knesset only once a year. Basic Law (Temporary Provision) confines the use of this tool to once every two years, in a manner that is detrimental to the intricate web of power and relations between the government and the Knesset.

Regarding the substance of the amendment to the Basic Law, the petitioners argue that in practice, this legislation suffers from lack of reasonability, for two main reasons. First, so goes their argument, it will not allow for effective oversight of the government by the Knesset, due to the amount of information that will be presented to the Members of Knesset in the case of a biennial budget, particularly if it comes together with a broad Omnibus Law of Arrangements in the State Economy, forestalling any possibility of studying the material in the period of time allocated for approval of the budget legislation. Secondly, the petitioners believe that advance approval of the budget for a period of two years requires that accurate predictions of state expenditures and costs be drawn up – a mission that according to them is impossible, especially in the Israeli reality. In addition, the petitioners stress that if the next state budget is not approved on the due date, then by law, the Budget Law for the year 2013 will be derived from the Budget Law of 2012, so that in fact, it is possible that the biennial budget law will actually become a triennial one.

The petitioners also challenge the fact that a basic law was amended by way of a temporary provision. They argue that the attempt to legislate a basic law in a temporary provision stands in clear contradiction to the case law of this Court, whereby basic laws are laws of an “eternal” nature that were designed to constitute chapters of the future constitution of the State of Israel. Therefore, it is argued, basic laws cannot be temporary laws, enacted ad hoc with the aim of serving the temporary political needs of a given majority at a particular time. It was further argued that Basic Law (Temporary Provision) does not merit being considered a basic law – both by virtue of a formal criterion and by virtue of a criterion of substance. According to the petitioners, the fact that the name of the Law mentions  the years during which the temporary provision is intended to apply detracts from its validity as a basic law under the formal criterion, and the fact that the Law lacks an  element of “eternity” detracts from its validity under the substantial criterion. Finally, the petitioners claim that the very process of enactment of Basic Law (Temporary Provision) was defective in that it was not passed with a majority of 61 MKs at each reading. The petitioners argue that this majority is required in view of the fact that Basic Law (Temporary Provision) limits the possibility of Members of Knesset dissolving the government and the Knesset through non-approval of the budget to only once every two years; for this reason, it constitutes an implicit change to s. 34 of Basic Law: The Knesset, which determines when the Knesset is permitted to dissolve itself prior to the end of its term; this, they argue, is an entrenched section.

Arguments of the Respondents

7.    Respondents 1-6 (hereinafter: the Knesset) submitted their response to the petition on 16.8.2010, and their reply after the order nisi was issued, on 5.12.2010. In the response it was argued that even if Basic Law (Temporary Provision) “raises not inconsiderable difficulties with respect to damage to the parliamentary oversight of the Government and the balance of power between the Knesset and the Government,” these arguments still do not justify the intervention of this Court. The Knesset further argued that although there is no disagreement that laying down a norm concerning a biennial budget law in the framework of a temporary provision “raises an inherent conceptual difficulty”, this does not make of Basic Law (Temporary Provision) a “regular” or “inferior” law relative to other basic laws.

The Knesset’s reply cited at length the discussions that were held in the Finance Committee and the Joint Committee. It was also pointed out that most of the arguments raised in the petition were also raised in these Committees, whether by members of the Committee or by people who appeared before it, or by the legal advisors, including the Legal Advisor to the Knesset, the Legal Advisor to the Finance Committee, the Legal Advisor to the Ministry of Finance and the head of the Public Law Division of the Department for Legal Advice and Legislation in the Ministry of Justice. All the legal advisors referred to the difficulties raised by the Bill, including the difficulty inherent in amending a basic law by way of a temporary provision. The position of the Legal Advisor to the Knesset, as expressed before the Joint Committee, was that although “there is no dispute that a basic law and a temporary provision are contradictory things”, nevertheless, as long as the Knesset has not yet enacted Basic Law: Legislation, which is intended to regulate the process of legislation in Israel, the Knesset Rules of Procedure are the sole normative source for legislative procedure in the Knesset, and these do not make any provision regarding the enactment of basic laws or their amendment.

In the Knesset’s reply it was further argued that the petitioners’ contention that Basic Law (Temporary Provision) is not in fact a basic law, and that its normative status is inferior to that of a “regular” basic law, should be dismissed. According to the approach of the Knesset, the accepted criterion in Israel for identifying a basic law is that of form. Under this criterion, conferring the title “Basic Law” on the law and not mentioning the year of its enactment are sufficient to transform a piece of legislation from a “regular” law into a basic law. It was also argued that review of the contents of basic laws is permissible only in exceptional, extreme cases of detriment to the meta-principles of our legal system, and that the Knesset is competent to change the balance between the different authorities.

8.    In their response, respondents 7-9 (hereinafter: the State) described the circumstances that led to the enactment of the Basic Law as a temporary provision, and principally, wanting to allow for a trial period in which the transition to a biennial budget as a permanent arrangement would be examined. According to the argument, the representatives of the Ministry of Finance believed that it was more appropriate to make a change in the basic laws that would expire automatically after two years than to make a permanent change in the basic laws – which, after a trial period – may prove to have been unnecessary. According to the approach of the State, opting for the enactment of a temporary provision that expires automatically after two years allows for the preservation of the stability of the basic laws and prevents their frequent amendment.

The State rejected the petitioners’ argument that the normative status of a temporary provision – whether enacted in the framework of a regular law or a basic law – is inferior to that of a regular law or a basic law. According to the State, because the process of legislating a “regular” basic law and a basic law by way of temporary provision is the same, the Knesset is competent to choose the way in which to legislate, and there is no room for intervention in this discretion. In effect, it was argued, in the past the Knesset occasionally employed the legislative technique of temporary provisions in primary legislation, including basic laws. For example, Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002, stated that for a trial period of one year, a budgetary law would be passed by the Knesset only with the support of at least 50 MKs. After a year, this arrangement became embedded, with several changes, in the provisions of s. 3C of Basic Law: The State Economy. The State also referred to several laws that were enacted by way of temporary provisions which regulated important matters with far-reaching ramifications, including the electoral system in Israel and deferral of military service for full-time Talmudic Academy students.

The State further argued that Basic Law (Temporary Provision) is a basic law for all intents and purposes, by virtue of both the formal criterion and the substantive one, and the fact that it was enacted by way of a temporary provision cannot affect its normative status.  Furthermore, the State also held that in view of the “stable and unchanging” status of the basic laws, it is preferable that in appropriate circumstances, changes to the basic laws be effected by means of temporary provisions and not by means of “regular” basic laws. The State also dismissed the argument whereby Basic Law (Temporary Provision) changes the provision of s. 36A of Basic Law: The Knesset, or changes the balance of power between the branches of government. According to this argument, the purpose of the above section is not to express no confidence in the government, but to express no confidence solely in the budget proposal. The State contends that even if in practice, the result of expressing no confidence in the budget proposal is dissolution of the Knesset, Basic Law (Temporary Provision) cannot be viewed as containing any substantive change of the balance of power between the government and the Knesset. The State does indeed agree that “the power given to the Knesset to approve the budget is  [ ] a ‘sacrosanct’ power”, but, according to its approach, “there is nothing ‘sacrosanct’ about the Knesset using this power annually.” The State further argued that even if Basic Law (Temporary Provision) may have the effect of changing the balance of power between the authorities, it is within the power of the Knesset to make changes to this balance of power. This change, so goes the argument, does not need to be passed with a majority of at least 61 Members of Knesset in each of the readings, as argued by the petitioners, in view of the fact that s. 36A is not an entrenched section. Similarly, there would be no requirement for such a majority even if the argument of the petitioners, whereby Basic Law (Temporary Provision) implicitly changes the provision of s. 34 of Basic Law: The Knesset, were accepted, for neither is the said s. 34 entrenched. The State also dismissed all the other arguments of the petitioners regarding the motives of the Members of Parliament in enacting Basic Law (Temporary Provision), regarding the concern about expanding the Arrangements Law and regarding the unreasonableness of the Basic Law. These arguments, contends the State, are not acceptable on their merits and in any case they are not arguments by virtue of which it would be justified to strike down a basic law.

Deliberations

9.    The arguments of the parties raise two major questions. First, is Basic Law (Temporary Provision) indeed a basic law for all intents and purposes? Determination of this question, naturally, impacts on the validity of the amendment to Basic Law: The State Economy and on the extent of intervention of the Court in the arrangement laid down in Basic Law (Temporary Provision). Examination of this question necessitates a discussion of two secondary questions. The first relates to the manner of identification of the outcome of the activity of the Knesset as a constituent authority. Is the criterion for the identification of a law as a basic law one of form, one of substance, or a combination of the two? The second question relates to the fact that the amendment of Basic Law: The State Economy is for a set, predetermined period of time. Is the use of a temporary provision detrimental to the validity or the status of the Law as a basic law? The second central question – on the assumption that Basic Law (Temporary Provision) is indeed a basic law – is whether it is in order to nullify it because it changes the balance of power between the Knesset and the government in the budgetary approval process?

We will begin with the first question.

Are we Dealing with a Basic Law?

10.  As is known, basic laws in Israel are the outcome of that historical compromise reached by the constituent assembly – the “Harari decision” of 13 June, 1950 – whereby the Law and Constitution Committee was charged with preparing a draft constitution for the State, “that would be built chapter by chapter in a manner such that each chapter would constitute a basic law in itself” (D.K. 5, 1743 (1950)). Over the years, several basic laws were enacted, the hope that they would eventually be united in a whole constitution, and the conception was accepted whereby in enacting the basic laws, the Knesset was acting as a constituent authority (see the majority opinion in CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village  [1995] IsrSC 49(2) 221, which was accepted against the minority opinion of Justice M. Cheshin).

It is this constitutional structure, in which the same body – the Knesset – acts as both the constituent and the legislative authority that creates a need to identify the characteristics of the legislative outcomes and determine whether a law that is produced by the Knesset belongs with those legislative acts that have a meta-legal normative status or whether it belongs to the family of “regular” laws. Over the course of the years, this identification was made on the basis of a formal criterion, both by the various Israeli parliaments and by this Court. And thus, all those laws that bore the title “Basic Law” without mention of the year of enactment in the title, were considered to be basic laws that are part of the nascent constitution of the State. Accordingly, over the years twelve basic law were enacted: Basic Law: The Knesset; Basic Law: Israel Lands; Basic Law: The President of the State; Basic Law: The Government (old and new); Basic Law: The State Economy; Basic Law: The Military; Basic Law: Jerusalem the Capital of Israel; Basic Law: The Judiciary; Basic Law: The State Comptroller; Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation.

11.  The formal criterion received further support in the ruling in Bank Mizrahi v. Migdal [1]. In the majority opinion the formal criterion was determined to be that by which basic laws are identified. Justice Barak, with whom the majority concurred, stated in his written opinion (at p. 403):

‘When does a norm that is created [by the Knesset] have constitutional status, and when is it said that the norm is a “regular” law? In my opinion, the answer is that the Knesset uses its constituent authority … when it gives this external expression in the name of the norm and views it as a “basic law” (without indicating the year of enactment).’

Underlying the decision to adopt the formal criterion was the assumption that a simple criterion was needed for identifying basic laws, so that problems and uncertainty would not arise with respect to laws whose normative status was meta-legal. As President Barak pointed out: “This formalistic criterion – use of the term ‘basic law’ – is easy to apply. It grants security and certainty” (ibid., p. 406; and see also ibid., at p. 394: “The reply of the constituent authority doctrine to the distinction between an act of constitution and an act of legislation is simple and clear, for it uses a simple, formalistic criterion”). And indeed, the formal criterion made – and still makes – it possible to classify those legislative acts that constitute part of the state constitution in a class of their own. The formal criterion also enables the Knesset to know in good time when it is acting as a constituent authority, to “enter into” that commitment that is necessary for basic legislation and to “don” its constituent authority hat prior to debating a bill that is destined to become part of the constitution of the state.

12.   The argument has been raised more than once that the formal criterion is too simplistic (see, e.g., Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, Vol. 1: Basic Principles (6th ed., 2005) 96 (Hebrew) (hereinafter: Rubinstein & Medina); see also Aharon Barak, “The Constitutional Revolution: Protected Human Rights”  Mishpat Umimshal 1 (1992), 9, 19 (Hebrew) (hereinafter: Barak, Constitutional Revolution); Ariel Bendor, “The Legal Status of   Basic Laws” in Aharon Barak and Haim Berenson, eds., Justice Berenson Book, vol. 2 (2000), 119, 140-142 (Hebrew) (hereinafter: Bendor). President Barak himself, in his book on constitutional interpretation, raised the argument that in the formal criterion there is no reference to the substance of the legislation (see: Aharon Barak, Legal Interpretation,  Vol. 3: Constitutional Interpretation (1995), 46 (Hebrew) (hereinafter: Barak, Constitutional Interpretation). This being so, provisions that regulate subjects which, from the point of view of their substance, are suitable for inclusion in the constitution, but do not bear the title “Basic Law”, will not be considered part of the constitution. Amongst the regular laws that ought to be endowed, according to the argument, with constitutional status, it is accepted to mention the Law of Return, 1950 (see, e.g. the words of MK Bar-Yehuda, who in presenting (to the Second Knesset) Basic Law: The Knesset – which is the first basic law to have been enacted – points out that during the term of the Second Knesset, “several laws that are clearly in the nature of basic laws, even if not in form, have been enacted; it is sufficient to mention the Law of Return and the Law of Judges (D.K. 15, 57 (5714)). On the other hand, some provisions find their way into the state constitution, despite their questionable suitability for inclusion therein (see, for example, Prof. Itzhak Zamir’s critique of Basic Law: The Knesset, which “spreads over 46 sections, bloated with minute details which ought to have been laid down in a regular law”: Itzhak Zamir, “Basic Laws on the Way to a Constitution”, Introduction to Amnon Rubinstein and Raanan Har-Zahav, “Basic Law: The Knesset”, Commentary to the Basic Laws, (I. Zamir ed., 1992), 11, 13-14 – hereinafter: Zamir). Therefore, the argument is often heard that the substantive criterion should be applied alongside the formal criterion, in such a way that inclusion of the words “basic law” in the title of a law will constitute a preliminary condition, but not a sufficient one, for recognition of the law as a basic law (see: Rubinstein & Medina, p. 96).

13.   This proposal to institute a combined criterion for identification of basic laws has both advantages and disadvantages. On the one hand                                                                                                                                                                                                                                                                                   it allows for an extensive examination of a piece of legislation that is destined to become part of the constitution of the State. The substantive criterion or the combined criterion helps to overcome the problematic nature of the formal criterion, and it ensures that the title “basic law” will not be misused in order to entrench arrangements that are not suited, from the point of view of their substance, to be part of the constitution. On the other hand, recourse to a substantive criterion or some kind of combined criterion is not without its problems. First and foremost, it involves a degree of uncertainty with respect to existing and future legislation regarding the question of whether it constitutes part of the constitution. There is another real difficulty inherent in the substantive criterion, which, in the words of President Barak, “touches on the very relations between the constituent authority (of the Knesset) and the judicial authority (of the court)” (Bank Mizrahi v. Migdal [1], at p. 406), in whose hands will be placed the power to decide whether a statute is suitable, from the perspective of its substance, for inclusion in the constitution.

14.   The question of whether a combined criterion should be applied in Israel is a complex one which I believe can be left for future consideration and which need not be resolved in the framework of the present petition. Indeed, there is merit to the argument that there are some laws which, from the point of view of their substance, ought to be included in the constitution. Similarly, there is merit to the argument that there are sections and provisions in the basic laws in relation to which it is doubtful whether they are of the type of provision that merits inclusion in the constitution. At the same time, this fact alone does not necessarily lead to the conclusion that there is call for departing from the criterion that was accepted to date. There is no dispute that the use of the formal criterion requires self-restraint on the part of the legislature, which has the central authority to determine a priori, which legislative acts will be endowed with constitutional status. The formal criterion supposes that the legislature will not misuse its constituent power by attaching the title “basic law” to legislation that is not worthy of being part of the constitution. A review of the enactment of the basic laws from 1958 till the present shows that there was no such misuse (see also Barak, Constitutional Interpretation, p. 46 n. 51; Bendor, “The Legal Status of Basic Laws”, p. 143). The constitutional history of Israel shows that the Knesset used the term “basic law” in cases in which it was clear to the Knesset and to its members that they were operating within the framework of their competence as a constituent authority that is preparing to enact a chapter in the future constitution of the state. This conclusion emerges from an examination of the protocols of the debates in the plenum when draft bills for the enactment of basic laws were submitted for their first, second or third readings: the Members of Knesset specifically mention the fact that the proposed basic law is part of the constitution of the state (inter alia see: D.K. 15, 57 (1954); D.K. 36, 963 (1963); D.K. 74, 4002 (1975)). To this must be added that even from the relatively small number of basic laws we learn that the enactment of basic laws was not taken for granted, but was considered to be the act of the constituent authority in determining the highest norm of the state.

15.   Furthermore, it is not necessary to decide on the question of the criterion for identifying basic laws in the present case, since recourse to the combined criterion too, leads to the conclusion that Basic Law (Temporary Provision) is a basic law. By virtue of the terms of the formal criterion, the title of Basic Law (Temporary Provision) includes the words “basic law”, and the year of its enactment is not mentioned. The petitioners argued that the fact that the title of the Law includes the years of its application is equivalent to mention of the year of enactment. This argument is not convincing. Mention of the period of application of a basic law is not analogous to mention of the year of its enactment, and it cannot detract from the validity of the Law under the formal criterion. Under the substantive criterion too, the conclusion of the petitioners that the status of Basic Law (Temporary Provision) is that of “legislation that is even inferior to a regular law” is unfounded, even if it is agreed that the Law gives rise to not inconsiderable difficulties. The material dealt with by the law – the state budget – is material that has been regulated in Basic Law: The State Economy, and recognized as an area that constitutes part of the basic laws in Israel. Basic Law (Temporary Provision) changes the constitutional arrangement pertaining to the state budget, in its determination that the budget for the years 2011-2012 will be set as a biennial budget instead of an annual one. For this reason, too, it cannot be said that the Law, from the perspective of its contents, is unsuitable for inclusion in our basic laws.

For all these reasons, I am of the opinion that in the circumstances of the case before us it is not necessary to decide on the question of the application of a combined criterion for identifying basic laws, which raises, as we have said, complex issues regarding both the characterization of legislation as basic legislation and the division of authority between the legislature and the judiciary.

16.   A separate question is whether in the case before us there was misuse of the title “Basic Law”. The petitioners argued at length that it is not possible to override a constitutional principle that is anchored in basic laws by means of a temporary provision whose period of application is determined solely for the duration of the term of the present government. According to this argument, the Israeli Government wishes to exploit its parliamentary majority in order to change the rules of the parliamentary game, “abusing the automatic majority that the present government enjoys in the elected parliament, in order to change a basic law in a temporary and tendentious manner – only until the end of the term of this present government” (petition of 3.6.2010, pp. 2-3). The petitioners further argued that “It was not considerations of the good of the parliamentary regime or the good of democracy that the architects of the Law had in mind, but rather, considerations of convenience and the survival of the government (even at the expense of basic principles)” (ibid., p. 3). According to the petitioners, if the Members of Knesset had wished to conduct a “real” experiment in operating a biennial budget, they should have decided that the biennial budget would apply from the next Knesset onwards.

17.   Let it be said first that as a rule, “it is very doubtful whether motives for the enactment of a basic law – even if it may be argued that they are not worthy – are liable, per se, to constitute a juridical flaw that constitutes cause for judicial review” (HCJ 5160/99 Movement for Quality Government in Israel v. Law and Constitution Committee  [1999] IsrSC 53(4) 92, 96). Even were I prepared to assume that the motivation for enacting this Law, as claimed by the petitioners, is the desire of the Coalition to avoid the need to approve the budget annually, this reason alone, cannot justify judicial review; particularly where the relief sought is an order nullifying the Basic Law. A separate question is whether the very fact that the Law was enacted by way of a temporary provision constitutes “misuse” of constituent authority, thereby affecting the validity of Basic Law (Temporary Provision) as a basic law. The petitioners’ approach, as described at length in the introduction, is that the attempt to define a temporary provision as a basic law is a “contradiction in terms that leads to a degradation of the enactment of basic laws and of the status of the Knesset as a constituent authority” (reply of the petitioners to the response of the respondents dated 4.1.2011, p. 11). According to this argument, there is no conceptual and theoretical possibility of establishing a temporary provision in a basic law, and therefore, it is totally without force.

The respondents, and particularly respondents 1-6, did not deny the conceptual difficulty in establishing a basic law whose period of application was defined in advance and limited in time. The legal advisor to the Knesset, who was invited to the deliberations of the Joint Committee, also gave his professional opinion to the Committee to the effect that this involves an inherent, inbuilt problem. However, according to respondents 1-6, as long as the procedures for the enactment of basic laws have not been set in the framework of Basic Law: Legislation, it is possible for the Knesset to change a basic law by means of another basic law, even if it is a temporary provision. Respondents 7-9 added that indeed, as a rule, the provisions in basic laws are not time-bound, but in suitable circumstances the Knesset has the authority to make temporary provisions even in basic laws; and, on their approach, there is “no contradiction between a piece of legislation being a basic law, and it being a temporary provision.” Moreover, the State also argued that in certain cases, it is possible that “in view of the stable and unchanging status of the basic laws, there is a certain preference for making changes to them, when the continued validity of the changes is doubtful, by means of basic laws that are temporary provisions” (Response to the petition on behalf of respondents 7-9 of 20.9.2010, p. 16).

Does the Fact that the Basic Law was Enacted by Way of a Temporary Provision Affect its Validity?

18.   The question of whether a basic law may be enacted by way of a temporary provision has already arisen in the Knesset. See Movement for Quality Government in Israel v. Law and Constitution Committee [2], in which Amendment no. 9 of Basic Law: The Government, which cancelled the limit that had been set in that Basic Law on the number of members of the government, was reviewed. It is noteworthy that in the deliberations in the Law and Constitution Committee on this proposed Law, the position of the then Attorney General, E. Rubinstein, was presented, whereby alongside the interest in the stability of the constitutional structure, and the need to avoid, insofar as possible, frequent changes to basic laws, it cannot be stated that there is any legal bar to enacting a basic law as a temporary provision. Furthermore, the Knesset already changed a basic law by means of another basic law that was set in a temporary provision (see: Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002), but this matter has not been considered by this Court in the past.

19.   The possibility of enacting a constitutional provision whose beginning and end are predetermined for a set period of time brings to light a series of difficulties in Israeli Constitutional law. It should be recalled that the constitutional structure in Israel is special and it is not complete. Indeed, it is indisputable that the constitutional enterprise in the State of Israel has progressed significantly since the enactment of the first Basic Law in 1958, but this enterprise has not yet been completed (see, e.g., Aharon Barak, A Judge in a Democratic Society (2004), 79). For this reason, our constitution is lacking many characteristics that are normal in states which have a completed constitution. Thus, for example, some basic rights are not protected in basic legislation. Some of the provisions that appear in the basic laws are entrenched, whereas others may be changed by a regular majority. Some of the provisions are formulated in ceremonious, general and brief language whereas some of the provisions are too detailed and convoluted (see: Zamir, Basic Laws on the Way to a Constitution). Some of the basic laws regulate subjects which by their nature were destined to become part of a future constitution, whereas some of them regulate subjects that are not, generally, included in those constitutions of other countries with which we are familiar. Some of the major subjects in constitutions of other countries are not regulated in Israel in basic laws at all, and a question arises as to their constitutional status (see the opinion of President Barak in United Mizrahi Bank Ltd. v. Migdal [1], at pp. 402-403). This is the constitution “Israeli-style”. To a considerable extent, it is a constitution that is still in the process of consolidation.

20.   There is a glaring lacuna in our constitutional regime insofar as the manner of enactment of basic laws is concerned. In view of the fact that Basic Law: Legislation has not yet been enacted, there is as yet no blueprint for amending and changing the constitution; for the majority required for amending the constitution; and for the possibility, if at all, of amending the constitution or amending it in a temporary manner. As a result, the Rules of the Knesset are the central mechanism that applies to the procedures for the enactment of the basic laws, and they do not include a special provision that differentiates between the procedure for enactment of “regular” laws and the procedure for enactment of basic laws. For this reason, basic laws can be enacted by any majority in the Knesset; and basic laws may be changed – unless they are specially entrenched – by any majority as long as the amending law is a basic law. In practice, an examination of the history of the amendments to our basic laws reveals that the basic laws were amended or changed a great number of times (seem e.g., Ariel Bendor, “Flaws in the Enactment of Basic Laws”, Mishpat Umimshal 2 (1995), 443, 444-445 (Hebrew)); much more often than amendments to constitutions in other democratic states (the American Constitution, for example, has been amended 18 times (and in total, 27 amendments) over the 227 years of its existence; the Dutch Constitution, which was passed in 1814, has been amended 24 times; the French Constitution has been amended 8 times since it was passed in 1958. On constitutional amendments in general, see: European Commission for Democracy Through Law (Venice Commission) Report on Constitutional Amendment (2010)).

 21.  The ease with which Israel’s basic laws can be changed detracts from their status. The major characteristic of a constitution – a characteristic that is part of the basic definition of a constitution and also part of the advantages inherent in the existence of a constitution – is its stability. A constitution is intended to withstand frequent changes, and to stand firm in the face of changes in the political composition of the regime and in the face of various social changes. A constitution serves as a normative yardstick for society. It is the complex process of amending the constitution that allows this yardstick to stand firm and unwavering even in the face of a tumultuous society and a changing regime. In Israel this is not the situation. Most of our basic laws are not entrenched, and they can therefore be changed by the Knesset with a regular majority by means of regular enactment procedures. This constitutional reality derives to a great extent from the fact that our constitution is coming into being chapter by chapter, and not in a one-time constituent act subsequent to which every change requires a rigid, and special, process. The basic laws in Israel were enacted over a long period of time. They were not enacted as part of the constituent document of the establishment of the State, nor even in a time of revolution, war, or as a reaction to some other radical change in society or of the regime (see, e.g., Jon Elster, “Forces and Mechanisms in the Constitution Making Process”, 45 Duke L.J.  (1995), 364).

22.   At the same time, it may be said that the basic laws have taken root  in our juridical culture and in the political and public tradition as part of the constitution of the State. To a not inconsiderable degree, the strength of a constitution and of a proper constitutional regime is tested by the ability of the constitution to serve as a normative yardstick for the legislature, the executive, the judiciary and for individual citizens. The greatness of a constitution lies in its success in directing the behavior of individuals and of the state authorities, and in limiting the legislator’s ability to upset constitutional arrangements. As such, the answer to the question of whether the basic laws “have become rooted” in our constitutional tradition is not dependent only on the judicial review undertaken by this Court, but it is also – and even especially – evident in those cases in which the matter does not come to court because the elements involved in the legislative processes, as well as the executive, have internalized the accepted rules of play of the constitutional regime.

23.   In Israel, the superiority of the basic laws and their meta-legal normative status find expression both in the judicial review of regular legislation exercised by this Court and in the legislative procedures in the Knesset in recent decades. In practice, the question of the relationship of a proposed law to the existing basic laws has become one that is inseparable from the procedures for examining proposed laws. The directive of the Attorney General even states that “when a proposed law is submitted on behalf of the government for discussion by the government or by a ministerial committee, attached to it will be an opinion … on the question of the validity of the proposed law in light of the basic laws” (The relevant part of the Directive appears in Amnon Rubinstein’s article, “The Knesset and the Human Rights Basic Laws”, Mishpat Umimshal 5 (2000), 339, 352-3 (n. 9) (Hebrew)). A constitutional examination of proposed laws in light of the basic laws is conducted at each stage of the legislative process by the staff of the legal advisor to the Knesset (see ibid., p. 352). The deliberations in the Knesset plenum and in the various Knesset committees also indicate that the Members of Knesset are aware of the constitutional status of the basic laws and of the legislative constraints that derive from the superiority of the basic laws. This is evident, as will be discussed at length below, in the present case as well. The constitutional awareness that expresses itself in the process of examining the compatibility of the proposed legislation with the basic laws is a necessary process in every properly-functioning constitutional state, particularly so in the special circumstances of the constitutional law in Israel, which demand a great deal of self-restraint on the part of the Knesset in order to preserve the status of the basic laws and the stability of the arrangements they embody. Alongside this self-restraint, there is also a need for  judicial review by the Court aimed at ensuring that legislation, acts and decisions of the authorities and other public bodies do not change the basic laws or detract from them, but rather that they comport with the conditions established in the basic laws themselves and in the case law of this Court.

24.   Where does Basic Law (Temporary Provision) fit into the constitutional tapestry that we have described? Does self-restraint on the part of the Knesset mean that there is no room for changing basic laws for short, defined periods of time? It appears that no one would argue that a temporary provision contradicts the basic idea whereby the provisions of the constitution are fixed, and some would say even eternal. As stated, at the basis of a constitution stands the will to ensure stable principles, social identity and common values that are not easily changed, in order that they endure beyond that which is temporary and passing. The amendment of a constitution by way of a temporary provision assumes that it is possible to revoke a constitutional principle for a limited time. Is this unlawful?

In an ideal state of affairs, in which there exists a regulated and rigid mechanism for changing and amending the constitution, it is doubtful whether amendment of the constitution by way of a temporary provision would be possible. See, for example, the ruling of the Constitutional Court in the Czech Republic from September 2010: 2009/09/10 – PL. US 27/09 (for an English translation of the decision, see:  http://www.usoud.cz/en/decisions/?tx_ttnews%5Btt_news%5D=468&cHash=44785c32dd4c4d1466ba00318b1d7bd5) in which the constitutional court struck down a constitutional act that shortened the term of office of the sitting Chamber of Deputies and led to early elections. The reason for this nullification was that the one-off provision was incompatible with the eternity clause fixed in the Constitution. It is doubtful whether this rigid approach would be suited to the basic constitutional conception in Israel. In any case, according to the present situation in Israel, the rigid approach in relation to the legislative processes does not have a suitable framework. As stated, in the absence of Basic Law: Legislation, the restrictions on the procedures for legislation or amendment of the basic laws are few, and in order to enact a basic law in Israel there is no need for special procedures in the Knesset. In these circumstances, it cannot be said that the very fact that the basic law was enacted by way of a temporary provision fundamentally disqualifies it or  places it on a normative rung that is lower than a regular law, as the petitioners contend. At the same time, it may also not be said that this practice is problem-free. Setting  a temporary constitutional arrangement indeed denigrates the status of the basic laws, and it should be done only sparingly, if at all. In certain circumstances, which cannot be determined in advance, it is possible that the enactment of a basic law as a temporary provision may amount to “misuse” of the title “basic law”. In considering each case on its merits, attention must be paid, inter alia, to the existence of exceptional circumstances that justify the making of a temporary arrangement rather than a permanent one; the subject being regulated by the basic law must be examined; and an assessment must be made of the extent of damage wrought by the temporary basic law on the principles of the regime and other basic rights. It is important to note that application of these criteria to an examination of the constitutionality of a temporary provision is linked, by its very nature, to the question of the applicability of a substantive criterion for the identification of basic laws. At the same time, this question can also stand as an independent one. As stated, in certain, exceptional circumstances, the very recourse to a temporary provision may justify intervention in the basic legislation.

25. From the discussions in the Joint Committee it transpires that the decision to enact the Basic Law under discussion by way of a temporary provision derived from the professional position of senior Treasury officials, who felt that they do not have the tools to determine that the advantages of the biennial budget are greater than its disadvantages without conducting an actual “experiment”. The Treasury officials therefore sought to avoid a permanent amendment to the basic laws until after a “pilot” had been conducted, following which the Ministry would formulate a recommendation as to whether there should be a transition to a permanent biennial budget (see the protocol of the Joint Committee of the Finance Committee and the Law and Constitution Committee, 11.5.2010).

The problems involved in enacting a basic law by way of a temporary provision did not escape the Members of Knesset. The members of the Joint Committee devoted several discussions to the subject, and sought to ascertain the legality and the constitutionality of the draft law before them. As part of this effort, two legal opinions were submitted for review by the members of the Committee, and four legal advisers appeared before the Committee. The Committee also allowed the petitioner, MK Ronnie Bar-On, to address it at length. MK Bar-On laid out in detail the main arguments that were raised in the present petition. Inter alia, MK Bar-On spoke about the alleged harm to the balance between the powers, and about the central role of the Knesset in its oversight of the government in the process of approving the budget. MK Bar-On also mentioned his position that enactment of the amendment to Basic Law: The State Economy by way of a temporary provision constitutes misuse of the Basic Law for the purpose of obtaining a short-term political goal (Protocol of the Joint Committee, 11.5.2010, pp. 5-20). In two written opinions submitted by the legal adviser to the Finance Committee, the legal adviser pointed out that “it is a commonplace that basic laws and temporary provisions are contradictory concepts, and they are not compatible”, and it was also mentioned that a change to a basic law must be done in a basic law, and that determining the state budget is a constitutional norm. It was further pointed out in the written opinion that “the enactment of the biennial budget law is reserved for exceptional circumstances and ought not to be turned into the norm barring such circumstances without a comprehensive discussion of the basic values of our system”; and that transitioning to a biennial budgetary regime is liable to upset the balance between the executive branch and the legislative branch with respect to approval of the budget. In the wake of these opinions, and in the wake of what was said in the Committee, the members of the Joint Committee invited the legal advisor of the Treasury to its sessions, and asked for the professional opinion of the Ministry of Justice regarding the enactment of the Law by way of a temporary provision. Advocate J. Baris, the legal advisor to the Ministry of Finance, gave his opinion:

‘This matter [of determining an arrangement by way of a temporary provision],  it must be stated clearly, is a matter that is very exceptional and one that must be avoided insofar as possible. This is not a trivial matter … At the same time, it must be understood that this question, more than being a legal question is one of constitutional policy. In other words, does the Knesset as a constituent authority, as a matter of policy for determining constitutional arrangements, believe that this matter justifies a temporary provision or not … The starting point is that today, from a professional point of view, from the point of view of the matters that arise, there are advantages that resulted from the partial attempt that was made at an almost biennial budget … as opposed to the advantages, there are concerns … and the concerns are great and therefore from a professional perspective we are in a situation in which the clear professional recommendation is not to move over to a permanent provision for a biennial budget’ (Protocol of the Joint Committee, 11.5.2010, pp. 43-44).

Adv. Baris added that according to the Ministry of Finance, the present Temporary Provision is exceptional against the background of the accepted temporary provisions in Israeli law. Adv. Baris stated as follows:

‘In our legislation there are two types of temporary provision from a conceptual point of view. There are temporary provisions that stem from a temporary need, when I make a temporary provision in view of that need and it provides a response for that temporary need. There are temporary provisions that begin as a trial and a test … in general there is sometimes a need to conduct a trial, we go into something and we don’t yet know how it will work out, and you want to test the matter.

Now I want to be more accurate and to say that we are on the seam of these two types of temporary provisions. The temporary provision of last year (the original temporary provision) was of the type  of a clear temporary need … we saw the particular advantages of this partial attempt, and then we are at the transition to a temporary provision of the second type where you say that we do not have an annual budget so let’s experiment. I do not know whether in a basic law … you would say that we will move over from situation A to situation B as an experiment, but if you are already in situation B and you say, should we go back to situation A or extend by two additional years in order to make the experiment possible, this is our situation  and this is a coming together of circumstances according to which we believe that there are circumstances in which it is possible to propose a draft basic law as a temporary provision … in these circumstances we have reached the conclusion that it is precisely respect for the basic law that [lies] in the temporary provision. If we were to make a temporary provision in a basic law where there is a possibility that in two years or whenever we will have to submit to the Knesset a repealing provision because the concerns proved to be overriding or to be founded or to be real in the general balance and to justify a return to the annual budget, to submit a counter amendment is less seemly than in these circumstances to say that we are extending the temporary provision that began due to the special circumstances of the period in which we can for the first time truly examine the biennial budget (ibid., pp. 44, 45-46).

Adv. Eyal Zandberg, Head of the Public Law Section of the Advice and Legislation Department of the Ministry of Justice, pointed out to the Committee that several options for changing the Basic Law were available to the Government; one of these was the option that was chosen – that is, the enactment of a temporary provision for two years. Like Adv. Baris, Adv. Zandberg too pointed out that this track is not problem free, although it is possible from a legal standpoint. According to Adv. Zandberg:

‘… from a legal standpoint, from the point of view of the idea, the problem, and this is the problem here and I admit that there is a problem. I do not think that it disqualifies the proposal, but there is a problem, it cannot be ignored,  with a temporary provision in a basic law … We asked and we were convinced that there is no desire here to protect the current government, there were professional explanations why this arrangement is required for two years, and for two years only …. Hence the conclusion was … that it cannot be said to the Government that it is not within its authority to submit a bill that amends a basic law and establishes, in circumstances as I have described, this arrangement as a temporary arrangement for a specific period of time that is actually intended to allow the State as a whole, not only the Government, to try this out … and we did not think it correct to say that such an amendment to a basic law amounts to an illegal amendment. What is more, it must be said, that not every text that bears the title “basic law” legitimizes what is written beneath the title. This is not our position – let this be clear. I do not think that it may be argued that the contents of the basic law are in themselves unsuited to a basic law, according to their substance, and the difficulty is a conceptual one, how is it that a basic law, a segment of the law [should be “constitution”, D.B.], a permanent arrangement – how can the foundation stones be temporary? How can those walls of stone be built as plasterboard, which may easily be cut? This is a difficulty, but this is the explanation that we found for our professional legal opinion’ (Protocol of the Joint Committee of the Finance Committee and the Law and Constitution Committee from the discussion of the Economic Efficiency and the State Budget for the years 2009-2010, 31.5.10 p. 3).’

26. After hearing these opinions, the legal advisor of the Knesset, Adv. Eyal Yinon, was also invited to appear. Like the legal advisors who presented their views to the Joint Committee before him, the legal advisor to the Knesset, too, explained to the members of the Committee the complexity of the issue facing them. Adv. Yinon said that “it is clear that the biennial budget is a constitutional matter, a matter pertaining to the regime”, in that it is the type of provision that appears in constitutions throughout the world and in basic laws in Israel. Adv. Yinon further stated that “no one disputes that basic laws and temporary provisions are contradictions in terms”, but, in his view –

‘Due to the absence of a legislative arrangement of the issue of amendment of basic laws, it is difficult to argue that the proposed amendment is not constitutional or is not compatible with the basic values of the system. But of course the MKs must understand that their assent to an amendment of this type, beyond detracting from the ability of the Knesset to oversee the government … also contains an erosion of the status of the basic laws and of the protection that the Knesset is supposed to afford to the basic constitutional principles of our regime’ (Protocol of the session of the Joint Committee relating to the Economic Efficiency and State Budget Law for 2009-2010, 15.6.2010, pp. 5-6).

The members of the Joint Committee were persuaded that it is possible to enact that Basic Law as a temporary provision, but in order to address the difficulties that arose from the Bill, including the concern about weakening the Knesset’s power of oversight of the government, the Joint Committee made several changes to the proposal. The framework of the biennial budget was retained, but it was determined that the government will be obliged to submit the budgetary plan within 90 days prior to the commencement of the 2012 fiscal year; a section relating to a budget of adjustments for the fiscal year 2012 was introduced, designed to allow flexibility in the mode of execution of the budget in the course of implementing the biennial budget; a duty was imposed on the Minister of Finance to report to the Joint Committee within 120 days from the beginning of the 2012 fiscal year  regarding his position on the transition to a biennial budget on a permanent basis; the Knesset Finance Committee was authorized to determine the date for submission of the budgetary laws to the Knesset under s. 3(b)(1) of Basic Law: The State Economy. It is noteworthy that this last amendment was a permanent amendment and not a temporary provision.

27.   We have cited at length what was said in the Joint Committee because in our view, the professional and detailed discussion in the Joint Committee indicates that the enactment of the Basic Law by way of a temporary provision was a conscious decision; in the process of enactment there was a serious discussion and the question of the possibility of enacting the Basic Law as a temporary provision was duly considered. This fact must be taken into account when the constitutionality of the Law is being considered, for it can demonstrate that the Knesset acted with the understanding that it was applying its constituent authority while relating to the complexity this involved.

28.   The entire array of circumstances in the present case – including the identification of Basic Law (Temporary Provision) as a basic law under both the formal and the combined criteria; the material it regulates; and the combination of circumstances that led to the decision to introduce a biennial budget for two years – leads to the conclusion that even if we identify substantial difficulties in temporary enactment or amendment of basic laws, a determination that Basic Law (Temporary Provision) is void is unwarranted. As emerges from the deliberations in the Knesset, it was the special circumstances that gave rise to the wish to attempt to implement a biennial budget that lay at the basis of the decision to introduce a temporary change to Basic Law: The State Economy. As pointed out by Adv. Baris, the Ministry of Finance refused to draw up a permanent amendment, because it was not possible, from a professional point of view, to support a permanent transition to a biennial budget. Were it not for the economic crisis and the unexpected elections that led to the approval of a biennial budget for the years 2009-2010, it is doubtful whether the senior Treasury officials would have proposed conducting such an “experiment”. However, in the circumstances that unfolded, it was decided to examine the advantages of the budget and to study the ability of the Treasury to correctly assess the forecast of expenses and income of the State for a period of two years. We will further mention that even had we thought that additional considerations underlay the legislation before us, this too would not have been enough to constitute cause for intervention in the legislation, and certainly not in basic legislation (see para. 17 above).

29.   In summary: We are of the opinion that Basic Law (Temporary Provision) is a basic law for all intents and purposes. In the circumstances of the case before us, there is nothing in the use of a temporary provision in itself that would justify a determination that the basic law is void or that it should be struck down. At the same time, it would be better if in the future, the Knesset would avoid resorting to temporary provisions for amending constitutional provisions. In any case, as long as the framework for the enactment, amendment and change of a basic law has not been determined, a legislative procedure of this kind should be reserved for exceptional, extreme and special cases, due to the status of the basic laws. In this context, the words of Justice D. Levin are apt:

‘Amendment of a constitution should not be done as a matter of routine; a constitution and the constitutional values it embodies should never bend and change with every passing wind. The stability of the law, and a fortiori, of the constitution, are a value in themselves. Therefore, the legislature should consider this before passing a law, for a law, and a fortiori a constitution, are intended to lay down norms and principles that must guide the citizen’s conduct through the days and the years to come’ (United Mizrahi Bank Ltd. v. Migdal [1], p. 456).

30.   The additional arguments that were raised by the petitioners concerning the reasonability of the Basic Law and the majority by which it was passed in the various readings in the Knesset must also be dismissed. Without taking any position on the advantages or disadvantages of a biennial budgetary system, considerations regarding the reasonability of the Basic Law are not among those considerations that justify the intervention of this Court in basic legislation. Arguments whereby the Law should have been passed by a majority of 61 MKs in the three readings are also not founded, for s. 36A of Basic Law: The Knesset is not an entrenched section. Its amendment, therefore, does not require a special majority. The argument whereby Basic Law (Temporary Provision) explicitly or implicitly changes s. 34 of Basic Law: The Knesset, and therefore the Knesset should have passed it with a special majority, must also be dismissed. We accept the State’s position and that of the Knesset whereby s. 34 is not a general section that defines when the Knesset is dissolved, but rather a section that deals with the possibility of the Knesset deciding on its own dissolution – a decision that can be made by a law that is enacted by a majority of Members of Knesset. Consequently, the transition to a biennial budget should not be viewed as  an implicit change of s. 34 of Basic Law: The Knesset.

The Doctrine of the Unconstitutional Constitutional Amendment

31.   Having determined that Basic Law (Temporary Provision) is indeed a basic law, let us now address another central argument raised by the petitioners in the petition – although they would appear to have abandoned it in the course of the oral pleadings – that concerns the possibility of the Court nullifying Basic Law (Temporary Provision) because it contradicts fundamental values of our legal system. This issue, which in comparative legal literature is termed “the unconstitutional constitutional amendment”, deals with judicial review of a constitutional amendment made by the constituent authority.

According to this argument, Basic Law (Temporary Provision) upsets the constitutional balance between the legislative authority and the executive authority, and violates the constitutional principle under which if Knesset approval of the budget is not secured once a year, both the government and the Knesset are dissolved (in accordance with s. 36A of Basic Law: The Knesset). The petitioners cited many legal sources and extra-legal sources as the basis for their argument to the effect that approval of the budget in a democratic state in general, and in the State of Israel in particular, has special significance. In approving the state budget, so argue the petitioners, the Knesset gives concrete expression to its sovereignty and superiority vis-à-vis the government; and in the period of approval of the state budget, the government is under the review of the Knesset, and conducts debates with the Knesset concerning the priorities of the state (see, inter alia: Chen Freidberg and Reuven Chazan, Knesset Oversight of the Government (Israel Democracy Institute, 2009) pp. 33-34 (Hebrew)). Basic Law (Temporary Provision), it is argued, weakens the Knesset and detracts from its ability to oversee the work of the government, its mode of operation and the priorities that it sets. This, according to the petitioners, justifies the intervention of this Court by way of nullification of a basic law, since “approval of the Budget Law on an annual basis is considered one of the foundation stones of a democratic state the world over, and in Israel in particular” (Petition of 30.6.2010, p. 3). Moreover, the petitioners argued that the Basic Law violates another fundamental principle – the ability to bring about the dissolution of the Knesset and new elections by means of only 60 Members of Knesset, if the state budget is not approved within three months of the beginning of the fiscal year.

32. The doctrine of the unconstitutional constitutional amendment has been discussed at length in foreign legal systems (for a comparative review of this issue see: Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study (2008); and see: Aharon Barak, “The Unconstitutional Constitutional Amendment” (forthcoming, Bach Book) (Hebrew)). At its base, the doctrine of the unconstitutional constitutional amendment addresses the question of whether the courts have the authority to examine the constitutionality of amendments to the constitution. The answer to this question is directly connected to the nature and the character of the constitution in the framework of which the constitutional amendment is examined. Accordingly, there are states whose constitutions include “eternity clauses” – constitutional provisions that cannot be amended (see, e.g., art. 4 of the Constitution of the Republic of Turkey; art. 79(d) of Basic Law for the Federal Republic of Germany). In a number of states, courts have struck down amendments to the constitution on the basis of eternity clauses. There are states, such as India, in which the constitution does not include an eternity clause, but despite that the court has struck down amendments to the constitution for the reason that they were injurious to “the basic structure of the constitution” (for a review of the decisions of the Indian Supreme Court, see Gözler, pp. 88-95). In both situations – cases based on eternity clauses and those in which there was no such clause – the courts that were prepared to subject constitutional amendments to judicial review did so where the constitutional amendment breached or changed a fundamental, basic meta-principle of the constitution and the regime in the relevant state (such as the republican structure and the secular regime in Turkey. See also the abovementioned ruling of the Czech Constitutional Court, which nullified the law for bringing forward the elections based, inter alia, on an eternity clause in the Constitution according to which “any changes in the essential requirements for a democratic state governed by the rule of law are impermissible.” For further examples, see Gözler, ibid.).

33.   This doctrine, which recognizes “eternal” meta-principles in some form or other, has also been mentioned several times in obiter dicta in the case law of this Court, but it has not yet been applied (see: EA 1/65 Yardur v. Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365, 389-390, per Justice Y. Sussman; HCJ 142/89 La’Or Movement  - One Heart and One Spirit v. Central Elections Committee for the Sixteenth Knessset [1990] IsrSC 44(3) 529, 551-554, per [then] Justice A. Barak; Bank Mizrahi v. Migdal [1], pp. 394, 546, per President A. Barak and Justice M. Cheshin; CA 733/95 Arpel Aluminium Ltd. v. Klil Industries Ltd. [1997] IsrSC 51(3) 577, 629-630, per Justice M. Cheshin; HCJ 4676/94 Mitral Ltd. v. Israeli Knesset [1996] IsrSC 50(5)  15, 28, per President A. Barak; Movement for Quality Government v. Law and Constitution Committee [2], p. 96, per Justice D. Dorner; HCJ 6427/02 Movement for Quality Government in Israel v. Israel Knesset (not yet reported, 11.5.2006), per President A. Barak, para. 74; per Deputy President (ret.) M. Cheshin, para. 11). In Israel, in view of the fact that a complete constitution – including, in that framework, the procedures for enacting and amending the basic laws – has not yet been established, the doctrine takes on special meaning. In these circumstances, the question of whether the court in Israeli is competent to strike down basic legislation because it contradicts meta-principles of our system is a complicated one that reaches to the very root of the legitimacy of the constituent authority instituting constitutional arrangements that change the nature of the basic laws, and to the core of the competence of the Court to exercise judicial review of the outcome of the acts of the Knesset as a constitutive body. At the same time, the courts in Israel have recognized the existence of principles that are irrevocable. Our basic laws, too, have laid down a central constitutional principle, the ability to change which is doubtful, relating to the Jewish and democratic nature of the State. When the constitution of the State will be complete, the question of the inclusion of eternity clauses that express the meta-principles of the regime and society in Israel will come up for discussion. In this context, President A. Barak made the following observation in his article on this subject:

‘With the conclusion of the enterprise of basic laws and its ratification by the people, and with the introduction of a new complete constitution, there will be room for making a decision concerning the unconstitutional constitutional amendment. It may be that the constitution itself will solve this problem explicitly; it may be that it will contain eternity clauses that can help provide a solution to the question; the constitutional text may have nothing to say on this issue and the Supreme Court will be required to make a decision on whether to adopt the doctrine of the basic structure of the constitution or some similar doctrine or to reject them; it is possible that amendment of the law will be so difficult and complicated that the question will not even come up for discussion.

Does this mean that at the present stage of constitutional development in Israel, there is no call to consider the place of the question of unconstitutional constitutional amendment?  Indeed, in the comprehensive, complete sense of this doctrine in comparative law, it has no place in Israel. This is because the concept of constitutional “amendment” is in itself problematic in Israel. The constitutional enterprise is an enterprise in the making. The mission is not yet complete. The “complete” is yet to be completed, and in any case the constitutional amendment has not yet ripened. Nevertheless, in Israel there is a process of  establishing basic laws. At times, a basic law is enacted in an area in which there was previously no basic law; at times, an amendment to an existing basic law comes about by way of enacting an amending basic law. Against this background, the following question may be raised in Israel: are there constraints on the power of the Knesset, as a constituent authority, in its determination of the substantive contents of the basic laws, such that we can talk about an unconstitutional basic law? In this regard is there a difference between an area which has already been addressed in basic laws and needs amendment and between an area in which no basic law has yet been established?

In my opinion, there is room for an approach according to which the constituent power of the Knesset is not absolute. This is so regarding the establishment of a new basic law and regarding the amendment of an existing basic law. In both cases the Knesset, as a constituent authority … must act within the framework of the basic principles and basic values of our constitutional structure … The Knesset was not given authority to harm the “democratic core, and the minimum requirements for the character of the state as democratic.” Similarly, it was not authorized to harm the core of Israel as a Jewish state and the minimum requirements for this aspect of its character’ (Barak, Unconstitutional Constitutional Amendment)

 

34.   Indeed, I too believe that there are basic principles standing at the very basis of our existence as a society and a state, the breach of which would raise difficult questions of authority, including doubts as to whether at issue is a change in the constitution or the establishment of a new constitution. In such a case – and it would be best were it never to occur – the Court will be called upon to decide whether the Knesset has overstepped its constituent authority and violated the basic foundations of the state as a Jewish and democratic state. The case before us is not such a case. True, the relationship between the government and the Knesset in the process of approving a state budget is undoubtedly a very important relationship that expresses the principle of separation of powers. There is also no dispute that Knesset oversight of the government is an integral part of the principle of separation of powers. But does the requirement that the approval of the Knesset be obtained once every two years instead of annually constitute, for example, a negation of the democratic or Jewish character of the State? Does a decision to adopt a biennial budget for two years constitute a breach of the fundamental principles of the regime, as expressed in the Declaration of Independence? The answer is negative. Even if there is a detraction from the authority of the Knesset when it is asked to approve the budget once every two years instead of annually, the Members of Knesset have the option of choosing to change the period of the budget. To this must also be added the special positon of the Budget Law on the scale of constitutional norms (see: HCJ 4124/00 Yekutieli  v. Minister for Religious Affairs (not yet reported, 14.6.2010); HCJ 1438/98 Conservative Movement v. Minister for Religious Affairs [1999] IsrSC 53(5) 337). Hence, the damage caused to the Knesset as a result of the transition to a biennial budget does not amount to damage to the meta-principles of our system in a way that would justify the nullification of the basic law by virtue of the doctrine of the unconstitutional constitutional amendment – whatever be the scope of its application in Israel. In the circumstances of the present case it is not necessary for us to decide on this question.

 

35.   In conclusion: for all the reasons elucidated above, I propose to my colleagues to deny the petition. Basic Law (Temporary Provision) is indeed a basic law, and the harm that it allegedly harbors is not of the type that justifies the intervention of the Court in basic legislation, even if the Law was enacted in a manner which it would have been better to avoid. As stated, we leave pending the question of the possibility of applying a substantive criterion for identifying basic laws, and we do not think that we ought to decide on the question of the application, or the scope of application, of the doctrine of the unconstitutional constitutional amendment in Israel. Determination of these two issues is not necessary in the case at hand, and we hope that we will not require it in the future.

36.   Apropos of the above discussion we would point out that above all, the present petition is an indication of the need to complete the constitutional enterprise and to entrench the procedures for enacting and changing basic laws through the mechanism of Basic Law: Legislation (see, in this context, the various Basic Law: Legislation Bills that have been submitted to the Knesset; see, for example, Basic Law: Legislation Bill, H.H. 5761 2988 and the earlier draft laws  mentioned in the Explanatory Notes. See also Dan Meridor, “Major Principles in Basic Law: Legislation Bill” Mishpat Umimshal  1 (1992), 387 (Hebrew)).  The fact that the procedure for changing basic laws is liable to have significant ramifications for the constitutional regime cannot be ignored. The manner in which basic laws may be changed and the degree of rigidity of the procedure have a direct impact on the status of the basic laws, on the stability of the arrangements they prescribe, and on the extent of the power of an accidental majority to change the political, social and value-related identity of the State of Israel (see also, on the argument that the procedure for amendment affects the nature of the regime that the constitution establishes, Avichai Dorfman, “The Theory of the Rule of Constitutional Change” Mishpat Umimshal 10 (2007), 429 (Hebrew)). As stated, there have been several attempts in the past to formulate draft laws to regulate the procedures of enactment of basic laws. These bills did not develop into a fully-fledged comprehensive basic law. It would seem that today, ten decades after the enactment of the first basic law, the time has come to do so.

 

Justice U. Vogelman

I concur.

 

Justice M. Naor

1.     I concur in the opinion of the President.

2.     The question that is central to this petition, as emerges from the discussion that took place before us in the hearing on 11.1.2011, is whether the fact that the Basic Law was changed by way of a temporary provision is a reason for striking down the Law. In my opinion too, this must be answered in the negative. My colleague the President emphasized the need to complete the legislative enterprise and to entrench the procedures for enacting basic laws and their amendment by means of Basic Law: Legislation. In the present legal situation, however, it cannot be ruled categorically that a basic law may never be changed by way of a temporary provision. All appear to agree that there are exceptional situations in which there is no avoiding a change in this manner. An example of this may be found in the provisions of the law that postponed to a small extent the date of elections to the Knesset and the Local Authorities due to the 1973 Yom Kippur War, thereby extending the term of the sitting Knesset. The Law to which we are referring is the Elections to the Eighth Knesset and to Local Government (Temporary Provision) Law, 1974, the provisions of which apply notwithstanding the provisions of Basic Law: The Knesset (s. 10). This temporary provision was at the time dictated by reality.

 

3.     Indeed, creditable constitutional arrangements must leave a narrow opening at least for changing basic laws by way of temporary provisions, due to what the legal advisor to the Ministry of Finance, Adv. Baris, in the section cited by the President, called “the needs of the hour”. The matter at hand is not one of “the needs of the hour”, but the present constitutional structure in Israel does not rule out the amendment of a basic law by way of a temporary provision that is a basic law. I agree with my colleague that determining a temporary constitutional arrangement detracts from the status of the basic laws, and it should be done sparingly.

 

4.     The present case touches upon the fabric of the relations between the legislative and the executive authorities. This is not a matter of a violation of human rights, nor, in my view, of a breach of the fundamental principles of the regime. The determination that a budget will be an annual one (as opposed to a biennial one) is not, in my opinion, a fundamental constitutional principle. I can understand the objection of the petitioner, who feels that the amendment was intended to achieve a political end, even though an examination of the legislative history does not evince this. However, like the President I do not find cause for the intervention of the High Court of Justice regarding the constitutionality of the Law only because the Basic Law was amended by way of a temporary provision.

 

Justice E. Rubinstein

1.     This case, even if outcome is denial of the petition, highlights, in my opinion, a resounding systemic failure – to instill in the Israeli people, and even sadder, in its parliamentary representatives, a constitutional awareness. The fact that the constitutional texts – basic laws – are “as clay in the potter’s hands; he expands it at will and contracts it at will”, in the words of the prayer recited in the Synagogue on the Eve of Yom Kippur , is sad evidence of this. We live in ongoing eras of, on the one hand, “quasi-constitution” – basic laws, including constitutional judicial review within the bounds of Bank Mizrahi v. Migdal [1] and the subsequent rulings, and on the other hand, a degradation of the basic laws as if they were a “request program”. The question facing us is whether it is possible, by way of judicial action, to achieve greater respect for the constitutional text? The answer is not clear.

2.     The specific issue at hand is in my mind a two-fold one. One is whether a basic law may be changed by way of a temporary provision. The second, continuing from this, is the slippery slope of the degradation of the constitutional dignity of a basic law.

3.     On the juridical plane it is hard to state categorically that a law cannot be changed by way of a temporary provision absent Basic Law: Legislation, and even more so prior to completion of the constitution. The reply of the Knesset quotes from my letter of 19.7.99 – when I was serving as the Attorney General – to the chairman of the Law and Constitution Committee of the Knesset which was discussing the attempt of the Government to change Basic Law: The Government so as to remove the limitation that then existed in the Basic Law on the number of ministers. The proposal seemed problematic from a legal perspective, and I expressed my reservation in view of the constitutional entrenchment in the existing Basic Law of the number of ministers; my reservation also related to “the interest in the stability of the constitutional structure and the need to refrain, insofar as possible, from frequent changes in the basic laws …”. I added, however, that “to the extent that this is done in accordance with the provisions of the relevant Basic Law, I cannot say that there is a legal bar to this.” In view of the problematic nature of the matter, and in order to achieve a balance between what the Government wants and the needs it has presented on the one hand, and wanting to refrain from fixing the extension for a long period on the other, the Ministry of Justice suggested –  and the Government agreed – that the proposal be entrenched in a temporary provision for the term of that Knesset. In another letter to the Chairman of the Committee dated 21.7.99, I pointed out that for the sake of lessening the problem, I had raised the possibility of a temporary provision, and that it could indeed be argued that –

‘It is preferable and dignified to amend a basic law by way of a temporary provision, because we are dealing with a constitutional document.  However, matters must be weighed on the scales of profit and loss in the long term as well, and in my view the damage done by transmitting a message of the possibility  of permanently expanding the government outweighs the difficulty – which I do not underestimate – of amending a constitutional text by means of a temporary provision (and regrettably, we have not yet succeeded in endowing most of the constitutional texts, the basic laws with the aura of “constitutionality” in the public and in the Knesset for various reasons).’

I was of the opinion that a temporary provision would necessitate the instigation of renewed processes in the future, and that the wheel would possibly turn back; at that time too there were examples of temporary provisions – s. 10 of Basic Law: Freedom of Occupation. I was of the opinion therefore that “the balance is tending towards a temporary provision, in order not to permanently fix something that is liable to transpire as being a temporary necessity.” The Knesset ultimately decided on a permanent amendment, with which we are living to this very day in our minister-rich governments.

4.     I cited the above at some length in order to explain the circumstances of “Woe to me from my Creator and woe to me from my evil inclination” (B. T. Berachot 61a). The Basic Laws have not been accorded the status that they deserve, as evinced, inter alia, by the vicissitudes of Basic Law: The Government, which was enacted, amended (not necessarily by way of a temporary provision) and replaced, in large part according to changing situations of coalition needs which mostly have no relation to constitutional dignity (and see my article: “Basic Law: The Government in its Original Formulation – Theory and Practice” Mishpat Umimshal 3 (1996) 521, 578-583 (Hebrew), published also in my book Paths of Government and Law (2003) 79, 86-91 (Hebrew). Therefore, when the Government wished to increase the number of ministers in 1999, I thought, as the Attorney General, that this was an error and it was a pity that it should be fixed (as ultimately occurred) as an “eternal lament”; consequently I was of the opinion that a temporary provision was preferable, as stated, in the sense of “choosing the lesser of two evils”, in the words of the Mejelle. Today, too, I cannot say unreservedly that a constitutional temporary provision has no basis in law such that it would have to be struck down, as we are asked to do today, and I say this with regret.

5.     The subject on which the petition turns is not a trivial one. Suffice it to say that the budget is one of the central pillars on which parliamentary oversight of the government rests. I personally do not believe that a constitutional text is an experimental field, as those seeking the amendment would like to argue. Let us admit the truth: a temporary provision that stems from clear necessity – for example the temporary provision concerning the elections after the Yom Kippur War, as mentioned by my colleague Justice Naor (para. 3) – is rare. Temporary provisions will usually stem from coalition and political needs, which are virtually unrelated to a constitution that symbolizes permanence, eternity of the state and the nation, human citizens’ rights, including the rights of minorities. In the present case, the idea of a biennial budget is not in essence conjunctural and it has some basis – as demonstrated to us – in the professional approach and from the international perspective, but it involves, as stated, the ability of the Knesset to exercise oversight of the Government; ought it to be the subject of constitutional experimentation and a weather vane?

6.     Furthermore, I will not refrain from stating here that a biennial budget might well appear to be the younger sibling of the Arrangements Law, which is not well thought of – not to say infamous; a Law that continues, despite several improvements following a certain parliamentary awakening and legal and judicial remarks, to accompany every budget as a persistent slap in the face to the notion of creditable legislation, and in my view also as lack of respect for the Knesset, and much has already been written and said on this,  and to add would be to detract.

 

7.     But after having said all this, in order to strike down the Basic Law (Temporary Provision) a stronger juridical entrenchment than that which exists would be required, even though I would not padlock the door with a view to the future; in the circumstances there is not the critical mass which would entail its nullification. My colleague Justice Naor (in para. 3 of her opinion) stated that “indeed creditable constitutional arrangements must leave a narrow opening at least for changing basic laws by way of a temporary provision.” I would leave this pending future investigation; for example, in the United States an amendment to the Constitution (under art. 5 thereof) necessitates an extensive, drawn-out procedure, that combines Congressional decisions with the consent of the States. But I certainly can agree with Justice Naor, that if the thing is done and the temporary provision is passed, it must be done sparingly, and as far as I am concerned, exceedingly sparingly. In any case at the present time and in the present case and in the existing juridical situation, we cannot dignify the Knesset more than it dignifies itself, and therefore we cannot grant the petition.

I will conclude by concurring in the words of my colleague the President with respect to the need for completing the constitutional enterprise. I will say clearly and somewhat stridently: the main reason for it not having been completed until now, so it seems to me – and let us recall that for nearly two decades, not even one basic law has been passed, despite efforts having been made – is not because of what will be written in the Constitution, but apparently because of the question of who will interpret it. The last basic laws came into being in 1992, but in 1995 a ruling was handed down in the case of Bank Mizrahi v Migdal [1] which determined the constitutional authority, and since then there has been a “silence of the constitution” in the operative sense, as opposed to various proposals. It seems that parts of the Knesset are not happy with the constitutional authority of this Court, and are afraid that additional constitutional texts will add to its power. I will merely say that not only is the power of judicial review exercised by this Court cautiously and sparingly, but whoever looks into the matter will find that when it has been exercised, it has always been in areas that for the most part are not the areas that worry those who are concerned. We live in a world of appearances and public and media-related perceptions that feed off themselves. It would be good if the scrutiny would sometimes be directed at the substance of issue, if one may make this modest request, even though criticism is of course legitimate, and also in the court itself there are majority and minority decisions. But scrutiny is always a good thing, so that the criticism can follow and not come before. Why do I believe in the importance of completing the constitution, although we in fact live in a quasi-constitutional regime? For educational reasons, to perpetuate the values of Israel as a Jewish and democratic state, as a text that will teach and will constitute a historical fountain spouting the values of the nation and the individual as one. The Declaration of Independence, which constitutes a major source of interpretation by virtue of s.1 of Basic Law: Freedom of Occupation and s.1 of Basic Law: Human Dignity and Liberty, can fill some of these roles (see the article by myself and N. Solberg, “The Declaration of  Independence of the State of Israel – After it has (Almost) Waxed Old, Shall It  Have Pleasure”, Netivei Mimshal Umisphat 179, 191-195 (Hebrew)). But a complete constitution would be an upgrade and an empowerment on the educational plane and for the long term, and for this reason it ought to come into being.

9.     As stated, in the circumstances I concur in the ruling of my colleague, the President.

 Justice E. Arbel

I concur in the judgment of my colleague, the President.

Vice President E. Rivlin

I concur.

 

Justice A. Grunis

I concur.

 

The petition was denied as stated in the ruling of the President D. Beinisch. There is no order for costs.

 

3 Nissan 5771.

7 April 2011.

 

 

Full opinion: 

Weiss v. Prime Minister

Case/docket number: 
HCJ 5167/00
Date Decided: 
Thursday, January 25, 2001
Decision Type: 
Original
Abstract: 

Facts: The Prime Minister resigned, and he and the Ministers of the outgoing government continued to fulfill their duties as prime minister and ministers until the new government was to take office.  In this framework the outgoing government continued to conduct political negotiations with the Palestinian Authority with the aim of reaching an agreement before the elections. 

 

Held: The majority opinion was written by President Barak.  The petitioners claimed that the outgoing government was not authorized to conduct the political negotiation.  They asked the court to direct the government to end the political negotiation until the establishment of a new government following the special elections.  The basic issues that were addressed in this case were:  what is the scope of the authority and discretion of an outgoing government?  Is it permitted to conduct political negotiation and sign an agreement?  And what is the scope of judicial review of decisions of the outgoing government?  

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

 

HCJ 5167/00

1              Professor Hillel Weiss, Esq.

2.            Moshe Feiglin, Chairman of ‘Zoh Artzeinu’ Organization

v.

1.            Prime Minister of Israel

2.            Government of Israel

3.            Israeli Knesset

HCJ 9607/00

1.            Yoram Sheftel, Esq.

2.            Doron Beckerman, Esq.

v.

1.            Ehud Barak, Prime Minister of Israel

2.            Government of Israel

3.            Elyakim Rubenstein, Attorney General

HCJ 84/01

1.            Akiva Nof

2.            Dov Shilansky

3.            Dr. Yosef Faber

4.            Yehiel Hazan

5.            Esther Shternberger

v.

1.            Ehud Barak in his Capacity as Prime Minister of Israel

2.            Government of Israel

HCJ 86/01

1.            Gabi Butbul

2.            Yossi Ben Shahar

v.

1.            Prime Minister and Minister of Defense – Ehud Barak

2.            Government of Israel

3.            The Attorney General – Elyakim Rubenstein

HCJ 147/01

1.            Yaakov Elias

v.

1.            Prime Minister, Ehud Barak

2.            Government of Israel

 

Formal Respondents

 

1.            The Attorney General – Elyakim Rubenstein

2.            Professor Daniel Friedman

3.            Professor Shimon Shetreet

4.            Professor Shlomo Avineri

5.            Moshe Negbi, Esq.

 

The Supreme Court Sitting as the High Court of Justice

[January 25th, 2001]

Before President A. Barak, Vice President S. Levin, Justices T. Or, E. Mazza, I. Zamir, J. Türkel and I. Englard.

 

Petitions to the Supreme Court sitting as the High Court of Justice for an order nisi and an interlocutory order.

 

Facts: The Prime Minister resigned, and he and the Ministers of the outgoing government continued to fulfill their duties as prime minister and ministers until the new government was to take office.  In this framework the outgoing government continued to conduct political negotiations with the Palestinian Authority with the aim of reaching an agreement before the elections. 

 

Held: The majority opinion was written by President Barak.  The petitioners claimed that the outgoing government was not authorized to conduct the political negotiation.  They asked the court to direct the government to end the political negotiation until the establishment of a new government following the special elections.  The basic issues that were addressed in this case were:  what is the scope of the authority and discretion of an outgoing government?  Is it permitted to conduct political negotiation and sign an agreement?  And what is the scope of judicial review of decisions of the outgoing government? 

 

The petitions were denied.

 

Vice-President S. Levin and Justice Zamir wrote separate opinions supporting the majority conclusion.

 

Justice Türkel wrote a dissenting opinion.

 

Basic laws cited;

Basic Law: Jerusalem, the Capital of Israel (Amendment).

Basic Law: the Government

Basic Law: the Knesset

 

Legislation cited:

Government and Justice Arrangements Law (Revocation of Application of the Law, Judiciary, and Administration) 5759-1999.

Local Authorities (Election of the Head of the Authority and his Deputies and their Term in Office) Law 5735-1975, s. 27a

Transition Law, 5709-1949, s. 1.

 

Israeli Supreme Court cases cited:

[1]          HCJ 5/86 SHAS Party Association of Sephardim Shomrei Torah in the Knesset v. Minister of Religions, IsrSC 40(2)742.

[2]          HCJ 4676/96 Mitral Ltd. v. Knesset of Israel, IsrSC 50(5) 15.

[3]          HCJ 5621/96 Herman – Head of the Municipality Ofakim v. the Minister of Religious Affairs, IsrSC 51(5) 791.

[4]          HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel and Others IsrSC 51(3) 46.

[5]          HCJ 2534/97, 2535/97, 2541/97 MK Yahav and Others v. State Attorney and Others IsrSC 51(3) 1.

[6]          PPA 7440/97 PPA 6172/97 State of Israel v. Golan IsrSC 52(1)1

[7]          HCJ 4354/92 Temple Mount Faithful v. Prime Minister IsrSC 57 (1)37.

[8]          HCJ 6057/99 MMT Mateh Mutkafei Terror v. Prime Minister (unreported).

[9]          HCJ 7307/98 Polack v. Government of Israel (unreported).

[10]        HCJ 2455/94 ‘Betzedek’ Organization v. Government of Israel (unreported).

[11]        HCJ 4877/93 Irgun Nifgai Terror v. Government of Israel (unreported).

[12]        HCJ 3125/98 Abed Elaziz Muhammad Iyad v. IDF commander in Judea and Samaria (not yet reported).

[13]        HCJ 6924/00 Shtenger v. Prime Minister (not yet reported).

 

Israeli books cited:

[14]        A. Rubinstein, Constitutional Law in Israel 536 (vol. 2. 4th Expanded Edition, 1991).

[15]        Y. H. Klinghoffer Selected Material in Matters of the Day 1970-1979, 64, at 71 (1979).

[16]        A. Rubenstein and B. Medinah, Constitutional Law of the State of Israel, 91 (vol. A. 5th edition (1996).

 

Israeli articles cited:

[17]        Klein, ‘The Powers of the Caretaker Government: Are they Really Unlimited?’ 12 Isr. L. Rev. 271 (1977).

[18]        Shetreet ‘Custom in Public Law’ Klinghoffer Book on Public Law (edited by I. Zamir) 375 (1993

[19]        Shetreet, ‘The Knesset’s Role in Signing Treaties’ Hapraklit 36 at 349 [19] S. Shetreet

 

Foreign books cited:

[20]        T. Maunz, G. Drig Kommentar zum Grundgesetz (Mnchen).

[21]        J. Esensee, P. Kirchhof Handbuch des Staatsrechts (Heidelberg, Bd. II, 1987).

[22]        G. Burdeau, F. Hamon, M. Troper Droit Constitutionnel (Paris, 26טme ed., 1999).

 

Foreign articles cited:

[23]        Boston, Levine, McLeay, Roberts and Schmidt, ‘Caretaker Government and the Evolution of Caretaker Convention in New Zealand’, 28 VUWLR 629 (1998). 

 

Jewish law sources cited:

[24]        Proverbs 28:14

 

HCJ 5167/00

For petitioners – Dr. Chaim Misgav.; Howard Griff.

For respondent – Osnat Mendel.

 

HCJ 9607/00

For petitioners – Yoram Sheftel

For respondent–Osnat Mendel

 

HCJ 84/01

For petitioners – Akiva Nof

For respondent – Osnat Mendel

 

HCJ 86/01

For petitioners – Shmuel Lavi; Ran Shalish; Eiran Tzur

For respondent – Osnat Mendel

 

HCJ 147/01

For petitioners – Himself

For respondent – Osnat Mendel

For formal respondent no. 3 – Professor Shimon Shetreet

 

 

JUDGMENT

 

President Barak

The Prime Minister resigned.  He and the Ministers of the outgoing government continue to fulfill their duties until the prime minister and ministers of the new government take office.  In this framework the outgoing government is conducting negotiations for a political arrangement with the Palestinian Authority, with the aim of signing an agreement before the elections.  What is the scope of the authority and what is breadth of the discretion of the outgoing government?  Is it permitted to conduct the political negotiation and sign the agreement?  What is the scope of the judicial review of the decisions of the outgoing government?  These are the basic issues that have arisen before us in these petitions.  These are weighty questions.  In the normal course of events significant time is required for a judgment on such issues.  Such significant amount of time is not at our disposal, as the passage of time will undermine the rationale at the foundation of the petitions.  We have done all that we could to hear the petitioners arguments and to respond to them as speedily as possible.  We now present our judgment.  We have in all likelihood been brief where it would have been proper to expand.  We have tried to do the maximum possible in the brief time that was at our disposal.

The petitions and the responses to them

1.            The Government of Israel has been conducting negotiations for many months with the Palestinian Authority.  The Attorney General has explained the characterization of this negotiation in a memo (dated December 12, 2000) which was given to the Prime Minister:

‘The agreement that is now being negotiated is different from all of its predecessors ever, in every direction, as to its challenge and risks.  The challenge is ending the difficult conflict between Israel and the Palestinians, which all desire; the risk is the surgical operation, difficult beyond all difficulty, which the agreement demands.’

The negotiation and its content are a subject of sharp debate in Israel.  Against this background – and against the background of other internal matters – the Prime Minister, Mr. Ehud Barak, resigned from his position as Prime Minister (in effect as of December 12, 2000).  Special elections for Prime Minister were set for June 2, 2001.  The political negotiation with the Palestinian Authority continues to be conducted even after the resignation of the Prime Minister.  Against this background the petitions before us were submitted.  The petitioners are citizens who claim that the outgoing government is not authorized to conduct the political negotiation it is conducting.  They request that we direct the government to stop the political negotiation until the establishment of a new government after the special elections.

At the foundation of these petitions is the viewpoint that the outgoing government is a ‘transitional government’ whose authority is qualified, in the sense that it is entitled to deal only with ongoing matters.  This qualification, according to the petitioners claim, stems from the interpretation of the Basic Law: The Government and constitutional custom.  So too, this qualification is derived from the principle of reasonableness.  In these contexts the Government and Justice Arrangements Law (Revocation of Application of the Law, Judiciary, and Administration) 5759-1999 and the Basic Law: Jerusalem the Capital of Israel (Amendment), which require, as said in them, Knesset decisions for any territorial changes, were mentioned.  The outgoing government does not have a majority in the Knesset, and therefore could not fulfill these requirements.  Even this narrows the authority of the outgoing government.  This is primarily so, when the supervision by the Knesset – which is in recess – of the activities of the government, is not being implemented in actuality.

2.            In its response (from January 4, 2001) the Attorney General notes that the constitutional principle is of ‘continuity of government’.  The interpretation of the Basic Law: the Government does not lead to the application of limits on the authority of the outgoing government.  There is no basis to the claim as to the existence of a constitutional custom which limits the authority of such a government.  However, exercise of powers during a period of elections requires great caution.  The attorney general further added and noted that any agreement that would be reached, if it is reached, requires Knesset approval.  Every government decision, according to which the law, judiciary, and administration of the State of Israel will no longer apply on an area where it applies today, requires Knesset approval with a majority vote.   Every decision as to the transfer of powers in the area of Jerusalem to a foreign entity requires a basic law which is to be passed by a majority vote.  In a supplementary response (from January 17, 2001) – which followed questions we asked during the course of the petitions – the attorney general added that ‘the measure of caution is not a new legal standard, just like reasonableness or proportionality’.  In the opinion of the attorney general, ‘a determination on the question whether the government undertook proper caution is found . . .  in the public-parliamentary realm’.  The attorney general further added in response to our questions that ‘if an agreement is signed by the Prime Minister, in outline, or in another manner, its validation will be conditioned on the approval of the Government, and the required internal approvals, and this will be stated in the agreement itself.  As is common as to such agreements, this agreement will also be brought for Knesset approval.’

The normative framework

3.            With the resignation of the Prime Minister ‘special elections will be held’ (section 23(c) of the Basic Law: the Government).  What are the powers of the Prime Minister and the ministers upon the resignation of the Prime Minister and approaching the special elections?  Sections 31 and 32 of the Basic Law: Government address this:

‘Continued Functioning of the Prime Minister and Ministers

31(a) A Prime Minister who has resigned or in whom the Knesset expressed no confidence will continue in office until the newly elected Prime Minister assumes office.

(b) In the event of the Prime Minister’s death, permanent incapacitation, resignation, removal from office, or an expression of no confidence by the Knesset, the Ministers will continue in office until the newly-elected Prime Minister assumes office.

Continuity of Government

32. During the election period for the Knesset and the Prime Minister or during special elections, the Prime Minister and the ministers of the outgoing Knesset will continue in office until the Prime Minister and the ministers of the new Government assume office.’

Thus, the Basic Law: the Government establishes the principle of government continuity (section 32) ‘governments rise and fall, but the government forever stands.’(HCJ 5/86 SHAS Party Association of Sephardim Shomrei Torah in the Knesset v. Minister of Religions [1] at p.  751; and compare: section 37 of the Basic Law: the Knesset and HCJ 4676/96 Mitral Ltd. v. Knesset of Israel [2]). The resigning Prime Minister continues in office until the newly elected prime minister assumes office.  Upon his resignation, the ministers continue in office until the newly elected prime minister assumes office (section 31).  At the foundation of this provision is the approach that with the resignation of the Prime Minister a governmental ‘void’ is not created, and the government continues to function which serves as the executive branch.  The continuity and the stability are thereby ensured.  And note: the act of resignation of the Prime Minister, restores, in fact, the confidence that was given him, to the decision of the people, who are sovereign.  In this situation, he indeed continues to serve in office by authority of section 31 of the basic law, when the basis for his continuation in office is in the law’s provision.  This is so, until the newly elected prime minister, who won the public’s confidence in the special elections, assumes office.

4.            Indeed, in the case before us the Prime Minister has resigned.  He and the members of his cabinet continue to serve in office, by authority of section 31 (and 32) of the Basic Law: the Government.  Is there a formal limitation on their authority?  The answer is in the negative.  There is nothing in the Basic Law: the Government which narrows the formal authority of the resigning prime minister and the formal authority of the ministers, to ongoing activities only.  Justice M. Cheshin expressed this approach when noting:

‘The world-of-law acts according to its way and the powers of operation exist, whether in the days between one election and another and whether during the days of the election.  The authority of the government stands every day of the year and from year to year, so too regarding the powers of members of the cabinet.’ (HCJ 5621/96 Herman – Head of the Municipality Ofakim v. the Minister of Religious Affairs [3] at p. 804.)

5.            The petitioners have argued before us that indeed there is a limitation on the authority of the outgoing Prime Minister and government who continue in office after the special elections.  This limitation limits the bounds of authority of the government only to the government’s ‘ongoing operations’, and not to determination of matters of principle with far-reaching ramifications.  Indeed, the claim of ‘ongoing’ operations of the government (expedition des affaires courantes) is not an innovation of the petitioners.  This approach is common in a number of countries which have a parliamentary regime (see Klein, ‘The Powers of the Caretaker Government: Are They Really Unlimited?’[17]; Boston, Levine, McLeay, Roberts and Schmidt, ‘Caretaker Government and the Evolution of Caretaker Convention in New Zealand’ [23].  This approach was examined in Israel by a public committee (Justice Z. Berinson (Chairperson), S.Z. Abramov, Dr. A. Ankorin, Professor B. Aktzin, Professor Y. Dror, Y. Zamir, and Dr. A. Yadin).  This committee dealt with the scope of powers of a ‘transitional government’ (according to the prior Basic Law: the Government).  It examined the adoption of the ‘law of ongoing operations’ and decided not to adopt it.  In the committee’s report it was written:

‘The Committee weighed the question whether the powers of a transitional government are to be limited in any way.  Such as: limitation of powers to ongoing  matters or matters that cannot stand delay (similar to the law of ongoing  matters which is accepted in France, Italy and Belgium and other European countries) or limiting its operations in specific areas, subject to Knesset approval, or limiting its power to present draft laws in fundamental matters that are in dispute.  The Committee decided for reasons of practicality and in light of the special circumstances of the State, that reducing the functional areas in which a transitional government will be permitted to operate will cause too drastic a change from a regular government to a transitional government, will damage the proper functioning of the government and may damage vital activity of state institutions in the case of a sudden crisis.  Abstract formulations such as ‘ongoing matters’ cannot promise the degree of certainty needed for proper constitutional functioning.  In light of these rationales the Committee did not even see fit to recommend determining a period of time after which the transitional government would be limited in its powers or to recommend distinctions as to limitation of powers between different types of transitional governments’  (‘Report of the Committee on the Matter of Transitional Government’, p. 6)

In relating to cases in which the government left office under the prior Basic Law: the Government, Professor Rubinstein writes:

‘In all of these cases the outgoing government continues in it duties as usual.  Section 25 of the Basic Law establishes that the President will begin the processes to put together a new government but ‘the outgoing government will continue to fulfill its functions until the new government is established’.  The law does not determine a time frame for such a government which does not have the Knesset’s confidence.  In popular language such a government is called a ‘transitional government’ and this term indeed is fitting to describe the interim situation between one government and another.  In terms of its powers and role a transitional government is no different from a regular government which has the Knesset’s confidence.  An attempt has been made to give limited meaning to the term ‘will continue in its functions’, but it has failed.  A similar arrangement is practiced in England, where the resigning government stays in office during the period of elections until establishment of the new government after the elections, however, there the period of transition is shorter.’  (A. Rubinstein, Constitutional Law in Israel [14] 536).

In relating to the continental doctrine as to the power of an outgoing government to deal only with ongoing matters, Professor Klinghoffer has noted that in Israel ‘transitional governments have always seen themselves as permitted to exercise the full powers of a regular government, this position did not contradict explicit provisions in the written law’ (Y. H. Klinghoffer, Selected Material in Matters of the Day [15] at 71.  In relating to the nature of the continental doctrine as to ongoing powers of a transitional government, Professor Klinghoffer noted that: ‘there is much doubt if abstract formulas such as these, founded on the term ‘ongoing  matters’ can ensure the degree of certainty needed for sound constitutional life’ (Ibid, p. 71).

6.            Moreover: with the establishment of the Basic Law: the Government the Knesset decided to continue with the accepted practice, and refrained from making a formal change in the powers of the outgoing government.  Against this background we are of the opinion that it not proper now, by way of construction, to bring in to Israel the continental doctrine as to limitation of the powers of the outgoing government (as to a similar approach in Germany see Herzog, Maunz-Durig, Grundgesetz Kommentar, Art 69 III 46, 60 [20]; Schroeder, Handbuch des Staatsrechts, 43 (Band II, par. 51) [21]).  Of course the Knesset as an establishing authority may, after examining the issue as to all of its aspects, limit the powers of the outgoing government, if it sees fit (compare section 29(b) of the Basic Law: the Government as to the voiding of the powers of the acting prime minister to disperse the Knesset; compare also section 27a of the Local Authorities (Election of the Head of the Authority and his Deputies and their Term in Office) Law 5735-1975).  On this matter various ideas have been proposed for legislation, such as subjecting the government – which no longer has the confidence of the Knesset – to Knesset decisions (see Klein, Ibid, [17] p. 285; Rubenstein, Ibid, [14] p. 502; Klinghoffer, Ibid, [15] p. 71).

7.            It has been argued before us that there is a constitutional custom, according to which the outgoing government is limited to ongoing operations (‘maintenance’ operations) alone.  So too it was argued, that there is a constitutional custom, according to which international treaties of special importance that Israel is party to require Knesset ratification.  This constitutional custom, so it was argued, is not limited only to retroactive ratification by the Knesset but requires advance consent of the Knesset before the government signs them.  We cannot accept these arguments.  The question of the validity of constitutional custom in Israel has yet to be examined by this court.  For myself, I am prepared to presume, without making a judicial determination on the matter, that constitutional custom is a legal source for creating binding constitutional law in Israel (See Shetreet ‘Custom in Public Law’ Klinghoffer Book on Public Law [18] 375; A. Rubenstein and B. Medinah, Constitutional Law of the State of Israel [16] at pp. 95-96.  It will suffice for me to say, for purposes of the matter before us, that it has not been proven to us, in the accepted manner for the proving of (constitutional) customs, the existence of a constitutional custom according to which the outgoing government has only ongoing powers (or ‘maintenance’ powers).  As to the ratification of international treaties of special importance, the government accepts (as per the Attorney General before us) that any agreement that will be made in this matter will be brought before the Knesset for ratification (see also Shetreet, ‘the Knesset’s Role in Signing Treaties’ [19] at 349; Rubinstein, Ibid, Ibid [16]).  The existence of a constitutional custom by which the consent of the Knesset must be given in advance, has not been proven to us.

8.            From the above it can be seen that constitutional law in Israel does not recognize a special doctrine according to which with the resignation of the prime minister, his powers and the powers of the ministers – and for our matter we can say, the powers of the outgoing government – are limited to ongoing  operations (‘maintenance’ operations) alone.  However, the outgoing government, like every government in Israel, must act with reasonableness and proportionality, when the difference between it and a regular government is expressed in the scope of the coverage of the test of reasonableness.  Indeed, the principles of reasonableness and proportionality are general legal principles, which apply to the activities of every government, including an outgoing government.  The ‘range of reasonableness’ which determines the range of operations beyond which the action of the government is not reasonable, also applies to the operations of an outgoing government.  As is known, an outgoing government can be created in various forms (such as the resignation of the prime minister, expression of no-confidence in the prime minister by the Knesset, dispersal of the Knesset by the prime minister with the consent of the president, dissolution of the Knesset, and even a regular situation of a government that operates after timely elections).  We are dealing in the petitions before us with one of the forms of an outgoing government, which is, resignation of the prime minister.  The rest of the judgment is aimed at these circumstances.

9.            What do principles of reasonableness and proportionality tell us about the activities of an outgoing government where the prime minister resigns?  In answering this question we must return to the purpose at the core of the continuation in office of the prime minister and the ministers, despite the resignation of the prime minister.  This purpose is twofold: on the one hand it is intended to prevent a governmental ‘void’ and ensure stability and continuity.  On the other hand, the special status of the outgoing prime minister is to be taken into account, where ostensibly upon his resignation his role was meant to end, but he continues to fill it until the chosen prime minister enters office, and this by power of the provision of the basic law itself (compare Klein, Ibid [16] at p. 276).    Against the background of this double purpose the following conclusion arises: the prime minister who resigned and the ministers of his government must act out of awareness of this purpose.  On the one hand, they must act with restraint appropriate for the status of an outgoing government.  On the other hand they must ensure stability and continuity.  The duty of restraint does not exist where there is a vital public need to act.  It is self-evident that where such a vital need exists, it must be realized, in appropriate measure.  It is a matter, thus, of a flexible approach that balances between restraint and action, according to the circumstances of the case and taking into consideration the changing reality.  The question that the principles of reasonableness and proportionality pose is whether the action is ongoing or exceptional.  The correct question is, whether in the overall balance – which takes the totality of circumstances into account – restraint or action is required.

10.          Every entity operating by the law has a ‘range of reasonableness’ which reflects the range of legal actions which that entity may undertake.  The scope of the range as to the given matter is dependent on the characteristics of the power.  Justice Zamir writes:

‘The question as to whether an administrative decision suffers from extreme lack of reasonableness is dependent on the limits of the range of reasonableness, which is the range in which the administrative authority may decide according to its discretion: what is the language and the purpose of the authorizing statute; who is the authorizing entity; what is the matter administered by the authority; whether the authority is operated primarily on the basis of factual findings, on the basis of policy considerations, or on the basis of professional criteria, such as: medical or engineers criteria; and the like.  The range of reasonableness changes in accordance with these characteristics: at times it is broad and at times narrow’ (HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel and Others [4] at p. 57).

Justice Or wrote in a similar vein:

‘The range of reasonableness draws the area in which the authority’s decision will be reasonable, in the sense that there are no grounds to intervene in the decision.  But the range of deployment of this range is not uniform.  It may change in accordance with the circumstances of a given case.  It is derived from the quality of the operating values in a given matter.’ (HCJ 2534/97, 2535/97, 2541/97 MK Yahav and Others v. State Attorney and Others [5] at p. 58).

Against this background the conclusion is to be drawn that as to given matters the range of reasonableness of the prime minister who has resigned and the members of his cabinet is narrower than the range of reasonableness of a prime minister and government who are operating normally.  The reason for this is that the prime minister on the one hand and the outgoing government on the other must take into account the special criterion – a criterion that the government normally does not have to take into account – and that is the purpose and the source of its authority.  Moreover: the ‘range’ of reasonableness of such prime minister and government changes as the date of ending the time in office of the elected prime minister nears.  Therefore, the ‘range’ becomes narrower – and the need for restraint and reserve made more necessary – after the elections, and before the elected prime minister begins his term in office, and all subject to vital public needs?  Thus, for example, as a rule, it is appropriate in the framework of domestic policy, that the outgoing prime minister and the members of his cabinet not make appointments to senior positions, and leave the work of appointments to the elected prime minister and his government, unless, under the circumstances, the demands of the position create a vital public need to man the position without waiting for the beginning of the term of the elected prime minister, or where it is a matter of a professional appointment when there is not sufficient reason to postpone the appointment.  The same is true in the management of foreign policy or defense.  No one would think that the outgoing prime minister and his government cannot protect state security from a war that broke out just because the days are the final days of an outgoing government.  Defense of the State from war, certainly raises a vital public need, that every prime minister, including an outgoing prime minister must deal with.

Judicial review

11.          What is the scope of the judicial review of the decisions of the resigning prime minister and his ministers?  The answer is that such a government does not enjoy a special status as to judicial review.  Every government is subject to judicial review, and a prime minister who resigns and the ministers of his government do not have immunity from judicial review.  Therefore the court will ask itself – in the framework of the judicial review of the reasonableness of the decision and the proportionality of government decisions – whether the decision of the government is a decision which a reasonable government may make.  The court will not ask itself which decision it would have made if it was operating as the government.  This criterion also applies, of course, as to the review of the actions of a prime minister who resigned and the ministers of his government.  The court will ask himself if the balance the prime minister and his ministers made between the need for restraint and the need for action, is a balance a reasonable outgoing prime minister is permitted to make (compare Burdeau Hamon, Troper Droit Constitutionnel [22] at 633-634).  The court will not ask itself what the balance is that it would have made were it acting as a prime minister who has resigned.

12.          The scope of the judicial review will be influenced by the scope of the administrative power.  Although the grounds for review do not change, the scope of the power determines the limits of judicial review.  Justice Zamir explained this when he noted:

‘The essence of administrative power also impacts the scope of judicial review.  Indeed, the rules of review do not change from power to power: every power must be used in order to serve the purpose of the law, on the basis of relevant considerations, in a reasonable manner and to the extent necessary, however the content of the rules changes from power to power. And not only do the purpose of the law and relevant considerations change according to the essence of the power, broad or narrow.  The essence of the power to manage a prison, because it is so complex, requires the court to act with great care, so that it does not narrow the range of reasonableness of the Prison Services in a manner that will prevent orderly administration of the prison.’ (PPA 7440/97 (PPA 6172/97 State of Israel v. Golan [6] at p. 8).

If this is the case for the administration of a prison, all the more so as to fundamental questions of policy.  Thus, for example, the court will not direct the prime minister and the members of his cabinet whether to undertake a policy of privatization or a policy of nationalization.  In the framework of the power of government, it is a matter for the prime minister and his ministers, and not the court, to decide.  The Knesset oversees the prime minister and his ministers and review of the policy of a government operating within the range of reasonableness is in the hands of the Knesset.  This is so as to a regular prime minister and government; and it is so as to a prime minister who resigned and the ministers of his government.

From the general to the specific

13.          The government is the executive branch of the State (section 1 of the Basic Law: the Government).  Based on this power and additional powers given to it (see, for example, sections 40 and 41 of the Basic Law: the Government) it is empowered to administer the foreign and defense policies of the State.  The power of the one holding the power (the government) and the essence of the matter (foreign and defense affairs; peace or war) lead to the government having a broad range of reasonableness in these type of matters.  Within the bounds of that range the court will not replace its discretion with that of the government.  Supervision of the utilization of the powers of the government in these matters is in the hands of the Knesset.  Therefore, were these petitions filed prior to the resignation of the Prime Minister, we would more than likely have dismissed them.  One government has one policy.  Another government another policy.  Each is in the hands of the government.  The choice between the policy paths is a matter for the government and the supervision of the policy is purely a matter for the Knesset.  The choice within the bounds of the range of reasonableness is not to be made by the court.  Indeed, in a long line of decisions, we dismissed petitions which dealt with the government’s policy for resolving the Israeli-Arab conflict (HCJ 4354/92 Temple Mount Faithful v. Prime Minister [7] (negotiation with Syria in the matter of the Golan Heights); HCJ 6057/99 MMT Mateh Mutkafei Terror v. Prime Minister [8]; HCJ 7307/98 Polack v. Government of Israel [9]; HCJ 2455/94 ‘Betzedek’ Organization v. Government of Israel (release of hostages in the framework of a political agreement) [9]; HCJ 4877/93 Irgun Nifgai Terror v. Government of Israel [10] (negotiations over the Oslo Accords).

14.          Does the conclusion need to be different only because this is an outgoing government?  Our answer is in the negative.  The choice between the need for restraint (as the petitioners claim) and the need to act (as per the government’s stance) is entirely saturated with considerations of security and peace.  The Attorney General (in his supplementary response) rightfully noted that:

‘the negotiators see in it a rare window of opportunity and necessitated by reality at this time.  On the other hand, the petitioners raise various concerns lest the negotiation at this time will bring about damage in the future.  The arguments come from here and from there, and they are found within the political and parliamentary realm.  Determination as to specific arguments, in one direction or another, puts the court in the shoes of those making the political decisions.’

And in the letter of the Attorney General (from December 26, 2000) that was presented before us the Attorney General writes:

‘I am aware of the risks that you describe in the government, in the case that there is no agreement – risks toward neighboring states Egypt and Jordan – who have already made peace, risks toward the total Arab world and the like.  These are understood, although there will also be risks if an agreement is obtained which cannot be realized, even if ‘fortunate is the man who is anxious always’ (Proverbs 28:14 [24]), the question is reward versus loss, and that is the leadership’s decision.’

Thus, against the background of these matters, which are brought in the statements of the Attorney General, and according to the material before us, we have not been convinced that in the matter before us negotiation by the outgoing Prime Minister and the members of his cabinet deviates from the range of reasonableness, and that the hand of restraint or of action is supreme.  But it is natural that the degree of intervention in a matter such as this will take place in exceptional cases.  Beyond this, determination of this question – whose dominant elements are political, and which are found in the center of the social debate in Israel – must take place within the political dialogue in Israel, via the instruments of the Knesset or national vote (HCJ 3125/98 Abed Elaziz Muhammad Iyad v. IDF commander in Judea and Samaria [12].  Indeed in comparative literature, where the constitutional custom is occasionally accepted which limits the powers of the outgoing government, the emphasis is placed on political review of decisions of the outgoing government and not judicial review (see Klein, Ibid [17] p. 285; Boston and others, Ibid [23] p. 641).  And note: our approach is not that there is no place for judicial review.  Our approach is that in the framework of judicial review, and according to its worldview, it is appropriate in the state of affairs as it is before us, and according to the characteristics of the special questions before us, that the review of the decisions of the outgoing government will take place within the Knesset.

15.          It has been argued before us that the Knesset cannot act, and therefore this ‘alternate remedy’ no longer exists.  We cannot accept this position.  The 15th Knesset continues to serve.  It continues its legislative work.  It can continue its review of the actions of the outgoing government.  It has the necessary tools in its hands.  It has been said to us in this context that a draft Basic Law: the Government (Amendment – Qualification to Signing an Agreement) which has not been advanced in the legislative process has been proposed in the Knesset.  It is true, from the moment the Prime Minister announced his resignation the effectiveness of the supervision of his actions is weakened, to the extent it is a matter of the ability to bring about special elections.  At the same time, although the Prime Minister is elected in direct elections (section 3(b) of the Basic Law: the Government) the parliamentary principle of supervision of the Prime Minister and the government still stands (see HCJ 6924/00 Shtenger v. Prime Minister [13]).  Indeed, ‘the Knesset is the parliament of the State’ (section 1 of the Basic Law: the Knesset) and it is its ‘house of legislators’ (section 1 of the Transition Law, 5709-1949).  Despite the resignation of the Prime Minister the Knesset has broad power to supervise the Prime Minister and his cabinet.  This is so according to the existing law, and this is also possible if the existing law is changed – something that is in the establishment and legislative power of the Knesset.  It is found that, it has in its hands, the ability, if it sees fit (and we express no opinion on this), to decide whether the actions of the resigning Prime Minister and the members of his cabinet fit the purpose and the source of power of the outgoing government.

16.          Our conclusion is, therefore, that within the bounds of the petitions before us, and in accordance with the totality of the data before us, the review of the balance between the need for restraint and reserve and the need for action is in the hands of the Knesset.  This conclusion is based, inter alia, on the declaration of the Attorney General, that if any agreement is signed between the representatives of the outgoing government and the representatives of the Palestinian Authority, it will be established in the agreement itself that a condition for the validity of the agreement in the international arena is that the agreement receive the necessary approvals in accordance with domestic law, including the fact that it will be approved by the government and the Knesset.

The conclusion is that there is no legal basis to grant the petitions therefore they are denied.

 

Justice T. Or

I agree.

 

Justice E. Mazza

I agree.

 

Justice I. Englard

I agree.

 

 

Vice-President S. Levin

1.            I agree with my hon. colleague that the petitions are to be dismissed, but my path for reaching this conclusion is somewhat different from his.

2.            I agree that the outgoing government has not deviated from its formal power in negotiating with the Palestinian Authority and I also agree that it is within the power of the Court in principle to intervene in its action according to the rules of public law; according to these rules the Court may intervene in an act of an outgoing government that deviates significantly and categorically from the accepted area of operation of an outgoing government; indeed the question whether there has been such a deviation may also be subject to debate and on this matter there is a fairly wide range of discretion in which the Court will tend not to intervene.  Beyond this range the court may intervene.  However, this is not the only factor which may impact the willingness of this court to intervene.  Given that the subject of the petition is a matter of sharp public debate, the court may, by power of its discretion, refrain from intervening where the Knesset has the power to explicitly limit the power of the outgoing government to undertake an action which it is not proper to undertake.  From the material before us I have not been convinced that the Knesset does not have the power to intervene.  It has even done so in the past; were it not for this consideration I would have had to decide whether we have had placed before us a foundation which justifies the determination that the outgoing government deviated significantly and categorically from the range of activity of an outgoing government.  If I had found this to be so and were it not for the consideration which is similar to the quasi existence of an alternate remedy, which has moved me to dismiss the petition, I would make the orders nisi absolute; in light of said consideration, which in my view is of determinative weight, it is not necessary for me to express an opinion as to the existence of a factual foundation, as stated.

 

 

Justice  J. Türkel

1.            I agree with the mode of analysis of my hon. colleague President A. Barak.  I do not agree with his conclusion: that ‘we have not been convinced that in the matter before us negotiation by the outgoing Prime Minister and the members of his cabinet deviates from the range of reasonableness, and that the hand of restraint or of action is supreme’; and that ‘within the bounds of the petitions before us, and in accordance with the totality of the data before us, the review of the balance between the need for restraint and reserve and the need for action is in the hands of the Knesset’.  Due to the time constraints I will explain my position in a summary of a summary.

2.            I am of the opinion, generally, that the range of reasonableness of a prime minister that resigned and the ministers of his government is narrower than the range of reasonableness of a prime minister and ministers who serve regularly.  Moreover, this range becomes narrower and narrower – and the duty of restraint applicable to them continues to increase – from day to day and from hour to hour with the approach of the end of the term in office of the prime minister.  In this I am going – with a slight change in emphasis – in the path of the President.  However, in my opinion, the conclusion is also derived from this  that the weight of vital public need which is required according to the approach of the President – to which I also agree– in order to justify action by the resigning prime minister and the ministers of his government during the period of transition also continues to increase.  In other words, as the date of the conclusion of the term in office of the resigning prime minister approaches it is no longer sufficient that the public need is merely vital, but the public need must be very vital in order for it to cancel out the duty of restraint which is imposed on the resigning prime minister and the ministers of his government during the period of transition.  It may be possible to also say that as the days go past the ‘burden of proof’ that the prime minister and the ministers of his government are operating within the range of reasonableness, is transferred to their shoulders.  If in the beginning of the term the burden is on those who are challenging their actions to show that there is not a vital public need which justifies doing a specific action, then toward the end of the period the prime minister and the government must show that there is a very vital public need that justifies the action.

3.            I have been convinced that political negotiation between the government and the Palestinian Authority in and of itself – not to mention agreements and understandings that may be reached during its course – may tie the hands of the prime minister and the next government if another prime minister is chosen.  The special elections for prime minister will take place on February 6, 2001; meaning in another 12 days.  The question, which is before us for determination is not whether the negotiation that the government is engaged in with the Palestinian Authority – which is undoubtedly fateful as to the future of the State – is within the range of reasonableness.  The question is whether conducting negotiation in the period that is so close to date of the special elections is within the range of reasonableness.  As to this matter we are not required to make any determination as to the contents of the negotiation, the desired political arrangement, considerations of security and peace and the like.  In my view, the question that is to be determined is whether there still exists a vital public need – and in my view, whether it is a very vital public need – to conduct the negotiation in this time period particularly.  The representatives of the government have laid out many and varied reasons as to why the hands of the resigning prime minister and his government ministers are not to be tied, but they have not pointed to a vital public need – and in fact, have not shown any reason – that would justify conducting such an important and fateful negotiation, which in itself may tie the hands of the prime minister that will be elected (if the resigning Prime Minister is not re-elected) and his government ministers.  In the absence of such vital public need it is to be determined that continuation of the negotiation in the short time period that is left until the special elections deviates from the range of reasonableness and is to be terminated until the elected prime minister and the ministers of his government start their term in office.

4.            Who is meant to hold the sword of review of the policy and the actions of the government?

I also agree that, generally, review of the policy of the government operating within the range of reasonableness and the exercise of its power is placed in the hands of the Knesset.  I will add and say that – and this too is in general – it is better for the court to rarely intervene in such matters.  However, the matter before us is exceptional and unusual and requires us to move outside the area of the rule.

Indeed, in theory, the Knesset has in its hands the legal tools necessary to realize its power of review; however, I have been convinced that in actuality this is not the case.  As has been clarified it has not been possible for 61 members of the Knesset – despite the fact that they are a majority of the Knesset – to advance the legislation of the Draft Basic Law: the Government (Amendment – Qualification to Signing an Agreement), whose purpose is to prevent the progress of the political negotiation.  Without expressing an opinion as to the draft law itself and the question whether it was possible to advance it in the period that passed since it was submitted, in fact the draft law is ‘stuck’ in the depths of the Knesset and its committees.  Today the Knesset is not capable, for one reason or another, of realizing its power of review.

In this situation and when little time remains, therefore, the sword of review is in the hands of this court alone.  It is not entitled to spare itself from the law and withdraw its hands from the decision.  It appears that in such a situation the words of our national poet H.N. Bialik are appropriate.

‘And the hour was the hour of mayhem, of mixing of realms

of ending and beginning, of contradiction and building, of age and youth.

And we the children of the interim, knowingly and unknowingly,

bowed and thanked before both authorities at the same time;

hanging in the balance between these two magnets

all the emotions of our indecipherable hearts then asked the prophet;’

[C.N. Bialik ‘To Achad Ha’am’]

The hour has come for the Supreme Court to be the ‘prophet’ and say its word.

5.            If my opinion were heard I would grant the petitions in the sense that an order would be given which directs the Prime Minister and the government to refrain from reaching agreements, consents or understandings with the Palestinian Authority, whether in a document or whether by another means, and not to create obligations in any way, in the negotiation currently being conducted, which may tie the hands of the prime minister and the government that will be elected.

 

 

Justice I. Zamir

I agree with President Barak that the Basic Law: the Government does not state, neither explicitly nor impliedly, that an outgoing government (which is itself a vague term) is more limited in its powers than a regular government.  By law a government is a government, and the law does not create two types of governments, or more.  So too, after the prime minister resigns as well.  The law grants power to the institution, which is the government, and the change that takes place in the instrument of the institution, which is the prime minister, does not change the powers of the institution itself.

I also agree with President Barak that there is not a constitutional custom in Israel which limits the powers of the outgoing government.  A constitutional custom, like any custom, requires proof.  No proof has been brought for the existence of such a custom.  And the court is not meant to create a custom ex nihilo in a judgment.

Therefore, the question in this case is not a question of power, but a question of discretion.  In other words, according to the law the government today has power like the government of yesterday, including the power to conduct political negotiation, but the question is whether the discretion of the government, in conducting such negotiation, was lawfully exercised.  Is there a legal defect in the discretion of the government which justifies intervention by the court?

The discretion of the government, like the discretion of every minister in the government and every other authority, is limited and guided by the legal rules, and the court is in charge of the fulfilment of these rules.  Inter alia, the government must exercise its powers based on relevant considerations, and not on the basis of foreign considerations, in the framework of the range of reasonableness and in a proportional manner.  These rules apply to every government, including an outgoing government, and according to these rules the court is authorized to review decision of every government, including an outgoing government.

These rules do not change from authority to authority or from matter to matter.  However the application of the rules may change according to the authority and according to the matter.  In accordance with this, the application of the rule of reasonableness, for example, may change when a regular government becomes an outgoing government.  In an outgoing government the range of reasonableness may, in certain circumstances, be narrower.  As a result, the intervention of the court in the discretion of the outgoing government may be broader.  An outgoing government must take into account, daily, that the range of reasonableness which it has in application of its powers may be narrower, and plan its steps accordingly.  Thus, for example, in relating to the appointment of public servants to senior positions or in giving benefits that have no other reason except the reason of the upcoming elections.  It might be said in the language of President Barak that in certain matters the outgoing government must act with proportional restraint.

This is an important rule.  It is innovative, as to date the court has not had the opportunity to state that the range of reasonableness of the outgoing government can be narrower than the range of reasonableness of a regular government.  Time will tell where this rule will lead us.

These petitions do not contain the argument that negotiation by the outgoing government with the Palestinian Authority stems from alien considerations, and even if based on the substance of the matter there is no applicability to the test of proportionality.  However, the petitioners claim that in conducting the negotiation the government has crossed the boundary of the range of reasonableness.  Based on the claim, conducting the negotiation today, by the outgoing government, a short time before the elections is unreasonable to an extreme degree.  Therefore the court is asked to rule that conducting the negotiation, although it was considered lawful by all until a short time ago, has become unlawful after the Prime Minister resigned, and to issue an order which prohibits the government from continuing with the negotiation, or at the very least, to declare that the negotiation is not lawful.  Is it proper for the court to prevent the negotiation?

Before the court examines the discretion that the government exercises in conducting negotiation, and determines if it is unreasonable and unlawful, the court must exercise its own discretion, and decide if it is appropriate for the court to intervene in such a matter.  As is known, this court has discretion, and it is authorized to summarily dismiss a petition, without discussing it substantively, in accordance with certain rules.  Thus, inter alia, the court may and also will, according to its discretion, summarily dismiss a petition because of delay in filing or because an alternate remedy exists.  So too, in the case in which the petition raises a matter of a purely political nature, of the type of matters that are entrusted, by law, or by substance, in the hands of the government or the Knesset.  This case resembles a case where there is an alternate remedy: there are cases in which the alternate remedy is a suit in another court or appeal to a certain tribunal; and there are cases where the alternate remedy is the handling of the matter under discussion in the government or the Knesset, depending on the substance of the matter.  In such matter another entity is considered more appropriate and better suited than the court to handle the matter.  Foreign relations of the State are, and have always been, a classic example of such a matter.  Thus, as far as is known in every court and every state.  In Israel, as well, this court has handed down many decisions in which it summarily dismissed petitions because of the political nature of the petitions, and in all of this, many of the petitions dealt with relations between the State of Israel and the Palestinian Authority.  And this is not because the court does not have the authority to intervene in such a matter.  It has the authority.  But the authority is entails discretion.  Indeed, the court can exercise its discretion, in a special case, even to intervene in a purely political matter.  But in each case the court must exercise its discretion and decide if it is proper, under the circumstances, to intervene in such a matter.  Meaning there are two stops on the pathway of the court, in these petitions as in every other petition: at the first stop it must exercise its discretion and decide if it is proper to intervene in the substance of the petition; at the second stop, it must examine the discretion of the government or of another authority, according to the issue.  The court must pass the first stop, before it reaches the second stop.  In these petitions the court still finds itself, in my opinion, at the first stop.

During the course of the proceedings, the court asked the petitioners if they know of another case in any state, at any time, where a court intervened in political negotiation which was being conducted by a government and prohibited it with an injunction from conducting the negotiation or declared that the negotiation is unlawful.  The petitioners’ response was, that they searched, but did not find.  I will risk surmising that they have not found it because it does not exist.  As far as is known, there was no such case even in the states where there exists a doctrine which establishes that the outgoing government only has the powers of a maintenance government.  And why? Because even in those countries it is accepted that the review of the conduct of negotiation by the outgoing government, even where the claim is made that the negotiation is unjustified and even unreasonable, is in the hands of the elected house, or directly in the hands of the public, and not in the hands of the court.  In a democracy the court has a very important role, but a limited role and it is not meant or able to solve every mishap and provide salvation for every crisis.

The petitioners ask that the law come out of Zion.  And I respond, not this law, as it is not the law of truth.  Generally, the court in Israel, like the court in other countries, does not have the capacity to assess whether this negotiation or another is reasonable or whether is crosses the boundaries of the range of reasonableness, and the court is not allowed to take upon itself the responsibility of granting an injunction proscribing the political negotiation.  A court injunction, which proscribes or terminates political negotiation, in itself may be unreasonable or irresponsible.

I do not find it necessary to provide a long explanation as to the significance and ramification of the court’s intervention in political negotiation, inter alia, in terms of the status and role of this court in society.  Those who need to comprehend, will comprehend.  However, in order to explain I will linger briefly on the central claim of the petitioners according to which the very conduct of negotiation by the outgoing government, even without signing an agreement, is unlawful.  Why? Because in such negotiation the government presents political positions, such as, willingness to concede on this matter or another, and this can make it more difficult for the next government.  However, if this is so, would it be unlawful if the prime minister of the outgoing government publicly declares, without negotiation, for example, during the election campaign, that the government is willing to make certain concessions?  Such a declaration, to the whole world, may also make it more difficult for the next government, just like presenting a position in the framework of political negotiation.  Is it proper therefore, for the court to issue an order which prohibits the prime minister of the outgoing government from presenting his policy before the broad public? The court too has a range of reasonableness.

In conclusion, these petitions deal with political negotiation, of a purely political nature, which divides the public in a sharp debate.  Whether it is appropriate to conduct such a negotiation or not, and in this matter each person lives by their own beliefs, in any event the government has notified the court that if the negotiation leads to an agreement, it will be explicitly stated in the agreement that it will not be valid unless it is approved by the government, and then is later approved by the Knesset, and will also fulfill all the conditions that were determined for such an agreement in the laws of Israel.  In such a case, the government and the Knesset will discuss the agreement substantively and before it is given any validity.  Moreover, even at this stage while the negotiation is going on, the Knesset can intervene in the negotiation as it sees fit.  That is its power.  Therefore, it is also its responsibility.  Therefore, this is also the right path to follow.  Under such circumstances and taking into account the rest of the circumstances of the case, I believe that no court in the world would take it upon itself to intervene and terminate the negotiation by way of order or declaration.  In these circumstances, this court also does not need to do so.  Therefore, I agree with President Barak that the petitions are to be denied.

 

It was decided as per the opinion of President A. Barak, and against the dissenting opinion of Justice J. Türkel.

 

Petitions denied.

 

1 Shvat 5761

 

Faiglin v. Cheshin

Case/docket number: 
HCJ 11243/02
Date Decided: 
Thursday, January 9, 2003
Decision Type: 
Original
Abstract: 

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.”

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Full text of the opinion: 

 

 

.

 

 

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

 

 

 

 

Full opinion: 

Emunah v. Prime Minister

Case/docket number: 
HCJ 5853/07
Date Decided: 
Thursday, December 6, 2007
Decision Type: 
Original
Abstract: 

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.

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

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 con