Communications

 

 

 

Justice M. Cheshin

He was born on March 25, 1992. When he was two years old, we improved his appearance and gave him understanding. Today he is about seven and a half. Long may he live. I am, of course, referring to the Basic Law: Human Dignity and Liberty, the law enacted in honor of human dignity and liberty. Human dignity is this central pillar of this law. The law is infused with human dignity. Human dignity gives it life. I had hoped that the petition before us would drive a stake deep into the bedrock of our law and that, above ground, this stake would be a mast, flying the flag of human dignity. All would know – all over the land – that the beginning, the middle and the end are human dignity. That in the absence of human dignity there is neither man nor society. This was my hope; this was my expectation. I am sorry that we missed this opportunity. We will not despair; we wait for tomorrow.

The Facts

2.    Our case concerns a screenplay written by the playwright Motty Lerner. It is called “The Kastner Trial.” Israel Television was scheduled to broadcast, and did broadcast, the screenplay in three parts, beginning on November 7, 1994 – the 50th anniversary of Chana Szenes’ murder by the Gestapo. The screenplay is rooted in the actual events that occurred in Hungary during the Second World War, in 1944, and during the Kastner trial, which took place in Israel from 1953 through 1958.

3.    First, there was the terrible tragedy that befell the Jews of Hungary during the Second World War – the murder of these Jews by the Nazis and the attempts made to rescue some of them from this inferno. This tragedy was the background to the indictment filed by the Attorney-General of Israel against Malchiel Greenwald, charging him with defaming Dr. Yisrael Kastner. In 1944, Dr. Kastner was one of the leaders of Hungarian Jewry. Greenwald distributed a pamphlet in which he publicly accused Dr. Kastner of being guilty of the following four charges, in the words of the court:

(a) Collaboration with the Nazis;

(b) The “indirect murder” or “preparing the ground for the murder” of Hungarian Jewry;

(c) Profiteering with a Nazi war criminal [S.S. Commander Kurt Bacher];

(d) Helping that criminal evade punishment after the war.

Greenwald’s trial was conducted in the Jerusalem District Court, with President B. Halevi presiding. Ultimately, President Halevi decided to acquit Greenwald of three of the four counts of defamation. Greenwald was only convicted on the third count. In recognition of his acquittal on all the other counts, he was fined the token sum of one Israeli Lira. DC (Jer) 124/53 Attorney General v. Greenwald [55].

The Attorney-General appealed the district court’s judgment. In a panel of five judges, the Supreme Court accepted the main part of the appeal. Greenwald was convicted of charges (a) and (b). With respect to charge (a), he was convicted by a majority opinion of four against one. His acquittal on charge (d), however, remained intact. See CrimA 232/55 Attorney-General v. Greenwald [47].

4. Motty Lerner’s screenplay is the third floor of the story, built on the two floors underneath. The first floor is the tragedy that struck Hungarian Jewry in 1944. The second floor is the drama played out in the Jerusalem District Court during the Greenwald trial, the trial known as the “Kastner Trial.” The third floor is the drama on stage – Motty Lerner’s screenplay “The Kastner Trial.” Whoever saw the play on television – and I saw it – knows that the playwright is particularly gifted. And we know that the play’s impact on viewers is directly proportional to the talent of the playwright and the power of the play.

5. One paragraph in the play particularly troubles the petitioners here. We refer to the part where Mrs. Catherine Szenes, the mother of Chana Szenes, is cross-examined. Mrs. Szenes appeared as a witness in the trial and was cross-examined by Greenwald’s attorney. During her testimony, Dr. Kastner repeatedly interrupts her, until the climax in which he accuses Chana Szenes of betraying her comrades to the Gestapo. The script reads as follows:

“Kastner

(angrily, at Catherine Szenes):

How dare you criticize me? Who even asked your daughter to come to Budapest? What did she think she would do? Due to her own recklessness, and the arrogance of those who sent her, she crossed the border like a new recruit and was captured five minutes later. And I will tell you who told the Hungarian police that Palgi and Goldstein were on their way to me. It was her! Your daughter, Chana Szenes, the heroine! She broke under interrogation and revealed everything. I can imagine the sort of tortures she underwent. Nobody could have withstood such torture. But it was not because of me that Palgi and Goldstein were arrested, but because of her!

Catherine Szenes:

Not true!!! “

These lines formed the basis of the petitioners’ claim. The petitioners request that the paragraph be deleted from the play. They claim that the statement that Chana Szenes betrayed her two comrades, Peretz Goldstein and Yoel Palgi, to the Gestapo, is a lie, and that this will irreparably defame Chana Szenes. In fact, they claim, Chana Szenes bravely endured severe torture at the hands of the Gestapo and did not divulge secrets to her torturers. This was the case with Goldstein and Palgi, and it was also the case regarding the secret code that she had for British intelligence transmissions, which the Nazis wanted in order to transmit disinformation.

6.    Petitioners submitted evidence to prove their claim. In fact, it is undisputed that Kastner’s statement in the play was false. There is not even a shred of evidence that Chana Szenes betrayed her comrades to the Gestapo. Thus, we may dispense with the first floor, the events that occurred in Hungary in 1944. Proceeding to the second floor – the trial itself – all agree that, at Greenwald’s trial, Kastner never made the allegation attributed to him by Lerner. In other words: Kastner’s words in the play, as cited above, have no basis in reality and are no more than a figment of the playwright’s imagination.

7.    Motty Lerner and the Broadcasting Authority were obviously aware of the sensitivity of televising the play. Thus, each segment was prefaced by the following paragraph:

The events depicted in this film were inspired by the Kastner-Greenwald trial. Nonetheless, the movie should not be regarded as a recreation of these events, but rather as a drama of historical fiction.

Furthermore, the play was shown at the Tel‑Aviv Cinematheque. At the time of the screening, an explanatory sheet was distributed to the audience, entitled “The Author’s Apology.” The following is Motty Lerner’s explanation of the screenplay:

The film ‘The Kastner Trial’ is a fictional drama inspired by events that actually occurred. The drama strives to integrate these historical events with the behavioral patterns of dramatic characters. Casting events in this manner obviously necessitated divergence from how the events actually occurred and, as such, posed a difficult dilemma concerning the degree of historic accuracy required in an artistic creation.

This dilemma may be avoided by responding that the film is merely an artistic creation, not a historical document. As such, it must be assessed according to artistic standards, as opposed to historical ones. Even so, there is no escaping the fact that the script offers an interpretation of events which are the subject of sharp controversy; clearly many viewers will choose to see it as interference with the historical record, rather than simply as an artistic creation. Given that, while writing the script, I wavered between these two approaches. As such, I think that I should clarify some of the rules that I set for myself.

As a rule, I strove to be as accurate as possible. Even so, and specifically with respect to scenes that took place behind closed doors, where I was unable to discover what had actually happened, I assumed poetic license to recreate events with my own imagination, with the reservation that the events must be consistent with the historic reality. I did my best to utilize this freedom in order to give the characters depth, and to put the events that actually occurred into a sharper focus. My working principle was that I would not facilitate my task by deleting events that contradicted my own political, historical world-view. This was not just because I wanted to act with artistic and intellectual integrity, but also because it was precisely those events that challenged my political views that created a more authentic, penetrating and moving drama.

I hope that I have succeeded in finding the optimal balance between the historical imperatives, the need to express my own personal worldview, and my commitment to the quality of the artistic creation.

Motty Lerner (emphasis added).

About ten days before the first showing, on October 28, 1994, an article appeared in the weekend section of the newspaper Yediot Aharonot, entitled “Did She Break?”

A huge controversy is liable to erupt following the new television series, which will accuse the paratrooper Chana Szenes, who was sent to the aid of Hungarian Jewry during the Holocaust, of breaking under interrogation and betraying her comrade paratroopers to the Fascist police. The accusation comes from the mouth of Yisrael Kastner, the organizer of the rescue train from Budapest and the man “who sold his soul to Satan.” Author Aharon Meged: “this is a travesty and lies.”

Ms. Aspa Peled, the author of the article, interviewed Mr. Lerner:

[Peled:] “... Motty Lerner, is the legend a lie?

[Lerner:] I see myself as someone disclosing the subjective truth of Kastner and the members of the Rescue Commission, who were trapped in a web of mythology and myth, one which they could not escape. Perhaps they were even afraid to do so. It seems to me that today we have the maturity to understand that Chana Szenes was indeed a great heroine, even though she may have broken under interrogation. In the final analysis, how many of the Israeli soldiers who fell prisoner to the Egyptians or the Syrians did not break under interrogation? In my view, this in no way detracts from her bravery.

[Peled:] So was she a traitor or not?

[Lerner] I was not present at the interrogation and I do not know. What is clear is that Chana crossed the border and she had one contact address that she had to reach – Kastner. Three days later, Goldstein and Palgi reached Kastner without him even knowing that they were on their way to him. I have no tools with which to examine the matter and so in the film, I present it as Kastner’s opinion.

[Peled:] But Kastner never said that.

[Lerner:] Kastner was convinced that Chana had turned the paratroopers in. This I know from hints in his writings.

In reaction to Mr. Lerner’s last comments regarding the “hints” in Dr. Kastner’s letters, we note that this argument, nor anything similar to it, was ever raised at the trial before us, neither directly or even by implication. All agree that the words attributed to Dr. Kastner in the play are false, both in that cursed year 1944 in Hungary, and in Greenwald’s trial. There is not a shred of evidence that Chana betrayed her comrades to the Gestapo. Quite the opposite. Furthermore, Dr. Kastner never made the statements attributed to him by the screenplay’s author. In plain language, it may be said that the accusation leveled at Chana Szenes by Dr. Kastner in the play is defamatory.

This completes our review of the facts, some of which we shall revisit during the course of our comments.

The Broadcasting Authority’s Duty and Our Authority to Disallow the Broadcast

8.    Prior to entering the chamber of values and truth, we will say a few words regarding our authority to order the Broadcasting Authority to comply with the petitioners’ request. No one questions our authority to prevent the Broadcasting Authority from televising the disputed paragraph. The Broadcasting Authority was entitled to refuse to broadcast “The Kastner Trial,” either in its entirety or in part, and its decision to reject the petitioners’ request to delete the paragraph in question is subject to our judicial review. The question is not whether this is the sort of matter that the High Court of Justice can review and reverse. Up to this point, my colleagues and I agree. But from here on, our ways part. My colleagues argue that the petitioners did not succeed in crossing the threshold; in my opinion they indeed crossed it, and with room to spare.

The Issue in Dispute

9.    These are the two forces, each pulling in different directions. On one end, Motty Lerner’s freedom of expression and artistic creation and, on the other, human dignity. The dignity of Chana Szenes, a young woman murdered by the Gestapo, who is unable to come and defend her dignity. Shall we accede to the petitioners’ request and enjoin the Broadcasting Authority from broadcasting that paragraph, about one minute long, since it violates Chana Szenes’ dignity? Or, in recognition of the creative author’s freedom of expression and creation, shall we refuse to grant their request?

For the purpose of examining the matter, let us position all the leading actors on stage, present them individually, and listen to their monologues. All being assembled on the stage, we will allow them to converse among themselves and we will then know whose rights prevail. We shall divide our comments in this respect into three sections. First, we shall discuss freedom of expression and the right to reputation, as concepts and legal principles. We shall then examine the hierarchical status of freedom of expression and the right to reputation. Finally, we will have them confront one another, so that we can measure the power of one against the other.

We will begin our discussion by examining the freedom of expression and creation, and thereafter we shall proceed to human dignity.

Freedom of Expression and Artistic Creation

10. Freedom of expression and artistic creation have deep roots in Israeli law. We need not recap their origin; this has been explained on many occasions. I have expressed my own opinion regarding certain aspects of the freedom of expression and the conflict between freedom of expression and other values, occasionally at length, in at least three places. They are, in chronological order, HCJ 606/93 Kiddum [28] at 17; HCJ 4804/94 Station Film [12] at 688 {55}; FH 7325/95 Yediot Acharonot v. Krauss [48]. In these three decisions, as in this case, I was in the minority. My opinion has not changed. While I obviously do not contest the basic right of freedom of expression and artistic creation, I nonetheless feel that my colleagues have gone too far in the protection they grant freedom of expression, in the process curtailing other, extremely important rights.

11. I will not repeat what I wrote and will limit my comments to the issue at hand. Freedom of expression is not a single unit. It is a federation, a federation of rights and interests. There is the chronicle and the speech, the polemic article, fiction and poetry, criticism of the government and commercial advertising. There is the procession and the demonstration, the play and the film. Each of these modes of expression reflects a particular value, and one interest is not identical to the other. Commercial advertising does not benefit, nor should it, from the same protection granted to a chronicle. Instead of referring to freedom of expression in the abstract, we must pick out the particular component relevant for our purposes. Obviously, our concern is not merely with labels – fiction, non‑fiction, poetry or demonstration. It is incumbent upon us to conduct a deep investigation in an attempt to understand the interest requiring protection, its substance and the substantive content of the right presented before the Court. It was in this context that I wrote in Station Film [12] at 689 {56-57}:

In the house of freedom of expression there are various modes of expression and speech, which have a place in the sanctuary, and there are other modes of expression and speech that do not. When freedom of expression clashes with opposing interests, the various modes of expression and speech will wage the battle, each with its own intensity. Freedom of expression is not an idol, before which we should prostrate ourselves wherever we encounter it. Upon concluding that the matter at hand involves one of the derivatives of freedom of expression – an expression that finds shelter under the wings of the broader principle – we test its mettle before sending it out to battle with conflicting interests. Our way is the way of atomization, or, if one prefers: the way of molecularization - dividing the field of freedom of expression into individual categories, according to the type of interest which we protect. There is an article in a newspaper and then there are belles-lettres, there is a description of events and then there is a speech, there is a commercial advertisement and then there is criticism of the regime, there is societal criticism and then there are parades. Each one of these, and others besides them, reflect a certain interest, and the strength of the right will be equal to the strength of the interest. The same applies to modes of expression and speech: there are newspapers and then there are films, there is theatre and then there is television, there is radio and then there is the stage. 

In the same vein I also wrote:

[P]eople often try to explain the nature of one type of freedom of expression using interests that support freedom of expression of another type, and thus we find ourselves mixing apples and oranges. Hence, for example, when considering freedom of the press or a documentary report on certain events, it is simple for the Court to establish the boundaries and strength of freedom of expression in a way which is commensurate with the issue in a manner compatible with the issue being discussed before it ‑ an issue forming one of the pillars of the democratic regime.

Id. At 689 {57-58}.

See also Id. at 688-91; Kiddum [28] at 25‑28; Krauss [46] at 78-80.

12.  Let us return to our case. Which kind of freedom of expression are we referring to? If you will, what is the interest that freedom of expression, in this case, places against other conflicting interests? We are dealing with a screenplay, but not one that is the fruit of the playwright’s imagination from beginning to end. Our concern is with a special kind of play known as a docudrama. In other words – a creation including both drama and documentation. Facts based on reality interpolated with dramatic foundations. The veneer is dramatic, but actual events, which all or at least some of the spectators have heard of and are familiar with, are inseparably woven into the drama. Needless to say, in this kaleidoscope of life and imagination, each docudrama is different. There is no fixed degree of imagination or historical facts; it is entirely up to the creator, who may broaden or narrow either.

13.  “The Kastner Trial” is deeply rooted in historical facts. The plot is basically true, taken from “real life,” and the heroes of the play appear with their own names. Thus, the judge is Judge Binyamin Halevi, the prosecutor is the Attorney-General, Haim Cohen. The attorney for the defense is Shmuel Tamir. The accused is Malchiel Greenwald. Ms. Catherine Szenes, Ms. Hanz Brand, Yoel Palgi and, most importantly, Chana Szenes, also appear in the play. Motty Lerner, the playwright, took specific real life events and cast them into dramatic format. The innocent viewer, as well as the informed viewer, do not know which parts of the play are true and which are false. Did Kastner really say the words attributed to him? Is there any factual basis for Kastner’s allegations against Chana Szenes, or perhaps Kastner is not telling the truth? The viewer does not know.

This is the artistic creation before us; it contains elements of both life and drama. Given what we know about the play, I reject Lerner’s statement that the play is “a fictional drama inspired by events that actually occurred.” The drama is by no means fictitious and the “events that actually occurred” were not just a source of “inspiration” for the author. They are an integral, indistinguishable part of the creation. Nor can I concur that “the script offers an interpretation of events which are the subject of sharp controversy”. The issue before us is not disputed – all agree that Chana Szenes did not betray her comrades to the Gestapo. I also find it difficult to accept Lerner’s statement that “I strove to be as accurate as possible.” His intentions may have been commendable, but his actions were not. In the disputed paragraph Motty Lerner was not just inaccurate – he spoke untruthfully. This is not a question of “poetic license,” as Motty Lerner claims. Motty Lerner did not even comply with his own commitment that “the result of the events must be consistent with the historic reality.” Kastner did not say the words that Lerner attributed to him. Nor are the words substantively correct. Motty Lerner thought that Kastner’s outrageous words in the play would raise the dramatic tension; this indeed is their effect. I am, indeed, at a loss to find any other reason for the scene in which the actor portraying Dr. Kastner lashes out at Chana Szenes. The actor playing Dr. Kastner was Sasson Gabbai; his performance was superb and moving and anyone who saw Dr. Kastner in the play making his accusation against Chana Szenes could not fail to be convinced that his words were true. I find it difficult to accept the claim that “The Kastner Trial” is a “fictional drama.” The drama is far from being “fictional.”

14. This cocktail of imagination and reality situates the play somewhere between a documentary‑chronicle and a dramatic creation. As its name indicates, it is a docudrama, with the primary emphasis being on the documentary‑chronicle component. Chana Szenes was imprisoned and tortured by the Nazis. Yoel Palgi and Peretz Goldstein were captured by the Nazis. Chana Szenes was executed by the Nazis. All of these are historical facts, and they are all woven around Dr. Kastner’s outrageous accusation thrown at Chana Szenes’ mother. If all of the surrounding facts are true, then wouldn’t the innocent viewer believe that statement to be equally accurate? Why wouldn’t one believe that Dr. Kastner had actually said those words and why wouldn’t he believe that Kastner knew, or believed, that Chana Szenes had betrayed her friends to the Nazis? It would have been different had Kastner stood up in the middle of Catherine Szenes’ testimony, attempted to open his mouth and then begun to float around the room, like a character out of one of Marquez’s books. But this was not the case.

Personally, it seems to me that the playwright cannot hide behind the label of a “fictional drama,” nor would it be appropriate for us to allow him or her to do so. The words attributed to Dr. Kastner regarding Chana Szenes are clearly perceived as part of the docudrama’s documentary aspect. In any event, we certainly cannot see this as belonging to the dramatic part of the play, distinct from the reality being displayed on stage. If we imagine the documentary and dramatic parts of the play as celestial objects with their own individual gravitational pull, then Dr. Kastner’s fabricated statement revolves in a “figure 8” around these two bodies. In other words, Dr. Kastner’s fabricated statement purports to have a little of this and a little of that: a description of the reality, as it supposedly was – in Hungary of 1944 and in the Jerusalem Court – and dramatic elements. The viewer does not know whether he or she is viewing reality or a figment of the playwright’s imagination.

15. Freedom of speech and of creative expression have therefore produced a sort of hybrid creation, a documentary presenting the truth as it (supposedly) was, as well as drama which is the product of the playwright’s imagination.

16. Until now we have discussed freedom of speech and artistic creation. We shall now proceed to examine a person’s right to his or her good name.

Human Dignity –One’s Right to One’s Good Name

17. A person’s deep, psychological need for a good reputation, a natural yearning, has long been legally recognized. Our nation has been escorted by rabbinic dictums such as “whoever publicly shames his neighbour is deemed to have shed blood” Babylonian Talmud, Tractate Baba Metzia 58b [78]. Similarly, “all who descend into Gehenna reascend, except for three persons who descend and do not reascend... he who publicly shames his neighbour…”Id. [78]. Indeed, “a person’s good name and dignity may be dearer to him or her than any other asset” CA 214/89 Avneri [16] at 856 (Barak, J.) A person’s dignity and reputation are at least as dear to that person as his or her body. Just as a person has a right to bodily integrity, so too is a person entitled to protect his or her dignity and good name. Maligning a person’s dignity and reputation can be likened to rape or an indecent act performed on a person’s body. The difference between both forms of damage is only that, in the case of rape, one first damages the body and only after the soul. In the case of a person’s dignity and reputation, it is the soul that is initially damaged, which may lead to the body being harmed as well.

18.  A person can look to two legal sources for recognition of his or her right to reputation: namely, the Basic Law: Human Dignity and Liberty and the Defamation Law, 1965. We shall discuss the Basic Law at a later juncture. Infra. paras. 28 and 29. For now, we shall turn to the Defamation Law.

19.  The Defamation Law expressly and specifically sets out the rights a person has to his or her good name. The law itself balances between a person’s reputation and his fellow’s freedom of expression. If Chana Szenes were with us today, I do not have the slightest doubt that she would have a claim, under the Defamation Law, against the playwright and against the Broadcasting Authority. As defined in section 1(1) of the Defamation Law, defamation is anything the publication of which may “lower a person in the estimation of others, or make him or her the object of hatred, contempt, or ridicule on their part.” Defamation Law, 1; or a publication which may “bring a person into disrepute because of acts, conduct or qualities attributed to him or her.” Sec. 1(2) of the Law. As such, the statement of Dr. Kastner in the screenplay constitutes defamation. There are those who will claim that it is not for us to pass judgment on one who suffered and, in his pain, revealed such secrets. As our rabbis said: “Do not judge thy neighbour until you are in his place” Mishnah, Ethics of our Fathers, 2:4 [80]. One could even claim that, as such, neither the playwright nor the Broadcasting Authority defamed Chana Szenes. Even having cited the words of our rabbis, however, it would seem that there are few who would dispute that the words uttered by Dr. Kastner constitute defamation.

Were Chana Szenes with us today – seventy-eight years old – she would be able to petition this Court to enjoin the statement attributed to Dr. Kastner. Chana Szenes, however, returned her soul to God in suffering, after being tortured and murdered, on November 7, 1944, at the age of twenty-three. Chana Szenes is no longer with us, and the question is only whether there is another who can file suit to reclaim her dignity. The following people have claimed to represent Chana Szenes’ dignity: In HCJ 6126/94 the petitioners are her brother, Giora Szenes, his two sons Eitan Szenes and Dr. David Szenes, as well as Reuven Dafni, the chairman of Yad Vashem, who, in 1944, parachuted into Yugoslavia with Chana Szenes. In HCJ 6143/94 the petitioners are Ms. Nadia Matar and the Women’s Association for the future of Israel (“Women in Green”).

What is the law regarding the defamation of the dead?

20. It turns out that the law has changed in this matter. Initially, at the time of its enactment, the Defamation Law provided:

Defamation of a          Deceased          Person

5.  Where defamatory matter is published after a person’s death, it shall be treated as the defamation of a living person. The spouse, children, parents, brothers and sisters of the deceased shall be regarded as persons injured by the defamation.

This is to say, defamation of the deceased was the same as defamation of the living, except that the right to file for judicial redress was exclusively reserved to the deceased’s spouse, children, parents, brothers and sisters. Under this law, Chana Szenes’ brother, Giora Szenes, was fully entitled to demand that the disputed paragraph be expunged from the play. This was in contrast to the previous law. See section 6 of the draft proposal for the Defamation Law-1962.

The law, however, was amended in 1967, see Defamation Law (Amended Version), 1967, and the right to file suit for the defamation of a deceased was curtailed. The following is the current language of section 5 of the Defamation Law:

Defamation of a Deceased  Person

5.  Defamatory statements regarding a person that are published after his or her death shall be treated as the defamation of a living person, but do not constitute cause for a civil claim or a private criminal complaint, and no indictment shall be submitted for an offense under this section unless it is requested by the deceased’s spouse or one of his children, grandchildren, parents, brothers or sisters.

This amended Defamation Law contains three principles. The first is that defamatory matter regarding a dead person “does not constitute cause for a civil claim or a private criminal complaint.” The second is that charges may be laid for defamatory statements regarding the deceased, after a request by the deceased’s spouse or one of his children, grandchildren, parents, brothers or sisters. The third principle is that, subject to the first two principles, defamation of the dead shall be treated as defamation of the living. We regard this third principle as constituting the heart of the law: essentially, defamation of the dead is the same as defamation of the living, even though, procedurally speaking, the law imposes restrictions on the ability to seek legal redress, either in a civil claim or in a criminal indictment.

To complete the picture, we will also mention section 25 of the law, which deals with the institution of legal proceedings by one of the deceased’s relatives, within a limited period after the death of the deceased. It also deals with the continuation of defamation proceedings begun by the deceased, if he or she passed away prior to the termination of such proceeding.

21. What does all of the above tell us? We see that defamation of the deceased is subject to the same law as defamation of the living. This is the credo of the law and its message. This is the version of human dignity presented by the Defamation Law. Defamation of the deceased does not constitute grounds for a civil claim or a private criminal complaint, but sealing off the road to the Court does not detract from the substantive prohibition against publishing material defamatory of the dead and does not lessen the statutory moral‑legal condemnation of such defamation.

Defamation of the dead does not provide grounds for a civil claim – a claim for damages, an injunction or a declaratory judgment within the framework of the civil law. However, I am unable to see any good reason why a person should not be able to file suit within the framework of public law, provided that the issue concerns a body or person subject to public law. The Broadcasting Authority is indeed exempt from the yoke of private law with respect to defamation of the dead, as is any other person or body operating within the realm of private law. However, as a body which is also subject to public law, it must be held legally accountable within the parameters of that law.

22. Thus, the Defamation Law does not prevent the petitioners from petitioning the High Court of Justice for a public law remedy against the Broadcasting Authority. Granted, the petition of the brother, Giora Szenes, is not equivalent to the petition filed by the Women in Green. By its very nature, the latter is a public petition, relating to the collective interest. As such, it raises the issue of the public interest regarding the publication of a statement defaming Chana Szenes. In other words, in this petition, the defamation of Chana Szenes does not appear as an independent and exclusive basis for the legal claim, but rather as a component of the public interest in the wider sense of that concept. The public interest includes many other elements besides the protection of a person’s good name, including the freedom of expression and the playwright’s freedom of artistic creation. In this petition, the right to one’s good name must battle all the other components of the public interest. It is only then, if it finds itself victorious in this battle, that the right to a good name can wage its war against the freedom of expression and of artistic creation.

Giora Szenes’ petition, for its part, is different. It is, by its very essence, a private petition, one that raises the interest of the individual. I would go a step further and say that it is an intimate petition. Should we be surprised when a son or daughter comes to protect the honor of his or her mother or father? Does it astonish us when a brother battles for his sister’s dignity, or when a sister fights for her brother’s dignity? Surely, a father and mother would protect their children in the same way. While Giora Szenes refers to his sister as “the soldier-poet who sacrificed her life on the altar of human dignity and liberty,” he makes it equally clear that his petition is focused on the “maligning of the dignity of Chana, of blessed memory, and that of her family,” and that the injury “is further intensified by the series being scheduled on the fiftieth anniversary of her execution.” It is no wonder that, in his affidavit, Giora Szenes speaks of “my sister” and states that, “since becoming aware of the scheduled broadcast, I feel as though my world has fallen apart and that I am powerless.” This is the statement of a brother afflicted.

As such, the petition of Giora Szenes raises the issue of defamation in its purest sense, as a right to reputation standing on its own, as though Chana Szenes herself had petitioned the Court. This is not the nature of the petition of the Women in Green, which seeks to protect the right to a good name as a component of the public interest. Giora Szenes carries the sword of reputation, not the sword of the public interest. It is with this sword that he sets out to battle.

Giora Szenes brings a private claim in the realm of the public law. Chana Szenes is unable to file suit to reclaim her dignity, and her brother does so in her stead. Here, Giora Szenes and Chana Szenes are one and the same. The same applies to the other relatives in section 5 of the Defamation law.

23. A question: are the relatives named in section 5 of the Defamation Law the only ones who possess a “private right” in the public law realm? I would not restrict the right to these relatives exclusively. There are situations in which a friend is like a brother to the deceased and if “spouse” means a husband and wife who are legally married, then it would seem that even those who are not legally married, but who are also a couple, have a private right within the public law realm. However, we need not decide this question, since it is Giora Szenes, Chana Szenes’ brother, who has come to protect the dignity of his sister.

24. A final word: “Defamatory statements regarding a person that are published after his or her death shall be treated as the defamation of a living person.” Does this apply to everyone that has lived since the dawn of mankind? Can one defame Abraham? Moses? Miriam? Yael, the wife of the Keni? Samson? King David? Jeremiah? Judah the Maccabee? Hillel the Elder? Bar-Kochba? Maimonides? Spinoza? Does the defamation of any of these figures confer rights under public law?

It could be argued that the question is whether all of these, our nation’s historical figures, are included in the definition of “person” as provide by the law. It could further be claimed that a distinction must be made between a “person” and a “historical figure.” The law intended to protect a “person” and not a “figure.” All of the above are “figures,” not “persons,” as defined by the law. When then does a person become a “historical figure”? Is Ben Gurion a “figure” or a “person”? The question is far from simple and at this stage we shall be satisfied with the tentative determination that a “person,” within the meaning of the Defamation Law, is someone whose family members, as specified in section 5, bring a claim of defamation. The determination of those entitled to file suit establishes the confines of the right and delineates the border between a “person” and a “figure.”

Another criterion for defining a dead “person,” for the purposes of defamation, is whether there are people alive who knew him or her personally. For as long as there are people living who knew the deceased, he or she continues to live as a “person.” As the poet Chanoch Levin wrote in “When My Eyes Shall Grow Dark,” in his book The Lives of the Dead (1999):

When my eyes shall grow dark

Draw my dead eyes

Towards your open eyes

And welcome my lifeless image into your embrace,

…

…draw my eyes

my dead eyes towards your eyes

there I will live a little longer

I will see through your living, seeing eyes

I will see the world that I cannot see

The world I so loved, and now

It is lost to me, and I am no more,

Only my dead eyes peering through your seeing eyes

In your living eyes, my dead eyes

live a little more, so long

as you will live

I too live, so long

as you will remember,

so long.

In this context we cannot but refer to the wonderful legend of Choni the Circle Maker who was overtaken by slumber and slept for seventy years. When he woke up there was no one that knew him, and he knew no one, as his generation had already passed away. “His resolve was weakened, begged for mercy ‑ and died.” Babylonian Talmud, Tractate Taanit, 23a [81]. And so it is in every generation. “And Joseph died, and all his brethren and all that generation” (Exodus, 1:6 [82]); and immediately following: “Now there arose a new king over Egypt who knew not Joseph.” Id. Thus it was in the days of the prophets: “And Joshua the son of Nun, servant of the Lord died, being an hundred and ten years old ... And also all that generation was gathered to its fathers; and there arose another generation after it which knew not the Lord nor yet the work which He had done for Israel.” Judges 2:8, 2:10 [83].

Needless to say, this question does not arise in the case at bar. Chana Szenes’ brother, her own flesh and blood, stands before us, and demands that his sister’s dignity be restored. These being the circumstances, is it possible or appropriate that we refer to her as a “figure”? There can be no doubt – Chana Szenes is a national heroine, a historical figure. We were educated through her heritage and sang her songs. This is the Chana Szenes of the petition of the Women in Green. However, this is not the case in the private, personal petition of Giora Szenes.

Intermediate Summary

25.  Up to this point we have addressed the freedom of expression and a person’s right to reputation as substantive legal concepts. They are independent principles in their own right, which grant rights to some and obligate others. They also serve as foundations for the interpretation of statutes and case law. They are interpretative principles both in the narrow sense and in the creative sense. However, the examination of the essence of the rights is not sufficient. Given our awareness that these two rights will come into direct conflict, we must further examine their hierarchical status in the legal system and whether one of the two has prevalence over the other in the legal hierarchy, or whether they share the same status in the legal pyramid. Deciding this question is a prior condition for preparing the rights for the struggle in which they are to engage. We will therefore examine the legal hierarchy of the rights, and we will begin with freedom of expression.

Human Dignity – Freedom of Expression’s Hierarchical Status

26.  Until the enactment of the Basic Law: Human Dignity and Liberty, the right to reputation and the right to freedom of expression possessed equal legal status. The right to reputation was already enshrined in statute – in the Defamation Law, as well as in preceding case law. Freedom of expression, in contrast, was exclusively a product of case law. Of course, that case law had the status of law. In other words, with the exception of the internal balancing tests within the parameters of the law itself, all of which defined the scope of freedom of expression, it was an accepted presumption that freedom of expression could only be curtailed or circumscribed by force of Knesset legislation. See e.g., CrimFH 537/95 Ganimat v. State of Israel [24] at 400, and citations there. As with other basic rights, freedom of expression had the status of law. This was so until the enactment of the Basic Law Human Dignity and Liberty. Since the promulgation of the Basic Law, there has been some confusion as to the exact state of the law.

27. The right to freedom of expression was not specifically recognized in the Basic Law: Human Dignity and Liberty, or in any other Basic Law. Even so, there are those who maintain that the concept of human dignity in the Basic Law also includes the freedom of speech, which they see as one of the derivatives of human dignity. According to this view, “Human Dignity” is an overflowing fountain, nourishing all those human rights that may possibly derive from it, or that are implicit therein. One of these basic rights is the right to freedom of expression. On the other hand, there are those who maintain that human dignity is human dignity and in the Basic Law: Human Dignity and Liberty, human dignity does not include freedom of expression. This, they claimed, is particularly true in the case of this specific Basic Law and its legislative history. Between these two extremes there are a number of variations on this theme. See e.g., H. Sommer, Hazchuyot Habilti Minuyot Vihekefa shel Hamahapacha Hachukatit, 28 Mishpatim, 259-61 (1997) [68]; A. Barak, Zchuyot Adam Muganot: Hahekef Vihahagbala, [69], 253; Y. Karp, Mikztat Shielot Al Kvod Haadam lifi Chok Hayesod: Kvod Haadam Vicheruto, [70]; A. Barak, Interpretation in Law [65] at 413. Judges too are occasionally tempted to speculate, in obiter dictum, regarding the nature and scope of the concept of human dignity.

We will not take that path and will not reveal our inner-most thoughts. For our purposes, without ruling upon the matter, we shall agree that freedom of expression is a derivative of human dignity in the Basic Law: Human Dignity and Liberty. We shall therefore presume, without ruling upon the matter, that since the enactment of the Basic Law: Human Dignity and Liberty, freedom of speech has ascended the legal hierarchy and today reigns supreme on the throne of rights set out in the Basic Law: Human Dignity and Liberty.

An Aside

In his opinion, my colleague, the President, distinguishes between the scope of freedom of expression and the protection that the law should grant that expression. That is to say, there are times when a person has freedom of expression even though the law may not extend its protection to him or her. Thus, for instance, a lie will find shelter under the wings of free speech, even if it will not be protected. This statement requires further examination, but, given that there is no need to decide the matter, I have not discussed it.

Human Dignity – The Hierarchical Status of the Right to Reputation

28. Since the enactment of the Basic Law: Human Dignity and Liberty we all know, including those who were previously ignorant, that human dignity is the crown jewel. The concept of “human dignity” is expressly referred to four times in the Basic Law, and once by implication. First, in the law’s title – The Basic Law: Human Dignity and Liberty. Second, section 1(a) of the law provides that “[t]he purpose of this Basic Law is to protect human dignity and liberty.” Third, section 2 of the law provides that “[t]here shall be no violation of the life, body or dignity of any person as such.” Fourth, section 4 of the law establishes that “[a]ll persons are entitled to the protection of their life, body and dignity.” In addition to these, section 1 of the law specifies the “basic principles” according to which “[b]asic human rights in Israel are founded upon recognition of the value of the human being.” The “value of the human being,” as is self-evident, includes human dignity.

And so, one must conclude that human dignity is the fundamental pillar of the Basic Law: Human Dignity and Liberty. Further on in our remarks, we will address the force of a person’s right to dignity. Here we have merely noted its centrality in the system of basic rights.

29. Be the territory covered by “Human Dignity,” as distinct from the freedom of expression, what it may, it is unanimously agreed that human dignity includes a person’s reputation. Human dignity has a number of progeny, but it is clear that one’s good name – or perhaps we should say one’s very name, it being one’s own name – is one’s first-born child. For if human dignity does not include a person’s good name, what then is human dignity? Seeing as how our concern is with human dignity, we need not pursue our search for other basic rights implicit in the concept of human dignity. Furthermore, a person retains his or her dignity both in life and after death. This is the specific stipulation of section 5 of the Defamation Law. Case law further added expressly and definitively that the human dignity in the Basic Law: Human Dignity and Liberty also extends to the dignity of the deceased. See e.g., CA 506/88 Shefer v. State of Israel [50] at 102 {184}; CA 105/92 [10] at 201; CA 1482/92 Hagar v. Hagar [51] at 801; HCJ 294/91 [18] at 523; HCJ 5688/92 [19] at 820, 827-28; FH 3299/93 [20] at 201, 205, 208, 211; HCJ 3933/92 Barachat v. C.O.S. Central Command [52] at 6; A. Barak Interpretation in Law [65] at 437-38; CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society [53].

A person’s good name has therefore been directly recognized and protected by the Basic Law: Human Dignity and Liberty.

The Hierarchical Status of the Right to Freedom of Expression and the Right to Reputation – A Summary

30. It appears to us, therefore, that both the right to freedom of expression and the right to one’s reputation are protected on two levels. One level is that of the law. With respect to freedom of expression, we are dealing with case law that has the status of statutory law. The higher level is that of the Basic Law: Human Dignity and Liberty. Chana Szenes, too, has the right to her good name – some will say the right of the living to maintain the good name of Chana Szenes. This right, as well as the freedom of expression of the playwright and the Broadcasting Authority, enjoys the status of basic rights, or supreme rights. It is these two supreme rights that are locked in a duel. Which of them will prevail?

We cannot decide between the two rights on the basis of their fundamental essence. They are both deeply rooted rights – rights without which our democratic society could not survive. Nor can we decide between them according to their hierarchical status in the legal system, for both are of royal stature. We must therefore search for an appropriate criterion for deciding between the rival rights. Such a criterion can be found by a deeper examination of the essence of the rights. We will not refer to each of the rights purely as principles, or by reference to their respective proximity to the apex of the pyramid of rights. Instead, by way of metaphor, we will use a geiger-meter, to measure the internal power of each of the rights claiming supremacy. We will measure the internal power of the right to freedom of expression of the playwright and the Broadcasting Authority and we will then measure the internal power of Chana Szenes’ right to her good name, as it is carried on the petitioners’ shoulders. Finally we will compare their respective powers. The right which has more power, its internal light shining brighter, is the right which will prevail in the case before us.

We will now examine the internal power of each of the rights before us.

The Right to Freedom of Expression and the Right to a Good Name

31. We will begin with freedom of expression and artistic creation. As we saw, we cannot be satisfied with the examination of the right of freedom of expression in the general sense. It is incumbent upon us to further examine that particular thread of freedom of expression presenting itself before us. Its internal power must be evaluated in order to assess its strength in the confrontation with other basic rights that it attempts to curtail.

32. In fact, we already examined the aspects of freedom of expression relevant for our purposes. We found that we are dealing with part fiction and part drama. As indicated by its name, it is a “docudrama.” To the extent that the dramatic element is involved, we have no quarrel with either the playwright or the Broadcasting Authority. Furthermore, even if, for dramatic effect, the playwright occasionally diverges from the truth, we would not take issue with the matter. The dramatic element of the play is the life-breath of the docudrama’s author. It forms that creation’s soul and we would dare not damage it.

This is not the case with the other element, that of the chronicle. Indeed, here too we will not be overly meticulous, nor can we be, for the author is a playwright, not a historian. Thus, for example, regarding the crossing of the border from Yugoslavia to Hungary: Chana Szenes crossed the border on the night between the 9th and 10th of June in 1944 and was caught after two hours. Yoel Palgi and Peretz Goldstein crossed the border two weeks later, on June 23rd. Chana did not know when they were to cross the border, and the two of them crossed the border about 100 kilometers away from where Chana herself crossed the border (see the affidavit of Reuven Dafni, who, as their leader, was responsible for the group of paratroopers in Yugoslavia). Diverging from this fact, Yoel Palgi in the play says – as does the playwright in his interview with Yediot Aharonot, supra para. 7 – that he crossed the border three days after Chana Szenes. By distorting their respective dates of crossing the border, reducing the period between crossings from two weeks to three days, the playwright sows the seeds that give rise to Kastner’s accusation that Chana betrayed both Palgi and Goldstein to the Nazis. The proximity of the dates could indicate that Chana knew the date when Palgi and Goldstein would arrive. Had this been the total extent of the divergence from the truth, no one would have criticized the playwright. The same applies to other similar divergences. However the divergence in the case before us is different. For it is not only a divergence from the truth; while diverging from the truth it viciously damages a person’s good name.

33. Freedom of expression regarding actions or events that occurred is of the highest importance. The freedom and right to report events and actions, especially events and actions about which the public must know, is not just a right. When speaking of the media, the right goes hand in hand with the obligation. There is a public duty on those reporting, to report that which should be reported. It is for this reason that the reporter has the defense of “truth of publication” under section 14 of the Defamation Law. I dwelt at length upon the defense of truth in my opinion in the Krauss [48] and will not deal with it here (In that decision, my opinion was the minority view, but not with respect to the defense of truth).

The freedom of expression with regard to the publication of a chronicle, as well as the defense of truth, also subject the reporter to a special duty to restrict himself or herself to the truth and not to report untruths – even if unintentionally and unwittingly. Certainly this is the case when the reporter knowingly or recklessly reports untruths. In any event, even if we say that the freedom of expression includes falsehood – and we express no opinion on this point – I am at a loss to understand why the law should protect falsehood with the same protection granted to freedom of expression. I cannot see what the protected interest is. Just as my right to lift my hands on either side terminates when I reach another person’s nose, so too, the freedom of expression terminates upon encountering a person’s good name. One way or another, regarding a false report, I find no interest capable of supporting the right to freedom of expression in its battle with another person’s right to his good name.

All of this relates to the power of the rights of the playwright and the Broadcasting Authority to freedom of expression and artistic creation.

34. With respect to Chana Szenes’ right to dignity and her good name, as they are borne on the petitioners’ shoulders, I find it difficult to find a more noble right. Regarding human dignity, I said the following in Krauss [48] at 74:

With respect to human dignity, truth be told, we will find it exceedingly difficult to distinguish between a person and his or her dignity. A person and his or her dignity enter this world intertwined. One is one’s dignity, and one’s dignity is oneself. “A person and his or her dignity emerged together from the mother’s womb, and the two become one. A person is his or her dignity, and that dignity is the person.” CA 3077/90 A. v. B. at 592. One who lost one’s dignity is merely the shell of a person, if you will: the shadow of a person.

Thus, a person and his or her dignity are identical, and a person without dignity is but nothing more than the shell of a person. To quote the sublime words of Shakespeare in Richard the Second:

The Purest Treasure mortal times afford

Is spotless reputation; that away,

Men are but gilded loam or painted clay.

…

Mine honour is my life, both grow in one,

Take honour from me and my life is done”

See William Shakespeare, Richard II, act I, sc. I.

In our own sources, human dignity is reserved a place of honor in the Temple of basic rights. The reason, we are taught, is that man was created in God’s image: “So God created man in His own image, in the image of God created He him.” Genesis 1:27 [84]. And Rabbi Akiva taught us “Beloved is man, who was created in the image of God.” Mishnah, Ethics of our Fathers 3:14 [85] To this the Court added, in Krauss [48] at 75:

Those who are believers and observe the commandments derive the dignity of man from the honor of The Holy One, Blessed be He. In so doing, they elevate human dignity to supreme heights. And what will those say who do not believe and who do not observe? They will say: why should we anchor our recognition of the noble value of human dignity in God? Isn’t a person qua person sufficient reason for protecting one’s dignity? For a person is his or her dignity, and that dignity is the person. Nor can we forget the Basic Law: Human Dignity and Liberty, the basic law that engraved human dignity both in its name and content, establishing it in the Israeli legal system.

From all of the above, we know that the power emanating from Chana Szenes’ right to dignity is unparalleled. Regarding Chana Szenes, we can further say that her dignity and good name are larger than life itself, for as much as she was tortured, until she was murdered, she did not divulge her secret. To be precise, our concern is with Chana Szenes’ refined and pure right to her dignity and reputation, both of these having been carried by Giora Szenes from the battlefield and presented to us.

35. Chana Szenes’ right to dignity and reputation are laid before us in all their grandeur. We no longer need to examine the claims of the “Women in Green,” who present Chana Szenes’ interest as part of the public interest. The private, immediate interest of the brother Giora is sufficient, and we need not discuss the collective interest of the Women in Green. Nonetheless, it bears mentioning that all of the judgments cited by my colleague, the President, in support of his opinion, deal with freedom of expression conflicting with the collective interest and not with freedom of expression conflicting with an individual interest. In referring to an individual interest our intention is to a particular person cited by name and description. The only exception is the ruling in Avneri [16] with regard to which we have two comments. First, the issue there concerned a temporary injunction, in circumstances that were not entirely clear. Second, in any event, the rule established in that case warrants renewed examination for since then the Basic Law: Human Dignity and Liberty has been enacted. My colleague, the President, also agrees with this. In his own words in Ganimat supra [49] at 418:

The new status for the right to a good name, part of the right to human dignity, may justify a renewed examination of the exercise of judicial discretion in granting temporary injunctions against publications which are allegedly defamatory.

Compare CA 214/89 Avneri v. Shapira. See also A. Bendor, Chofesh Lishhon-Hara, 20 Mishpatim 561 (1990-1991) [71].

36. Here we must add and understand the need to peel off the label of “freedom of expression” from the group of interests to which it attaches, and to further examine the nature and texture of the particular component of the specific interest. Having peeled off the label, we now know that even if we state that human dignity encompasses freedom of expression – and we take no position either way on the matter – the dignity of Motty Lerner confronts the dignity of Chana Szenes. This being the case, we can further ask: could anyone dare to claim that Motty Lerner’s dignity prevails over that of Chana Szenes? Motty Lerner’s dignity is indeed dignity and he is worthy of it, but we will not agree to his dignity being constructed over that of Chana Szenes, or to his dignity dismissing the dignity of Chana Szenes. As the verse says: “for them that honor me, I will honor.” I Samuel, 2:30 [86].

37. The results of the confrontation between the rights are clear. Our concern is not with rights of equal standing. We are dealing with a right of dimensions struggling against a smaller right. The dignity and reputation of Chana easily prevail over the rights of the playwright and the Broadcasting Authority.

In HCJ 1/81 supra [39] at 378, Justice Shamgar wrote:

In order for this Court to prohibit an individual, responsible for public broadcasting and advertising, from publishing a particular broadcast, there must exist extreme circumstances, posing a tangible and near certain danger to the public welfare at large… or a clear and obvious illegality (emphasis added).

In the paragraph that the petitioners requested be deleted, there is a “clear and obvious illegality.”

Epilogue

38. Soon after turning twenty-three, Chana Szenes returned her soul, in all its purity, to God. Chana Szenes cannot come to claim her dignity. It is incumbent upon us to restore her dignity to her. In CA 1182/90 Shacham v. Rothman [54] at 347, the Court decided to honor a person’s wishes expressed in his will, and I concluded my opinion there with the following words:

I am happy with the result that I have reached, which in my opinion is the fulfillment of the deceased’s wishes. A person’s will is his or her dignity; it is human dignity. But the dead are unable to realize their wishes and preserve their dignity. We have therefore acted for the fulfillment of the deceased’s wish and the preservation of the deceased’s dignity.

Chana Szenes was a soldier-poet, or perhaps we could say poet‑soldier. She was a poet, a soldier, and a dreamer. Chana loved life. And when Chana wandered barefoot on the golden sands of Caesarea, a young girl, twenty years old, she prayed to God:

O Lord, my God

I pray that these never end

the sand and the sea,

the rush of the water,

the flash of the heaven,

the prayer of man.

In those days that were blacker than black, redder than blood, before she entered the inferno, Chana sang of the rebellion, of death and dignity. This was Chana’s song in Serditza, Yugoslavia:

Happy…

Happy is the match that burnt and ignited the flames

Happy is the flame that burnt in the recesses of hearts

Happy are the hearts that knew to extinguish in dignity…

Happy is the match that burnt and ignited flames.

Chana Szenes’ heart knew how to extinguish in dignity. Whether by words or by action, the dignity and good name of Chana Szenes cannot be taken away.

Chana Szenes

11 Tammuz 5781 – 28 Cheshvan 5805

July 17, 1921 – November 7, 1944

******

The case was decided in accordance with the majority opinion, as per the opinion of President A. Barak, with Justice Mazza concurring and against the dissenting opinion of Justice M. Cheshin.

July 26th, 1999.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Petitions denied.

10 Adar 5764.

3 March 2004.

 

 

HCJ 212/03

Herut – The National Jewish Movement

v.

Justice Mishael Cheshin, Chairman of the Central Elections Committee for the Sixteenth Knesset

 

 

The Supreme Court Sitting as the High Court of Justice

[January 8, 2003]

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

 

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

 

Facts: Petitioner attacked the decision of the respondent to disqualify an election commercial it had prepared for broadcast over both radio and television. The jingle included praise for Yasir Arafat and a call for the expulsion of Jews from Jaffa and Ramle. In addition, the television version of the commercial depicted an Israeli flag, flying over the Knesset, as it changed into a Palestinian flag. The Chairman of the Elections Committee disqualified this commercial, reasoning that the jingle caused severe injury to the dignity of the flag and the national anthem. In the context of the petition, respondent also asserted that the Court did not have the jurisdiction to intervene in his decision.

 

Held: The Supreme Court held that it did have jurisdiction to consider the petition. It held that the authority of the High Court of Justice originates in the provisions of the Basic Law: The Judiciary, a constitutional law. As such, section 137 of the Elections Law cannot negate this authority. The Court further held that the authority of the Chairman of the Elections Committee to approve broadcasts should apply to both television and radio broadcasts. The fact that the statute did not expressly grant him that authority regarding radio broadcasts was a lacuna that should be filled by judicial interpretation. Finally, the Court held that, in his decision, the Chairman of the Elections Committee was to balance the competing values of freedom of speech and of public order. The Court held that the decision of the Chairman did properly balance between these competing considerations. In a dissenting opinion, the President of the Court stated that the Chairman did not achieve a proper balance between the two competing values.

 

Legislation Cited:

Flag and Emblem Law-1949, § 5

Knesset Elections Law (Consolidated Version)-1969 § 137

Elections Law (Propaganda Methods)-1959, § 20b

Basic Law: The Judiciary § 15

Administrative Courts Law-2000

Foundations of Law Act-1980, § 1

Broadcasting Authority Law-1965, §§ 15(a), 15A(b), 15B, 16b & 16c

Penal Law-1977, § 1

Basic Law: The Knesset, § 7

 

Israeli Supreme Court Cases Cited:

[1]HCJ 344/81 Negbi v. Central Elections Committee for the Tenth Knesset IsrSC 35(4) 837

[2]HCJ 637/88 Laor Movement v. Chairman of the Knesset Elections Committee IsrSC 42(3) 495

[3]CA 6821/93 Bank Hamizrahi v.  Migdal Association Village IsrSC 49(4) 22

[4]HCJ 1384/98 Avni v. The Prime Minister IsrSc 52(5) 206

[5]HCJ 3434/96 Hofnung v. Chairman of the Knesset IsrSc 50(3) 57

[6]HCJ 2208/02 Slama v. Minister of Interior (unreported decision)

[7]HCJ 8071/00 Jacobowitz v. The Attorney-General (unreported decision). 

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

[9]CA 733/95 Arpel Aluminum v. Kalil Industries IsrSC 51(3) 577

[10]HCJ 89/92 Zweely v. Chairman of the Central Elections Committee for the Thirteenth Knesset IsrSC 5(2) 692

[11]CA 108/59 Pritzker v. Niv. IsrSC 14 1545

[12]CA 164/47 Minkowitz v. Phishtzener IsrSC 2 39

[13]BAA 663/90 Doe v. Regional Committee of the Bar Association of Tel-Aviv/Jaffa IsrSC 47(3) 397 

[14]CA 4628/93 State of Israel v. Apropim IsrSC 49(2) 265

[15]CA 3622/96 Haham v. Macabee Health Management Organization IsrSC 52(2) 638

[16]CA 205/7 Ross v. State of Israel IsrSC 27(2) 365

[17]CA 10596/02 Leah Ness v. Likud Party (unreported decision)

[18]HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board IsrSC 47(2) 22

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

[20]HCJ 1514/01 Gur Arieh v. The Second Television and Radio Authority IsrSC 55(4) 267

[21]CA 697/98 Sostzkin v. State of Israel IsrSC 52(3) 289

[22]HCJ 4804/94 Station Film v. Film Review Board IsrSC 50(5) 661

[23]HCJ 73/53 Kol Ha’am v. Minister of Interior IsrSC 7 871). 

[24]HCJ 1/81 Shiran v. The Broadcasting Authority IsrSC 35(3) 365

[25]HCJ 2888/97 Novik v. The Second Television and Radio Authority IsrSC 51(5) 193, 200 

[26]HCJ 6126/94 Senesh v. The Broadcasting Authority IsrSC 53(3) 817

[27]CA 6024/97 Shavit v. Rishon Letzion Burial Society IsrSC 53(3) 600

[28]HCJ 8507/96 Oreen v. State of Israel IsrSC 51(2) 269

[29]HCJ 399/85 Knesset Member Rabbi Meir Kahane v. The Administrative Council of the Broadcasting Authority IsrSC 41(3) 255

 

Petition denied.

 

For the petitioners— Shai Zuckerman

For the respondent— Shai Nitzan; Dani Hurin

 

JUDGMENT

President A. Barak

 

1.  The National Jewish Movement Herut [hereinafter Herut] is a list of nominees participating in the elections for the Sixteenth Knesset.  Herut approached the Chairman of the General Elections Committee for the sixteenth Knesset, Justice M. Cheshin [hereinafter the Chairman of the Elections Committee] on January 6, 2003, requesting that he approve the following jingle for broadcast on radio, during the time set aside for election propaganda broadcasting, in Arabic, and accompanied by the tune of “Hatikva:”

 

Original

                 

Biladi Biladi
Phalastin

Arafat Salah-A-Din

Mabruk Yah Shahid

Al-Hamdu Li’llah

Fatah Ashaf Hizballah

Yaffo Aco Ramleh V’Lod

Ya Habibi Imshi al-Yehud

Allah Hu Akbar Allah Al-Karim

Phalastin Al-Quds Yerushalayim

 

Translation

 

My State My State

Palestine

Arafat, Salah-A-Din

Congratulations, O Martyr

Praise to God

Fatah, PLO, Hizballah

Jaffa, Aco, Ramleh, and Lod

My Friend, Jews Out

Allah is Great, Allah is Generous

Palestine Al-Quds Jerusalem

 

Herut also requested that a broadcast, during which this jingle is heard, be approved for the time set aside for election propaganda broadcasting on television.  During the first five seconds of the broadcast an Israeli flag is seen waving above the Knesset building, gradually changing into the Palestinian flag.

 

2.  The Chairman of the Elections Committee disqualified the jingle and the radio broadcast.  He considered them both “a show of contempt towards the national anthem and a desecration of it—contempt and desecration which lead to provocation and even incitement.”  The Chairman of the Elections Committee also drew attention to the provisions of section 5 of the Flag and Emblem Law-1949.  The petition before us is directed against this decision.  On January 8, 2003, we decided, by majority decision, to deny the petition.  These are our reasons.

 
The Authority of the High Court of Justice

 

3.  At the beginning of this proceeding, the State Attorney raised the argument that the decision of the Chairman of the Elections Committee is final, and that the High Court of Justice lacks the authority to review it.  He based his argument on section 137 of the Knesset Elections Law (Consolidated Version)-1969 [hereinafter the Elections Law], which states:

 

Any complaint as to an act or omission under this Law shall be within the exclusive jurisdiction of the Central Committee, and, save as otherwise provided by this Law, no court shall entertain an application for relief relating to any such act or omission or to any decision or direction of the Central Committee, the Chairman and Vice-Chairman of the Committee, the Chairman of the Committee, a District Committee or Voting Committee.

 

This provision also applies to the decisions of the Chairman of the Elections Committee regarding the broadcasting of election propaganda over radio and television. See Elections Law (Propaganda Methods)-1959, § 20b. It has been interpreted in various judgments as granting “procedural immunity” against judicial review, including the review by the High Court of Justice." See HCJ 344/81 Negbi v. Central Elections Committee for the Tenth Knesset [1]; HCJ 637/88 Laor Movement v. Chairman of the Knesset Elections Committee [2]. Respondent claimed that, pursuant to this case law, the petition should be denied.

 

4.  We cannot accept this argument.  The authority of the High Court of Justice originates in the provisions of the Basic Law: The Judiciary, § 15.  As such, it is enshrined in a constitutional, superior law.  An ordinary legal provision does not have the power to change a provision of a Basic Law.  I clarified this in Bank Hamizrahi:

 

Basic Laws are chapters of the state’s constitution.  They are products of the Knesset’s constitutional authority.  A Basic Law exists at the highest normative level.  Consequently, Basic Laws and their provisions should not be changed by anything but Basic Laws.

 

CA 6821/93 Bank Hamizrahi Ltd. v.  Migdal Association Village [3]. See also HCJ 1384/98 Avni v. The Prime Minister [4]. Similarly, a regular law does not have the power to infringe upon the provisions of a Basic Law, unless such is allowed by the limitations clauses which are part of the Basic Laws themselves. See Hofnung v. Chairman of the Knesset [5].   Consequently, we ruled that the Administrative Courts Law-2000 does not have the authority to deny the authority of the High Court of Justice in administrative matters. We noted that “regular legislation, whether it was legislated before or after the institution of a Basic Law, cannot change the provisions of a Basic Law…. As such, legislation which grants authority to a different court in matters already granted to the High Court of Justice by the Basic Law, cannot alter the authority of the High Court of Justice. HCJ 2208/02 Slama v. Minister of Interior (unreported case) [6]; see also HCJ 8071/00 Jacobowitz v. The Attorney-General  [7] (unreported case). 

 

5.  Therefore, section 137 of the Elections Law does not have the power to negate the authority of the High Court.  The decisions cited by the State Attorney in support of its arguments were handed down before our Bank Hamizrahi [3] judgment, and they are inconsistent with it.  Thus, inasmuch as section 137 of the Elections Law—which states that “no court” shall grant the remedies there stated—can be interpreted as negating the authority of the High Court of Justice, it is unconstitutional, and thus void regarding its application to the High Court of Justice. Of course, the law continues to apply to all other courts. This same conclusion may be reached—and I think more properly—by reinterpreting the phrase “no court” as referring to all other courts besides the High Court of Justice.  This interpretation reflects the view that “it is preferable to limit the scope of a law through interpretation, rather than achieve the same result by declaring a part of that law as being unconstitutional and void.” HCJ 4562/92 Zandberg v. Broadcasting Authority, [8] at 814.  This interpretation is consistent with the approach that “the right to the access to court is not a basic right in the ordinary sense of a basic right.  Its existence is a necessary and essential condition for the existence of all other basic rights.” CA 733/95 Arpel Aluminum v. Kalil Industries [9].  As such, find that we have the authority to consider the petition at hand.  We now move on to consider the remaining arguments before us.

 

The Authority of the Chairman of the Elections Committee

 

6. Petitioner claims that the Chairman of the Elections Committee does not have the authority to prevent the broadcasting of election propaganda over the radio. Petitioner points to section 15A(d) of the Elections Law (Propaganda Methods)-1959 [hereinafter the Propaganda Methods Law],  which establishes the authority of the Chairman of the Elections Committee regarding televised propaganda. The provision states:

 

Only election propaganda, whether produced by a political party or by list of nominees at their own expense, which has been approved by the Chairman of the Central Elections Committee, shall be televised pursuant to this section.

 

No such provision exists regarding propaganda broadcasting over radio.  Mr. Zuckerman argues that this arrangement—an explicit grant of authority over television propaganda broadcasting, and the absence of such an explicit grant for radio broadcasting—implies that the Chairman has no authority over the radio broadcasting. Petitioner argues that we should not interfere with this statutory scheme—we should not fill in the blanks, nor we should not exercise our inherent authority, nor should we interfere by any other means. As such, even if the Chairman of the Central Elections Committee lawfully instructed that the propaganda broadcast not be televised, he lacks all authority to give similar instructions regarding a radio propaganda broadcast.   

 

7.  Indeed, an inspection of the Propaganda Methods Law reveals that it contains no explicit provision similar to section 15A—a provision which only relates to television—that would provide that no election propaganda shall be broadcast over radio unless it has been approved by the Chairman of the Elections Committee. The legislative history regarding this matter is short. The regulation of propaganda methods was first set out in the Elections Law (Propaganda Methods)-1959.  This law was legislated during the era of radio, before television was introduced into Israel. It forbade certain propaganda methods, and included a prohibition against election propaganda in film.  Its central purpose was to empower the Chairman of the Elections Committee to set aside time slots that would be allotted to each party for radio broadcasting.  He was not given the authority to intervene in the actual content of the broadcasts. When television was introduced into Israel, the legislature regulated televised election propaganda in the Elections Law (Propaganda Methods) (Amendment 3)-1969.  This law provided that the absolute prohibition against broadcasting election propaganda in film would be extended to television as well, aside from the time explicitly allotted to televised election propaganda broadcasting. All election propaganda broadcasting over television was prohibited, except that which was approved by the Chairman of the Elections Committee. 

 

Two questions arise concerning the broadcast of election propaganda over radio. First, is there a prohibition against broadcasting election propaganda over radio? As we have seen, the law which originally regulated propaganda methods during elections did not include a provision regarding this issue.  The amendment of the original law, after the introduction of television into Israel, applied only to the prohibition against broadcasting election propaganda over television.  What is the law regarding broadcasting election propaganda over radio?  This question arose in HCJ 89/92 Zweely v. Chairman of the Central Elections Committee for the Thirteenth Knesset, [10] at 713. There, the court ruled that the prohibition against broadcasting election propaganda over television did not apply to broadcasting election propaganda over radio.  It noted: “not including radio in the original language of the provision reflects a conscious policy against extending the prohibition towards election propaganda over radio.” Id. at 713.  At the same time, Zweely [10] stated that the lack of authority of the Chairman of the Elections Committee is balanced by the authority of the Broadcasting Authority. The Broadcasting Authority, when broadcasting election propaganda over the radio, must take into consideration the prohibition against broadcasting election propaganda over television. Zweely [10] emphasized that “it is not proper that the legislature’s policy of limiting televised broadcasting be completely defeated by allowing the breach of those limitations through radio.” Id. at 713.  While Zweely [10] was pending before this Court, the law was amended and extended the prohibition against broadcasting election propaganda on television or in film to include election propaganda on radio as well.  We are left with the second question, which refers to the authority of the Chairman of the Elections Committee to approve election propaganda broadcasts.  This authority originally concerned, as we have seen, the approval of election propaganda broadcasts for television. What is the law regarding the Chairman’s authority to approve election propaganda broadcasts for radio?  This is the question before us.

 

8.  Petitioner argued that the authority of the Chairman of the Elections Committee to approve election propaganda broadcasts for television indicates that he lacks any such authority regarding election propaganda on radio. The State Attorney argued, in contrast, that the silence of the Election Law in this matter constitutes a lacuna.  The Court may complete this lacuna through inference, in comparison with the provisions regarding television broadcasts, by virtue of the authority granted to it in the Foundations of Law Act-1980.

 

9.  We agree with the State Attorney.  The authority of the Chairman of the Elections Committee to approve election propaganda over television should not be interpreted as negating his authority to approve the broadcast of election propaganda over radio. Such a negative inference may be drawn where the silence is “conscious.” See CA 108/59 Pritzker v. Niv, [11] at 1549 (Sussman, J.). A negative inference may also exist where the silence “speaks.” See CA 164/47 Minkowitz v. Phishtzener, [12] at 43 (Silberg, J.).  Silence is “conscious,” and silence “speaks” when making a negative inference is necessary for realizing the objective of the law. See BAA 663/90 Doe v. Regional Committee of the Bar Association of Tel-Aviv/Jaffa, [13] at 404. There is no reason to assume that realizing the goals of the Propaganda Methods Law demands that the Chairman of the Elections Committee be denied the authority to approve election propaganda over radio.

 

10.  Even so, should we view the silence of the Election Propaganda Methods Law as a lacuna in the law?  Should we not say, as we did in Zweely, that “the legislature was aware of radio and he even mentioned it in other provisions of the law.” Zweely [10] at 713. This is not a simple question.  In Zweely we did not see the silence of the Propaganda Methods Law concerning the radio broadcast of election propaganda as a lacuna, primarily because were of the opinion that the resolution of the problem could be found in a normative arrangement external to the Propaganda Methods Law. This arrangement was the Broadcasting Authority Law-1965. We were of the opinion that, regarding the radio broadcast of election propaganda, the discretion of the Broadcasting Authority—under the Broadcasting Authority Law-1965—was a substitute for the authority of the Chairman of the Elections Committee. We added that the Broadcasting Authority, in exercising its discretion with reference to broadcasting election propaganda, should presume “that the legislature prohibited the broadcasting of election propaganda on television, and it is not proper that the legislature’s policy of limiting televised broadcasting be completely defeated by allowing the breach of those limitations through radio.” Id. at 713. 

 

No such external arrangement is present here. The Broadcasting Authority and the Second Television and Radio Authority do not have the authority to interfere with the content of radio election propaganda broadcasts. See the Broadcasting Authority Law-1965, §§ 15(a), 15A(b), 15B, 16b & 16c.  Thus, the silence of the Propaganda Methods Law should not be seen as “neglecting to take a stand on a legal issue, while leaving its regulation to other normative arrangements, external to the law being interpreted.” BAA 663/90 [13], at 404.  It is our opinion that the only possible way to interpret the silence of the Propaganda Methods Law regarding the authority of the Chairman of the Elections Committee to approve radio election propaganda broadcasting is that it is a legislative oversight. Indeed, a lacuna will exist whenever a legislative arrangement is incomplete, and this incompleteness acts to counteract the objective of the arrangement. See CA 4628/93 State of Israel v. Apropim, [14] at 323; CA 3622/96 Haham v. Macabee Health Management Organization, [15] 648.  Such is the case before us.  There is no reasonable justification to distinguish between granting the Chairman of the Elections Committee the authority to approve election propaganda broadcasting for television and denying him this authority regarding radio. There is no reasonable justification for a state of affairs where there is no supervision of election propaganda broadcasting over radio.  In building a wall around election propaganda broadcasting the legislature forgot to lay a brick, thus creating a void which constitutes a lacuna, regarding the authority of the Chairman of the Elections Committee to approve election propaganda for radio.

 

11.  When a statute contains a lacuna, the court must fill in the lacuna. Section 1 of the Foundations of Law Act-1980 considers this issue:

 

Where the court, faced with a legal question, finds no answer in statute, case law, or by analogy, it shall decide the question in the light of principles of Israel's heritage—freedom, justice, equity, and peace.

 

This provision states that, as a first step towards filling in a lacuna, analogies should be drawn. If no suitable analogy may be drawn, we must turn to the principles of Israel’s heritage: freedom, justice, equity, and peace.  In this case, an analogy may be drawn from the provisions of section 15a of the Propaganda Methods Law.  Thus, the provision that states that election propaganda shall not be broadcast unless it has been approved by the Chairman of the Elections Committee, also applies to election propaganda over radio. As such, the Chairman also has the authority to prohibit the broadcast of election propaganda over radio, as he has similar authority over televised election broadcasting. 

 

We shall now turn to consider the scope of respondent’s authority and discretion in this matter. Before leaving the issue of interpretation, however, we would like to make three comments. First, a criminal offence should not be created by filling in a lacuna in the law. See Penal Law-1977, § 1; CA 205/7 Ross v. State of Israel, [16] at 372.  Therefore, though a failure to adhere to the decisions of the Chairman of the Elections Committee constitutes a criminal offence with regard to television broadcasting, it does not constitute a criminal offence in the case of radio broadcasting.  Here, the lacuna and its interpretation produce constitutional and administrative law, and do not create criminal offences. Second, in filling in the lacuna, a new text is added to the law.  This text has the same status as the law in which the lacuna was found.  Therefore, the remainder of the law’s provisions also apply to that text, as if it itself was an integral part of the law. Thus, for example, section 137 of the Elections Law, which we have discussed, see supra paras. 3-4, which also applies to decisions made according to sections 15 and 15A of the Propaganda Methods Law, see the Propaganda Methods Law § 20, will also apply to the decisions of the Chairman of the Elections Committee regarding election propaganda broadcast over radio. Third, the current legal situation, where a lacuna exists in the Propaganda Methods Law, is unsatisfactory. Our filling in the lacuna is not a substitute for a legislative act which will regulate the matter comprehensively.

 

The Authority of the Chairman of the Elections Committee

 

12.  What is the scope of the authority of the Chairman of the Elections Committee pursuant to section 15A(d) of the Propaganda Methods Law?  This question arises regarding television broadcasts, which are explicitly regulated by section 15A, as well as radio broadcasts, which are regulated by the interpretation of the lacuna discussed above. The principles stated in section 15A of the Propaganda Methods Law apply to both these cases:

 

Only election propaganda, whether produced by a political party or by list of nominees at their own expense, which has been approved by the Chairman of the Central Elections Committee, shall be televised pursuant to this section.

 

Petitioner asserts that the authority of the Chairman of the Central Elections Committee extends only to those two grounds explicitly mentioned in the Propaganda Methods Law for the disqualification of election propaganda broadcasting. These two grounds restrict election propaganda broadcasts involving the security forces or victims of terrorism, see Propaganda Methods Law, § 2B, and broadcasts that involve the participation of children, see Propaganda Methods Law, § 2C.  The State Attorney, on the other hand, argues that the authority of the Chairman of the Elections Committee is more expansive—it includes the disqualification of election broadcasts that contain incitement, racism, and violations of privacy.  The State Attorney claims that if this authority is not granted, the electoral system will descend into anarchy—a situation well described by the passage: “each man will swallow up his fellow man alive.”

 

13.  We agree with the State Attorney. The authority of the Chairman of the Elections Committee to approve election broadcasts is not limited to the two matters above. The proper interpretation of this authority demands that it extend to additional matters associated with election propaganda. Not only have the Chairmen of the Election Committees acted in this manner over the years, this interpretation is also essential to ensure the public interest.

 

The Discretion of the Chairman of the Elections Committee

 

14.  The Chairman of the Elections Committee was authorized to approve election propaganda broadcasts for both radio and television.  This discretion is exercised in order to achieve the goals of the Propaganda Methods Law.  These goals are both specific and general, and both subjective and objective.  The application of these goals differs with regard to each specific matter.  They naturally include those goals associated with the organization of elections, and which constitute the foundation of the Elections Law and the Propaganda Law. These include the preservation of equality in elections, the fairness of elections, the integrity of elections, preventing the deception of voters and preventing distortion in the electoral process and its results. See, e.g., CA 10596/02 Leah Ness v. Likud Party [17] (unreported case).  In this petition we must consider two opposing goals. We consider the realization of the freedom of speech as well as the attainment of public order. We must balance these two goals. The discretion of the Chairman of the Elections Committee is exercised within the context of this balance. 

 

15.  On one side of the scales lies the freedom of speech. We discussed the essence of this freedom, as embodied in the Propaganda Methods Law, in Zweely:

 

Freedom of speech is a central and fundamental principal, which is important for forming the goals of a law.  This freedom reaches every expression.  It has special significance regarding political expressions in general, and specifically regarding political expressions articulated during election struggles. … One of the principle justifications of freedom of speech relates to the democratic regime.  The spirit of democracy is lost without freedom of speech.  Freedom of speech cannot exist without democracy.  “True democracy and liberty of speech are one.  This is true throughout the life of a democracy and especially true during elections.” …  Freedom of speech ensures the exchange of ideas between members of the public, and thus allows them to form opinions regarding issues which are on the national agenda. … “Only in this way will a person be able to form his own opinions with regard to critical issues—both social and national—whose resolution is ultimately in his hands by virtue of his right to choose the institutions of the state.” … The result, which was expressed by President Shamgar in HCJ 372/84 Klopfer-Neve v. Minister of Education and Culture, at 239, is that “[i]t is not feasible to think that elections may be held in a democratic regime without allowing the exchange of ideas and mutual persuasion, and without allowing those debates in the context of which public opinion is formed, and which play an essential part in any free regime, whether during elections or during any other time of the year…” Id. at 706-07.

 

16.  On the other hand, we have the public’s interest in security, peace, and civil order. In the case at hand, these interests include protecting the feelings of members of the public regarding the anthem and the flag.  Indeed, protecting the feelings of members of the public, whether they be religious, national or other feelings, is an integral part of the public interest. See HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board, [18] at 34; HCJ 5016/96 Horev v. Minister of Transportation, [19] at 34; HCJ 1514/01 Gur Arieh v. The Second Television and Radio Authority, [20] at 275; CA 697/98 Sostzkin v. State of Israel, [21] at 307-08; HCJ 4804/94 Station Film v. The Film Review Board, [22] at 678.

 

17. In the petition before us these values and principles—freedom of speech on the one hand and the public interest on the other—are in conflict. Balancing is necessary to resolve this clash. This balance has been with us since Kol Ha’am. See HCJ 73/53 Kol Ha’am Company v. Minister of Interior [23]. In Kol Ha'am we held that freedom of speech should not be subject to prior restraint unless there is near certainty that, if the expression were to be articulated, the public interest would suffer serious and substantial injury. See HCJ 1/81 Shiran v. The Broadcasting Authority, [24] at 378.  My colleague, Justice Mazza has noted:

 

Preventing the expected publication of expression constitutes a direct and serious injury to the freedom of speech.   It is a well established law…that granting such relief may only be considered, where neglecting to do so creates a danger, whose probability reaches near certainty, of substantial injury to public peace or civil order, or of causing severe harm to any other protected value.

 

HCJ 2888/97 Novik v. The Second Television and Radio Authority, [25] at 200. When the protected value concerns the feelings of the public, one of the things which must be shown is that the injury to such feelings is so serious and severe that it exceeds tolerable levels. See HCJ 5016/96, [19] at 55; HCJ 6126/94 Senesh v. The Broadcasting Authority, [26] at 836; CA 6024/97 Shavit v. Rishon Letzion Burial Society, [27] at 657.

 

18.  Does the decision of the Chairman of the Elections Committee properly balance between freedom of speech and the public interest?  My answer to this question is negative.  There is no certainty— neither near, nor reasonable, nor substantial—that publicizing the propaganda broadcast of the petitioner—a national movement that holds the sanctity of the anthem and flag especially dear—will cause painful and serious injury to feelings concerning the flag and the anthem, and which will exceed levels that are tolerable in a democratic society.  I am willing to assume that there will be a number of people who will raise their brows and question the tastefulness of the broadcast.  However, that is not our concern here.  We are concerned with the censorship of freedom of speech; we are concerned with prior restraints on the freedom of political speech during the critical time of elections.  Imposing such restrictions requires the utmost caution.  Only when there is near certainty that the realization of freedom of speech will lead to painful and serious injury to the feelings of a considerable part of the public, will restrictions on political expressions be justified.  Such circumstances do not exist in this case.  For these reasons, I am of the opinion that the petition should be granted.

 

19.  The desecration of the sanctity of the flag, which the Chairman of the Elections Committee referred to, is severe. See HCJ 8507/96 Oreen v. State of Israel [28].  Nevertheless, I do not believe that in the case at hand there is a sufficient factual basis, regarding either the actus reus or the mens rea, to satisfy the elements of the offence established in section 5 of the Flag and Emblem Law-1949. Under these circumstances, this consideration—the desecration of the flag—cannot justify curbs on the freedom of speech. See HCJ 399/85 Knesset Member Rabbi Meir Kahane v. The Administrative Council of the Broadcasting Authority [29]. 

 

The Scope of Judicial Review

 

20.  It is well established that authority and discretion are not the same.  The High Court of Justice has the authority to review the decisions of the Chairman of the Elections Committee.  Yet, does this case require us to exercise our authority?  The decisions of the Chairman of the Elections Committee are subject to judicial review just as the decisions of any other public officer.  Of course, our discretion is not a substitute for the discretion of the Chairman of the Elections Committee.  We explained this in Zweely:

 

We do not act as a superior Chairman of the Elections Committee.  We will not interfere with his decisions unless a decision is made which is radically unreasonable.

 

Zweely, [10] at 703. We do not place ourselves in the position of the Chairman.  However, if the Chairman’s interpretation of a law differs from our own, and if the Chairman does not act within the boundaries of the proper balance, we have no choice but to intervene. See Zweely [10].

 

21.  In exercising our discretion, we must be aware of the special circumstances under which the Chairman of the Elections Committee acts.  He must make a large number of decisions in a short period of time.  We do not wish to act—nor can we act—as a court of review over each and every decision. Section 137 of the Elections Law is another example of this approach. Although that section itself does not apply here, its presence influences us. Of course, the Chairman has broad discretion in setting out the scope of freedom of speech on the one hand and the scope of the public interest on the other. The balance which we have discussed creates a “zone of reasonableness.” Any given balance allows for a variety of results which may occasionally contradict each other. Balancing is not an exact science.  It allows for discretion.  We will usually not intervene in this discretion, and this is especially true when it is the Chairman of the Elections Committee who exercises this discretion.  Thus, had I been of the opinion that the respondent’s decision falls within the “zone of reasonableness,” I would not have intervened, even in a case where, had I myself been the Chairman of the Elections Committee, I would not have made the same decision. This, however, is not the case in the petition before us.

 

Had my opinion been accepted, we would issue a final order and instruct the respondent to approve the petitioner’s broadcast.

 

Justice E. Mazza

 

I agree with President Barak’s reasoning with regard to our authority to deal with the petition, as well as with regard to the subjecting of radio election propaganda to the approval of the Chairman of the Central Elections Committee, and also with regard to the extent of the Chairman of the Elections Committee’s authority to intervene in the content of radio and television propaganda broadcasts. I also agree that, in exercising his extensive authority, the Chairman of the Elections Committee must appropriately balance between the freedom of speech— to which every nominee list is entitled—and between other protected values. I cannot agree, however, with the President’s conclusion that, in the case at hand, there is just cause for our intervening in the Chairman of the Elections Committee’s decision to disqualify the petitioner’s broadcasts. 

 

In the broadcasts which were disqualified, petitioner made use of the flag and the anthem.  In the propaganda jingle, which was intended to be broadcast over both radio and the television, words which attempt to imitate the Palestinian anthem “Biladi Biladi” were adapted to the tune of Hatikva.  Examining the words of the song, cited in their original and accompanied by a Hebrew translation in the President’s opinion, reveal that the song includes praise of Arafat, the “Shahid,” the Fatah Movement, the Hizballa Organization, and the PLO. The song also calls for the expulsion of Jews from Jaffa, Aco, Ramla and Lod, and connects the greatness of Allah to that of Jerusalem and “Holy Palestine.”  At the beginning of the propaganda film, which was intended to be broadcast on television, the Israeli flag is shown waving above the Knesset building.  Within a few seconds, during which the jingle plays in the background, the flag gradually turns into a Palestinian flag.  In his explanation as to why he disqualified the broadcast, the Chairman of the Elections Committee stated that the two broadcasts contain “a show of contempt towards the national anthem and a desecration of it—contempt and desecration which lead to provocation and even incitement.” Regarding the manner in which the state flag is shown in the propaganda television broadcast, the Chairman referred to section 5 of the Flag and Emblem Law-1949, which categorizes acts that desecrate the Israeli flag as criminal offences.

 

In his opinion, the President refers to the accepted tests regarding the prior restriction of expression: in general, freedom of speech should not be restricted unless there is near certainty that, if the expression were to be articulated, the public interest would seriously and substantially be injured. Furthermore, restricting freedom of speech, due to the suspicion that the public’s feelings may be harmed, may only be justified if the expected injury from the expression exceeds the level of tolerance that can expected of the public. After laying down these tests, the President states that the decision of the Chairman of the Elections Committee to disqualify the broadcasts does not accord with this balancing equation.  He is of the opinion that “There is no certainty—neither near, nor reasonable nor substantial—that publicizing the propaganda broadcast of the petitioner—a national movement that holds the sanctity of the anthem and flag especially dear—will cause painful and serious injury to feelings concerning the flag and the anthem, and which exceed levels that are tolerable in a democratic society.” The President, however, is willing to assume that, as a result of permitting the broadcasts, “there will be a number of people who will raise their brows and question the tastefulness of the broadcast.” 

 

I am not willing to concur with this position, and have thus supported the denial of this petition.  As my honorable colleague has suggested, the petitioner’s broadcasts do indeed suffer from a lack of “tastefulness.”  If this were their only shortcoming, my colleague and I would be of the same opinion, as the point of departure in this matter is that each nominee-list is entitled to express its propaganda messages in whatever manner it chooses.  However, this case is not that simple.  I have not found any basis for our intervening in the Chairman’s determination that these broadcasts contain contempt and injury towards the anthem and the desecration of the sanctity of the flag, and that permitting the broadcasts may lead to provocation and incitement. 

 

Furthermore, I accept that the intervention of the Chairman of the Elections Committee in the content of propaganda broadcasts, produced by the list of nominees and submitted for his approval, is only justified when there is a an actual suspicion that another protected value may be injured. Even so, the Chairman of the Elections Committee has broad discretion in deciding whether, under the specific circumstances, the suspicion of such injury exists.  The normative framework for his decision of whether to approve a broadcast is similar to the way this Court itself balances between the freedom of speech and other values.  However, his implementation of the balance must take additional considerations into account. These additional considerations are necessary since all propaganda broadcasts are subject to his approval.   Thus, for example, the Chairman of the Elections Committee may disqualify a propaganda broadcast which includes expressions that incite racism, or expression opposition to the existence if the State of Israel as a Jewish and democratic state, even if there is no probability that the broadcast will harm the values which section 7 of the Basic Law: The Knesset is intended to protect.  This also applies to the Chairman’s power to prevent the improper use of values, which the public is generally sensitive about, for propaganda purposes, even if the goal of the broadcast is not to harm these values, but rather to associate them with a specific nominee list. By virtue of this principle, Chairmen of Elections Committees have, in the past, disqualified broadcasts which made use of IDF soldiers, children, and members of bereaved families for the purposes of election propaganda. Such actions were taken even before the legislation of sections 2B(b) and 2C of the Propaganda Methods Law in 2001, which enshrined these prohibitions in legislation

 

An additional consideration, intrinsic to subjecting all election propaganda broadcasts to the approval of the Chairman of the Elections Committee, is in his duty to form identical, equivalent standards—which may occasionally be technical—for the examination of the broadcasts.  The significance of this is that, in examining the broadcast, the Chairman should refrain from assuming that the broadcast is not intended to cause the injury which the broadcast, at face value, is likely to cause.  In the appropriate circumstances, this consideration may lead him to disqualify propaganda broadcasts, which, according to an ordinary balancing approach, may have deserved approval.  Take our case as an example:  the President is of the opinion that as the petitioner is “a national movement that holds the sanctity of the anthem and flag especially dear.” Thus, there is no reason to be concerned that its use of the anthem and flag in the propaganda broadcasts, in the specific manner in which they were used by the movement, will harm public feelings.  I suspect that had the Chairman of the Elections Committee decided to approve the broadcasts, based on the consideration that the petitioner is not suspect of intending to desecrate the sanctity of the flag and anthem, he would have difficulties disqualifying other propaganda broadcasts which make similar use of the anthem and the flag, by a nominee list not known for holding the sanctity of the anthem and flag dear. 

 

For these reasons, I am of the opinion that the disqualification of the propaganda jingle and television broadcast, which were produced by the petitioner, does not establish a cause for our intervention.  The Chairman of the Elections Committee was within his discretion in deciding as he did. With all due respect, I am of the opinion that his decision was correct.  As such, I cannot agree that his decision deviates from the zone of reasonableness.

 

 

Justice T. Strasberg-Cohen

 

I too am of the opinion, as is my colleague Justice Mazza, that the petition should be denied.

 

I do not disagree with my colleague, the President, with reference to the rules, principles and norms which should guide us in our decision in the matter at hand.  I too am of the opinion that “[o]n one side of the scales lies the freedom of speech … On the other hand lies the public’s interest in security, peace, and civil order.  In the case at hand, these interests include protecting the feelings of members of the public regarding the anthem and the flag.  Indeed, protecting the feelings of members of the public, whether they be religious, national or other feelings, is an integral part of the public interest.”  We differ, however, with regard to the question of the application of those principles to this case, and the question of our intervening to invalidate the decision of the Chairman of the Elections Committee.

 

Regarding the application of the above-mentioned principles, I am of the opinion that that using the anthem and flag, as the petitioner has done, crosses the bounds of legitimacy, in such a way that subjects its right to express its opinions to the public’s interest in security, peace and civil order.

 

In reviewing the decisions of the Chairman of the Elections Committee, “our discretion is not a substitute for the discretion of the Chairman of the Elections Committee.” See para. 20 of the President’s opinion. Similarly, “we do not act as a superior Chairman of the elections committee.  We will not interfere with his decisions, unless the decision made is radically unreasonable.” Zweely, at 703.

 

I am of the opinion that the decision of the Chairman of the Elections Committee properly balances between the freedom of speech and the public interest, and in any case, his decision falls within the zone of reasonableness and does not suffer from radical unreasonableness.  Therefore, there is no room for intervention in the decision. 

 

Petition Denied.

January 16, 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

 

 

 

 

Translator’s note: The Hebrew word Shabbat has been translated as Shabbat which can refer to either Saturday or the Jewish Sabbath.

 

HCJ 1514/01

1.  Yaakov Gur Aryeh

2.  Bat Shir Gur Aryeh

v.

1.  Second Television and Radio Authority

2.  TTV, Ltd.

3.  Eyal Zayid

4.  Avital Levi

 

The Supreme Court Sitting as the High Court of Justice

[June 18th, 2001]

Before President A. Barak, Vice President S. Levin, Justice D. Dorner

 

Petition to the Supreme Court sitting as the High Court of Justice for an order nisi and an interlocutory order.

 

Facts: Petitioners are the subject of a film made by or for the respondents.  The film was designated for broadcast on television on Shabbat.  When the petitioners discovered the film was going to be broadcast on Shabbat they approached the Second Television and Radio Authority, and asked that the film not be broadcast on Shabbat stating that broadcast of the film on Shabbat would harm their religious feelings and violate their religious freedom.  The request was denied by the Second Television and Radio Authority, which was willing to add captions on the screen which would state that the film was filmed on a weekday, but was not willing to broadcast the film on a weekday.  The petition was filed against this decision.

 

Held: In the majority opinion, written by President Barak, it was determined that broadcast of the film on Shabbat constituted a violation of the petitioners’ religious feelings but not their freedom of religion.  In the balance between the violation of the petitioners’ religious feelings and the freedom of expression of the respondents the freedom of expression prevails.  The petition was therefore denied.

In a dissenting opinion Justice Dorner was of the view that the petitioners’ freedom of religion was violated, and that in balancing the competing human rights – the freedom of religion of the petitioners, on the one hand, and the freedom of expression and right to property of the respondents on the other – in this specific instance, the freedom of religion of the petitioners should prevail.

.

Basic laws cited:

Basic Law: Human Dignity and Liberty

Basic Law: Freedom of Occupation, s. 4.

 

Legislation cited:

Second Television and Radio Authority Law 5750-1990, ss. 48, 48(a).

 

Israeli Supreme Court cases cited:

[1]      HCJ 164/97 Kontrem Ltd. v. Ministry of Finance IsrSC 52(1) 289

[2]      HCJ 399/85 Kahane v. Broadcast Authority Management Board (1987) IsrSC 41(3) 255

[3]      HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board, IsrSC 50(5) 661.

[4]      HCJ 6218/93 Cohen v. Bar Association IsrSC 49(2) 529.

[5]      HCJ 953/89 Indor v. Head of Jerusalem Municipality IsrSC 45(4) 693.

[6]      HCJ 3888/97 Novik v. Second Authority IsrSC 51(5) 199.

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

[8]      HCJ 5016/96 Horev v. Minister of Transportation IsrSC 51(4) 1. 

[9]      HCJ 351/72 Keinan v. Film and Play Review Board IsrSC 26(2) 811.

[10]    HCJ 806/88 Universal City Studio Inc. v. Film and Play Review Board IsrSC 43(2) 22.

[11]    CrimAp 697/88 Sutzkin v. State of Israel IsrSC 52(3) 289.

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

[13]    HCJ 243/81 Yaki Yoshe Company Ltd. v. Film and Play Review Board IsrSC 35(3) 421.

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

[15]    CrimA 126/62 Disenchek v. Attorney General IsrSC 17 169.

[16]    CA 294/91 Chevra Kadisha GHSHA ‘Kehillat Yerushalayim’ v. Kestenbaum. IsrSC 46(2)464.

[17]    HCJ 2481/93 Dayan v. Commander of Jerusalem District IsrSC 48(2) 456.

[18]    HCJ 148/79 Sa’ar v. Minister of Interior and Police IsrSC 34(2) 169.

[19]    HCJ 291/74 Bilet v. Goren IsrSC 29(1) 98.

[20]    HCJ 115/50 Yosefof v. Attorney General, IsrSC 5 481.

[21]    HCJ 866/78 Morad v. Government of Israel, IsrSC 34(2) 657.

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

[23]    HCJ 3267/97 Rubinstein v. Minister of Defense IsrSC 5295) 481.

[24]    HCJ 4298/93 Jabarin v. Minister of Education, IsrSC 48(5) 199.

[25]    HCJ 3872/93 Mitral Ltd. vs. Prime Minister IsrSC 47(5) 485.

[26]    CA 6024/97 Shavit v. Chevra Kadisha GHSHA Rishon LeZion [1999] IsrSC 53(3) 600.

[27]    HCJ 262/62 Peretz v. Local Council Kfar Shmaryahu, IsrSC 16 2101.

[28]    HCJ 292/83 Ne’emanei Har Habayit, Association v. Commander of Jerusalem District, IsrSC 38(2) 449.

[29]    HCJ 6656/93 Am K’Lavi v. Commander of Jerusalem Police IsrSC 48(4) 793.

[30]    CrimA 7528/95 Hillel v. State of Israel IsrSC 50(3) 89.

[31]    HCJ 4541/94 Miller v. Minister of Defense IsrSC 49(4)94.

[32]    HCJFH 4466/94 Nuseiba v. Minister of Finance, IsrSC 49(4) 68.

[33]    CrFH 2316/95 Ganimat v. State of Israel IsrSC 49(4) 589.

[34]    HCJ 1715/97 Office of Investment Managers in Israel v. Minister of Finance IsrSC 51(4) 367.

[35]    HCJ 450/97 Tnufah Manpower Services and Maintenances Ltd. v. Minister of Labor and Welfare IsrSC 52(2) 433.

 

American cases cited:

[36]    United States v. Lee, 455 U.S. 252 (1982).

[37]    Thomas v. Review Bd. Of Indiana Employment Security Div., 450 U.S. 707 (1981).

[38]    Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989).

 

German cases cited:

[39]    BVerfGE 35, 36 [1973].

[40]    BVerfGE 93, 1 [1995].

 

Israeli books cited:

[41]    A. Barak, Interpretation in Law, Vol. 2, (1993).

[42]    A. Rubinstein, Constitutional Law in Israel (5th ed., volume A, 1996.

[43]    H.H. Cohen, The Law (1992).

 

Israeli articles cited:

[44]    D. Statman, ‘Violation of’ Multi-Cultural ‘Religious Feelings’ in a Democratic and Jewish State’ Memorial Book for Ariel Rosen Zvi, may his memory be a blessing’ (eds. M. Mautner, A. Sagi, R. Shamir) (1998). 

[45]    Berinson ‘Freedom of Religion and Conscience in Israel’ Iyunei Mishpat 3, 405 at 406;

[46]    Gavison, ‘Religion and State – Separation and Privatization’ Misphat U’Memshal 2 55 at 78 (1984).

[47]    H. H. Cohn, ‘On Freedom of Religion and Religious Wellbeing – Reviews in Legal History’ Landau Book 813 (volume B, 1985). 

[48]    A. Kasher, ‘Violation of Feelings for the Overall Good’ Mishpat U’Memshal B 289 (1984).

[49]    I. Zamir and M. Sobel, ‘Equality before the Law’, Mishpat U’Memshal 5 (2000) 165.

[50]    Aharon Barak, ‘Protected Human Rights: The Scope and the Limitations’ Mishpat U’Mimshal A (1993) 253.

 

Jewish law sources cited:

[51]    Mishnah, Avot 1, P.

[52]    Avot of Rabbi Natan 22, A

[53]    Rabbi David Stav, ‘Filmed on a Weekday, Broadcast on Shabbat’ Nekudah 211 (1988) 52.

[54]    Rabbi Shlomo Zalman Oyerbach ‘Repeat Radio Broadcast on Shabbat’, Tehumin, Religious Law Compilation on the Topics of Torah, Society, and State 17 (1997) 13.

[55]    Rabbi Dr. Nahum Eliezer Rabinovich, Electricity in Jewish Religious Law (Part B – Shabbat and Holiday, 1981) 270.

[56]    Rabbi Dr. Nahum Eliezer Rabinovich, ‘Asking in the Matter’ Hadarom Torah Collection 15 (1962) 120.

[57]    Shavuot 39, A.

[58]    Mishnah, Psahim A, B.

 

For petitioners – Naftali Wersberger

For respondent no. 1 – Doron Avni; Tamar Hacker.

For respondents no. 2-4 – Efrat Avnet; Amir Ivztan

 

JUDGMENT

 

President A. Barak

The television network seeks to broadcast a film documenting the life and worldview of the petitioners, who are observant Jews.  They fill an active role in the film, which includes interviews with them.  The film was filmed on the weekdays.  The television network would like to show the film on Shabbat.  The petitioners object to this.  They claim violation of religious feelings and religious freedom.  Whose side is the law on – that is the question before us.

The Facts

1.    The Second Television and Radio Authority (hereinafter: ‘the respondent’) is a statutory corporation.  It was set up by power of the Second Television and Radio Authority Law 5750-1990.  Most of the broadcasts are by franchisees.  The Second Authority Council is authorized to ‘take time slots from a broadcast unit of the franchisee, for the purpose of showing broadcasts on behalf of the authority, on topics that in its opinion ‘are of special interest to the public’’ (section 48(a) of the law).  Against this background for four years now the program ‘Documentary Word’ has been broadcast on Shabbat.  This is the only half hour broadcast time slot that the respondent has.  The respondent decided (in 1999) to invite proposals for the production of documentary films on the topic of ‘places, phenomenon, and people in Israel on the issue of the tension between Judaism and Israeliness.’  Consequent to this it was decided between the respondent and respondent no. 2, a private company, that the latter would make a film about the residents of the settlement ‘Mitzpeh Kramim’.  The film was directed by the respondent no. 3.  The investigative research and interviews were conducted, inter alia, by respondent no. 4, who was the acting producer.

2.    The petitioners are residents of the settlement ‘Mitzpeh Kramim’.  As stated above, they are observant Jews.  They were identified by respondents 2-4 as suited to take part in the film.  They agreed to this.  The film was made and sent to the respondent.  Since it was considered suitable, it was supposed to be broadcast in the framework of the show ‘Documentary Hour’, which is broadcast, as stated, on Shabbat.  The petitioners approached the respondent, and asked that the film not be broadcast on Shabbat.  According to their claim, broadcast of the film on Shabbat violates their religious feelings and their religious freedom.  The respondent denied the request.  It is willing to add captions on the screen which would state that the film was filmed on a weekday.  It is not willing to broadcast the film on a weekday as it does not have a time slot for this.  The petition before us was filed to counter this decision.

3.    At first the petitioners argued before us that an agreement was made with them that the film would not be broadcast on Shabbat.  During the course of the arguments the petitioners repeated this claim, while arguing that there was a misunderstanding.  The source for this was, according to their claim, in the fact that some of the respondents were religious and from this the petitioners concluded that the film would not be broadcast on Shabbat.  After reviewing the material before us, we are making the determination that there was no agreement between the petitioners (or some of them) and the respondents according to which the film would not be broadcast on Shabbat.  The opposite: it was said to the petitioners that the film would be broadcast on the show ‘Documentary Word’.  From this the petitioners could conclude that the film would be broadcast on Shabbat.  Moreover, it is routine that observant Jews are filmed on weekdays and the film is aired on Shabbat.  Indeed, the petitioners should have known that the film would be aired on Shabbat, and the respondents assumed and were entitled to assume, that the petitioners agreed to this.  It was the duty of the petitioners to look into this matter before they participated in the film (compare HCJ 164/97 Kontrem Ltd. v. Ministry of Finance [1]).  Against this background the question was raised whether the petitioners have the right – which is not anchored in an agreement – that the film not be broadcast on Shabbat as, according to their claim, it violates their religious feelings and freedom of religion.  In truth, the petitioners themselves are not being made to desecrate Shabbat.  However, broadcast on Shabbat turns the petitioners, according to their claim, into accomplices of the desecration of Shabbat.  When the petition was filed we sought to resolve the matter by amicable means.  A conference was held before the President.  The petitioners’ Rabbi was invited to the meeting.  We sought to examine various ways to settle the dispute by agreement between the parties.  The respondents offered to broadcast the film with a caption that the filming took place on a weekday; it was also proposed that the caption would further state that the petitioners objected to broadcast of the film on Shabbat.  It was proposed to them that they make do with the filing of the petition without insisting on a judicial determination.  All proposals were rejected.  There is no recourse therefore but to hand down a judicial determination.

The normative framework

4.    The respondent is a statutory corporation.  Its discretion is subject to principles of public law in Israel.  It must weigh the relevant values and principles, and it must properly balance them.  On the one hand, there is the right of the respondent to freedom of expression.  That is the freedom of expression of the respondent – which serves as a spokesperson and a stage simultaneously (see HCJ 399/85 Kahane v. Broadcast Authority Management Board [2] at 268); it is the freedom of (artistic) expression of the other respondents (see HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board  [3] at 680); it is the right of the public to know (see HCJ 6218/93 Cohen v. Bar Association [4] at 541).

5.    On the other hand, there are the feelings of the petitioners.  I accept that the very knowledge that the film in which the petitioners are participants will be broadcast on Shabbat – thereby turning the petitioners, in their own eyes, to parties to the desecration of Shabbat – can violate the religious feelings of the petitioners.  Preventing this violation is in the public interest.  Indeed a society whose values are Jewish and democratic protects the feelings of the public in general and religious feelings in particular (see HCJ 953/89 Indor v. Head of Jerusalem Municipality [5] at 690; HCJ 3888/97 Novik v. Second Authority [6] at 202; HCJ 287/69 Meiron v. Minister of Labor [7] at 364; hereinafter – ‘the Meiron Case’; HCJ 5016/96 Horev  v. Minister of Transportation [8] at 58; hereinafter – ‘the Horev  Case’; Statman, Violation of Religious Feelings, Multi-Culturalism in a Democratic and Jewish State (eds. M. Mautner, A. Sagi, R. Shamir) at 133 (1998)).  Indeed the coarse violation of religious feelings gnaws at the value of tolerance, which is one of the values which binds and unifies society in Israel.  The duty not to violate the religious feelings of the other ‘stems directly from the duty of mutual tolerance between free citizens of different beliefs, without which a diverse democratic society such as ours is not possible.’  (Justice Landau in HCJ 351/72 Keinan v. Film and Play Review Board [9] at 814; see also HCJ 806/88 Universal City Studio Inc. v. Film and Play Review Board [10] at 30; hereinafter – ‘the Universal City Case’; CrimAp 697/88 Sutzkin  v. State of Israel [11] at 307; hereinafter:  ‘the Sutzkin  Case’.

6.    What is the proper balance between the need to protect the freedom of expression of the respondents on the one hand and the need to protect the religious feelings of the petitioners on the other?  This question was discussed at length in the case law of the Supreme Court.  It was determined that the (vertical) ‘balancing formula’ is this: freedom of expression prevails, unless the violation of religious feelings is nearly certain and their violation is real and severe (see HCJ 7128/96 Temple Mount Faithful v. Government of Israel [12]; Universal City Case, p. 31; the Sutzkin  Case, p. 308).  Indeed in order to restrict freedom of expression a ‘plain’ violation of religious feelings is not sufficient.  A real and severe violation is necessary.  It is necessary that the violation go beyond the tolerable threshold of Israeli society (see HCJ 243/81 Yaki Yoshe Company Ltd. v. Film and Play Review Board [13] at 425).  This is a violation that shakes up the ‘doorposts of mutual tolerance’ (the Horev Case, p. 47)).

7.    What is the result of the proper balancing in the petition before us?  In opposition to the violation of the freedom of expression of the respondents is there a near certainty of a real and severe violation of the religious feelings of the petitioners?  There is no debate that the violation of the religious feelings of the petitioners is nearly certain.  It has been proven to us that such violation is certain (compare the Universal City Case, at p. 40).  But is the condition as to the intensity of the violation met?  The answer to this question is negative.  ‘The level of tolerability’ of Israeli society, in a Jewish and democratic state, includes situations in which the image of a believing Jew is broadcast on Shabbat (whether they are a political person and whether they are not a political person; whether it is an active interview or whether it is a chance filming).  This has been the situation in Israel for many years.  No one disputes this.  The violation of the religious feelings of the petitioners does not shake the doorposts of mutual tolerance in the State.  ‘In a democratic society a certain degree of violation of religious feelings is to be recognized.  Only in this way will it be possible for cooperative living of those with different religious views to take place.’ (Universal City Case, p. 39).  Certainly this is so if the broadcast of the film is accompanied by a caption that the film was filmed on a weekday.  A different conclusion would lead to the beginning of the end of broadcasts on Shabbat.  These broadcasts began as a result of a petition to this court (see the Meiron Case).  Consequent to this it is accepted in Israeli society that television broadcasts take place on Shabbat, in which, among others, observant Jews are seen, and in which interviews and conversations with them take place.  Thus on Shabbat, the operation of the Knesset and the government are broadcast, and in the framework of these, observant members of Knesset and ministers who are interviewed on weekdays are viewed; so too, on Shabbat entertainment, political, and cultural programs, in which observant Jews take an active part, are viewed.  If all of these are prohibited from being viewed, chances are great that all television will be shut down on Shabbat followed by the radio.  All this is not consistent with the ‘level of tolerability’ of the violation of religious feelings in Israel, as it has been accepted here for many years.  Indeed, the possibility of a certain violation of religious feelings is the price that every person, be his religion what it may be, is required to pay for life in democratic society, in which secular and religious and members of different religions live side by side one next to the other.  This is in many instances the price one must pay and there is no escape from it.  But, there are cases where a person who has a particular difficulty making peace with the violation of religious feelings can avoid that violation.  The case before us is such a case.  A religious person who is willing to be interviewed for television, but is not willing for the interview to be shown on Shabbat, can condition the interview on the term that the interview is to be broadcast only on a weekday.  But the petitioners did not do so, not explicitly nor by implication.  In this sense, as they themselves note in their notice to the court, they have only themselves to blame.  The result is therefore that the claim as to unlawful violation of religious feelings is to be dismissed.

8.    The petitioners did not base their arguments before us only on violation of religious feelings.  They went on to argue that broadcast of the film on Shabbat violates their freedom of religion.  They argue that in the (horizontal) balance between the violation of freedom of expression and the violation of religious freedom, the violation that is caused to the petitioners in broadcasting the film on Shabbat is more severe than the violation that will be caused to the respondents if the film is broadcast on a weekday.  What is the legal fate of such an argument?  Indeed, a distinction is to be made between the violation of religious feelings and the violation of freedom of religion.  Violation of the former (religious feelings) is a violation of the public interest.  The balancing required between the violation of this interest and the violation of freedom of expression is a vertical balancing (see A. Barak, Interpretation in Law, Vol. 2 [41] at p.688.).  The freedom has the upper hand, unless there is a probability (a likely possibility, near certainty, and the like) of severe violation  (in various degrees of severity) to the public interest (see, for example, HCJ 448/85 Dahar v. Minister of Interior [14] at 708 (public safety versus freedom of movement); CrimA 126/62 Disenchek v. Attorney General [15] (judicial purity versus freedom of expression); CA 294/91 Chevra Kadisha GHSHA ‘Kehillat Yerushalayim’ v. Kestenbaum [16] at 519 (public interest in language versus human dignity).  The second violation is to personal liberty.  It is a matter here of the necessary balance between violation of the two liberties (or more) (see HCJ 2481/93 Dayan v. Commander of Jerusalem District [17] (freedom of expression versus privacy and property); HCJ 148/79 Sa’ar v. Minister of Interior and Police [18] (freedom of expression versus freedom of movement).  The balance is horizontal.  Within it limitations of time, place and shape are established which will enable every liberty to fully fulfill its principles.  Is a vertical balancing necessitated in the petition before us?  In order to answer this question the scope of the competing rights needs to be examined.  Only if in light of this examination there is a clash between them, will there be a need for a horizontal balancing.  What is the situation in the matter before us?

9.    All accept that freedom of religion is a basic right in Israeli law (see A. Rubinstein, Constitutional Law in Israel 175 [42].  More than once it has been ruled that freedom of religion is a ‘core rule in our legal system’ (Justice Kister in HCJ 291/74 Bilet v. Goren [19] at 102), that it is ‘one of the personal liberties guaranteed to him in every enlightened democratic regime’ (Justice Landau in HCJ 115/50 Yosefof v. Attorney General, [20] at 488) and that it is to be seen as a ‘basic principle of our legal regime’ (Acting President Justice Landau in HCJ 866/78 Morad v. Government of Israel, [21] at 663).10.  What is the scope of freedom of religion?  This freedom encompasses the liberty of the individual to believe and his liberty to act according to his faith, while realizing its rules and customs (‘freedom of worship’) (See HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC [22] at 381; HCJ 3267/97 Rubinstein v. Minister of Defense [23] 528; Berinson ‘Freedom of Religion and Conscience in Israel’ [45] at 406; Gavison, ‘Religion and State – Separation and Privatization’ [46] at 78 (1984); H. Cohn, ‘On Freedom of Religion and Religious Wellbeing – Reviews in Legal History’ [47].  Therefore freedom of religion includes the right of a person not to be compelled to act against their religion (see the Horev Case, at p. 140).  Freedom of religion also includes the right of a person to express himself with attire suited to the directives of his faith (see HCJ 4298/93 Jabarin v. Minister of Education, [24] at 203).  It is superfluous to mention that this is not a closed list.  Freedom of religion is tied to the individual and the realization of his identity.  It is part of his ‘I’.  Just as the ‘I’ constitutes a complex phenomenon whose boundaries are not to be clearly demarcated, so too the boundaries of freedom of religion are not to be demarcated.

11.  Does broadcast of the film on Shabbat violate the freedom of religion – as opposed to the religious feelings, of the petitioners?  The answer is negative.  Broadcast on Shabbat does not violate their liberty to believe and their liberty to act according to their belief.  It does not prevent them from realizing the rules and customs of their faith.  Examination of the arguments of the petitioners shows that their argument in fact is that the actions of others (the respondents) in opposition to the directives of the religion constitute a violation of the freedom of religion of the petitioners.  An argument such as this has been dismissed in the past more than once by this Court.  Thus, for example, the claim was dismissed that the existence of broadcasts on Shabbat constitutes a violation of the freedom of religion of the individual who does not watch television on Shabbat (the Meiron Case, at p. 363).  Justice Berinson noted in that case that despite the broadcasts on Shabbat, nobody was forcing the individual to watch television on Shabbat.  Only a violation that does not enable the individual to fulfill the directives of his religion and faith, or to conduct his lifestyle as a religious person, will be considered a violation of freedom of religion.  In another case, the claim was dismissed that the import of non-kosher meat and the consumption of non-kosher meat by Jews, constitutes a violation of the freedom of religion of believing Jews (see HCJ 3872/93 Mitral Ltd. vs. Prime Minister [25] at 500).  It was determined that the distinction is to be made between direct violation of the individual’s lifestyle (which constitutes a violation of his freedom of religion) and a violation of the feelings of an individual, consequent to the actions of another, which is not a violation of freedom of religion.  In that spirit I noted in another case that ‘I am not of the opinion that driving on Shabbat on Bar-Ilan street violates the constitutional right of every one of the residents of the neighborhood to freedom of religion.  The residents of the neighborhood are free to fulfill the directives of the religion.  The movement of the cars on Shabbat does not deny them this right, and does not violate it.’  (The Horev Case, p. 58).  Indeed, where a person is harmed by the actions of another which are in opposition to religion the claim is not of violation of freedom of religion but rather to its feelings and consciousness.  (See Kasher, ‘Violation of Feelings for the Overall Good’ [48]).

12.  I am aware that in the petition before us the harm to the petitioners is not merely because of the actions of others, but also because of the use on Shabbat of interviews that were conducted with the petitioners on a weekday.  This difference does not change the determination that at the basis of the claim of the petitioners there is the violation of their religious feelings and not their religious freedom.  Just as it cannot be imagined that the freedom of religion of an observant Jew is violated if a book that he wrote on a weekday is read on Shabbat while violating Shabbat, so too it cannot be imagined that the freedom of religion of an observant Jew is violated if an interview he gave on a weekday is broadcast on Shabbat.  Indeed, unchecked expansion of freedom of religion will result in a cheapening of the freedom of religion and depleting it of content.

13.  My conclusion, therefore, is that the broadcast of the film on Shabbat does not constitute a violation of the freedom of religion of the petitioners.  In light of this conclusion, there is no need to examine what the proper (horizontal) balance is between the violation of freedom of religion (were it to have occurred) and the violation of freedom of expression.  This examination raises a number of questions which are not simple, and which I have no need to discuss.  I also do not have the need to discuss an additional claim against the petitioners.  According to the claim, the respondents spent a prolonged period of time producing the film on the basis of a contract between the respondent and the production company, investing significant manpower and monetary resources.  They acted in good faith, and had no basis to think that the petitioners, who cooperated with them throughout the time period, would wake up when the work was done and raise an objection to the broadcast of the film on the date that was determined in advance.  In this situation there is room for the claim that the petition is lacking due to its delay, or that the petitioners are prevented from submitting the petition at this stage, or that it would not be just to grant the petitioners the requested remedy against the respondents.  However, as stated above, these claims can be left without a determination.

The result is that the petition is denied.  We have noted before us the declaration of the respondents that a caption will be added to the broadcast stating that the filming took place on a weekday.

 

 

Vice President Levin

I agree.

 

 

Justice D. Dorner

Unfortunately I cannot agree with the judgment of my colleague, President Aharon Barak.  Indeed, I agree with the opinion of my colleague that the violation of the petitioners’ feelings on its own does not justify, under the circumstances, granting the petition.  However, were my opinion to be heard, we would grant the petition and rule that broadcast on Shabbat of a television film which documents the course of the lives of the petitioners, observant Jews – including interviews conducted with them (hereinafter: ‘the film’) – does not merely harm their feelings, but rather also unlawfully infringes on their right to freedom of religion.

The following are my reasons.

The facts

1.    Production of the film which is approximately 24 minutes long, was ordered from respondents 2-4 (hereinafter collectively: ‘the producers’) by respondent no. 1 (hereinafter: ‘the Second Authority’).  This, with the intention of broadcasting it on Shabbat, in the broadcast time slot of half an hour, which is the only broadcast time slot that was available to the Second Authority for the purpose of broadcasting topics of special interest to the public.  The producers knew this.  However, the intention to broadcast the film on Shabbat, in the framework of the television show ‘Documentary Word’ dealing with the tension between Judaism and being Israeli, was not brought to the petitioners’ attention.  This, on the basis of a presumption based on the experience of the Second Authority with broadcasting interviews with observant Jews on Shabbat, including on the show ‘Documentary Word’ itself, according to which it fulfilled its obligation by accompanying the broadcast with the caption ‘filmed on a weekday’.

At the same time, it never occurred to the petitioners, who are young, and lack experience and contact with the media, that the film was designated for broadcast on Shabbat.  The subject was raised by the petitioners by chance on the day the filming was completed, and the producers promised to handle the matter.  However, it was later made clear to the petitioners by the producers, that the film would be broadcast on Shabbat.  Written requests by the petitioners to the Second Authority were to no avail.  The Second Authority apologized to the petitioners for the harm to their feelings, but explained that it could not broadcast the film on a weekday.  In their difficulty the petitioners turned to their Rabbi, Rabbi Shlomo Aviner, in order to find a solution in Jewish religious law that would not turn them into desecrators of Shabbat.  Rabbi Aviner made a categorical and resolved determination based on Jewish religious law that broadcast of the film on Shabbat would entail a mass desecration of Shabbat with the participation of the petitioners, that showing the film with the caption ‘filmed on a weekday’ may be perceived as propaganda and may even amount to moral corruption, and that in his view there is no solution in Jewish religious law that would allow the broadcast of the film on Shabbat.  Rabbi Aviner repeated this position of his during the course of the discussion which took place in the framework of the petition before us for the purpose of reaching a consensual arrangement.

The questions

Against this background three questions arise.  First, does the broadcast of the film, whose ‘actors’ are observant Jews, on Shabbat, violate their right to freedom of religion, meaning their right to fulfill the directives of their religion, as opposed to merely constituting harm to their feelings, as a result of the breach of the directive of their religion by other Jews.  Second, what is the proper balance between the rights of the petitioners to freedom of religion and the rights of the respondents to freedom of expression and property?  Third, how does the agreement between the petitioners and the producers as to the participation of the former group in the film, which was obtained without relating to the question of broadcast of the film on Shabbat, impact the parties’ rights.

I will discuss these questions in order.

The right of the petitioners

2.    The element which distinguishes freedom of religion from harm to religious feelings is that the violating action is prohibited to the believers or incumbent upon them according to the directive of their religion.  The content of the religion’s directive is determined by the religious guides of the Jewish religious law.  H. Cohn explained this:

‘’Freedom of religion’ means the freedom to do not what the religion permits, but only what the religion obligates. . .  In other words: the right to freedom of religion is the right to fulfill all the directives that a person’s religion imposes upon him, as long as he does not break the law. . .  the question what is the ‘directive’ that the law obligates one to do is a religious question, not a legal one: every single religion and its own directives, and every religion determines what is the degree of obligation in the fulfilment of one directive or another’ [Haim H. Cohn, The Law, [43] 525, emphases in the original].

We find a similar approach in comparative law.  The following was written in a decision of the United States Supreme Court, handed down by Chief Justice Warren Berger:

‘It is not within ‘the judicial function and judicial competence,’ ... to determine whether [the Amish] or the Government has the proper interpretation of the Amish faith; ‘[c]ourts are not arbiters of scriptural interpretation.’

[United States v. Lee, 455 U.S. 252, 257 (1982) [36] citing Thomas v. Review Bd. Of Indiana Employment Security Div., 450 U.S. 707, 716 (1981)[37]]

 In another decision of that court Justice Thurgood Marshall wrote:

‘It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.’  [Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699 (1989)[38]].

In Judaism which is not monolithic but decentralized, a believing person or believing public chooses their rabbi, and this rabbi is one who determines for him the obligations of his religion.  As it says in our sources ‘find yourself a rabbi and remove the doubt’ (Mishnah, Avot 1, P, [51]; Avot of Rabbi Natan 22, A [52]).  On this matter Justice Izhak Englard has written:

‘There is no place for this court to make an assumption as to the content of a religious law which is different than the one which was determined by the Rishon Le’Tzion and by the Local Rabbi of Rishon Le’Tzion…  It is a great principle in Jewish religious law that the public is obliged to follow the religious determination made by the local rabbi. . .’

[CA 6024/97 Shavit v. Chevra Kadisha GHSHA Rishon LeZion [26]].

In the case before us Rabbi Aviner made the religious law determination that in their appearance in the film being broadcast on Shabbat the petitioners themselves will break the directive of the religion, even if the broadcast is done by others.

Indeed, there are also other approaches more lenient than the approach of Rabbi Aviner.  See for example, a Jewish religious law ruling that permitted an observant film producer to sell his films to the Broadcast Authority knowing that they would be broadcast on Shabbat (Rabbi David Stav, ‘Filmed on a Weekday, Broadcast on Shabbat’ Nekudah 211 (1988) 52, [53] at 52-53).  But the position of Rabbi Aviner is not esoteric, and has much support.  See for example, Rabbi Shlomo Zalman Oyerbach ‘Repeat Radio Broadcast on Shabbat’, Tehumin, Religious Law Compilation on the Topics of Torah, Society, and State 17 (1997) 13 [54]; Rabbi Dr. Nahum Eliezer Rabinovich, Electricity in Jewish Religious Law (Part B – Shabbat and Holiday, 1981) 270 [55]; Rabbi Dr. Nahum Eliezer Rabinovich, ‘Asking in the Matter’ Hadarom Torah Collection 15 (1962) 120[56].

3.    However, we need to draw a boundary between violation of freedom of religion and harm to religious feelings.  Thus, constitutional protection will not be given to an extreme approach which regards every harm to religious feelings due to the breach of religious directives by Jews as a violation of the freedom of religion of the believer, in the sense of ‘all of Israel are responsible for one another’ (Shavuot 39, A [57]).Conversely, the criteria is not necessarily the identity of the one performing the prohibited act, but rather whether the prohibited act is obligatory for the observant person or whether they are being kept from fulfilling a religious obligation.  The obligation need not necessarily be physical.  Thus, for example, running a factory on Shabbat due to an emergency order, when the religion of the owner prohibits them from having their property involved in the desecration of Shabbat, may violate their right to freedom of religion.  Similarly, it was determined in Germany in 1973 that placing a cross on the judge’s podium in court violates the freedom of religion of the Jewish attorney who appears before the court, and therefore is prohibited.  See BVerfGE 35, 36 [39].  In a later case, from 1995, it was determined that hanging a cross in classrooms in a school violates the freedom of religion of the students who are not Christian and is therefore prohibited, and the law that instructed to do so was void.  See BVerfGE 93,1 [40].

In our matter, broadcasting the film on Shabbat harms the petitioners not because of the action of others, nor in the name of a metaphorical mutual guaranty which binds all the people of Israel together.  The petitioners are directly harmed, as they themselves are appearing on television on the day of Shabbat.  They thereby become themselves partners to the desecration of Shabbat, and transgress, at the time of the broadcast, against their will, the directive of their religion. 

My colleague writes, that ‘their [the petitioners’] argument in fact is that the actions of others (the respondents) in opposition to the directives of the religion constitute a violation of the freedom of religion of the petitioners.’ (In paragraph 11 of his judgment).  In my opinion, this is not so.  The petitioners have no claims against the broadcast of television on Shabbat.  They have no complaint against the broadcast of the program ‘Documentary Word’ on Shabbat.  Their petition and request is only in opposition to the broadcast on Shabbat of the specific film that was made about them and with their participation.

Such a broadcast contains a violation of the freedom of religion, which is the provision of the possibility of the individual to fulfill the directive of their religion without government intervention.  Freedom of religion is ‘of the basic liberties which are recognized according to our legal system and constitute a part of it’ (President Meir Shamgar in HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC [22] at 381) and it was guaranteed to all citizens of the state in the Declaration of Independence, whose ‘principles every authority in the State must place before itself’ (Justice J. Sussman in HCJ 262/62 Peretz v. Local Council Kfar Shmaryahu, [27] at p. 2116).  Freedom of religion is counted among the liberties on which our democratic regime is based.  See the words of Justice Barak in HCJ 292/83 Temple Mount Faithful v. Head of Jerusalem Municipality [12] at p. 454.

However, as with every right, freedom of religion too is not absolute, and it must be balanced against other rights and protected interests.

Balance between the parties’ rights

4.    In the case before us, against the right of the petitioners to freedom of religion stand the rights of the respondents to freedom of expression and property, which are also basic rights.  On this matter case law has distinguished between values which override one another, in which case the balancing between them is ‘vertical’, and values of equal weight, which concede to one another, in order to enable their collective existence, in which case the balancing is ‘horizontal’.  Vice President Barak explained this:

‘In the ‘vertical’ balancing, one value – in colliding with another value – has the upper hand.  However, this superiority is realized only if the requirements of the balancing formula are met as to the likelihood of the violation of the preferred value and its degree.  Thus, for example, the public interest in public peace and public order overrides freedom of expression, as long as there is a ‘near certainty’ that actual damage will be caused to the public interest if the freedom of expression is not limited. . .  In the ‘horizontal’ balancing the two conflicting values are of equal weight.  The balancing formula examines the degree of mutual concession of each of the rights.  Thus, for example, the right to movement and the right of assembly are of equal weight.  The balancing formula will establish conditions of place, time, and scope in order to enable the collective existence of the two rights.’ [HCJ 2481/93 Dayan v. Commander of Jerusalem District [28] at p. 474-475].

See also HCJ 6656/93 Am K’Lavi v. Commander of Jerusalem Police [29] at pp. 796-797; CrimA 7528/95 Hillel v. State of Israel [30] at p. 96; HCJ 5016/96 Horev v. Minister of Transportation [8] (hereinafter: ‘HCJ Horev’) at pp. 37-38.In the legal literature complications in the distinction between the two types of balancing have been pointed out.  It has been noted that it is proper to strive for collective existence of values, even if these are not equal in weight.  But, if it is not possible for the two values to co-exist, preferring one value over another is unavoidable, even if the two are of equal weight.  See Izhak Zamir and Moshe Sobel, ‘Equality before the Law’ [49] at pp. 214-215.

5.    In my opinion the basis of the distinction between the types of balancing is not in the result of the balancing in the sense of mutual concessions as opposed to preference of one value over another, but in its purpose, from which the criteria for balancing are derived.  The vertical balancing – which is implemented in the collision between a human right and a public interest – is intended to minimize, as much as possible, the violation of the right even where the public interest overrides it.  While the horizontal balancing – which is implemented in the collision amongst human rights, is intended to minimize, as much as possible, the violation of both of the rights.  See and compare Aharon Barak, ‘Protected Human Rights: The Scope and the Limitations’ [50] at pp. 263-264.

A human right, by its nature, carries a social price.  This price is expressed in the criteria for respect of human rights that were established in section 8 of the Basic Law: Human Dignity and liberty and in section 4 of the Basic Law: Freedom of Occupation (hereinafter: ‘the limitations clause’).  The limitations clause was also applied to violations by administrative authorities (and not only by the Knesset) of basic human rights (including rights that are not established in a basic law).  See, for example, HCJ 4541/94 Miller v. Minister of Defense [31] at p. 138; HCJFH 4466/94 Nuseiba v. Minister of Finance, [32] at pp. 86-87; HCJ Horev , Ibid  at p.41-42.

However, the purpose of the limitation clause, the principle of proportionality being among its foundations, is to protect human rights by minimizing the infringement on them when they collide with a public interest.  Thus, within the principle of proportionality, the authority is required to undertake from among the alternative means which may advance the realization of the public interest (the purpose) the means which causes the smallest harm to the right. Today, balancing formulas such as the ‘near certainty’ test and the ‘reasonable possibility’ test, which were formulated in  case law even before the principle of proportionality was absorbed in our legal system, are also integrated into the principle of proportionality, and this for the purpose of establishing the legality of the decisions of the administrative authorities which violate human rights.  These formulas take into account the idiosyncratic weight of the right and the public interest for the sake of which the violation of the right is sought.

The test of the lesser violation and the balancing formulas, therefore, reflect the public price that a democratic society is willing to pay in order to protect human rights.  I explained this in another case which relates to the balance between a person’s right to freedom from detention and protection of public safety:

‘Where the realization of an interest has no price, there is no significance to anchoring it in a right, and all the more so in a constitutional basic right.  The value in the rights of the public and victims’ is generally collective and in opposition to it are the rights of the single accused.  Without recognizing the rights of the accused, there is no existence to the rights of the potential victims, who may find themselves, in other circumstances, as the accused.  Protection of basic human rights is not just a matter of the individual but of society as a whole, and it determines society’s image.

Indeed, it is possible that preventative detention of a person who has not yet committed a crime, cancellation of the presumption of innocence and replacement of the more stringent burden of proof which is customary in criminal law with the degree customary in civil trials would reduce the amount of crime and contribute significantly to the protection of public safety.  But in our democratic regime, in which the liberty of the individual is recognized as a basic right, society concedes some of the possible protection of public safety.’

[CrFH 2316/95 Ganimat v. State of Israel [33] at p. 645.]

6.    The criteria in the limitations clause, and in particular the principle of proportionality, are not appropriate for the balancing of two human rights.  The purpose of the horizontal balancing is to reduce the violation of both of the rights, and this, as said, through mutual concessions which enable the realization of both simultaneously, even if not to their full extent.  But if the possibility of the co-existence of the two competing rights does not exist, the prevailing right will be the one which if infringed upon will result in more severe damage to the individual.  The severity will be determined, first, by the substance of said right.  In this matter heavy-weight rights, which grow directly from the core of human dignity and the protection of human image, are to be distinguished from lighter-weight rights, which are more distanced from this core.  However, one is not to merely relate to the title of the basic right, but also to the interests which stand at its foundation in the concrete instance and the specific values which are protected in the relevant context.  See and compare HCJ 1715/97 Office of Investment Managers in Israel v. Minister of Finance [34] at pp. 422-423; HCJ 450/97 Tnufah Manpower Services and Maintenances Ltd. v. Minister of Labor and Welfare [35] at p. 452.  Second, the degree of violation of the right and its scope are to be considered, and we should examine whether the realization of the competing right violates the center of the said right or its margin.

In our matter, I am of the opinion that the competing human rights – the freedom of religion of the petitioners, on the one hand, and the freedom of expression and the right to property (which is of a lesser weight) of the respondents, on the other hand – are of equal weight.  However, mutual concession between them is not possible.  In the existing circumstances, the right to freedom of religion has no room to retreat and its violation is substantive.  And, as stated above, the petitioners have been forced – according to them and according to their rabbi – into the desecration of the Shabbat.

On the other hand, the circumstances of the case enable the respondents to concede a small portion of their rights, by broadcasting the film on a weekday instead of on Shabbat.  Such a concession violates only the margin of the rights.

7.    The respondents claim that ‘the Authority has no other date to broadcast a program of this type’, and that banning the film from being broadcast on Shabbat means banning it from being broadcast at all, which is equivalent to censorship and severe violation of the freedom of expression and the right to property.

This argument is not reasonable.  Indeed, the Second Authority has a broadcast time slot on Shabbat.  However, transferring the program from Shabbat to another day is not impossible.  The legislator entrusted the Second Authority with the discretion to take time slots from a broadcast unit of a franchisee for the purpose of presenting programs on its behalf, as long as notice of this is given in a reasonable amount of time in advance.  See section 48 of the Second Television and Radio Authority Law 5750-1990.

8.    One would think that it would be possible to resolve the difficulty not only by a compulsory ‘taking’.  Even the Second Authority itself wrote the following in its response:

‘Given that the only time slot of the Second Authority is on Shabbat, the realization of the suggested solution required approaching one or the other of the franchisees with a request that they agree to allot, at short notice, a date for broadcast of the program in the framework of their broadcasts.  Taking into consideration the fact that broadcast schedules of franchisees are finalized several months before the date of broadcast, and the fact that documentaries such as this type of program do not draw a large viewership and therefore it is difficult to schedule commercials in them, the broadcast time that could be requested from the franchisees for this purpose is during the late night hours (around 1:00 at night).’

In the framework of the relationship between the franchisees which broadcast in the middle of the week, amongst themselves and between them and the Second Authority there have in the past been deviations from the broadcast schedule and the time slots, as a result of various circumstances.  The broadcast schedule is not ‘holy’ and unchangeable, but rather, when necessary, it can be flexible according to needs and circumstances.  Moreover, the broadcast of the film was postponed with the consent of both parties for a number of months, such that the argument as to the short notice is no longer valid.

Broadcast of the program on a weekday is not impossible, even if it entails a fair amount of effort, and possibly even the provision of financial indemnification to one of the franchisees due to considerations of viewership percentages (taking into account the addition of religious viewers who do not watch television on Shabbat).  This being the case, transferring the program from Shabbat means only minimal violation of freedom of expression and the property right of the respondents.

It turns out therefore, that the requested balance which will enable ‘joint living’ and ‘co-existence’ of the rights necessitates granting the petitioners request.  The petitioners have nowhere ‘to retreat back’ to.  Their Rabbi appeared before the court and could not find a solution in Jewish religious law.  Broadcast of the film on Shabbat means a forced infringement by the petitioners on the directive of their religion and the violation of their freedom of religion.  The respondents on the other hand have room to maneuver.   Refraining from broadcasting the film on Shabbat, while enabling its broadcast on another day, means, as said, a minimal degree of violation of freedom of expression and property of the respondents alongside protection of the freedom of religion of the petitioners.

 The claim of delay

9.    The respondents claim, that the petition was delayed, as for them it is routine to broadcast programs with the participation of religious people on Shabbat, with the accompanying caption ‘filmed on a weekday’, and that they had no basis for assuming that the petitioners would only raise objections to broadcasting the film on Shabbat after its making was completed.

The good faith of the respondents does not detract from the good faith of the petitioners, who are not accustomed to viewing television on Shabbat, and did not know about the said practice.  In fact the petitioners claim that the possibility never crossed their mind that a program about them would be broadcast on Shabbat, and they were even misled into believing that this is the case.  In this situation, there is no room for the claim of delay, as when the petitioners found out about the broadcast planned for Shabbat they approached the Second Authority and tried to prevent it.

However, the primary issue to me is that the Second Authority, which ordered a film about and with the participation of observant people, with the intention of broadcasting it on Shabbat – and according to its claim, even with the knowledge that there was no possibility of broadcasting it on a weekday – is not entitled to rely on the customary practice of placing the caption ‘filmed on a weekday’.   As, under the circumstances, it was obligated to present the petitioners with its intention to broadcast the film on Shabbat.  Even if in practical life, in the face of such a practice, which is based, apparently, on more lenient approaches in Jewish religious law, the Second Authority is accustomed to refraining from obtaining prior consent in similar cases, in doing so, it thereby runs the risk that it will be forced to give up the broadcast on Shabbat if an objection arises.

As a rule, it is appropriate to impose on the Second Authority, or those who represent it who initiate the broadcast and are experienced in contracting with film subjects for the purpose of preparing programming about them, the duty of proper disclosure, when it is possible that the party who is the film’s subject will be harmed.

Ramifications for the future

10.  My colleague, the President, is concerned that consequent to a decision which prevents the broadcast on Shabbat ‘chances are great that all television will be shut down on Shabbat followed by the radio.’  I do not share these concerns.

There are certainly many people who will agree to participate in programs broadcast on Shabbat, including secular people, non-Jews, and even, as the respondents claim, religious Jews who agree to broadcasting with the accompanying caption ‘filmed on a weekday’.

Moreover: the right to freedom of religion does not prevail in every case, but rather only when the injured parties are at the center of the program under discussion.  When this is the situation, the technical action of the broadcasters is the also the substantive action of the subjects of the broadcast.  This being so, the intensity of the belonging of the subjects of the broadcast to the program, as well as the harm to them, prevails over the right of the broadcasters to freedom of expression and their property.  It cannot be inferred that this ruling extends neither to a case of subjects who were filmed by chance in a crowd, nor to public figures or authors who appear frequently on television on Shabbat.  It is possible and necessary to draw analogies only to similar cases.  The words that were said in our sources in the context of the fear of an unlikely event in the case of checking for Chametz, are appropriate here:’ One is not to be concerned that perhaps a rat has dragged it from home to home or from place to place, as if so, then from courtyard to courtyard and town to town and it is endless.’ [Mishnah, Psahim, 1, B [58]]

Therefore, if my opinion were to be heard, we would make the order nisi absolute.

It was decided as per the opinion of President Barak against the dissenting opinion of Justice Dorner.

 

18 June 2001

27 Sivan 5761

 

 

 

 

 

                                                                                    HCJ 651/03

 

Association for Civil Rights in Israel

v.                        

Chairman of the Central Elections Committee for the Sixteenth Knesset
Raam- United Arab List
Balad- National Democratic Assembly

 

The Supreme Court Sitting as the High Court of Justice

[January 21, 2003]

Before Justices T. Strasberg-Cohen, I. Englard, and A. Procaccia

 

Facts: During elections for the sixteenth Knesset, Respondent no. 1 disqualified portions of the election propaganda broadcasts of respondents nos. 2 and 3. These portions were disqualified by the Chairman because they included pictures of the Palestinian flag. Petitioner asserted that this disqualification of the portions constituted an infringement of the freedom of speech of respondents nos. 2 and 3, and an infringement of the voters' right to view political messages uncensored. The Attorney-General, as an amicus curae, asserted that petitioner did not have standing to bring his petition, as the injured respondents could have brought the petitions themselves.

Held: The Court held that petitioner did have standing as a public petitioner. The Court noted that the standing of public petitioners has been recognized in matters of a public nature that concern the rule of law, the enforcement of constitutional principles, or where intervention is necessary to repair a substantial error in government operations. In general, however, the standing of a public petitioner has not been recognized where there exists a specific individual who has been injured and also has standing. Even so, in the context of election law, the Court held that the standing of a public petitioner should be recognized even where there exists a specific individual who has standing. This extended right of standing should be recognized due to the importance of regular and proper elections to the democratic process, and due to the fact that all voters have an interest in receiving the political messages of the candidates. As to the merits of the petition, the Court held that, under the circumstances, the appearance of the Palestinian flag in the broadcasts would not cause injury to viewers. As such, the Court struck down the decision of the Chairman of the Central Elections Committee.

Israeli Supreme Court Cases Cited:

[1]HCJFH 4110/92 Hess v. Minister of Defence, IsrSC 48(2) 811

[2]HCJ 852/86 Alony v. Minster of Justice, IsrSC 41(2) 1

[3]HCJ 1/81 Shiran v. The Broadcasting Authority, IsrSC 35(3) 365

[4]HCJ 910/86 Ressler v. Ministter of Defence, IsrSC 42(2) 441

[5]HCJ 1759/94 Srozberg v. Minister of Defence, IsrSC 51(1) 625

[6]HCJ 16355/90 Jarjevski v. The Prime Minister, IsrSC 45(1) 749

[7]HCJ 428/86 Barzilai v. The Government of Israel, IsrSC 40(3) 505

[8]HCJ 4112/99 Adalah, The Legal Center for Arab Minority Rights in Israel v. Municipality of Tel-Aviv/Jaffa, IsrSC 56 (5) 393

[9]HCJ 2148/94 Gilbert v. Chairman of the Investigating Committee for the Examination of the Massacre in Hebron, IsrSC  48(3) 573

[10]HCJ 26/76 Bar Shalom v. Israel Lands Administration, IsrSC 31(1) 796

[11]CA 10596/02 Ness v. Likud Party, IsrSC 57(1) 769

[12]HCJ 40/70 Becker v. Minister of Defence, IsrSC 24(1) 238

[13]HCJ 231/73 Bergman v. Minister of Treasury, IsrSC 27(2) 785

[14]HCJ 148/73 Kaniel v. Minister of Justice, IsrSC 27(1) 794

[15]HCJ 549/75 Noah Films. v. The Film Review Board, IsrSC 30(1) 757

[16]HCJ 14/86 Laor v. The Film & Play Review Board, IsrSC 41(1) 421

[17]HCJ 869/92 Zweely v. Chairman of the Central Elections Committee for the Thirteenth Knesset, IsrSC 46(2) 692

[18]HCJ 212/03 Herut—The National Jewish Movement v. Chairman of the Central Elections Committee for the Sixteenth Knesset, IsrSC 57(1) 750

 

Israeli Books Cited:

[19]1 I. Zamir, The Administrative Authority, 81-83 (1996). 

[20]Z. Segel, The Right of Standing in the High Court of Justice 253 (1993

 

Petition granted.

 

On behalf of the petitioner—Dan Yakir

On behalf of respondent no. 1—Anar Helman

On behalf of respondent no. 2—Not Present

On behalf of respondent no. 3—Osama Halabi

 
JUDGMENT
Justice A. Procaccia

1.  Respondents nos. 2 and 3 are, respectively, Raam—The United Arab List [hereinafter Raam], and Balad—The National Democratic Assembly [hereinafter Balad]. Both of these respondents are parties running for election in the Sixteenth Knesset.  Respondent no. 1 is the Chairman of the Central Elections Committee. The Chairman disqualified segments of two of Raam’s and Balad’s election propaganda broadcasts which displayed the Palestinian flag. Petitioner, the Association for Civil Rights in Israel, approached this Court with a petition for the invalidation of the Chairman's decision to disqualify the broadcast segments. Petitioner requests that we allow the televising of the propaganda broadcasts in full. 

After oral arguments and viewing tapes of the broadcast, we handed down a judgment on January 21, 2003 in which we made the order nisi final, and allowed the uncensored televising of Raam’s and Balad’s propaganda broadcasts.  Due to the exigency of the issue, we decided that the reasons for our judgment would be given at a later date.  The following are the facts and the reasons for our decision,

Background

2.  The petition before us was submitted by the Association for Civil Rights in Israel against the Chairman of the Central Elections Committee. Raam and Balad were added as respondents.  Raam did not attend oral arguments.  Balad attended the arguments, supported the petition, and joined in the request for relief. 

3.  The petition concerns two election propaganda broadcasts, one produced by Raam and the other produced by Balad.  We have viewed both election broadcasts. Raam’s broadcast is devoted to the troubles of the Bedouin in the Negev.  It contrasts, through pictures, the living conditions of the Bedouin with the living conditions of the Jewish population in Israel. The final seconds of the broadcast consist of a scene of a demonstration, whose participants include Knesset Member Sanah.  In this scene, a Palestinian flag is seen waving while a number of youths make the letter “V” with their fingers.  As per the decision of respondent no. 1, the Palestinian flag was concealed by a white spot.  Aside from this, the entire broadcast was approved for broadcast. 

The Balad broadcast consists mainly of speeches made by the head of the party, Member of Knesset A. Bishara, to the voting public, and of photographs of his meetings with various officials.  At the end of the broadcast, for a split-second, a picture of the Palestinian flag appears.  Here too, the Palestinian flag was concealed by a white spot, as per respondent 1’s decision.

4.  On January 15, 2003, in response to a letter sent by the legal advisor of the Association for Civil Rights in Israel, Dan Yakir, respondent no. 1 gave the following reasons for his decision:

 

I disqualified a number of segments from election broadcasting, including those segments of which you speak in your letter. I was of the opinion, and am of that opinion still, that it was appropriate not to permit the broadcast of the flag.  We should keep in mind that the present elections are elections for the Israeli parliament and that Israel is currently in a cruel and bitter state of war, even if this does not constitute war as defined under international law.

 

The Parties’ Arguments

 

5.  Following the response of respondent no. 1, the Association for Civil Rights in Israel submitted this petition.  Its main argument is that the disqualification of the segments that display the Palestinian flag constitutes a severe infringement of Raam’s and Balad’s political freedom of speech, and upon the voting public’s right to view propaganda broadcasting.  According to petitioner, election propaganda, including propaganda broadcasting, is an integral part of any constitutional, democratic electoral process. The right to broadcast election propaganda is founded upon the freedom of speech.  This court, in its case law, has formulated an equation for balancing between the freedom of speech in election propaganda and between other public interests.  According to petitioner, in the appropriate balancing of the relevant values, there is no room to disqualify these broadcast segments. The significance of the Palestinian flag should be considered within its context.  In the case at hand, the Palestinian flag does not reflect a show of support for a terrorist organization in an armed struggle against the State of Israel. As such, there is no public interest that justifies the disqualification of the segments, and they should be seen as a part of legitimate political discourse, a discourse that should not be restricted in this case. The decision to disqualify the broadcast of the segments should be seen as unreasonable, and it should be invalidated.

 

6.  The Attorney-General, as an amicus curae, claims that the petition should be denied, both on its merits and also because the petitioner lacks standing. It was argued, in regard to the latter claim, that the petitioner is fighting a battle that is not its own, and that this provides sufficient cause to close the gates of the Court.  No one, aside from the parties running for election, has the right to broadcast election propaganda. If the decision of the Chairman of the Central Election Committee harms any of the candidates' interests in propaganda broadcasting, that candidate or party is entitled to petition for relief.  Under these circumstances, the standing of a public petitioner should not be recognized, if the injured party itself has not petitioned for relief. In this case, Raam and Balad are the political parties whose broadcast segments were disqualified.  If they believed that this decision injured their rights, they could have submitted a petition for relief.  They chose not to petition for their own reasons. The petitioner in this case suffered no injury which would entitle it to submit a petition in its own name.  It was further argued that, in general, the standing of a public petitioner is not recognized in a case where an administrative act injures the rights of a specific individual and that person refrains from petitioning the court. Such is the case before us, where only the party actually affected by the decision has standing. 

The Attorney-General also draws attention to the difficulties intrinsic to a proceeding initiated by a public petitioner and not by the true interested party. First, a petition initiated by a public petitioner may lack all the factual data necessary for a comprehensive understanding of the dispute. Second, recognizing public petitioners may generate an excess of public petitions concerning the elections.  This would draw elections issues to the Court, even though they should be dealt with in the public arena.

Regarding the merits of the petition, it was argued that the respondent’s decision is reasonable.  The Attorney-General argues that, in balancing Raam’s and Balad’s political freedom of speech against the public interest, the balance leans towards disqualifying the broadcast segments that display the Palestinian flag.  This flag is the flag of the Palestinian Authority and of the Palestine Liberation Organization [hereinafter PLO].  The Attorney-General argues that it is a symbol of the cruel terrorist war being waged by terrorist organizations against the citizens of Israel, a war which has claimed many victims. As a result of this war, the lives of thousands of families have been shattered.  The disqualification of the segments was intended to prevent certain and substantial injury to the feelings of thousands of families hurt by the terrorist war being waged by the Palestinians.  The Attorney-General adds that the respondent has broad discretion in making decisions regarding elections issues which are under his authority.  In this case, his decisions should be approved. At minimum, it should be held that they do not constitute a radical departure from the zone of reasonableness.

 

Standing

 

7.  In our case law, we have greatly extended the standing of a public petitioner in matters of a public nature that concern the rule of law, the enforcement of constitutional principles, or where intervention is necessary to repair a substantial error in government operations.  The status of the public petitioner has been recognized even where the public petitioner cannot claim to have been personally affected or harmed. See HCJFH 4110/92 Hess v. Minister of Defence [1]; HCJ 852/86 Alony v. Minster of Justice [2]; HCJ 1/81 Shiran v. The Broadcasting Authority [3]. Our approach to standing was greatly influenced by our understanding of the role of judicial review in the democratic state.  Our broad understanding of the right of standing is a part of a broader view of this Court, as not only responsible for resolving conflicts between parties, but also as responsible for the rule of law, even outside the context of resolving individual conflicts: 

 

In a democratic society, the court is responsible for preserving the rule of law.  The significance of this is that it must enforce the law with regard to the governmental authorities, and it must ensure that the government is acting lawfully.

 

See HCJ 910/86 Ressler v. Minister of Defence [4]; HCJ 1759/94 Srozberg v. Minister of Defence [5]; 1 I. Zamir, The Administrative Authority, 81-83 (1996) [19].  As such, the standing of a public petitioner was recognized in matters of general public importance concerning the rule of law and concerning matters of a constitutional nature, even where the public petitioner has no direct personal interest in the matter.  HCJ 16355/90 Jarjevski v. The Prime Minister [6]; HCJ 428/86 Barzilai v. The Government of Israel [7]. 

 

8.  Even in light of this extension of the right of standing, this Court will generally not entertain a public petition where there exists an injured party who has not approached the Court.  Where a petition attacks an administrative act which has injured the right or interest of a specific individual, and that person refrains from petitioning this Court, the Court may not recognize the public petitioner’s standing, even if the matter relates to a matter of general public importance.  This exception to standing is intended to limit the public petition to government acts where there is no relevant injured party. If such an injured party exists, the public petitioner will be considered to be intervening in a conflict not its own, and its application will be denied.  Srozberg, [5] at 631; HCJ 4112/99 Adalah, The Legal Center for Arab Minority Rights in Israel v. Municipality of Tel-Aviv/Jaffa [8]; HCJ 2148/94 Gilbert v. Chairman of the Investigating Committee for the Examination of the Massacre in Hebron [9].

It is appropriate to note that there has been criticism of limiting the standing of a public petitioner in cases where there is an injured individual with a direct and actual interest in the matter:

This limiting approach should not be maintained if the Court finds that the “public petitioner” is drawing attention to a matter of general and exceptional importance, which goes beyond the specific matter at hand.

Z. Segel, The Right of Standing in the High Court of Justice 253 (1993) [20]. This approach accords with the view that “the greater the public significance of the matter, the greater the Court’s tendency to recognize the petitioner’s right to bring the matter before the Court, even if he is an ordinary citizen.” HCJ 26/76 Bar Shalom v. Israel Lands Administration [10] (Berenson, J.).

9.  Here, Raam and Balad have a direct interest in the respondent’s decision to invalidate the segments for election broadcasting.  They did, however, not petition for relief.  The petitioner is the Association for Civil Rights in Israel. The association did not initiate this proceeding in the name of those two political parties.  Nevertheless, petitioner's standing should be recognized. 

The main reason for recognizing the petitioner's standing lies in the special nature of the matter at hand, which concerns the electoral process.  Matters concerning the electoral process are of the utmost constitutional importance. Additionally, the petitioner has standing as a representative of the interests of the voter, who has a direct interest in the electoral process, and not only as a representative of the parties whose broadcast segments were disqualified. 

10.  The standing of a public petitioner, in matters regarding the elections, should not be compared to any other matter.  The significance of the protected interest in the electoral process, and the petitioner's connection to this interest, are different from that of regular public petitions.  The electoral process is, first and foremost, concerned with guaranteeing the rights of voters and parties that wish to be elected through the democratic process.  Election laws are intended to ensure that the individual be able to realize his right to vote and be voted for, while allowing him to exercise his freedom of speech. They are also intended to preserve rules of equality, as well as the regularity and fairness of the electoral process:

The goal of election laws is, at the end of the day, none other than the translation of the wishes of the voters into the distribution of political power and seats in the Knesset.

CA 10596/02 Ness v. Likud Party, [11] at par. 11 (Barak, J.).  The object of the electoral process is to realize the fundamental right to vote and be voted for in a proper and regular process. The regularity of the electoral process is the concern of the entire public, and goes beyond the direct concern of the specific individual injured by government action.  Even in the past, when our approach to standing still restricted the right of access to the courts, a voter’s right to petition against irregularities in the electoral process was recognized. In HCJ 40/70 Becker v. Minister of Defence [12], Justice Vitkon stated:

The right to public standing developed with regard to two issues. One issue relates to the elections. The reason for this recognition is that ensuring election rights is a precondition for any democratic regime. Every voter is personally and directly harmed by disruption and lack of order in the management of the elections, and he has standing in Court, unless his right has been limited by law.

With regard to examining the merits of a public petition concerning the elections, see also HCJ 231/73 Bergman v. Minister of Treasury [13];  HCJ 148/73 Kaniel v. Minister of Justice [14]. These two cases discussed the merits of the public petitions at issue there. They did not discuss the question of a public petitioner’s standing when a specific party is injured by the government act.

11.  A voter has standing to bring a petition regarding the electoral process where his rights as a voter have been directly violated.  However, his right to standing goes further than this.  In free and democratic elections, the rights of voters are intertwined with the rights of candidates such that the violation of a candidate’s rights may affect the rights of a voter. The candidates’ freedom of speech, for example, expressed through their election propaganda, is an aspect of a voter’s right to receive information from the candidates, consider this information, and formulate their choices.  Injury to a party’s freedom of speech may not only harm the party, but also the voters who wish to hear the full spectrum of political discourse.  Unlawful restrictions on the freedom of speech are not only the concern of the candidate running for election.  They are also the concern of the voter, who requires freedom of speech to formulate his electoral preferences.  In this way, the voter’s rights are connected to the rights of the candidates running for election. A direct injury to the party may constitute an injury to the voter, and grant the latter standing to bring his concern before the courts.

 

12.  We emphasize that, even after recognizing a public petitioner’s standing in election matters, we must still examine whether his petition is founded on a solid factual basis or whether, due to the public petitioner’s distance from the conflict, it relies on vague assertions, and does not bring verified facts and data before the Court. See Gilbert [9]; Adalah [8].

13.  In the matter at hand, both Raam and Balad have a direct interest in the respondent’s decision to disqualify the broadcast segments.  Needless to say, they have the right to approach this Court requesting relief, if they believe that the decision has violated their rights. In petitioning for relief, the petitioner does not act as a substitute for these parties.  The petitioner wishes to protect not only the parties’ political freedom of speech, but also the public interest in guaranteeing the rights of the voter.  The voter has the right—a right related to freedom of speech—to both see and hear the full spectrum of political discourse.  Freedom of speech includes not only the candidate’s freedom to express his opinions, but also the voter’s freedom to know—“to see and to hear.” HCJ 549/75 Noah Films. v. The Film Review Board [15]; HCJ 14/86 Laor v. The Film & Play Review Board [16].  Here, the petitioner’s claim concerns the voter’s freedom to receive the messages of the election broadcasts without interference in their contents.  This aspect of freedom of speech grants the petitioner standing to bring the claim that this freedom has been unlawfully restricted.  This is a result of the alleged injury to the voter, and in light of the constitutional status of the right to vote and be voted for in the democratic process, and of the various aspects of the freedom of speech, which is the backbone of the electoral process:

Freedom of speech is a central and fundamental principal, important for realizing the goals of law.  This freedom touches all expression.  It has special significance regarding political expression in general, and especially regarding political expression during elections….One of the principal justifications of the freedom of speech relates to democracy.  The spirit of democracy is lost without freedom of speech… Freedom of speech ensures the exchange of ideas between members of the public, and allows them to form opinions regarding issues on the national agenda…. Only in this way will a person be able to form his own independent opinions with regard to critical issues—both social and national—whose resolution are ultimately in his hands by virtue of his right to choose the state’s institutions.

 

HCJ 869/92 Zweely v. Chairman of the Central Elections Committee for the Thirteenth Knesset, [17] at 706-07 (Barak, J.).

 

In a democratic regime, the freedom of speech during elections requires both the freedom to express ideas and the freedom to receive messages that shape public opinion.  This freedom, at the heart of the constitutional right to vote and be voted for, demands the uninterrupted flow of opinions and ideas. The claim that one's freedom of speech was violated—be it the freedom of the voter or the freedom of the candidate, be it the right to express or the right to hear, see and know—entitles the petitioner to standing, and the doors of this Court will open for him.  For a discussion of foreign countries who broadly interpret a voter’s standing regarding elections, even where the matter does not especially concern him, see Z. Segel, Standing in the High Court of Justice 44 (1993) [20].

 

Petitioner raises a significant constitutional claim concerning the freedom of expression of the parties in the election, a claim that bears on the public interest. Petitioner also represents interests beyond the interests of the two parties here.  It also represents the interests of the voting public, of which its members form a part. As such, the standing of the petitioner should be recognized, and the merits of the petition should be addressed.

 

14.  Though unnecessary to the specific issue at hand, it should be mentioned that Balad was present at oral arguments and expressed its full support of the petition.  It explained that it did not actually submit its own petition for pragmatic and administrative reasons. Such a position demonstrates a mutuality of interest between the positions of the petitioner and one of the parties who has a direct interest in the matter. This greatly diminishes the force of the state’s motion for summary dismissal.

 

Needless to say, the petitioner cannot force Balad and Raam to televise the broadcasts in full, even if the petition is granted.  It may only bring about the judicial invalidation of the limitations imposed upon those parties.

 

For the above reasons, it is appropriate that the petitioner’s standing should be recognized.

 

Respondent’s Decisions—Weighing the Conflicting Interests

 

15.  In HCJ 212/03 Herut—The National Jewish Movement v. Chairman of the Central Elections Committee for the Sixteenth Knesset  [18], this Court set out the limits of the discretion of the Chairman of the Central Elections Committee regarding permitting or disqualifying election propaganda broadcasts.  First, according to Herut, the authority of the Chairman of the Central Elections Committee extends farther than the literal language of section 2B of the Elections Law (Propaganda Methods)-1959. Second, two conflicting goals should also be taken into account by the Chairman—the realization of freedom of speech in political discourse as well as the realization of public peace, in its broad sense.  Freedom of speech is the fundamental principle of the democratic electoral process. On the other hand, there is the public interest in security, peace and public order, including protecting the feelings of members of the public.  A proper balance must be struck between these interests.  In balancing these interests, freedom of speech has the status of a constitutional value. Restrictions on the freedom of speech will only be justified if the expression at issue has the potential to injure another protected value.

 

The Scope of Intervention in the Chairman of the Central Elections Committee’s Discretion

 

16. It is well known that, in deciding whether to ratify or disqualify an election broadcast under section 15A(d) of the Propaganda Methods Law, the Chairman of the Central Elections Committee has broad discretion in balancing conflicting values. A spectrum of possible decisions may fall within the within the zone of reasonableness. This is acceptable provided that a decision of the Chairman does not fall outside the zone of reasonableness, and that the Chairman attributes the proper weight to each of the relevant considerations.  Zweely [17] at 703; Herut [18] at para. 21. 

 

From the General to the Specific

 

17.  We viewed the broadcasts of Raam and Balad, and meticulously examined their contents and the details of the segments that were disqualified.  This examination led us to the conclusion that the petition should be granted.  We have no choice but to intervene in the respondent’s decision to disqualify the broadcast segments and allow the broadcasting of the election broadcasts in full. 

 

In examining the respondent’s decision, we focus on the reasons he gave for his decisions in his response to the petition.  His principal reason was that the disqualification of the segments was intended to prevent injury to the feelings of thousands of families harmed by terrorism, victims of the activities of Palestinian terrorist organizations.

 

The Palestinian flag is indeed a symbol of the national identity of the Palestinians.  As it is the flag of the Palestinian Authority and the PLO, it may possibly be identified with hostile groups involved in terrorist activities against Israeli civilians.  Nevertheless, in order to disqualify the display of the Palestinian flag from election propaganda broadcasts, the contents of the display must have the potential to cause substantial, deep and severe injury to the feelings of members of the Israeli public who may view the broadcasts, especially to those who have been harmed by terrorist activities.  Under the proper balance, only such an injury can justify the restriction of freedom of speech in election propaganda. 

 

After viewing the broadcasts, we hold that no such injury arises from their contents.  Balad’s broadcast lasts a few minutes, during which Knesset Member Bishara speaks before an audience and is seen appearing at various events and meeting with various people.  At the end of the broadcast, the Palestinian flag appears in the background for a split-second, and vanishes immediately.   The display of the flag at the end of the broadcast, the short interval during which it is displayed, and the lack of accompanying words which are aggressive or hostile, greatly reduces the potential injury to the public. 

 

We analyze Raam’s broadcast similarly.  The broadcast is dedicated to the issues of the Bedouin in the Negev.  It presents their troubles while comparing their situation to that of the Jewish population in the area.  At the end of the broadcast, the Palestinian flag is displayed for a few short seconds during a demonstration in which the demonstrators make a "V" sign with their fingers. Here too, this display of the flag for a short time constitutes a marginal part of the broadcast—marginal with respect to the main contents of the broadcast—and is not accompanied by hostile words. As such, the impact of the flag is diluted over the duration of the broadcast.

 

In both of the broadcasts, the display of the Palestinian flag is not central.  It is only peripheral.  It is displayed at the end of the broadcasts and is seen for a split-second. The flag does seize the viewer’s attention.  Under these circumstances, the display of the flag does not have the potential to cause injury that would justify disqualification of the pictures of the flag, the limitation of candidates’ freedom of election propaganda and the limitation of voters’ freedom to absorb the full spectrum of political messages.

 

18.  It should be emphasized that the decision to disqualify should not only be measured by the extent of the injury to the party that wishes to televise the propaganda broadcast. The decision should also be measured by the public interest in televising the decision without any part of it being disqualified. Freedom of speech is the standard here. Any injury to it must stand up to the proper balancing tests. 

 

19.  Though unnecessary to resolution of the issue here, it should be mentioned that there is no factual similarity between this case and the case of Herut [18], where, against the dissenting opinion of the President, we approved the disqualification of Herut’s broadcast.  In that case, the party wished to broadcast a jingle with Arabic words to the tune of  “Hatikva.”  The jingle bordered on contempt towards the national anthem, included praise of Arafat and terrorist organizations, called for the banishment of Jews from Jaffa, Acre, Ramleh and Lod, and associated the greatness of Allah with Jerusalem and “Holy Palestine.” In the first five seconds of the broadcast, the Israeli flag was seen waving above the Knesset as it gradually changed into the Palestinian flag.  A majority of this Court found that such use of the anthem and the flag exceeded appropriate levels of tolerance and held that the decision of the Chairman of the Elections Committee to disqualify the jingle fell within the zone of reasonableness.  The extent of the expected injury to the feelings of the public from the broadcast in Herut [18] cannot be compared to the case here.  In Herut [18], the desecration of the flag and national anthem and all they represent led the majority to conclude that the broadcast could cause severe injury and could even lead to the provocation and incitement.  The presentation of the PLO flag in the broadcasts of Raam and Balad—considering the spatial and temporal placement of the flag, the length of time it is displayed and its relationship to the broadcasts in general—is not at all similar to Herut’s broadcast.  No analogy should be drawn between the two.

 

As such, we are of the opinion that Raam’s and Balad’s broadcasts should be allowed to be televised in full, without the disqualification of any segments.

 

Conclusion

 

20.  In light of the above, we are of the opinion that the order nisi should be made absolute. The election propaganda broadcasts of respondents nos. 2 and 3 should be allowed to be broadcast in full, without the disqualification of any of their segments. 

 

Justice I. Englard

I agree.

 

Justice T. Strasberg-Cohen

I concur with the opinion of my colleague, Justice A. Procaccia, both with regard to the question of the petitioner’s standing in this petition and with regard to the question of the principles and norms which we adopt to guide us in the issue at hand.  The question in any given case is the application of those norms to the facts of each case.

 

The major difference between the facts in HCJ 212/03 Herut—The National Jewish Movement v. Chairman of the Central Elections Committee for the Sixteenth Knesset [18] and the facts in the matter at hand has been clarified and explained by my colleague, and I see no reason to add to her opinion.  The same principles that guided me in both of the cases have brought me to a different conclusion in each of them.

 

Petition granted.

January 23, 2003

 

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

Comments, questions and suggestions are all welcomed, and may be directed towards  elig@supreme.court.gov.il

 

 

 

            HCJ 246/81

HCJ 260/81

         

"AGUDAT DEREKH ERETZ" ET AL.

v.

BROADCASTING AUTHORITY ET AL.

 

 

 

The Supreme Court Sitting as the High Court of Justice

[July 28, 1981]

Before Landau P., Shamgar J., Ben-Porat J., Barak J. and Bejski J.

 

 

Editor's synopsis -

          The Elections (Modes of Propaganda) Law, 1959, provides free radio and television broadcasting time for each of the party lists participating in the Knesset elections. Until 1981, that Law provided that each such party shall receive 25 minutes on the radio and 10 minutes on television, and that each party represented in the outgoing Knesset shall receive an additional four minutes radio time and four minutes television time in respect of each of its members in the outgoing Knesset. An amendment of that Law in 1981 reduced the time allotted to each party participating in the election to 23 minutes on radio and eight minutes on television, while it increased the allocation of radio and television time per member of the outgoing Knesset to six minutes. The effect of this amendment was to decrease the radio and television time allocated to new party lists while it increased considerably the time allocated to the large parties represented in the outgoing Knesset. The amendment was not passed by an absolute majority of the members of the Knesset, as is required in the case of legislation that concerns elections and that deviates from the principle of equality.

         

          The Respondents appear in response to orders nisi, issued at the request of the Petitioners who argue that the amendment violates the principle of equality in elections and is therefore void, not having been enacted by the required absolute majority. The court, composed of five Justices, ruled unanimously that the order be made absolute. The five Justices delivered five separate opinions, each setting forth his reasons for the decision.

         

          The President of the court, Justice Landau, repeated his assertions in the Bergman case, supra, p. 13, to the effect that equality of opportunity in elections cannot be measured mechanically. Therefore, the substantial discrepancy in the broadcasting times allocated to the various lists under the amendment is not in and of itself determinative of the issue. Although there is a presumption in favor of the validity of legislation enacted by the Knesset, examination of the legislative history in this case reveals that at no point did the Knesset give any consideration to the impact of the amendment on the rights of new party lists, but rather, it completely disregarded this issue. In these circumstances, the presumption of validity fails and the amendment is invalid.

         

            Justice Barak thought that the amendment fails to meet the requirement of equality since it does not allow small parties and new parties the time minimally necessary to enable them to present their views before the public while it gives the large veteran parties more than such minimal time. Although he agreed that the issue could not be determined mechanically, he was of the opinion that the judge's common sense, experience and sense of expertise enable him to distinguish between the permitted and the forbidden. In this respect, the decision is no different from judicial decisions frequently made concerning the fairness and reasonableness of acts done by government officials.

           

            Justice Shamgar reaffirmed his preference for as simple and basic a standard of formal equality as is possible. Agreeing that there are circumstances and considerations which would justify deviations from such formal equality, he expressed the opinion that Basic Law: The Knesset provides for such contingencies but requires that the deviation be voted by an absolute majority of the Knesset. This approach is preferable, in his opinion, to the alternative, which waters down the concept of equality by taking into account other ideals and which results in the loss of any clear constitutional standard to serve as a guideline to the legislature.

           

            Justice Bejski thought that all that could be demanded was relative equality, not absolute equality. surveying the solutions adopted in many countries, he concluded that even relative equality entails no small amount of problems. In his opinion, the principal fault of the new Law lies in the large and unreasonable gap that it creates between the broadcasting time allocated to large existing parties and that allowed new parties. This gap violates even the relative equality required by the Basic Law and, therefore, must be approved by an absolute majority of the Knesset.

           

            Justice Ben-Porat pointed out that the allocation of equal time to each party is not a sine qua non of formal equality, since such formal equality might be achieved by means of some other criterion, such as one based on the relative sizes of the parties. The equality of opportunity to which the new parties are entitled requires allocation of time that is sufficient for their need to present their platform and special message before the viewing public in order to justify their presence in the Knesset. This standard was not met in the Amending Law.

           

Note -As indicated in the opinions, the supreme Court handed down its decision shortly after the argument but did not give its reasons at that time. The Knesset responded to this decision by re-instating the wide gaps in the allocation of broadcasting time with some slight changes. The new legislation was enacted by the required absolute majority in all three readings, all in a single day, just seventeen days after the court's decision to invalidate the Law, and was made effective retroactively in order to legalize the broadcasts that had been made under the Law that was invalidated. Only six weeks later, after the elections had taken place, did the court give the reasons for its decision. It has been suggested that had the Justices revealed their reasons earlier, perhaps the Knesset might have been more impressed by the court's high regard for the value of equality. see Klinghoffer, "Legislative Reaction to Judicial Decisions in Public Law", 18 Israel Law Review 30, 31-34 (1983). Compare, however. the legislative developments after the Rubinstein case (infra, pp. 60-62).

 

Israel cases referred to:

[1]   H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693; S.J. vol. VIII, supra p. 13.

[2]   H.C. 60/77, Ressler v. Chairman of Knesset Central Elections Committee 31P.D.(2)556.

 

American case referred to:

[3] Regents of the University of California v. Bakke 438U.S.265(1978).

 

Y. Leshem, A. Ramot for the Petitioners in H.C.246/81.

M. Corinaldi for the Petitioner in H.C.260/81.

R. Yarak, Senior Deputy State Attorney, for the Respondents.

 

JUDGMENT

 

          LANDAU P.: On May 29, 1981 the orders in these two petitions were made absolute, in these terms:

         

          We are of the opinion that for the passage of the Elections (Modes of Propaganda) (Amendment No. 6) Law, 1981, a majority of Knesset members was required in accord with the concluding portion of section 4 of Basic Law: The Knesset, and for that reason it cannot be acted upon unless its provisions are adopted by the required majority. In this sense we make absolute the order nisi in the two petitions against the Broadcasting Authority, the first Respondent. There is no order as to costs in the two petitions.

 

And these are my reasons for making the orders absolute:

 

          Sections 15 and 15A of the Elections (Modes of Propaganda) Law, 1959 (pursuant to the Elections (Modes of Propaganda) (Amendment No. 3) Law, 1969) provide that each of the parties participating in the Knesset elections shall receive for the broadcasting of election propaganda, 25 minutes on the radio and 10 minutes on television and, in addition, each of the parties represented in the outgoing Knesset shall receive 4 minutes on the radio and 4 minutes on television in respect of each of its members holding office in the outgoing Knesset.

         

          On March 16, 1981 a private bill proposed by Knesset members Ben-Meir, Virshuvsky, Hashai and Corfu was published in Reshumot (Elections (Modes of Propaganda) (Amendment No. 6) Bill, 1981). The bill proposed that section 15 of the Elections (Modes of Propaganda) Law allow with respect to the radio, a broadcasting time of 23 minutes instead of 25 minutes for each party and each candidates list and, in addition, 6 minutes for each Knesset member of each party represented in the outgoing Knesset; with respect to television it was proposed to amend section 15A so that each party and candidates list be given 8 minutes of broadcasting time instead of 10 minutes and, in addition, each party represented in the outgoing Knesset would be given 6 minutes instead of 4 minutes for each of its Knesset members. In the explanatory notes to this private bill it was said:

         

            The present version of the Law creates an unreasonable situation concerning the time allotted to a party group with one Knesset member as distinguished from the time allotted to a party group with a larger number of Knesset members.

 

The present bill is intended to temper slightly the ratio of the two time quotas but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

 

            This private bill passed the preliminary reading on March 4, 1981 and it was decided to refer it to the Constitution, Law and Justice Committee for preparation for the first reading. It passed the first reading on March 23, 1981 and the second reading on April 1, 1981, after a reservation of Knesset member Shulamit Aloni to section 2 of the bill, concerning television broadcasts, was rejected by a majority of 5 votes against 4, and thereafter the entire bill passed the third reading. The proceedings of the session do not note by what majority the bill passed each of the three readings, but it is not disputed that no more than a dozen Knesset members were present at the session of the second and third readings - a number that is far from a majority of the Knesset members.

           

            The Petitioners in the two petitions before us, "Agudat [Association] Derekh Eretz" (H.C. 246/81) and "Shorashim [Roots]..." (H.C. 260/81) -both Ottoman societies that intended to submit new candidates lists for the elections to the tenth Knesset but were not represented in the outgoing ninth Knesset - argued that the above mentioned Elections (Modes of Propaganda) (Amendment No. 6) Law, 1981 (hereinafter "the Amendment No. 6 Law") is invalid because it contradicts the requirement of equality in section 4 of Basic Law: The Knesset, and that the Amendment No. 6 Law did not pass by the required majority, that is, a majority of the Knesset members, as provided in the conclusion to section 4 of the Basic Law. Orders nisi were issued against the Broadcasting Authority and the Chairman of the Central Elections Committee for the Tenth Knesset and the Central Elections Committee itself.

           

            As in the case of Bergman v. Minister of Finance [1], which dealt with the Knesset and Local Authorities Elections (Financing, Limitation of Expenses and Audit) Law, 1969, this time, too, complex constitutional issues could have arisen concerning justiciability and the power of a later Knesset to deviate in ordinary legislation from an "entrenched" provision in a basic law adopted by an earlier Knesset. There the court refrained from dealing with these issues, and we shall act likewise this time - and in the present case we have before us an explicit written statement on behalf of the Attorney General, in paragraphs 4 and 5 of his arguments in response to the order nisi, that he does not intend to raise those issues since he wishes the court to decide on the merits of his arguments concerning the Amendment No. 6 Law, to the effect that this Law does not contravene the equality principle in section 4 of the Basic Law and, therefore, an ordinary majority was sufficient for its adoption. This was the issue upon which we deliberated in these two petitions.

 

            Before examining this question we must dispose of a procedural argument made by Mr. Yarak, who represented the Respondents in an intelligent and dignified manner as befits the weighty matter before us. He argued, in passing, that the large party groups in the outgoing Knesset should have been summoned to the hearing of these petitions since they will lose the additional broadcasting time that the Amendment No. 6 Law gives them if that Law is declared void. I do not intend to delve into the general issue of the parties to whom a petition of prime constitutional character, such as the two present petitions, should be addressed, and whether any person who might argue that the subject of a petition affects his interests should indeed be summoned to the proceedings. In any event the argument must be dismissed in the present instance because, as already mentioned, the Central Elections Committee was made party to the hearing and, therefore, the fact that these petitions are being heard before the court was brought to the attention of the party groups represented in the Committee. Anyone interested in participating in the proceedings could have applied to the court by motion to be joined as a Respondent and to make himself heard. Apparently the large party groups believed that they could depend on the representative of the Attorney-General to present an argument to the court that would adequately protect also their interests - and indeed that has been the case.

           

            Another contention made by Mr. Yarak, which must be dismissed immediately, is that the provision in section 4 of Basic Law: The Knesset, that the Knesset shall be elected by "equal ... elections ... in accordance with the Knesset Elections Law", should be read to include the Elections (Modes of Propaganda) Law. Such a construction is incongruous with the statutory language, since "the Knesset Elections Law" (in the singular) clearly refers to the Knesset Elections Law and no other Law, even if its subject is related to the Knesset elections.

           

            Mr. Leshem, on behalf of the "Derekh Eretz" Association, and Dr. Corinaldi, on behalf of the Shorashim movement, who endorsed Mr. Leshem's arguments and supplemented them, made the Bergman case [1] the point of departure for their arguments. Indeed, the two matters - the funds that the parties receive from the state treasury to finance the Knesset elections, a significant (if not the greater) part of which are spent on election propaganda, and the matter of election propaganda by way of radio and television - are closely related. In Bergman the equality principle in section 4 of Basic Law: The Knesset, was construed to extend to equality of opportunity for the lists competing in the Knesset elections, including the new candidates lists unrepresented in the outgoing Knesset. That principle should also be applied to the use of state-controlled media, which have forceful impact on the public - a captive audience to the television (this being the primary concern) which broadcasts on a single channel leaving the viewer no refuge (unless he is resolute enough to turn the set off). Two points should nevertheless be emphasized: first, the Financing Law, which Bergman held to be invalid, purported to give nothing to the new lists, whereas the Amendment No. 6 Law leaves something for the new lists (8 minutes on television and 23 minutes on the radio); second, and no less important, no one argues that equality in this matter means mechanical equality. The Bergman judgment itself intimated as much, with reference to the subject of financing ([1], p. 699):

 

... [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. ... This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. ... [A]ll agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. And all agree furthermore that the principle of equality in financing should not be applied in such a way as to encourage the submission of candidates lists that would not have formed at all were it not for the temptation that they would receive an advance against the funding. We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond, and the fact that its representatives do not participate in the election committees except as observers after publication of the list. All these restrictions inevitably derogate from absolute equality.

 

            The same applies to the election propaganda broadcasts, and perhaps even more so. The large "historical" parties that are vying with each other for primacy in the next Knesset, naturally require far more time than a newly created list so as to give an account to the voter of their actions in the near and far past and to criticize the shortcomings of their opponents. Mechanical equality of the thirty-one lists submitted in the elections for the tenth Knesset, in the allocation of equal time slots to each of them, would cause serious distortion in the sense of summa aequalitas summa iniuria. Mr. Yarak also rightly pointed out that the large parties alone are subject to a special statutory limitation, since their leaders may not appear in the frame of the general television broadcasts even if they take part in events that are suitable material for coverage as daily news. If the large parties insisted on their full quota and every other list also received an equal time allocation, one can easily imagine the flood of verbiage that would descend on the public to a degree that renders all of this propaganda valueless to the stupefied viewers drowning in the spate of colorful propaganda sent forth by thirty-one lists. That, clearly, would fail to realize the lofty idea of equality before the law, but rather would create a caricature of the democratic process of elections.

 

            It follows, necessarily, that the equality mentioned in section 4 of the Basic Law, as applied to election propaganda, need only be substantive equality with due consideration given to the factors that distinguish a new list from a large party, and even a new list from an existing small party. But where should the permitted line be drawn upon these considerations? It is pointless to seek an exact formula for guidance in this matter. All that can be said is that the equality principle in this sense is violated when a new list is wholly denied a fair opportunity to present itself and its platform to the public. All agree that they may not be silenced nor denied a right of appearance, free of charge, on the electronic media. But what is the minimal time required for that purpose, below which their appearance before the viewer becomes substantially ineffective?

           

            At first I was of the opinion that we would find guidance in this matter from the Elections (Confirmation of Validity of Laws) Law, 1969. This Law, which was enacted, as will be recalled, as a result of the Bergman decision [1], provided "for the removal of doubt" that the provisions in the election Laws are valid for the purpose of any Law and any matter from the date of their coming into force, and "election Laws" also include the Modes of Propaganda Law in its version at the time the above Confirmation Law came into effect. I thought that this Confirmation Law set the line of equality as regards broadcasting time in accord with the provisions of sections 15 and 15A in their original version, the validity of which was confirmed in that Law. It should be noted here that in the Knesset debate on the Elections (Modes of Propaganda) (Amendment No. 3), Law, which introduced the original arrangement, the then chairman of the Constitution, Law and Justice Committee, Knesset member Moshe Una, voiced the opinion that the time allotted to the small parties and to the lists appearing for the first time was insufficient for them to present their concerns in a complete manner (see D.H. 55 (5729-30) 3661, right column). I am persuaded, however, that this Law should not be referred to for guidance in resolving the issue before us. This court discussed it in the Ressler case [2]. The conclusion from the discussion there is that the Confirmation Law indeed ratified "the election Laws" mentioned therein by virtue of the absolute majority with which it was passed consonantly with the concluding portion of section 4 and section 46 of Basic Law: The Knesset. But it says nothing with respect to the question whether the validity of the election Laws or any of their provisions, that were confirmed for the removal of doubt", was in any event consistent with the equality principle in section 4, or whether they were confirmed despite their inconsistency with the equality principle.

           

            The question, therefore, remains: is the allocation of 23 minutes on the radio and, especially, of 8 minutes on television beneath the limit of tolerance? In this respect learned counsel for the Petitioners emphasized the huge gap between the time slots allotted to the large parties and those allotted to the new lists. Not only was "the poor man's lamb stolen"* from the small ones, in reducing their already meager time slots (8 minutes instead of 10), but the large ones received additional broadcasting time, beyond that which they were entitled to previously. Mr. Leshem calculated that in this way a party numbering 30 Knesset members gained 58 more minutes on television, and that the difference in percentage between such party and a new list rose from 1200% to 2350%.

 

            I admit that I was not much impressed by these calculations, for having found that mechanical equality between an existing large party and a new list is immaterial as regards broadcasting times, there is no reason to hang the decision on this or that algebraic ratio, but rather, as aforesaid, the new list must be assured of the minimal time required for effective propaganda on television and radio. Whoever wishes to invalidate a law of the Knesset bears a heavy "burden of proof', for the Knesset is presumed to have acted within the framework of section 4 of the Basic Law. As stated in the Bergman case (at p. 699):

 

              [A] Law of the Knesset is presumed to be valid as adopted. Therefore this court's primary inclination must be to uphold the law and not to strike it down, even when the argument against it is that it contradicts an "entrenched" statutory provision ...

           

            As for myself, I would be prepared to go far in accepting the decision of the Knesset, as expressed in the Amendment No. 6 Law, since we do not have any substantiated data that ten minutes (according to the original Law) is a sufficient and reasonable time for a new list's television propaganda, whereas eight minutes is less than sufficient and reasonable. Eight minutes might suffice for one person to succeed in his efforts at persuasion, whereas another would not succeed in twice that period of time - all according to the speaker and the audience.

            When does this apply? When we have some indication that the Knesset indeed considered the rights of new lists. I found no such indication in the short "legislative history" of the Amendment No. 6 Law. I have already cited above the explanatory notes to the private bill that was initiated by the four Knesset members. There the issue is presented as a matter of doing justice to the large party groups as opposed to a one-member party group. The small ones are entitled to the basic time slot of 10 minutes for the party group and 4 more minutes in respect of the personal time slot of the single Knesset member, while the large party group is entitled only to the same basic time slot and the personal time slot in respect of each of its members. Thus in the final account the Knesset member from the one-man list is entitled to a larger time slot than the individual Knesset member from the large party group. That wrong is rectified by reducing the basic time slot and enlarging the personal time slot. One could challenge this explanation on the ground that the contestants in our system of Knesset elections are the lists, and not the individual candidates on the list. But the. main shortcoming is that there is also a third side to the problem, that is, the new lists whose equality of opportunity in the elections must be preserved, as explained in the Bergman case. They are principally prejudiced by the new arrangement because their basic time slot is reduced without any increment with respect to their personal time quota. The explanatory notes totally ignore their position, advertently or otherwise. The concrete result of the new proposal, in the overall account, was to add four hours of television broadcasts with respect to the personal quota, mostly to the benefit of the large lists, against a saving of two minutes in respect of each of the lists on account of the basic quota of the party groups as such, including the new lists whose interests, it seems, were totally overlooked.

 

            This was the case throughout the debates on the bill. At the preliminary reading M.K. Yehuda Hashai repeated the explanatory notes on behalf of the proposers without any mention of the new lists. Similarly, at the first reading M.K. Hashai again explained the bill as an issue between an existing large party group and an existing one-person party group, without further ado. During the debate on this reading M.K. Shulamit Aloni, in passing, mentioned new lists together with existing small lists, but her statement evoked no response. This situation recurred at the second and third readings, when M.K. David Glass, chairman of the Constitution, Law and Justice Committee, again presented the issue without mentioning the amendment's effect on new lists. M.K. Aloni commented again on the situation of a new party group "which, in any event, is in a Procrustean bed; and here its time is reduced even more", but her words fell on deaf ears, and the proposers of the bill did not attempt in any way to discuss the matter.

           

            In view of all this I am constrained to conclude that the Amendment No. 6 Bill was presented to the Knesset, in all its readings, in complete disregard of the important issue of preserving the new lists' equality of opportunity - the issue that was raised before us in these two petitions. This issue was not given any parliamentary consideration. Therefore, it should not be considered in these petitions on the presumption that the Knesset did not deviate from the provisions of an entrenched statutory enactment - the presumption that ordinarily applies to every Law adopted by the Knesset, even by a simple majority of a small number of Knesset members who voted for it. I am of the opinion that in these circumstances the Amendment concerned constitutes a violation of the equality principle that cannot be tolerated. For this reason I voiced the opinion, together with my esteemed colleagues, that the Amendment No. 6 Law should not be acted upon unless its provisions be adopted by a majority of the Knesset members as required under section 4 of Basic Law: The Knesset.

 

            BARAK J.: The equality principle determined in section 4 of Basic Law: The Knesset does not mean merely "one man one vote" but also "equality of opportunity for the various candidates lists that compete in the Knesset elections" (in the words of Landau P. in the Bergman case ([1], at 698). This equality does not mean merely equality as between the large lists or as between the small lists or as between the lists that are represented in the outgoing Knesset. Equality of opportunity means equality of prospects and opportunity as between all the lists participating in the elections. Therefore, equality of opportunity must be attained between a large list and a small list; between a list represented in the outgoing Knesset and one unrepresented in the outgoing Knesset. The need to attain this equality raises two inherent questions: first, what are the legal standards that determine equality of opportunity among all the competing lists? second, did the Knesset adhere to these standards when it enacted the Elections (Modes of Propaganda) (Amendment No. 6) Law (hereinafter - the Amendment No. 6 Law)? I shall deal with each of these questions separately.

           

The standard with regard to equality of opportunity

 

            2. The starting premise, in my view, in determining equality of opportunity between the various lists, large and small, old and new, is that one should not adhere to a standard that equates equality with identity. Granting the same time to each list certainly results in identity ("formal equality") but does not create equality ("material equality"). The reason is that the starting positions of the various party lists are not uniform. The large, veteran list, which takes a stand on a broad range of topics, must naturally spend more time on explaining its positions, platform, personalities, acts and omissions, failures and successes, than a newly formed list which takes a stand on defined, specific topics. Therefore, to secure equality of opportunity for these two lists at the finishing point they must be given different amounts of time at the starting point. Indeed equality of opportunity is often secured by non-identical allocation of resources. In the words of Professor J. Stone ("Justice in the Slough of Equality", 29 Hastings L.J. (1978) 995, at 1012):

           

              Equal treatment can and often does mean, especially in the welfare state, treatment by a differentiating rule which yields a greater residual equality between the subjects.

           

            By varying the measure of the time allocation one can lead lists that start from unequal points to equality of opportunity at the finishing line. There is no paradox in acting differentially so as to achieve equality. Blackmun J. expressed this well in Regents of the University of California v. Bakke ([3] at 407):

           

            ... in order to treat some persons equally, we must treat them differently.

           

            Indeed, granting the rich and the poor an equal opportunity to sleep under a bridge does not create equality between the two as regards the chance of a good sleep.

           

            3. We have said that identity in allocating broadcasting times does not ensure equality of opportunity to the competing lists. How can we ensure equality of opportunity? For that one must ponder the meaning of equality of opportunity. What is the purpose of the equality that we want to achieve? In the present context it appears that equality of opportunity means equality of opportunity to compete for the voter's ballot. To maintain this equality of opportunity, two requirements must be satisfied:

           

            First, one should not allow a situation to develop in which some of the lists have adequate time to explain to the voting public their platforms, personalities and distinguishing features, while other lists do not have such adequate time. Equality of opportunity does not exist where the time at the disposal of one list allows it to present itself properly while the time at the disposal of another list does not so allow.

           

            Second, one should not allow a situation to develop in which some of the lists have time that is sufficient only to show their "identification card" to the public, while other lists have time that is not only sufficient to explain their positions but is also left over for additional use, not given to the first lists, in competing for the voter's ballot. The existence of this additional time for some of the lists creates an inequality of opportunity, since some of the lists can only explain their platforms, whereas other lists can undertake additional functions. These additional activities find external expression mostly in the fact that in the voter's consciousness, the list which does not have additional time becomes blurred and absorbed in the additional "residual" time that allows the other lists to dominate the media.

           

            It follows that in order to secure equality of opportunity in the elections each list should have at its disposal the amount of time - no more and no less - that allows it to present its platform and positions to the voting public in proper fashion. If some lists receive time that is not sufficient to present their platforms properly then, in order to secure equality of opportunity, one of two measures must be taken: either to bring about a similar "deficiency" with the other lists or to fill in the deficiency of the lists that are short. Similarly, if some lists get "additional" time beyond what is necessary for proper presentation of their platform then, in order to secure equality of opportunity, one of two measures must be taken: to give additional time to the remaining lists as well, or to abolish the additional time itself.

 

            4. One could say - and it has been argued before us - that the effect of allocating election broadcasting time according to the above-mentioned standards would be the devotion of considerable broadcasting time to the various lists. Naturally this time would come at the expense of alternative use, such as news coverage, culture and art shows, and the like. Moreover, the provision of a minimum broadcast time for each new list, might be an incentive for ephemeral lists to take part in the election process, which could in turn cause fragmentation of the political map and prevent a stable regime. These arguments are all very well, and perhaps right, but they have nothing to do with the equality principle. Whoever argues that too much time is spent on election propaganda and that it should be reduced to prevent political fragmentation etc., is not making an argument about equality, but rather about other principles that are more important in that person's eyes than the equality principle. It is true that equality is not the only principle that ought to be considered. Often an unequal effect can be justified on other grounds, such as national security, political stability, and similar considerations that appear to the person weighing them more important than the equality principle. Professor I. Berlin said in this respect ("Equality", 56 Proceedings of the Aristotelian Society (1955-56), 301, at 317):

           

            ...in considering what kind of society is desirable, or what are "sufficient reasons" for either demanding equality or, on the contrary, modifying it in specific cases, ideals other than equality conspicuously play a vital role.

           

            Therefore, if the Knesset wishes to prevent the allocation of time as required under the principle of equality, because it wants to achieve other goals that it regards as more important, it has the power to do so by modifying the principle of equality as determined in section 4 of Basic Law: The Knesset, in a legislative act that is passed by a majority of the members of the Knesset. The legitimacy of that Law would not derive from the equality principle but from the special majority that adopted the Law, despite its incompatibility with the equality principle.

           

            5. In the Bergman case, Landau P. said the following with respect to equality of opportunity:

           

            [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. ... This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer.

           

            I respectfully agree with these words, so long as it is made clear that this "retreat" from the equality principle can be maintained only if the other important principles find expression in a statute that is adopted by a majority of the Knesset members, and that otherwise the equality principle must prevail. One cannot - in logic or law -justify a deviation from the equality principle in its substantive sense on grounds of the same equality principle. Any deviation from the equality principle, whether in its "primary" sense (one man, one vote) or in its "secondary" sense (equal opportunity), must be effected in the manner determined in the Basic Law, that is, through legislation adopted by a majority of the Knesset members. Of course this relates to a significant and substantial deviation from the equality principle and not a trivial deviation.

           

Equal opportunity in the Amendment No. 6 Law

 

            6. Does the Amendment No. 6 Law secure equality of opportunity, as defined by us? It would appear that in order to answer this question one must define the standards that determine the differences and the differentiation between the various lists. According to these standards one can consider whether the allocation of time in the Amendment No. 6 Law realizes the principle of equal opportunity. Determining these standards is very difficult. Aristotle defined justice as equal treatment of equals and unequal treatment of unequals, all this being relative to the relevant difference between them. But how are we to determine such relevant difference? Is the size of the list determinative? Is the range of the issues dealt with by the list the decisive factor? These and other questions are difficult because one must take into consideration the new lists, whose size is an unknown, and who wish to compete for the voter's ballot. It seems that all agree that the standards should not merely perpetuate the existing situation, since the opportunity for change lies at the core of elections. But what are the proper standards? (See E. Katz, "Platforms and Windows: Reflections on the Role of Broadcasting in Election Campaigns", 48 Journalism Quarterly (1971) 304 at 311.)

           

            7. I have reached the conclusion that we do not need to answer these hard questions in the present case and that we can leave them open for further consideration, since whatever the proper standard may be, the time allotted to the various lists in the Amendment No. 6 Law is unable to bring about equality of opportunity. This for two reasons:

           

            First, the time slot of eight minutes allotted to the new lists for television broadcasts does not allow (all or some of) the new lists to present their position to the public in a proper way. In this respect one should bear in mind that neither new nor veteran lists can buy additional broadcasting time, and all they have - in view of the Broadcasting Authority's monopolistic status - are those same eight minutes spread over a period of one month. In my view this short time is not sufficient for (all or some of) the new lists properly to present their platform and candidates, while attempting to clarify their distinguishing features and to give a satisfactory reply to the criticism leveled against them by other lists during the course of the election broadcasts.

 

            Second - and, in my view, more important - the veteran large lists were given broadcasting time that is far longer than the minimal time required to present their positions properly. This additional time is generally used by them for ongoing response to election events, for broadcasting news items that cannot be covered in the regular news programs because of restrictions in the Elections (Modes of Propaganda) Law, and for other activities. This additional time is not given to the new lists or the small veteran lists. Indeed, it appears that the result- which is a side effect of the difference in broadcasting times - is that the public finds the new as well as the small veteran lists submerged in the large amount of time at the disposal of the large veteran lists. It appears that the impression made by the new and the small veteran lists is blurred, and that only the large veteran lists remain in the voter's consciousness. Indeed, in my research I did not find any state in the world where the gap between the time designated for new or small veteran lists and that designated for large veteran lists is as great as in Israel (see Hand, European Electoral Systems Handbook (1972) 39, 70, 107, 205).

 

            8. In light of this approach, I do not need to resolve the troublesome question whether the very fact that each new list receives the same time does not violate the equality principle, since the new lists differ in the number of their members, the range of issues that concern them and their modes of propaganda. A similar problem arose also in the Bergman case, with respect to party financing, but the available solution in that situation is that after the elections the new lists that pass the minimal percentage of votes are entitled to funding which reflects their success in the elections. Retrospectively, therefore, the funding for each new list is not identical. A similar arrangement is not possible with respect to propaganda time, because it is not an asset that can be borrowed and compensated for after the elections. It is indeed possible that the very fact that new lists take part in the elections prevents equal application of time allocation because of the special nature of the matter. If that is so, there may be no solution in this matter other than the enactment of a special Law that is passed by a majority of the Knesset members, and which allows for a suitable arrangement that is not compatible with the equality principle.

           

            9. I have expressed my opinion that the Amendment No. 6 Law contradicts the principle of equality in that it fails to grant new as well as small veteran lists the minimal time required for proper election propaganda, while it grants the large veteran lists additional time beyond the minimal requirement. One might ask what grounds there are for this conclusion? The answer is that the tools at the disposal of the judiciary in this matter are limited, and the task difficult. Ultimately one can only resort to common sense, life experience and the lawyer's expert sense. In principle this decision is no different from judicial decisions frequently made as to the reasonableness and fairness of acts done by state officials. Indeed, if we do not have the tools to decide whether a reduction in the new lists' television broadcasting time from ten to eight minutes violates the equality principle, then neither do we have the tools to decide whether a reduction to six or four or two minutes violates the equality principle. Is such a result conceivable? And if common sense, life experience and the sense of expertise can set a boundary between the forbidden and the permitted, between equal and unequal, then why should it be possible to distinguish between four and two minutes (for example) and not between ten and eight minutes (for example)? I am indeed aware that in exercising judicial discretion we are not acting in an exact scientific manner, but I fear there is no better alternative.

           

            10. I have reached the conclusion that the Amendment No. 6 Law violates the equality principle without referring at all - with respect to resolving the equality issue - to the legal situation that prevailed before the amendment under the Elections (Modes of Propaganda) Law, the validity of which was confirmed "for the removal of doubt" in the Elections (Confirmation of Validity of Laws) Law, adopted by a majority of the Knesset members. Is this the right path? Should it not be said that the legal situation in effect before the Amendment No. 6 Law, in light of its confirmation by a majority of the Knesset members in the Election (Confirmation of Validity of Laws) Law, constitutes an arrangement that is consistent with the equality principle, and therefore all that needs to be examined is whether the change effected by the Amendment No. 6 Law is substantive - and forbidden, or minor - and permitted?

           

            In my view the only issue before us concerns the relationship between the Amendment No. 6 Law and the principle of equality as determined in section 4 of Basic Law: The Knesset. We need not deal at all with the relationship between the Amendment No. 6 Law and the arrangement concerning radio and television propaganda in the Elections (Modes of Propaganda) Law, as confirmed in the Elections (Confirmation of Validity of Laws) Law. The reason is that there is no assurance that the earlier Law was not itself tainted with a violation of the equality principle. Even if that were so - and this question is not before us in any way - it is clear that one deviation from the equality principle cannot be justified by an earlier deviation from that principle. The time allocated prior to the Amendment No. 6 Law, determines a standard for the legality of the broadcasts. It does not determine a standard for equality in them. The broadcasts might be legal, even though they violate the principle of equality.

 

            11. As noted by the esteemed President, the Elections (Confirmation of Validity of Laws) Law determines that the provisions contained in the Knesset Elections Laws - including the Elections (Modes of Propaganda) Law - are valid for any purpose or matter. It follows, in my view, only that the broadcasting times determined in the Elections (Modes of Propaganda) Law (before its amendment by the Amendment No. 6 Law) are legal and valid. I am not prepared to say - without further examination - that those broadcasting times are adequate and reasonable. Moreover, I am prepared to assume that the majority of the Knesset members assumed that they were not exploiting the new lists. But I am not prepared to assume, without further examination, that the new lists were not in fact exploited. Ultimately the question before us is not whether the time allotted in the Elections (Modes of Propaganda) Law is adequate or reasonable, and whether it exploits the new lists or not. The only question before us is whether the allotted time is consistent with the equality principle. It is possible that the time is reasonable according to various criteria of reasonableness, but does not create equality according to the rules of equality. Equality and reasonableness are not one and the same thing. To give each of ten guests an identical portion of cake might be an act of equality, but it would be unreasonable if one of the guests dislikes cake. It all depends on the standard according to which equality is determined, and upon the standard according to which reasonableness is determined. These standards are not necessarily identical.

           

            12. My esteemed colleague, the President, points out that the legislative history of the Amendment No. 6 Law shows it was enacted in total disregard of the question of equal opportunity for the new lists. This legislative history is indeed instructive, and it supports my conclusion that the Amendment No. 6 Law violates the equality principle. However, I am not willing to rest the entire decision on this legislative history. I myself would have reached the same conclusion even if it transpired that Knesset members had expressed the view that the change does not affect the new lists and maintains their equality of opportunity. Ultimately the decision must be made upon analysis of the law and not upon psychoanalysis of the legislature.

           

            SHAMGAR J.: 1. Section 4 of Basic Law: The Knesset provides:

           

            The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset.

           

            This provision in the Basic Law delineates the constitutional principles that determine our electoral system. Some of these principles are an inalienable part of every democratic system of elections, since no system worthy of that title can take shape and exist without them - e. g., the principles that determine general, equal and secret elections. Other such principles are the statutory expression of a choice between alternatives that are optional in democratic regimes, e.g., the principle that determines national and proportional, as opposed to regional, elections.

           

            2. The introductory part of section 4, as cited above, also refers to the Knesset elections "in accordance with the Knesset Elections Law". These words do not serve to modify or interpret the constitutional principles with which section 4 opens, nor do they determine that anything provided in the Knesset Elections Law, as amended from time to time, automatically validates the constitutional aspects of such statutory provision as regards its compatibility with the foundations of the elections system laid down in section 4. The meaning of section 4 is that the Knesset shall be elected by general, national (etc.) elections, in accordance with the processes and specified procedures determined in the Knesset Elections Law. In addition, therefore, to the determination of principles, there is also a complementary reference to the procedural element. These two main components in the opening portion of section 4, i.e., the constitutional elements on the one hand and the referral to the particularization in the Elections Law on the other hand, are separate but cumulative substantive provisions that relate to different areas: the one, as aforesaid, to the guiding principles, and the second to their translation into concrete processes; but that translation cannot, by its very nature, override the duty to maintain the principles.

           

            The reference to the Knesset Elections Law is governed by the rule of interpretation found in section 41 of the Interpretation Ordinance [New Version], since there is no provision that limits its application with respect to basic laws, and also since there is nothing in the context or substance of the matter from which one could infer otherwise; that is, the above mentioned phraseology of section 4 does not, as it were, refer at any given time to the Knesset Elections Law in its current form, as opposed to the said Elections Law in its version at the time that Basic Law: The Knesset was enacted. There is nothing, therefore, in the wording of the section that limits the phrase "in accordance with the Knesset Elections Law" to any initial version. Likewise, there is nothing in the wording of the opening portion of section 4 in general, or in the phrase "in accordance with the Knesset Elections Law" in particular, that limits the effect of the closing portion of section 4, according to which any variation with respect to the constitutional elements enumerated in the opening portion of the section requires a special and specific procedure, as provided there.

           

            To summarize this point: the principles embodied in the above-mentioned section 4 are self-sustaining and independent, and constitute a binding guideline that cannot be varied by way of an amendment to the Knesset Elections Law unless the legislation is passed in the manner determined in the concluding portion of section 4. The reference to generality, nationality, equality and the other elements determines guiding principles that reflect upon the system and fashion its character. The words "in accordance with the Knesset Elections Law" refer to specific procedures, as opposed to the said principles, but one may not infer from the text of section 4 that a statutory provision in the Knesset election Laws can in itself modify those principles without having been passed by the required majority, or that such was the legislature's intention in formulating the principles and the words "in accordance with the Knesset Elections Law" in one textual sequence.

           

            3. And now we come to the principle of equality, the meaning of which has been examined by us in these petitions.

           

            According to the mode of interpretation that commends itself to me, the words "equal.. .elections" relate to formal equality, that is, to as simple and basic a standard as is possible, any deviation from which requires passage by a majority of the Knesset members. I have used the words "as is possible" because even the determination of formal equality entails no small degree of theoretical and practical problems.

           

            Equality of rights has the aura of an absolute standard, as if it concerns the result of a mathematical calculation (J. Stone, "Equal Protection and Search of Justice" [1980] Ariz.L.Rev. 1), but its actual application frequently illustrates that formal equality does not necessarily and in all circumstances coincide with the just and fair, as where equal portions are given to both needy persons and those not in need. Furthermore, the Aristotelian point of departure mentioned by my esteemed colleague, Barak J., according to which equality means equal treatment of equals and unequal treatment of unequals, still leaves open the determination of attributes and components that measure equality, and their evaluation and measurement in the concrete case. The difficulty in determining the complex of relevant attributes and components that create the "badge of entitlement" (see Stone, ibid., at 6) is not the only factor that makes it difficult to actually apply the standard of equality, and the theoretical offshoots of the problems that are formed in this area are innumerable. One ensuing question is, for instance, whether immediate equality achieves a just result, or whether there are circumstances in which equality can be achieved only by adopting measures of unequal treatment, as in the application of reverse discrimination (see, inter alia, the deliberation of this issue in the decision of the U. S. Supreme Court in the Bakke case [3], at 272).

           

            I have raised these matters to illustrate that equality, too, as a formal concept resting on a uniform and quasi-mathematical index or yardstick, is not necessarily easy to apply, but an attempt to adopt standards of substantive equality would impede tenfold a clear definition of the boundaries. Moreover, any attempt to make substantive distinctions resting on the characteristics and features of those receiving the allocation, that seek to add a dimension of justice or fairness to the mathematical distribution, will be influenced inevitably by subjective evaluations or variable normative assessments and will create a full range of possibilities with blurred and undefined lines and boundaries.

           

            4. As explained by the learned President in the Bergman case [1],

           

[T]he principle of equality has two facets: the first expression of equality concerns the right to vote, and this element is the concise translation of the rule "one man, one vote"; secondly, the element of equality also relates to the right to be elected, finding concrete expression in the right to equal opportunity of the various candidates lists competing among themselves in the elections to the Knesset.

 

            My esteemed colleague, the President, related in the Bergman case to the theoretical origins of the equality principle that finds expression in our electoral system, and referred in this respect to the elementary principle of equality for all before the law, which is, according to him, at the very essence of our entire constitutional regime.

           

            The learned President, proceeding to analyze the concrete forms that the equality principle ought to take in relation to elections, distinguished between equality before the law in its simple classic meaning and equality as expressed in the right to be elected (ibid., at 699):

           

[A]s we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. ... [A]ll agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. ... We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond... All these restrictions inevitably derogate from absolute equality.

 

            It follows from these statements that sometimes there are reasons, grounded in the welfare of the democratic regime, for deviation from the absolute formal equality under which each contestant is entitled, prima facie, to the very same portion, and according to which it would be forbidden to prescribe any restriction that is not imposed at the same time on all those competing for the voter's ballot.

           

            The recognition that absolute equality must at times defer to other interests, which, too, have evolved and were fashioned in order to protect liberty and the democratic regime, is not unique to the election system practised in Israel, and the question how to divide broadcasting time among the parties while preserving the principle of equality has arisen in the case law of other democratic countries too. Thus, for example, the Constitutional Court of West Germany noted in a decision on the petition of the Free Democratic Party of Nordrein-Westphalen (BVR. 158/62 of May 30, 1962, Entscheidungen des Bundesverfassunggerichts, vol. 14, p. 121) that in light of the principle of equality in competitive opportunity, the broadcasting networks must, indeed, conduct themselves in a neutral manner with respect to the political parties, but the securement of equal opportunity need not express itself in the allocation of absolutely identical time to each party and it is possible to maintain distinctions between the broadcasting times given to the various parties for "especially important reasons". Thus the following should be considered (ibid., at 134):

           

The elections in the parliamentary democracy are not designed merely to bring about the election of a parliament that reflects as faithfully as possible the various popular opinions, but also to form at the same time a parliament that can establish a government capable of acting. In a system of proportional elections, a meticulous application of equality in rights might allow small groups with meager constituencies or organizations with specific interests to gain parliamentary representation, and thereby increase the risk of excessive party fragmentation, and also - as the experience of the Weimar constitution has taught - to make it difficult or even impossible to form a government. In the face of this state political danger the decisions of the Constitutional Court always found important reasons to empower the legislature, as an extraordinary measure in narrowly defined and specific areas, to digress from the principle of formal equal rights while consolidating the details of the right to vote. This explains, for example, why there are no constitutional grounds for complaint against a provision in the elections law which fixes a reasonable minimum percentage of votes for representation.

 

            For these reasons, the constitutional court there was of the opinion that different parties could be granted broadcasting times of varying durations for election propaganda, taking into account to a certain degree their present strengths (cf. the same court's decision in 2 BVR 7/57, at vol. 9, p. 100).

 

            The above remarks indicate that the search for absolute formal equality is subordinate to other decisive factors that outweigh it. My esteemed colleague, the President, said as much in the Bergman case ([1] at 699):

           

            [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. There is no better example of this classic meaning than the rule of "one man one vote". This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it "clashes with other important principles" to which it must defer.

           

            The other important principles are, for example, principles of fairness and justice (see Stone's above-mentioned article) or the aspiration to safeguard the existence of a democratic regime that has the power to survive.

           

            5. The theoretical question that arises in this context is whether, contrary to the opinion expressed in paragraph 3 above, the concept of equality should be regarded as a broad concept that extends beyond its plain formal sense to include an entire range of circumstances in which full equality is not maintained for various, seemingly justified, reasons; or, whether the concept of equality should not be given a flexible meaning, amenable to the influences of other constitutional or state needs. In other words, are we to say that equality is preserved even when we do not meticulously maintain the principle of full formal equality, but the deviation from perfect equality is done on justifiable grounds rooted in the existential interest of the democratic regime? The alternative, as we said before, is not to distort the plain sense of the principle of equality, but to acknowledge that deviations from that principle are allowed if effected in the way provided in the conclusion to section 4 of the Basic Law - when it appears just and fair to do so, or if there are grounds to do so for the maintenance of a stable democratic regime, such as those mentioned by the esteemed President in the Bergman case [1] or by the German Constitutional Court, as described above.

           

            I am aware that those who prefer the method of broad and flexible construction to its alternative, do so because in constitutional parlance it appears to preserve the equality principle. A contrary view is that the concept of equality is distorted if the mantle of equality is thrown over circumstances which are not such. Furthermore, the effect would be to negate the existence of any clear standard for determining the border posts of equality. Mathematical or simple formal equality could be quite clear, for instance, if it found expression in the allocation to each party of equal and identical broadcast time. Needless to say, such equality is neither reasonable nor just, especially in a country in which 31 lists are competing in the Knesset elections.

 

            If one decides to determine an unequal standard, one that is anchored only in general evaluations as to what is just and fair, it is better to admit clearly that it is just or even necessary, as explained above, to deviate from the equality principle. When the Elections (Modes of Propaganda) Law has provided up to now that each party receives 10 minutes for television broadcasts and 4 extra minutes for each Knesset member, it means that a party with one Knesset member has a total of 14 broadcasting minutes whereas a new party has 10 broadcasting minutes. The result is inequality which might indeed be justified on the merits but still remains an instance of formal inequality between those competing for the voter's ballot, although there is good reason for its creation and actual perpetuation.

           

            Awareness of the fact that circumstances create inequality would require legislative action in accordance with the concluding part of section 4 and would also alert the legislature to the nature of the action required from it.

           

            In light of the text of section 4, caution in making constitutional changes will be promoted if the point of departure is absolute equality and any variation requires a legislative process as befits an entrenched statutory provision; that is to say, it is effected with awareness of the substance of the act and, consequently, with due consideration to the justification for such measure. If, on the other hand, one adopts a flexible method, under which deviations from equality are still named as equality so long as the court considers the deviation to be reasonable, then one loses any useful constitutional standard to serve as an a priori guideline for the legislature.

           

            As mentioned above, until now each party had 10 broadcasting minutes and 4 additional minutes for each Knesset member, and thus the difference was between 14 minutes for a single Knesset member and 10 minutes for a new list that did not yet have a Knesset member. The statute amending the Elections (Modes of Propaganda) Law, discussed here, varied the times, allotting to a new list only 8 minutes and a list with one Knesset member 6 additional minutes for that member. The question is, therefore, where to draw the line between the reasonable, that can still be regarded as within the range of substantive equality, and the unreasonable, which goes beyond substantive equality. Will 9 minutes suffice to maintain equality, or perhaps, only the existing quota of 10 minutes sanctify the circumstances and stamp them with equality? The difficulty is compounded when we consider the radio broadcasts. Each list was entitled to 25 minutes, and now that time has been reduced to 23 minutes. Where is the line beyond which substantive equality is absent, and what standard can be applied in a way that is clear, open and understandable to every citizen now, and also when the statute is amended next time?

 

          6.(a) As explained above, I accept the idea that there are times when fairness, justice and even the democratic regime's existence necessitate deviation from absolute equality, be it by determining a blocking percentage, by requiring a bond, or by distinguishing in terms of broadcasting time between a body that has already taken part in elections and has passed the test, and a newly established list. The determination of a non-identical standard, or the deference of equality to more important values, as mentioned in the Bergman case, must be done consciously and expressly as a variation on the principle of full equality, that is, in the manner prescribed in the concluding part of section 4 of the Basic Law. We will thus preserve constitutional clarity, which is important inter alia because of the educational element it embodies and addresses to the general public. It is good that the citizen know when a deviation from the equality principle has been effected, and its purpose. In my view it is preferable not to blur the concept of equality with numerical manipulations that rest, ultimately, only on the intuition of the person making the calculations and that lead to a dead end in which there is no clear standard, open and known in advance.

         

          (b) The previous deviations from the principle of equality, as in effect at the time the Knesset adopted the Elections (Modes of Propaganda) (Amendment No. 6) Law, and which also failed to give identical and equal times to all the lists, were confirmed, albeit retrospectively, in the manner prescribed in section 4 of the Basic Law, by the Elections (Confirmation of Validity of Laws) Law.

         

          The adoption of the 1969 statute established that the deviation from absolute equality was effected lawfully and in accord with the course designated in our Basic Law. On the other hand, it did not give a stamp of full and perfect equality to the existing time distribution, as prescribed in sections 15 and 15A of the Elections (Modes of Propaganda) Law, until the enactment of Amendment No. 6.

         

          Any further variation of the provisions regarding broadcasting times, that would derogate in any way from the rights granted to the various lists under the prevailing law and widen the deviation from the principle of full formal equality, required a vote in accord with the concluding part of section 4 of the Basic Law, which must be read, naturally, together with section 46 of the Basic Law.

         

          Since it transpired that the Elections (Modes of Propaganda) (Amendment No. 6) Law was not passed by the majority required under section 4 of the Basic Law, I decided to concur in the decision of May 29, 1981, as cited in full in the opinion of my esteemed colleague, the President.

         

            BEJSKI J.: 1. The attempt to formulate principles for the notion of "equality" in our instant context, raises difficult problems of the kind of squaring a circle. Apparently all agree that for this purpose no schematic-arithmetic equality is envisaged, such as according equal broadcasting time to each of the lists appealing to the voter. Even though this simplistic construction would follow strictly from a prima facie reading, yet, having regard to the subject-matter, no greater inequality could be created than would result from such a construction. For that reason it was rejected in the Bergman case [1], and the Petitioners in the present case do not urge it either. But that in no way facilitates the search for other principles that would lead to an appropriate construction, with due consideration given to the range of diverse aspects that the democratic regime weighs in order to grant every list or candidate an equal opportunity to take part in parliamentary life. This objective itself exists and is expressly sanctioned, but the aspiration to attain it requires the erection of barriers to prevent over-fragmentation of power concentrations as a result of ephemeral lists - whether or not they pass the blocking percentage, which would make it difficult to form a government and to maintain orderly parliamentary life. At the same time one must consider budgetary problems entailed in realizing the objective, the sum of broadcasting hours that can be allotted, and also the citizen who must forgo viewing and listening to other programs that interest him in favour of propaganda broadcasts on the same, single, television channel.

 

            2.But the truth is that already at the basic point of departure there is a lack of equality between the lists represented in the legislature and the new ones seeking to gain representation. The former are more or less known and familiar to most of the voting public, for better or for worse, from their activity in the legislature before the elections; all the media provide ongoing coverage of such activities over the years of the Knesset term. Not so with respect to the new list, which for the first time addresses the voter, who usually knows nothing about it. As regards equality of opportunity, one might claim with a degree of logic that a list of this kind needs not only the minimum time it requires to present its platform and creed, but also time in order to challenge the parties represented in the Knesset in a debate on its advantages over the veteran parties, which would obviously also include criticizing their past activities, emphasizing their faults, and so on. As regards equality of opportunity, therefore, the new lists are in an inferior position from the very start of the contest, and the disadvantage grows with the difference in the allotted time. I doubt whether the inequality in the allocation of broadcasting time as between the veteran or large lists and the new ones, can be justified on the ground that the former need more time to explain their acts and omissions during their term in office. It appears to me that as much time is required to challenge the acts and omissions of the large and veteran parties and to call them to account, which is, after all, the only chance to persuade the voter to prefer a new, as-yet-unknown list to the others. One cannot, therefore, deny that the differentiation in allotted broadcasting times is also a differentiation in equality of opportunity. While the new list consumes its small time quota merely to introduce itself, the large list has abundant, ten-fold time, both to defend and justify itself and to attack and discredit other lists, and the small list might become lost in the extra verbiage and photography of the large lists to the extent that its presence is not felt at all. From this point of view, the explanatory notes to the bill of the Elections (Modes of Propaganda) (Amendment No. 6) Law are not at all persuasive and, in fact, underline the inequality of opportunity. It is said there:

 

            The present Bill is intended to temper slightly the ratio of the two time quotas, but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

           

            This commentary is possibly pertinent and meaningful with respect to regional elections or in a presidential regime, where a single candidate opposes a single candidate. But in proportional elections, such as ours, the contestants are the lists and not the persons who comprise them, and the equality that is aspired to relate to the lists inter se. A 30-member list in the outgoing Knesset still has only one common platform, and its presentation does not require 30 times longer than the platform of a one-person party group. Likewise with respect to the acts and omissions that the individual member of the party group wishes to explain and attribute to the group. It is not the individual in the large party group who is running for election but a political party, a list, a party group; that is why any attempt to equate the single candidate with the individual in a large party group does not promote equality, but has the opposite effect.

           

            3. Counsel for the litigants brought to our attention the situation in various countries in which the principle of equality in elections is a cornerstone of the parliamentary democracy. In some of these, the arrangements regarding broadcasting times are determined by legislation, and in others the arrangement is reached through a parliamentary committee, or even by means of an agreement between the political parties on the one hand and the broadcasting authority on the other. Obviously, one should not adopt any specific system from a given country, and it is even hard to draw analogies, because in each country the relevant arrangement, whether legislated or otherwise established, evolved from its particular political history and parliamentary tradition and is adapted to them. One cannot compare a state which has constituency elections - and usually a small number of candidates lists - to a state with a different elections system and a larger number of political parties. As for us, the circumstances, background and tradition are essentially different: we are blessed with more than 30 lists at the starting line; the television, which is apparently the focus of the main battle, broadcasts on only one channel. And there is no possibility to purchase radio and television broadcasting times beyond those allocated under the law.

           

            Although one cannot draw analogies or copy a system from another state, it is interesting to note that most countries practise a system of relative equality which gives a clear advantage to parties represented in the outgoing parliament. The mode of time distribution - even between the represented parties, whose strength is known - is not necessarily arithmetic and proportional. In other words, the quest for this relative equality is the lesser of evils, and the relativity is determined (whether through legislation or other means) in accord with local considerations that appear to ensure reasonable opportunity for all participants in the elections.

           

            In England, where there is no legislation on the subject, the arrangement is made before the elections between the broadcasting networks and the principal parties, and the main allotment of time goes to the parties represented in Parliament, some time being allotted to other groups as well. For instance, in the 1966 elections the Liberal party had an 11.2% representation in the outgoing Parliament and was allotted 35 minutes of television and 30 minutes of radio time, whereas the Labour party, with a 44.4% parliamentary representation and the Conservative party with 43.4%, received one hour on television and 55 minutes on the radio. All the remaining groups were allotted 5 minutes on radio and television. In this case the relativity was effected clearly in favor of the small Liberal party.

           

            In the U.S.A. where the broadcasting and television networks are private and cannot be compelled to offer their services to the political parties, section 315 of the Federal Communications Act provides that if any network allows a candidate for public office to use its station, it must allow the same to other candidates for the same office under the same conditions. This provision appears to reflect absolute equality. but it is doubtful whether that is the effect in practice - because only candidates who are backed by parties capable of bearing the heavy expense of buying broadcasting time would benefit from this equality right.

 

            In Italy the broadcasting time is distributed by a parliamentary committee with each party and the government receiving a uniform basic time, while the large parties are allotted additional time in proportion to their size. In the Federal Republic of Germany the broadcasting time is divided among the parties represented in the parliament, and as can be gleaned from the decision of the German Constitutional Court of 30 May 1962, which has been mentioned by my esteemed colleague, Shamgar J. (2 BVR 158/62), the internal distribution was not proportionate to the parliamentary representation. The Constitutional Court did not regard this as a shortcoming affecting equality of opportunity. Only since the 1965 elections has the television broadcasting time been divided under an agreement between the parties represented in the parliament on the basis of their representative strength.

           

            In Holland the broadcasting time is divided equally among all the parties and groups represented in the parliament.

           

            In France the matter was statutorily arranged in 1966, and the broadcasting time is divided among the parties and groups represented in the Conseil d'Etat, without taking into account the Senate's composition. Without dwelling on the details of the arrangement, which has its origin in a presidential regime, the practical result was that in the elections at the time the majority ruling party gained 36.26% of the votes and received the same broadcasting time as all the remaining opposition groups which gained 63.7% of the votes (taken from Ch. Debbash, Traite du Droit de la Radiodifusion Radio et Television (Paris, 1967); Ch. Debbash, "Le droit a l'entenne a propos de l'organisation de la campagne electorale" (Chronique III, BBC Handbook 1963; 1967).

           

            4. These particulars are not mentioned for analogy, but to illustrate that although the principle of equal opportunity is avowed in each of the states mentioned - and there is no doubt that it is their genuine objective to maintain democracy and orderly parliamentary life in their countries - there are no common principles for a solution that satisfies the wishes of all the groups taking part in the election campaign. Absolute equality is clearly not the solution, as Debbash points out, supra:

           

            To give the same broadcasting right to a party that embraces several million voters and a group of a few visionaries creates a wrong exercise of equality. As already said elsewhere, on the authority of the Conseil d'Etat, one cannot treat equally persons or groups that are situated differently. Absolute equality would contradict the democratic principle, whereas relative equality satisfies it.

           

            Relative equality also entails no small amount of problems, and suffice it to point to the many differences between the various solutions reached in the various states. The only common denominator that can be pointed to is the sincere will to grant a reasonable opportunity to all the groups seeking to participate in the elections, while granting advantages to those that have already proven themselves in parliamentary life, yet safeguarding at the same time its orderly functioning. However, the means to achieving these purposes are different and removed from one another.

           

            5. I do not believe that we can formulate guidelines as to where the limits should be drawn. Is the allocation of 10 broadcasting minutes for a small party within the range of reasonable equal opportunity, and would a reduction of 2 minutes constitute an intolerable infraction? What about a further cut in the few remaining minutes? In the present case, however, we are not called upon to answer these difficult questions.

 

            Even if the times determined in the original statute transgressed the limits of relative equality, they were nevertheless determined in a statute adopted by a special majority of the Knesset, as required under section 4 of Basic Law: The Knesset. The Elections (Modes of Propaganda) (Amendment No. 6) Law introduces change on two points: in reducing the basic broadcasting times for the parties and candidates lists from 25 to 23 minutes on the radio, and from 10 to 8 minutes on television, and in allotting an additional 2 minutes on both media to every party represented in the outgoing Knesset, in respect of each of its Knesset members. As for myself, I regard the main violation of equality in the second part of the provision, which creates a large and unreasonable differentiation, beyond what is acceptable. As regards the broadcasting time at their disposal, even previously the small and new lists were in a Procrustean bed in competing with the large parties. I, for one, was indeed impressed by Dr. Leshem's calculations with respect to the gap created in favor of a 30-member party as against a new list, and I view this as a conspicuous violation of the relative equality established under the original statute, to the extent that even the relative equality of opportunity is eroded and violated. And since I too am convinced that this violates equality, a special majority was required under section 4 of Basic Law: The Knesset.

           

            For these reasons I agreed to the absolute orders made on May 29, 1981.

           

            BEN-PORAT J.: Although at the time I had no hesitation in concurring in the result we reached unanimously, I must admit that I deliberated much before deciding upon the meaning of the equality principle in section 4 of Basic Law: The Knesset. There is much reason, with all due respect, in the approach of my esteemed colleague, Shamgar J. , that it concerns formal equality grounded in an a quasiarithmetic, basic, uniform, and absolute standard, and that whenever important principles justify deviation from such equality only a special majority, as required under section 4, can determine the solution that is acceptable to it. Formal equality that allocates identical time to each list can probably be justified, materially speaking, in only one case: when a state is electing for the first time its Knesset members according to an election system of competing lists. I said "probably" because there is always a theoretical possibility that the parties in the outgoing Knesset are all equal in strength and there are no new lists. But, identical time for each party group and list is not a conditio sine qua non for the existence of formal equality, since one can determine a yardstick or uniform indicator of another kind, such as a progressive time measure in accord with the relative size of the parties. This too is a quasi-arithmetic calculation that can be regarded as formal equality and perhaps even material (on condition that it is based on a reasonable coefficient and initial allotment). By extending the equality principle in this way, it is also possible to reconcile my view with the ruling given in the Bergman case [1], by Landau J.- as he then was, today the honorable President of this court. It was stressed there, rightly and justly so (at p. 698) that "[this equality] must ... find expression in equality of opportunity" among both the existing parties and the various candidates lists competing in the Knesset elections. Likewise, it was stressed there - and it is also acceptable to me - that "the parties should not be put in an absolutely equal position by allocating funds equally without considering each party's size...". In short, equality that finds expression in equal time allocation to each party and list regardless of its size, is inherently incompatible with the decisive principle that is equality of prospects or (I would prefer to say) opportunity. In applying a progressive standard as suggested above, one comes across an initial difficulty, which is the existence of new lists that should not be deterred from testing their strength, despite the legitimate wish to prevent their excessive proliferation. As said in the Bergman case (at 699), the prospect of a new list to become a party group in the Knesset is one of the clear identifying marks of a democratic regime, and the new list should not be put at a disadvantage vis-a-vis the old party groups. However, not knowing in advance whether a new list will pass the blocking percentage, and if it does, how many Knesset members it will elect, we lack an indicator for applying the uniform progressive measure, and this calls for a suitable independent solution by way of a special majority of the Knesset members.

 

            The Elections (Modes of Propaganda) Law (hereinafter - "the Main Law"), that was confirmed inter alia by the Elections (Confirmation of Validity of Laws) law (hereinafter - "the Confirming Law), provided an arrangement that is not based on a uniform standard, but is composed of two cumulative elements, the one fixed and the other progressive: (1) 25 minutes of propaganda broadcasting on radio and 10 on television for every party of the outgoing Knesset and every new list; (2) 4 additional minutes on radio and television for each member of a party in the outgoing Knesset. I do not believe that this complies with formal equality. It is possible that this arrangement is ultimately just and fair, but it is enough, in my opinion, to conclude that it constitutes a deviation from the equality principle (according to my construction) so as to require the sanction of a special majority. It was therefore clearly necessary, in my opinion, that the Confirming Law give effect to such arrangement. The same applies, obviously, to the Elections (Modes of Propaganda) (Amendment No. 6) Law (hereinafter - "the Amending Law") under discussion here. This latter Law reduced the broadcasting time of the parties and lists by two minutes (that is, substituted 23 for 25 minutes on radio and 8 for 10 minutes on television), and at the same time increased by two minutes the additional time for each member of the outgoing Knesset (that is, substituted 6 for 4 minutes on radio and television). The technical nature of the arrangement remains as it was, applying a twofold measure, the one static and the other progressive, but the gap in time allocation between a new list (or small party) and the large parties, has grown incomparably. If we regard the overall outcome of this situation (and not merely the difference in minutes as an isolated factor) there is no escaping the conclusion, in my opinion, that the equality principle has been violated, even if we assume (contrary to my own view) that it was preserved in the Confirming Law.

 

            Incidentally, a look at the explanatory notes to the bill of the Amending Law (which related only to the increment for each Knesset member) reveals an admission that the bill deviates from equality, although on grounds that I, with all due respect, find unacceptable. To clarify my position I shall cite the text:

           

            The present version of the Law creates an unreasonable situation concerning the time allotted to a party group with one Knesset member as distinguished from the time allotted to a party group with a larger number of Knesset members.

           

            The present bill is intended to temper slightly the ratio of the two time quotas but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

(Emphasis added -M.B.P.)

 

            This is, therefore, support for the view that the main Law deviated at the time from the principle of equality, to the disadvantage of the large parties, because an arithmetic calculation for each member shows that the time (per member) at the disposal of the small parties is longer than that for the large ones; and this "wrong" (which, in my humble opinion, is an illusory wrong) grows incrementally with the number of members belonging to the party. In our present matter it is important that the Amending Law was regarded as a partial removal of the distortion. It appears that they used a uniform measure (the time quota for each party member), that is, progressive equality which I accept as formal equality, so as to examine whether the result was just, and that they reached the conclusion that it was not so. I have said that this reasoning is unacceptable to me, because under the existing conditions the application of the said formal equality would necessarily lead to an unjust result with respect to the new lists, which were wholly overlooked, as clarified in the opinion of Landau P. The opportunity to which they are entitled, requires an allocation of time that suits their need to present to viewers and listeners the platform and special message that might justify their presence as a party group in the Knesset. I do not have the tools nor the expertise to express an opinion as to how much time is required, considering all the aspects of the problem, but the fact that the distortion as between the existing parties was also rectified at the expense of the new lists, points to a deviation from the principle of equal opportunity. It might be noted, in passing, that the total abolition of the "distortion" referred to in the explanatory notes, is possible only if the fixed time allotted to every party is entirely abolished (which is further proof that the combination of these two factors is incompatible with equality).

 

            I have not surveyed the situation in other countries, because that was done in a comprehensive and painstaking manner by my esteemed colleagues, to which I could not add much.

           

            Judgment given on July 28, 1981

 

* Samuel 12:4-Ed.