Constitutional Law

HCJ 258/07

 

MK Zahava Galon

v.

Government Commission of Investigation for Examining the Events of the 2006 War in Lebanon

 

 

The Supreme Court sitting as the High Court of Justice

[6 February 2007]

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

and Justice A. Procaccia

 

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

 

Facts: The government set up a commission of investigation to examine what happened in the war in Lebanon in 2006. The commission decided to hold all of its proceedings in camera and not to publish any transcripts of the proceedings, on the ground that they were privileged for the reason of state security. This decision was challenged by the petitioner, who argued that the proceedings should only be held in camera if holding them in public would give rise to a near certainty of serious harm to state security, and that transcripts of those parts of the proceedings that did not satisfy this test should be published. The commission argued that it could not know in advance whether testimonies would contain privileged matters or not. It also argued that publishing the transcripts would require considerable work given the need to exclude matters that were privileged and proposed to do so only after presenting its final report, since to do so earlier would delay the preparation of the report.

 

Held: Most of the testimonies had already been heard by the commission when the petition was filed. Therefore, the question of hearing those testimonies in public was no longer relevant. The commission did not dispute that it was subject to the rule of publicity, according to which holding proceedings in public is the rule whereas holding them in camera is the exception. The presumption should therefore be that the commission would conduct itself accordingly, and would examine whether all or some of the testimonies that might be heard at a later stage could be heard in public. With regard to the publication of the transcripts of the commission’s hearings, the court held that the commission should publish those parts of the transcripts that were not privileged within a reasonable time, before the final report was presented to the government. Subject to these guidelines, the petition was denied.

 

Petition denied.

 

Legislation cited:

Administrative Courts Law, 5752-1992, s. 25, 25(b)(1).

Basic Law: Administration of Justice, s. 3.

Courts Law [Consolidated Version], 5744-1984, ss. 68, 68(a), 68(d)(1), 68(d)(2).

Commissions of Inquiry Law, 5729-1968, ss. 1, 9-11, 14, 15, 18, 18(a), 20, 20(a), 20(c), 22, 23, 27(a), 27(b).

Freedom of Information Law, 5758-1998, ss. 1, 9(a)(1).

Government Law, 5761-2001, ss. 8A, 8A(a), 8A(c).

 

Israeli Supreme Court cases cited:

[1]      HCJ 6728/06 Omets v. Prime Minister [2006] (4) TakSC 2797.

[2]      HCJFH 10030/06 Movement for Quality Government in Israel v. Prime Minister (not yet reported).

[3]      CrimA 152/51 Tripos v. Attorney-General [1952] IsrSC 6(1) 17.

[4]      HCJ 11793/05 Israel News Company Ltd v. State of Israel (not yet reported).

[5]      LCrimA 5877/99 Yanos v. State of Israel [2005] IsrSC 59(2) 97.

[6]      AAA 9135/03 Council for Higher Education v. HaAretz Newspaper Publishing [2006] (1) IsrLR 1.

[7]      AAA 6013/04 Ministry of Transport v. Israel News Co. Ltd (not yet reported).

[8]      HCJ 680/88 Schnitzer v. Chief Military Censor [1988] IsrSC 42(4) 617; IsrSJ 9 77.

[9]      HCJ 243/62 Israel Film Studios Ltd v. Geri [1962] IsrSC 16(4) 2407; IsrSJ 4 208.

[10]    HCJ 1/81 Shiran v. Broadcasting Authority [1981] IsrSC 35(3) 365.

[11]    HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353; IsrSJ 10 204.

[12]    HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

[13]    HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Elections Committee for Sixteenth Knesset [2003] IsrSC 57(2) 62.

[14]    CA 2800/97 Lipson v. Gahal [1999] IsrSC 53(3) 714.

[15]    HCJ 6005/93 Eliash v. Israel Bar Association [1995] IsrSC 49(1) 159.

[16]    CrimApp 5153/04 A v. Yediot Aharonot Ltd [2004] IsrSC 58(6) 933.

[17]    LCA 3614/97 Avi-Isaac v. Israel News Co. Ltd [1999] IsrSC 53(1) 26.

[18]    CrimA 11793/05 Israel News Co. Ltd v. State of Israel [2006] (2) TakSC 62.

[19]    LCrimA 1127/93 State of Israel v. Klein [1994] IsrSC 48(3) 485.

[20]    CA 6926/93 Israel Dockyards Ltd v. Israel Electric Co. Ltd [1994] IsrSC 48(3) 749.

[21]    LCA 1412/94 Hadassah Medical Organization v. Gilad [1995] IsrSC 49(2) 516.

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

[23]    EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[24]    CA 5185/93 Attorney-General v. Marom [1995] IsrSC 49(1) 318.

[25]    CrimA 353/88 Vilner v. State of Israel [1991] IsrSC 45(2) 444.

[26]    LA 176/86 A v. B [1986] IsrSC 40(2) 497.

[27]    CrimApp 2794/00 Aloni v. State of Israel [2000] IsrSC 54(3) 363.

 

For the petitioner — D. Holz-Lechner.

For the respondent — A. Helman.

 

JUDGMENT

 

 

President D. Beinisch

The Government Commission of Investigation for Examining the Events surrounding the 2006 Lebanon War has until now conducted its proceedings and heard all the testimonies in camera. The transcripts of the Commission’s proceedings have not been published. The Commission’s position is that only after the final report is presented to the government will it decide whether to publish those parts of the transcript that may be disclosed without harming the security of the state or other protected interests. The petition before us is directed at the commission’s position.

The main facts and the sequence of events

1.    On 12 July 2006, following terrorist operations carried out by the Hezbollah organization, in which eight IDF soldiers were killed and two others were kidnapped to Lebanon, fighting began in the north and this continued until 14 August 2006 when a ceasefire came into effect in accordance with decision no. 1701 of the Security Council of the United Nations (hereafter: ‘the Second Lebanon War’ or ‘the war’).

On 17 September 2006 the Government of Israel decided to authorize the Prime Minister and the Minister of Defence to appoint a government commission of investigation under s. 8A of the Government Law, 5761-2001 (hereafter: ‘the Government Law’), to examine the conduct of the political and defence establishments during the war. It was decided that the president emeritus of the Tel-Aviv-Jaffa District Court, Judge E. Winograd, would chair the commission (hereafter: ‘the Winograd Commission’ or ‘the Commission’). In the letter of appointment the Commission was authorized to determine findings and reach conclusions as to the readiness and conduct of the political and security establishment ‘with regard to all the aspects of the war in the north.’ The Commission was also authorized to recommended, in so far as it saw fit, ‘any improvement for the future decision-making processes of the political echelon and the heads of the security establishment, including the materials and advice given to the aforesaid authorities.’ The letter of appointment further determined that the Prime Minister and members of the cabinet, civil servants, IDF and security establishment personnel would appear before the Commission at its request and would provide any information and documents that they would be asked to present. The Commission was given powers of a commission of inquiry under ss. 9 to 11 and 27(a) of the Commissions of Inquiry Law, 5729-1968 (hereafter: ‘the Commissions of Inquiry Law’ or ‘the law’). With regard to the publicity of the Commission’s work, the government determined in its decision — and an identical stipulation was also included in the commission’s letter of appointment — the following:

‘F.          The commission shall present its report or reports to the prime minister and the Minister of Defence and they will bring them before the government. The report or reports of the commission shall be published; the commission may determine guidelines with regard to publication of the reports in accordance with the principles in section 20 of the Commissions of Inquiry Law, 5729-1968.

G.           The commission shall determine its procedure and its work schedule. The commission’s sessions shall be public or closed to the public as the commission shall decide.

No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

 

2.    On 30 November 2006 an expanded panel of this Court denied by a majority two petitions directed in principle against the Government’s decision to establish a government commission of investigation rather than to order the establishment of a state commission of inquiry in order to examine the conduct of the political and security establishments during the war (HCJ 6728/06 Omets v. Prime Minister [1]). An application to hold a further hearing on the subject of the aforesaid petitions was also denied (HCJFH 10030/06 Movement for Quality Government in Israel v. Prime Minister [2]).

The Winograd Commission began to hear testimony on 4 October 2006 and since then has heard dozens of witnesses. All the witnesses were heard in camera. On 29 November 2006 — approximately two months after the Commission began to hear the testimonies — the petitioner, MK Zahava Gal-On, submitted a request to Judge Winograd that the Commission should open its sessions to media coverage and publish the transcripts of the testimonies, with the exception of the parts whose publication would almost certainly cause serious harm to the security of the state. On 30 November 2006 Judge Winograd replied to the petitioner’s request as follows:

‘You are doubtless aware of the fact that most of the subjects in the commission’s deliberations include state secrets. Until now, although the testimonies of the witnesses also included matters that are not classified, the vast majority was classified, and therefore the disclosure of the testimonies to the general public has not been possible.

We are aware of the issue of “the public’s right to know,” and we consider this right in every case against the security of the state and the need to protect its secrets, which in our opinion — and I am convinced that this is your opinion also — should take precedence.

In the government decision that appointed the commission it is stated that the sessions of the commission shall be public or closed to the public, as the commission shall decide. In any case where it is possible, the session will be public…’

It should be noted that on 3 December 2006 — several days after judgment was given denying the petitions against the establishment of the Winograd Commission (Omets v. Prime Minister [1]) — the commission made a statement to the media. This statement said, inter alia, that —

‘The commission will continue its work in an attempt to examine what it had been asked to examine and to provide a quick, thorough and appropriate response to the many issues before it. Naturally most of the testimonies and sessions will be classified. In so far as it will be possible without harming the security of the state, sessions and testimonies will be held in public.’

3.    On 9 January 2007 — more than five weeks after Judge Winograd’s reply — the petitioner filed the petition before us. In the petition, the petitioner requested this Court to order the Winograd Commission (1) to hold its sessions and the hearing of the testimonies before it in public and, (2) to publish the transcripts of its deliberations at the end of each session, except when ‘there is a near certainty of real, serious and grave harm to the security of the state.’ On 17 January 2007 this Court, per Justice Levy, issued an order nisi to the respondent to reply to the petition, and the application for an interim order was denied. Justice Levy added in his decision that —

‘It seems to me that the commission would do well if, until this court decides the petition, it limits itself to hearing testimonies that need to be heard in camera for reasons of state security or that may be privileged by virtue of an order prohibiting publication, in accordance with the principles that have been laid down and explained in case law…’

When the petition was filed, the Winograd Commission was close to completing the stage of hearing the preliminary testimonies before publishing an interim report. After it finishes hearing these testimonies, the Commission intends to present an interim report to the government that will contain an open part that will be published and a privileged part that will not be. Counsel for the state told us that the Commission cannot definitively say the date on which the interim report will be presented but emphasized that we are not speaking of many months, but rather of a relatively early date.

The arguments of the parties

4.    In the petition and also in her pleadings before us, counsel for the petitioner, Advocate D. Holz-Lechner, discussed the centrality of the public’s right to know and  the importance of this principle in the democratic process and in safeguarding basic rights. According to her, the proceedings before the Winograd Commission concerning the conduct of the political and defence establishments during the Second Lebanon War is of great public importance since the matter concerns human lives and public security. She argued that the public is entitled to as much information as possible with regard to the acts, omissions, achievements, and failures that accompanied fighting in which the public suffered injuries and losses on both the battlefront and on the home front. The petitioner further argued that the public’s right to know is only overridden when  there is an almost certain likelihood that a disclosure of the information will cause severe, grave, and serious damage to the security of the state. According to the petitioner, from Judge Winograd’s reply on 30 November 2006 and from the statement to the media published on 3 December 2006, it can be seen that the Commission is of the opinion that the security of the state takes precedence over the public’s right to know.  According to the petitioner in forming this opinion the Commission did not give proper consideration to  the degree of probability that a security risk will occur and did not specifically examinethe extent of the harm involved in publishing the proceedings for each individual testimony. According to her argument, the fact that all the testimonies until now have been heard by the Commission in camera undermines the force of the principle of the publicity of hearings and the public’s right to know, and makes this violation a sweeping, arbitrary, and disproportionate one.

According to the petitioner’s approach, the Commission is not entitled to decide that its proceedings will be held in camera whenever there is any concern relating to state security. Rather,  in each session and with respect to each testimony  the Commission should examine the extent of the harm to state security while also considering the likelihood that such harm will occur. The argument is that a proper implementation of these rules will lead to the conclusion that most of the Commission’s proceedings will be open to the public and that the transcripts of the Commission’s sessions and of the testimonies given before it will be published as close as possible to the date on which they were given. The petitioner further argued that in matters concerning the publicity of the Commission’s proceedings and the publication of the transcripts of its proceedings, the powers of the Commission that were determined in the government decision and the letter of appointment should be interpreted in the spirit of ss. 18 and 20 of the Commissions of Inquiry Law. It was also argued that the anticipated publication of the non-classified parts in the interim report and the final report of the Winograd Commission does not compensate for the disproportionate violation of the public’s right to know, since the report presents a processed version of the information and the conclusions draw from it. By contrast, publication of the testimonies that are heard by the Commission before it presents its report to the government will allow the public to form its own impression, with a maximum degree of transparency, of the way in which the commission came to its conclusions. Publication as aforesaid will also encourage public debate and reveal additional information that was not brought before the Commission and that may be relevant to the matters being examined by it.

In reply, counsel for the state, Advocate A. Helman, argued that the order nisi should be cancelled and that the petition should be denied. In his reply, he said that ‘the respondent accepts that in this case the criteria for the publicity of the respondent’s proceedings are similar, in principle, to those of a state commission of inquiry.’ In the hearing before us, counsel for the state agreed that the general norm that is applicable in this matter is derived from the principle of publicity of proceedings and the public’s right to know. But he argued that this norm is not absolute and should be balanced against competing interests. In this regard, counsel for the state indicated two main reasons why the proceedings of the Winograd Commission have until now been held in camera and the transcripts of its sessions have not been published. The main reason is the public interest of protecting the security of the state. According to this argument —

‘… the commission became aware at the beginning of its work that all the testimonies that are being heard by it also include very classified and sensitive material — to a greater or lesser degree — which is a consequence of the subject being examined by the commission, the identities of the persons and officials who are summoned to testify before it and the matters that the commission is seeking to investigate and on which it wishes to confront the witnesses. In these circumstances, the commission is of the opinion that there is no practical possibility of determining ab initio that a certain testimony will not include classified material, whether in the course of the witness’s statement or in his reply to questions that the witness will be asked during his testimony’ (para. 12 of the state’s reply).

Counsel for the state confirmed in his pleadings that the testimony of witnesses who appear before the commission ‘also includes matters that are not of a classified nature.’ He However, he claimed that there is an inherent difficulty in distinguishing in advance between the parts whose disclosure is permitted and the parts whose disclosure is prohibited, and therefore it is necessary to hear the testimonies in their entirety in camera. For this reason, the Commission has until now not held a session that was open to the public.

With regard to the balancing test between the public’s right to know and the security of the state, counsel for the state argued that where it concerns  the question of the publicity of the Winograd Commission hearings, the strict test of ‘near certainty’ to which counsel for the petitioner referred in her pleadings does not apply. The proper test is one of publicity ‘that may endanger the security of the state’ as stated in the Commission’s letter of appointment. Notwithstanding, it was argued that even if the strict test as claimed by the petitioner does apply in the matter before us, there is an almost certain danger that publication of ‘the vast majority of the testimonies’ will result in serious harm to the security of the state.  This is because of the nature of the matters being investigated by the Commission and the identity of the persons being interrogated by it, and because of the sensitivity inherent in the fact that the Commission is supposed to address in its recommendations the lessons that should be learned for the future. Counsel for the state emphasized in his arguments that the way in which Israel conducted the war and the lessons that should be learned for the future as a result of the manner in which the fighting was carried out, are matters that if disclosed to the public, will very seriously harm the ability of the State of Israel to fight the next war in the best possible manner, and will thus seriously endanger the security of the state.

The second reason for holding the proceedings of the Commission in camera concerns the public interest in having the work of the Winograd Commission carried out efficiently, quickly, and properly, so that the Commission can recommend to the government as soon as possible the lessons and improvements that should be implemented. This issue was raised by counsel for the state, as he put it, ‘beyond what is strictly necessary.’ According to him, the hearing of the testimonies in public will significantly prejudice the ability of the witnesses to testify freely, openly, and frankly before the Commission with regard to the conduct of their superior officers and comrades-at-arms. Moreover, hearing the testimonies in public will significantly harm the proper management of the investigation since the witnesses will be able to prepare themselves for the testimony in a manner that will make it difficult for the Commission to arrive at the truth. Counsel for the state further argued that opening the proceedings to the public would make it necessary to stop the investigation whenever the reply of a witness to a question, or the question itself, concerns a classified matter, and that this would disrupt and prolong the investigations. With regard to the publication of the transcripts of the Commission’s sessions at the end of each day of the proceedings, it was argued that if the Commission needs to consider which parts of the transcript may be published on a daily basis, it would slow down the Commission’s work and impair its efficiency. It was also argued that publication of the transcripts of the testimony before the Commission would require the relevant security personnel to review them, and that these people may be subordinate to some of persons being investigated by the Commission. For these reasons, it was argued that the proper time for making the security examination of the transcripts of the testimonies that the Commission is considering is only after the Commission presents its final report to the government.

In view of all the reasons set out above, counsel for the state argued that we should not intervene in the Commission’s position that, as a rule, its proceedings take place in camera, and that the transcripts of these sessions are not to be at this time According to counsel for the state, this position is reasonable in view of the manner in which two former state commissions of inquiry conducted themselves when they investigated events that occurred during a time of war. These were the Agranat Commission of Inquiry regarding the Yom Kippur War, where all of the proceedings were held in camera in accordance with a government decision, and the Kahn Commission of Inquiry regarding the Beirut Refugee Camps, where most of the sessions were also conducted in camera. According to the state’s approach, the harm to the public’s right to know in this case is proportional in view of the fact that the Commission will make parts of the interim report available to the public, and the fact that the final report will be presented to the government, and in view of the fact that after the final report is presented to the government the Commission will decide whether to publish those parts of the transcripts that do not involve any harm to the security of the state, its foreign relations, or other protected interests. Counsel for the state further stated that publication of parts of testimonies before the Commission’s report is published will not significantly further the public’s right to know since such testimonies alone are likely to present a partial and distorted picture. In view of all this, counsel for the state argued that the Commission’s position is reasonable and the court should not intervene in it.

Deliberation

The principle of the publicity of proceedings and its application to the Winograd Commission

5.    Section 8A of the Government Law, by virtue of which the Winograd Commission was appointed, determines the powers of the government commission of investigation. This section does not address the question of the publicity of the proceedings before such a commission of investigation. Notwithstanding, the issue was expressly addressed in the letter of appointment that the Winograd Commission received from the Prime Minister and the Minister of Defence in accordance with the government’s decision of 17 September 2006. As I said above, paragraph G of the letter of appointment provides that:

‘The commission’s session shall be public or closed to the public as the commission shall decide. No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

It follows from this that the Government left the question of the publicity of the Winograd Commission’s proceedings to the discretion of the Commission, although it saw fit to emphasize that no public proceedings should take place when doing so might endanger the security of the state or another protected interest.

Defining the character of the Winograd Commission as a body is complex. It is a public authority that was set up by law by the executive branch and it exercises quasi-judicial powers; the Commission’s character as an administrative body and its quasi-judicial powers are characteristics that affect the norms that apply to it. There is no doubt that the discretion given to the Commission on the subject of the publicity of its proceedings is not absolute. None of the parties before us disputes that the Commission as a public authority is liable to exercise its discretion reasonably, after considering all of the relevant factors and giving proper weight to each of them in accordance with the basic principles of our legal system. As we shall clarify later, since the Commission is a body that has been given quasi-judicial powers, the commission should give considerable weight to the principle of the publicity of proceedings when it decides whether to hold the sessions at which it hears evidence in camera. As a public authority it should also give considerable weight to the general norm of the duty of disclosing information in its possession, when there is no legal reason to prevent its disclosure.

6.    This Court has on many occasions in the past discussed the elevated status and the great importance of the principle of the publicity of proceedings that take place before it. What has been said in case law with regard to the publicity of proceedings is also pertinent with regard to proceedings that are taking place before a body with quasi-judicial powers, such as the Winograd Commission. The premise is that the publicity of the proceedings contributes to improving the quality of the decision that is made at the end of the process. The assumption is that the critical eye of the public may ‘eliminate any possibility that the judicial process may be influenced by bias and prejudice’ (CrimA 152/51 Tripos v. Attorney-General [3], at p. 23). In addition, the publicity of proceedings in a judicial proceeding or a quasi-judicial proceeding contributes to a strengthening of public confidence in public authorities, in general, and in the body that is hearing the matter, in particular. By means of the publicity of the proceedings, justice is not only done but is also seen to be done, and this prevents the impression that the law is administered in secret and according to hidden criteria (see the remarks of Justice Arbel in HCJ 11793/05 Israel News Co. Ltd v. State of Israel [4], at paras. 13-15 of her opinion and all of the references cited there; see also LCrimA 5877/99 Yanos v. State of Israel [5], at pp. 109-112).

The principle of the publicity of proceedings is also based on the public’s right to know and the duty of disclosure that governs a public authority. The public’s right to receive information concerning the manner in which public authorities operate allows them to be subjected to public scrutiny.— a scrutiny that is one of the cornerstones of democracy. This reasoning has found expression in the Freedom of Information Law, 5758-1998 (hereafter: ‘the Freedom of Information Law’), which gives every citizen and resident a right to receive information from a public authority, subject to the exceptions and reservations listed in the law. To this, we should add that the realization of the public’s right to know by disclosing to the public the manner in which the public authority operates allows the public to determine its agenda and helps individuals in society decide their positions by means of an open discussion of the problems and by a free exchange of opinions on the basis of the information that is published (on the public’s right to know, see AAA 9135/03 Council for Higher Education v. HaAretz Newspaper Publishing [6], at paras. 8-9 of the opinion of Justice Hayut; AAA 6013/04 Ministry of Transport v. Israel News Co. Ltd [7], at para. 12 of the opinion of Justice Rivlin).

It has been said in the case law of this Court that the principle of the publicity of proceedings has two aspects: one is that the hearing is held in open court, so that every member of the public is entitled to be present; the other is the permission to publish the content of the proceedings as part of the public’s right to know. It has also been said that today the main importance of the principle of the publicity of proceedings lies in the second aspect which concerns the possibility of publishing the fact that the proceedings are being held and the content of the proceedings, and thereby bring these to the attention of the public as a whole (see Yanos v. State of Israel [5], at p. 112).

7.    The centrality of the principle of the publicity of proceedings in our legal system has received express recognition in legislation and has even been enshrined in a Basic Law. Section 3 of the Basic Law: Judiciary and s. 68(a) of the Courts Law [Consolidated Version], 5744-1984 (hereafter: the Courts Law) provide the rule that ‘The court shall hear cases publicly.’ This principle has also been determined with regard to commissions of inquiry. Thus s. 18(a) of the Commissions of Inquiry Law provides that ‘A commission of inquiry shall hold public hearings…’.  It should immediately be said that this is not a strict rule, and that the provisions of the aforesaid laws contain exceptions to the principle of the publicity of proceedings, which we shall address later.

As we have said, the Government Law, by virtue of which the Winograd Commission was established, is silent  with regard to the publicity of the proceedings before a government commission of investigation. Prima facie a question may arise as to whether the rule concerning the publicity of proceedings applies to the proceedings of every commission of investigation that is appointed under the Government Law, or whether we should not speak of a strict rule since the matter requires the consideration of each individual commission in accordance with its circumstances. We do not need to decide this question in the circumstances of the case before us because the Winograd Commission is not an ‘ordinary’ government commission of investigation. In Omets v. Prime Minister [1] this court discussed how, in view of the character and scope of the issues that the Winograd Commission was authorized to examine, the government saw fit in the letter of appointment to give the commission additional mandates and powers that are not listed in the Government Law. This was done in order to allow the commission to investigate in depth an issue of national significance and importance, namely the fighting that took place in Lebanon. The commission was given, inter alia given some of the main powers of a state commission of inquiry under ss. 9-11 of the Commissions of Inquiry Law — the powers to summon witnesses and to compel them to testify or to produce documents. The Commission is also governed by ss. 14 and 22 of the Commissions of Inquiry Law by virtue of the provisions of s. 8A(c) of the Government Law, with regard to the status of those testimonies. In Omets v. Prime Minister [1] the state also agreed that the Winograd Commission should be subject to a similar arrangement to the one provided in s. 15 of the Commission of Inquiry Law that gives anyone who may be harmed by the Commission’s conclusions the right to state their case.  and in practice the representative of the state declared that the Commission was competent to issue ‘warning letters’ and to make recommendations with regard to specific persons like a state commission of inquiry. In practice, it is possible to interpret the position of the state in Omets v. Prime Minister [1] as that the Winograd Commission is similar in character to a state commission of inquiry, differing only in terms of  the party that appointed it.

Section 18 of the Commissions of Inquiry Law, which provides the rule that the proceedings of a state commission of inquiry should be held in public, does not apply directly to the Winograd Commission. But in its pleadings before us, the government agreed that the criteria concerning the publicity of the proceedings of the Winograd Commission are essentially similar to those of a state commission of inquiry, in view of the special character and the scope of powers of commission under discussion (see para. 31 of the respondent’s reply). Indeed, the Winograd Commission is considering issues of paramount public importance and interest. All of these factors affect the weight of the principle that the proceedings should be held in public and that the public has a right to know about the commission’s proceedings. Therefore, it is proper that the general principle concerning the publicity of the proceedings, which is also enshrined in s. 18 of the Commissions of Inquiry Law, should govern the Winograd Commission. It would appear that the Commission has indeed taken the aforesaid principle into account. In Judge Winograd’s letter to the petitioner of 30 November 2006, he says that ‘In any case where it is possible, the session will be public.’ The statement to the media on 3 December 2006 also says that ‘In so far as it will be possible without harming the security of the state, sessions and testimonies will be held in public.’ Therefore the premise for the continuation of our deliberations is that, in so far as possible and in the absence of any impediment for reasons of the security of the state, the proceedings of the Winograd Commission should be held in public.

The principle of the publicity of proceedings versus the security of the state

8.    The principle that proceedings should be held in public, like the basic rights that underlie it, is not absolute. There are cases where it needs to yield to conflicting rights and interests. Under s. 3 of the Basic Law: Judiciary, it is possible to violate the principle that judicial proceedings should be conducted in public only by virtue of an express provision of statute or by means of an order of the court that is made in accordance with statute. Section 68 of the Courts Law and ss. 18, 20 and 23 of the Commissions of Inquiry Law list the exceptions that allow all or some of the proceedings in a certain matter to be held in camera or subject to a prohibition against publication. Inter alia, it is provided that an order may be made to this effect if it is required ‘in order to protect the security of the state.’ It should be stated that even s. 9(a)(1) of the Freedom of Information Law provides that a public authority shall not provide information ‘whose disclosure gives rise to a concern that the security of the state will be harmed…’. As we have said, these provisions of statute do not apply directly to the Winograd Commission. But even the petitioner does not dispute that the exception with regard to protecting the security of the state applies to the Commission’s proceedings, and that in appropriate circumstances it is capable of justifying the holding of sessions in camera and of justifying the prohibition against publication of the content of the matters brought before the commission.

The two values under discussion — state security on the one hand and the publicity of proceedings and the public’s right to know on the other — are basic values in our legal system. ‘Without security the state cannot survive, and the social consensus on which it is built cannot exist. Thus the freedoms of the individual which the state is supposed to uphold will cease to exist. This shows the centrality of the value of security among all the values of the legal system’ (per Justice Barak in HCJ 680/88 Schnitzer v. Chief Military Censor [8], at p. 629 {92). But without holding proceedings in public and realizing the public’s right to know, the character of our democratic system, which is based on a free exchange of ideas and on public confidence in the state authorities and the propriety of their actions, may be undermined (see para. 6 above). A proper balance, therefore, needs to be struck between the aforesaid two values when they clash ‘head on.’ The balancing formula should realize the value of state security, but at the same time minimize, as much as possible, the violation of the principle of holding proceedings in public and the freedom of information, which are important values in our legal system.

The dispute between the parties before us concerns the proper formula for balancing the values under discussion. According to the petitioner, only when there is a concern that amounts to a near certainty of serious and grave harm to state security are there grounds for violating the principle of the publicity of proceedings by holding the commission’s proceedings in camera. By contrast, counsel for the state argued that the balancing test proposed by counsel for the petitioner is too strict. According to him, the test of ‘near certainty of serious and grave harm to state security’ was determined in the case law of this court in circumstances of a possible conflict between protecting the freedom of speech and safeguarding the security of the state, and that this test does not apply when we are dealing with the publicity of proceedings. The question whether the case law balancing formula between the freedom of speech and state security also applies in the context of a conflict between the publicity of proceedings and state security has not yet been decided in our case law and it has no easy answer. On the one hand, the freedom of speech is one of the reasons underlying the publicity of proceedings and the public’s right to know, as discussed earlier. On the other hand, the freedom of speech is not the only reason for the principle of publicity of proceedings. There are other values that underlie it, and we should consider how these are to be balanced against state security. Moreover, there are circumstances in which holding proceedings in camera serves additional public interests that are not merely matters of state security but also ensure the fairness of judicial proceedings and the possibility that in them we will arrive at the truth. In such circumstances, it is possible that there is a basis for a different fundamental balance than the one indicated by counsel for the petitioner. These questions do not require a decision in the circumstances of this case since counsel for the state was prepared to assume, for the purposes of the proceedings before us, that because of the character of the issues being examined by the Winograd Commission, the fundamental balancing formula argued by counsel for the petitioner does apply.

Whatever the balancing formula may be, there is no doubt that the outcome of the balance between the publicity of proceedings and state security cannot be decided in advance since it depends upon an assessment of the extent of the harm to security and of the likelihood that such harm will occur. Therefore, the result of the proper balancing point is determined by the circumstances and merits of each case. It should be emphasized that in view of the importance of the principle that proceedings should be held in public, a general and sweeping assessment of the danger to the security of the state based on the general nature of the issues under discussion will not suffice. In this context, a concrete and specific examination of the circumstances of the case should be made in order to decide whether there is a justification for departing from the rule that proceedings should be held in public.

From general principles to the specific case — the proceedings of the Winograd Commission

9.    The petition before us was filed after a considerable delay, which influences the application  of the criteria in the circumstances of this case. Originally, the petitioner applied to Judge Winograd with a request to open the proceedings of the Commission to the public and to publish the transcripts of the sessions almost two months after the testimonies began to be heard. The petition to this court was filed more than five weeks after Judge Winograd’s reply was received. These delays have resulted in the vast majority of the testimonies have already been heard by the Commission. At this stage, the hearing of testimonies has ended, that is unless the committee sees fit to allow another round of testimonies before examining recommendations concerning specific individuals.

The relief that the petitioner sought in the petition was of two kinds: first, to order that the proceedings of the Winograd Commission and its hearing of the testimonies to be held in public; and second, to order the publication of the transcripts of the commission’s proceedings at the end of each session. With regard to the first relief, since the petition was filed after the vast majority of the testimonies were heard by the Commission, the question of hearing them in public is no longer relevant. As we have said, it is possible that there remain additional testimonies that will be heard at the next stage of the Commission’s proceedings. From Judge Winograd’s letter to the petitioner of 30 November 2006, it appears that ‘in every case’ the Commission considers the publicity of the proceedings and the public’s right to know, as opposed to  state security and the need to protect its secrets. According to the position presented by the chairman of the Commission in this letter, we assume that the Commission will be mindful of the criteria set out above, and that it will make its decisions concerning the holding of proceedings in camera on an individual basis with regard to each of the testimonies that it may hear.

It should be noted that in his pleadings before us, counsel for the state discussed the inherent difficulty in distinguishing ab initio between parts of testimony that are expected to be heard by the Commission that may be disclosed and parts that must be heard in camera. In this context, I think it right to point out that if there are circumstances in which the vast majority of the testimony may be disclosed, there is no basis for holding the whole testimony in camera. In view of the great importance of the principle of holding proceedings in public, a distinction should be made ab initio between the part that may be disclosed, which should be heard in public, and the classified part, which is the only part that should be heard in camera. The more complex cases — which apparently characterize most of the testimonies being heard by the Commission — are those in which the main testimony is expected to be classified but is interspersed with parts that may be disclosed. In such circumstances, the Commission should make an effort to distinguish ab initio between the various parts, and to hold proceedings in public on the parts of the testimony that may be disclosed. But when the parts that may be disclosed are few and incidental to the classified parts of testimony, the advantage in separating the different parts of the testimony for the purpose of holding proceedings in public may be marginal, and the whole testimony may be heard in camera.

Counsel for the state went on to point out that the Winograd Commission is not prepared to allow persons who testify before it to make a ‘statement to the media’ at the beginning of their testimony in a hearing which then continues in camera. Two reasons are given for this position. First, the person testifying before the Commission has the possibility of giving interviews to the media and to say whatever they wish to say. Second, allowing the possibility of such ‘statements’ conflicts with the desire to conduct the proceedings of the Commission professionally and efficiently and to complete its work as quickly as possible. We see no reason to intervene in the Commission’s reasoning in this matter. We assume that the Commission will be mindful of the rule concerning the publicity of the proceedings and will allow the hearing of testimonies — or at least parts of them — in public, in circumstances where there is no legal impediment according to the criteria set out above.

It should be noted that in support of his arguments counsel for the state sought to rely on the manner in which state commissions of inquiry operated in the past when considering similar issues to those being considered by the Winograd Commission, including when the proceedings before them were alleged to be classified. In this respect, it should be stated that in the case of the Agranat Commission a blanket order prohibiting any publicity regarding its proceedings was imposed by a government decision that was originally made in accordance with s. 23 of the Commissions of Inquiry Law.  By contrast, in the case before us the Winograd Commission was given complete discretion. With regard to the proceedings of the Kahn Commission, these were mostly classified, but proceedings that were open to the public, at the commission’s discretion, also took place. Indeed, the manner in which the commissions operated in the past shows that an investigation of military operations that involves making recommendations naturally does not allow full disclosure of the evidence before the commission for reasons of state security. But no conclusion should be drawn from the examples in the past that the Commission is exempt from the application of the principle that proceedings should be held in public, and, as we have said, the Commission is obliged to hold proceedings in public if there is no impediment to this on grounds of state security.

10. The second relief that is sought in the petition concerns the publication of the transcripts of the Commission’s hearings. In his written pleadings, and also before us, counsel for the state confirmed that the testimonies that were heard by the Winograd Commission include parts that are not classified and that may be published under the law. The essence of the dispute between the parties concerned two matters. First, he parties disagree with regard to the scope of the material that may be disclosed to the public: whereas counsel for the petitioner is of the opinion that there is no reason why most of the material heard before the commission should not be published, the state argues that most of the testimonies may not be published. Prima facie the state’s position appears reasonable. The nature of the subjects being considered by the Winograd Commission, the identity of the persons appearing before it, and the sensitivity of the information being considered by it may lead in most cases to the existence of an almost certain danger of harm to the security of the state if the information that is revealed in the Commission’s hearings is published. Notwithstanding, this does not exempt the Commission from the need to examine the transcripts in detail in order to publish those parts that may be disclosed under the law. In this regard, a general assessment made at the outset is insufficient; it is necessary to make a detailed examination. As we have said, an examination should be made for each testimony to see whether there is a justification for prohibiting publication of what was said in it. In this context, there may be a difference between an examination made before the event and an examination made after the event.  With regard to testimony before it has been heard by the Commission, there is in many cases an inherent difficulty in distinguishing between the parts that may be disclosed and the parts that are classified.  When the examination is made after the event — after the testimony is given — distinguishing between the aforesaid parts may be done more easily.

The main disagreement between the parties concerns the date of publication of the parts of the Winograd Commission transcripts that may be disclosed. Section 8A of the Government Law and the letter appointing the Winograd Commission do not address this issue, apart from the statement in paragraph H of the letter of appointment, which says: ‘When its work is completed, the commission shall deposit all the transcripts of its proceedings and all the material that was brought before it in the state archives.’ It should be noted that paragraph F of the letter of appointment, which discusses the publication of the commission’s reports, refers to ‘the principles in section 20 of the Commissions of Inquiry Law.’ Section 20(c) of the aforesaid law provides that ‘The commission may, if it sees fit to do so, publish the transcript of its proceedings, or any other material relating to its work, in whole or in part.’ From this we see that the Commission was given discretion with regard to the question of the publication of the transcripts of hearings that took place before it and also with regard to their date of publication. As we clarified above, the Commission should exercise its discretion reasonably and give proper weight to all of the relevant factors.

In the hearing before us, counsel for the petitioner requested that the transcripts should be published as soon as possible after they are made. Counsel for the state, however, argued that in the Commission’s opinion the proper time for making a security examination of the testimony transcripts is only after the Commission presents its final report to the government. Two reasons were given for this. First, it was argued that if the Commission is compelled now to examine the parts of the transcript proceedings that may be publishe that this would hold up the Commission’s work and undermine its efficiency. Second, it was argued that publication of the transcripts at this time would require the matter being referred to security personnel who may be subordinate to some of the persons being investigated.

We should say immediately that the aforesaid reasons raised by counsel for the state are not convincing. In our remarks above, we discussed the great importance of holding proceedings in public and of the public’s right to know. We said that the flow of information is a condition without which people cannot form their opinions and that it is an essential condition for upholding democracy. ‘Only in this was can he [the citizen] adopt for himself as independent an opinion as possible on those questions that are at the top of the social and political agenda, which must ultimately be decided by him, by virtue of his right to elect the organs of the state’ (per Justice Landau in HCJ 243/62 Israel Film Studios Ltd v. Geri [9], at p. 2415 {217}). ‘The democratic system of government is nourished by — and also depends upon — a free flow of information to and from the public with regard to the main issues that affect society and the individual’ (per Justice Shamgar in HCJ 1/81 Shiran v. Broadcasting Authority [10], at p. 378). This is certainly applicable in this case given the national importance and great public interest raised by the issues being considered by the Winograd Commission. Moreover, our case law holds that the duty of an authority to make available to the public the information in its possession, when there is nothing in the law that prevents this, allows public scrutiny and that this principle derives from the status of the authority as a trustee that holds the information in trust for and on behalf of the public as a whole (see the remarks of Justice Rivlin in Ministry of Transport v. Israel News Co. Ltd [7], at paras. 11-13 of his opinion; see also the remarks of Justice Hayut in Council for Higher Education v. HaAretz Newspaper Publishing [6], at paras. 8-9 of her opinion and the references cited there). In view of all this, if the transcripts of the Winograd Commission hearings contain parts with regard to which there is no legal impediment that prevents their disclosure to the public, it is not reasonable to delay the publication of the material until the final report is presented. It may be assumed that it is possible to find reliable and experienced persons who will be made available to the Commission for the purpose of carrying out the security check required in order to identify the material that may be disclosed.

The argument of counsel for the state that publication of the material before the final report is presented will disclose to the public partial and distorted information is likewise rejected. If the transcripts contain material that may be disclosed under the law, the information should be published, and we should not say that it is better for the public that the publication should be postponed to such a remote date. In this regard we emphasize that if and when the Commission decides in the future to summon witnesses under caution, the relevant information will in any case be disclosed to them. At this stage, the ‘judicial’ aspect of the Commission’s work takes precedence over the ‘investigative’ aspect. In such circumstances, there is no concern that the publication of parts of the transcripts before the Commission’s final report is presented will disrupt testimonies or seriously undermine the proper work procedures of the Commission. We, therefore, assume that the Winograd Commission will exercise its discretion in accordance with what we have said above, and in accordance with its professed position in the letter of the Chairman of the Commission and its statement to the media, and that the Commission will take steps to publish the parts of the transcripts whose disclosure is permitted within a reasonable time, before the final report is presented to the government.

11. In summary, since the petition was filed after the vast majority of the testimonies had already been heard by the Commission, the question of the hearing of those testimonies in public is no longer relevant. It is possible that there are more testimonies that will be heard at a later stage of the commission’s deliberations. The pleadings of counsel for the state show that the Commission does not dispute that the rule that proceedings should be held in public applies to it. The Commission can be presumed to be conducting  itself in accordance with the criteria set out above and to examine the question whether all or parts of the testimonies may be given in public. With regard to the publication of the transcripts of the Commission’s hearings, the Commission will take into account the principles discussed above, and it is presumed that it will take steps to publish the parts of the transcripts that may be disclosed within a reasonable time and before the final report is presented to the government.

In view of all of the aforesaid and subject to what is stated in para. 11, the order nisi should be cancelled.

 

 

 

Vice-President E. Rivlin

I agree.

 

Justice A. Procaccia

I agree with the opinion of my colleague President D. Beinisch. If I see a need to add some remarks, it is in order to support, strengthen and emphasize what I think needs to be emphasized and highlighted.

1.    According to the constitutional outlook that prevails in the Israeli legal system the principle that proceedings should be held in public has a supreme status. The publicity of proceedings is a part of the duty of disclosure that lies at the heart of democracy. The aim of disclosure is to guarantee a free flow of information on subjects of public importance that affect the individual and society as a whole. A free flow of information, opinions and outlooks is an essential condition for a healthy democracy. Only in this way is it possible to ensure, on the one hand, the ability of the individual to influence the government’s actions by means of data and information that are required for this, and only in this way is the public given a means of scrutiny whereby he may examine the propriety of the actions of government bodies (HCJ 1601/90 Shalit v. Peres [11], at p. 364 {219-220}). A free flow of information on matters that concern the public is one aspect of the value of freedom of speech that lies at the heart of a free society, which includes not only the right to express oneself and make oneself heard and seen, but also the right to know, hear and see (HCJ 14/86 Laor v. Film and Play Review Board [12], at p. 433; HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Elections Committee for Sixteenth Knesset [13], at pp. 71-72). Alongside the freedom to express oneself and utter opinions, beliefs and ideas there is the right of the public to know about the complex actions of the government and the activity of public authorities; this is the other facet of freedom of speech, without which we cannot have a proper constitutional system that protects human rights and ensures the propriety of the activities of the government. The exposure and disclosure of information that is important to the public are prerequisites for the existence of public scrutiny and examination, whereas concealing and covering up such information screens and obscures deviations from public norms and makes it difficult to expose them and to recommend corrections where they are needed. The principle that proceedings should be held in public derives its force from the public’s right to know about the actions of the government and its agencies; holding discussions and judicial proceedings in the public eye also guarantees the fairness of the investigation and the quality, standard and seriousness of the decision made at the end of the proceeding. Openness increases public confidence in government authorities and the bodies who examine and scrutinize their actions. The principle that proceedings are held in public achieved statutory constitutional status in s. 3 of the Basic Law: The Judiciary  (see CA 2800/97 Lipson v. Gahal [14], at p. 718; HCJ 6005/93 Eliash v. Israel Bar Association [15], at p. 161; CrimApp 5153/04 A v. Yediot Aharonot Ltd [16], at p. 938; LCA 3614/97 Avi-Isaac v. Israel News Co. Ltd [17], at pp. 45-47; and recently CrimA 11793/05 Israel News Co. Ltd v. State of Israel [18], at paras. 13-16 (per Justice E. Arbel)). The principle that proceedings should be held in public is a basis element of judicial activity in the Israeli courts. It is an established principle in the Administrative Courts that try disputes in which a public authority is involved (s. 25 of the Administrative Courts Law, 5752-1992). The principle that proceedings should be held in public also applies as a basic principle of the legal system to quasi-judicial bodies. The principle of administrative disclosure and publicity also applies in general to the activity of government authorities that have an executive function, even though the principle of disclosure in the executive and administrative spheres may take a different form to the one that is found in the judicial or quasi-judicial sphere; ‘Indeed, administrative publicity is a basic principle in a democracy. It allows the public not only to plan its course of action, but also to develop a dialogue with the administration, which includes the scrutiny of its actions’ (I. Zamir, Administrative Power (1996), at p. 924). Indeed —

‘Proper government acts in the light of day, in the open, and thus it exposes itself to constant scrutiny and therefore also to the correction of corrupt courses of action’ (LCrimA 1127/93 State of Israel v. Klein [19], at p. 516 (per Justice M. Cheshin)).

An expression of the outlook of administrative publicity and the duty of disclosure that governs public authorities can be found in the Freedom of Information Law, 5758-1998, which gives every Israeli citizen or resident a right to receive information from a public authority in accordance with the provisions of the law (s. 1). Even before the Freedom of Information Law there existed a principle that documents of public authorities are available to anyone who has an interest in the matter. A refusal to disclose them imposed on the public authority a burden of explaining and justifying its refusal (CA 6926/93 Israel Dockyards Ltd v. Israel Electric Co. Ltd [20], at p. 796). The principle of disclosure was extended in the past, before the enactment of the law, to administrative bodies such as internal professional audit bodies; even though their deliberations are usually not open to the public, their conclusions are likely to be subject to disclosure (LCA 1412/94 Hadassah Medical Organization v. Gilad [21]).

2.    The principle of disclosure and publicity is not absolute. Like every constitutional norm, the degree of protection afforded to it is not unlimited. Thus there may be restrictions upon the realization of the norm and the scope of the ability to realize it. The scope of protection given to the constitutional norm is limited by the principles that determine the proper balance between it and important conflicting interests to which the law gives a special status. The principle of the publicity of proceedings, as a part of the value of the freedom of speech, is subject to restrictions in the spirit of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty (HCJ 3434/96 Hoffnung v. Knesset Speaker [22]; EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [23]). The principles of the limitations clause demand that in order for a violation of a constitutional norm to be recognized as legitimate, it should originate in a statute that befits the values of the state, it should be intended for a proper purpose and it should satisfy the requirement of proportionality.

3.    Case law has held that where there is a clash between the principle of publicity and conflicting interests, ‘the principle of the publicity of proceedings retains a preferential status of a supreme right’ (Lipson v. Gahal [14], at p. 719). A clear and unambiguous provision of statute is required in order to restrict or qualify the publicity of proceedings rule (Eliash v. Israel Bar Association [15], at pp. 168-169, 170; CA 5185/93 Attorney-General v. Marom [24], at p. 342; Lipson v. Gahal [14], at p. 719). Even when there is such a provision of statute, it should be interpreted in accordance with the principles of the limitations clause, and especially in accordance with the principle of proportionality therein. This means that the principle of publicity will prevail unless the restriction of publicity satisfies the limitations tests, and especially that it should be of an extent no greater than what is required,  (CrimA 353/88 Vilner v. State of Israel [25], at pp. 450, 451; Lipson v. Gahal [14], at p. 719; Avi-Isaac v. Israel News Co. Ltd [17], at p. 66). The restrictions upon the publicity of proceedings are always interpreted narrowly (LA 176/86 A v. B [26], at p. 499; CrimApp 2794/00 Aloni v. State of Israel [27], at p. 369).

Publicity and disclosure are therefore the rule. Privilege and secrecy are the exception. Since the exception constitutes a restriction upon a constitutional norm, its application in a manner that violates the norm is conditional upon preconditions that mainly concern a proper purpose and proportionality.

4.    In various contexts legislation contains restrictions upon the publicity of proceedings. These qualifications include the protection of the security and foreign affairs of the state (s. 68(d)(1) and (2) of the Courts Law [Consolidated Version], 5744-1984; s. 25(b)(1) of the Administrative Courts Law, 5752-1992).

5.    A state commission of enquiry that acts by virtue of the Commissions of Inquiry Law, 5729-1968, is required to hold its proceedings in public and to publish its report (ss. 18(a) and 20(a) of the law). Alongside the publicity of proceedings principle and the duty of disclosure that govern the commission, the law lists exceptions to the publicity and disclosure rule, which include matters of state security. But according to the principles of the legal system, since the principle of publicity is the rule and secrecy is the exception, the commission of inquiry is required to make its proceedings open to the public and to publish the details of its activities unless, for weighty reasons that satisfy the constitutional requirement of proportionality, one of the exceptions listed in the law should be applied. The principle of publicity in a state commission of inquiry is particularly important, because a state commission of inquiry is charged with inquiring into a matter ‘of essential public importance’ that requires investigation (s. 1 of the Commissions of Inquiry Law). Such a commission is usually established where there is a crucial public need to investigate a matter of particular importance that is subject to disagreement, which not infrequently gives rise to deep public emotion and distress. The purpose of a commission of inquiry is to restore public confidence in the government and the persons running it. Re-establishing public confidence in society — which is one of the main purposes of a state commission — depends upon there being openness, disclosure and publicity in the proceedings of the commission to the greatest extent possible. Openness helps the public trust the fairness of the proceedings of the commission and accept its conclusions out of a belief in the integrity of its criteria and the objectivity of its motives. Publicity in the work of a commission of inquiry removes any concern of political bias or favouritism in the commission’s work and leads to greater public confidence in its activity (A. Klagsbald, State Commissions of Inquiry (2001), at pp. 23, 213; A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (vol.2, ‘Government Authorities and Citizenship,’ 2005), at pp. 1028, 1040-1041).

6.    Naturally commissions of inquiry are sometimes appointed to examine particularly sensitive security matters t or special matters of state, and these require secrecy. In circumstances such as these, when we are speaking of an essential public need of great significance that satisfies the proper purpose and the requirement of proportionality, a commission of inquiry is authorized to decide to apply the exception to the rule of publicity and to restrict opening the proceedings of the commission to the public and disclosing the information and the material submitted to it and the transcripts prepared by it where necessary and to the required degree.

7.    It is important to emphasize that even where there may be an exception to the publicity of the proceedings of a commission of inquiry, whether for security or other reasons, the balance between applying the principle of publicity and the need for resorting to the exception thereto should be made very carefully, and its implementation is required with regard to each element and each stage of the commission’s proceedings: the guiding principle is publicity, disclosure and exposure, and the exception is confidentiality and secrecy, which will apply only where it is necessary — where it is a ‘necessary evil.’ A sweeping preliminary decision that all the proceedings of the commission will be secret and that all the material that arises in its sessions will be classified seriously undermines the principle of publicity and is inconsistent with the requirements of the law. The commission should therefore examine, in so far as it can before the event, every testimony and every procedural stage that takes place before it on an independent basis, in order to decide whether it may be disclosed to the public or whether there is no alternative to making it privileged. Only in this way will the principle of publicity be properly realized, while upholding the proper balance between it and other essential public interests (Klagsbald, State Commissions of Inquiry, supra, at p. 215).

8.    The commission of investigation under s. 8A of the Government Law, 5761-2001, namely the Winograd Commission, was appointed to investigate the events of the war in the north with regard to a very broad range of issues, as can be seen from government decision no. 525. The letter of appointment that defines its powers authorized it to examine the conduct of the political echelon with regard to the war from political, military and civilian perspectives; it also requested an examination of the preparations  of the defence establishment, including questions of readiness for war, preparation of intelligence, conduct of the war, activation  of forces, etc.. The commission was given interrogation powers under ss. 9 to 11 and 27(b) of the Commissions of Inquiry Law, which concern powers to interrogate witnesses. These powers were given to the commission by virtue of s. 8A(a) of the Government Law. In view of the breadth and depth required when examining the subject of the war, the government supplemented what was lacking in the powers of the commission of investigation under s. 8A of the Government Law by giving the commission additional powers and authority, which it set out in the letter of appointment; thus, for example, it ordered the publication of the commission’s reports (para. F of the letter of appointment), it authorized persons to collect material (para. J of the letter of appointment) and following an opinion of the attorney-general it adopted the mechanism of sending warnings under s. 15 of the Commissions of Inquiry Law, which constitutes a condition for making personal recommendations. This opinion was given against a background of the similarity between a state commission of inquiry and a commission of investigation, and according to the state —

‘As a rule, in the absence of a special reason to deviate from this, a similar arrangement to the one set out in section 15 of the Commissions of Inquiry Law should be adopted in this case, with the  scope of the right to state one’s case in each specific instance being determined by the commission, according to the circumstances of the case’ (para. 49 of the state’s reply in HCJ 6728/06 Omets v. Prime Minister [1].

With regard to the aspect of the publicity of proceedings, the letter of appointment determined that ‘The commission’s sessions shall be public or closed to the public as the commission shall decide.’ It was also determined that ‘No public proceedings will take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

9.    In the wording of the letter of appointment, the government therefore regarded the commission of investigation as a body of a similar nature to a state commission of inquiry, and it acted to make the powers and authority of the commission of investigation as similar as possible to those given to a commission of inquiry acting in accordance with the Commissions of Inquiry Law. This purpose of equating the two types of commission is not surprising in view of the fact that the commission of investigation for examining the war in the north was set up to examine a matter ‘of essential public importance’ that requires clarification, in the sense that this expression is used in s. 1 of the Commissions of Inquiry Law, and it is only natural that the government sought to equip such a commission with the powers given to a commission of inquiry in order to enable it to carry out the complex task with which it was charged. The similarity between the powers of the Winograd Commission and the powers of a commission of inquiry is what was used by the state as its main justification in reply to the argument raised against it in Omets v. Prime Minister [1], according to which the government erred when it appointed a commission of investigation to examine the war in the north, when it had the power to appoint a commission of inquiry, with the characteristics and powers given to it in the law.

10. The close similarity between the Winograd Commission and a state commission of inquiry from the viewpoint of the character and scope of the matters requiring examination and their public significance and from the viewpoint of the scope of investigative powers given to it leads to the conclusion that even though the publicity of proceedings provision in the Commissions of Inquiry Law does not apply directly to the Winograd Commission, the publicity of proceedings principle applies to its proceedings to a similar degree as it applies to a state commission of inquiry. This is the necessary conclusion from the general application of the principle of publicity to quasi-judicial bodies as one of the basic principles of the legal system, and in view of the subject of the investigation and its broad public significance, together with the broad scope of the powers given to the commission of investigation and its status as a quasi-judicial body. The nature of the matters being considered by the commission of inquiry and their broad public scope, as well as the need to ensure public confidence in the way in which the commission conducts its investigations and reached its decisions, make it necessary to apply the rule of publicity, with its exceptions, to its proceedings in the usual manner that this is done with regard to a state commission of inquiry. Any other result would be inconsistent with the basic principles of the legal system and might even frustrate the main purpose for which the commission was set up — restoring public confidence in the army, the defence establishment and the government. Once the rule of publicity applies to the commission of investigation, the exceptions to the rule will also apply, in the same vein as those set out in the Commissions of Inquiry Law.

11. I should also point out that the application of the principle of publicity to the commission of investigation does not conflict, in my opinion, with the wording of paragraph G of the letter of appointment, according to which:

‘The commission’s sessions shall be public or closed to the public as the commission shall decide. No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

Against the background of the principle of publicity which is one of the foundations of the legal system, it is possible to interpret what is stated in the letter of appointment as giving the commission of investigation discretion as to when to depart from the principle of publicity in its proceedings and to order them to held in camera, but this discretion is supposed to be exercised subject to the accepted principles of the legal system. There is no inherent contradiction between the wording of the letter of appointment in this regard and general principles, and the aforesaid provision should be interpreted in a way that is consistent with basic concepts as aforesaid.

12. The conclusion that arises from the aforesaid is that the Winograd Commission is subject to the principle of publicity, with its exceptions, and everything that derives from them, in the same way as the principle applies to a state commission of inquiry. In a commission of investigation publicity is therefore the rule; state security, or any other recognized reason for secrecy that reflects a weighty public interest is the exception. The principle of publicity has broad application. The exception only applies when circumstances require, it is for a proper purpose and it is not excessive.

13. The practical application of these principles leads to the conclusion that the Winograd Commission has a duty to allow the content of its proceedings and the material presented to it to be disclosed to the maximum degree possible without harming the security purpose or any other national interest of the highest importance. Only a real concern of harm to a public interest of special importance will justify a departure from publicity and the duty of disclosure and will allow proceedings in camera or a prohibition against publishing material and reports that were brought before the commission or will be issued by it.

14. Investigating matters concerning the War may naturally make it necessary to make some or even most of the proceedings and the material before the commission privileged for security reasons. But the commission has a duty to examine the need for making its proceedings classified for each testimony and for each hearing that is going to take place before it. The commission is not supposed to decide in advance that its proceedings will be subject to a blanket prohibition against disclosure. When determining the framework of the prohibition against disclosure, it should act on the basis of a premise of disclosure and publicity, and regard a prohibition against holding proceedings in public or disclosing information as an exception that should be applied narrowly and sparingly, and only in cases where it is necessary.

15. As the President of the court explained in her opinion, upholding the principle of publicity in the proceedings of the commission will realize the principle of the freedom of information and disclosure in the proceedings of the commission within the framework of the permitted limits. Applying the aforesaid principle will expose the proceedings of the commission to important public scrutiny and will ensure public confidence in its proceedings, as well as its decisions and conclusions. This is consistent with the nature of the subject that the commission was asked to examine as a matter of paramount public importance. It is also consistent with the broad scope of the powers given to the commission, which makes it very similar in this respect to a state commission of inquiry.

16. Since the state agreed, in principle, with the aforesaid analysis, I agree with the president’s conclusion that it is not required to make the order absolute in the current circumstances, since it can be presumed that the commission of investigation will act in accordance with the principles set out in this judgment, and that it will exercise its discretion in accordance with the criteria set out herein, which are based on the fundamental principles of our legal system.

 

 

Petition denied.

18 Shevat 5767.

6 February 2007.

 

HCJ 5261/04

Advocate Yossi Fuchs

v

Prime Minister of Israel, Ariel Sharon

HCJ 5262/04

Advocate Naftali Gur-Aryeh and another

v

Prime Minister of Israel and another

HCJ 5263/04

Yitzhak Vazana and others

v

Prime Minister of Israel and another

HCJ 5264/04

Advocate Ben-Zion Gispan

v

Prime Minister of Israel, Ariel Sharon and others

HCJ 5317/04

Minister of Tourism, Binyamin Elon

v

Prime Minister of Israel, Ariel Sharon

 

The Supreme Court sitting as the High Court of Justice

[26 October 2004]

Before President A. Barak, Vice-President E. Mazza
and Justices M. Cheshin, J. Türkel, D. Beinisch, A. Procaccia, E.E. Levy

 

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

 

Facts: The prime minister wished to promote a political plan, known as the ‘disengagement plan.’ In order to ensure that a majority of the Cabinet would support the plan when it was brought to a vote, the prime minister removed two ministers from office two days before the vote was scheduled to be held.

The petitioners attacked the constitutionality of the prime minister’s action on both technical grounds and substantive grounds. They argued, inter alia, that it was improper for the prime minister to remove two ministers from office because they opposed his plan, in order to create an artificial majority in the Cabinet in favour of the plan.

 

Held: The Supreme Court held that the discretion of the prime minister when exercising his power to remove ministers from office was very broad, and that the removal of ministers from office in order to further a political plan that the prime minister regarded as essential for the welfare of the State of Israel fell within the zone of reasonableness for his action in removing the ministers from office.

 

Petitions denied.

 

Legislation cited:

Basic Law: the Government, 5728-1968, s. 21A.

Basic Law: the Government (Amendment no. 3) (5741-1981).

Basic Law: the Government, 5752-1992, ss. 35(b), 35(c).

Basic Law: the Government, 5761-2001, ss. 1, 3, 4, 5(a), 7(a), 13(c), 13(d), 14(d), 15, 16(a), 19, 20, 22, 22(b), 24(b), 25, 28, 29(a), 31, 31(f), 39, 40, 40(c).

Basic Law: the Knesset, ss. 1, 4.

Government Law, 5761-2001, ss. 1(a), 2, 9(6).

Interpretation Law, 5741-1981, s. 10(c).

Transition Law, 5709-1949, s. 11(g).

 

Israeli Supreme Court cases cited:

[1]      HCJ 621/76 Segal v. Government of Israel [1977] IsrSC 31(2) 8.

[2]      HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206.

[3]      HCJ 6741/99 Yekutieli v. Minister of Interior [2001] IsrSC 55(3) 673.

[4]      HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(2) 481; [1998-9] IsrLR 139.

[5]      HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353; IsrSJ 10 204.

[6]      HCJ 1080/99 Duek v. Mayor of Kiryat Bialik [2001] IsrSC 55(2) 602.

[7]      HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [1993] IsrSC 47(5) 404; IsrSJ 10 258.

[8]      HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [2003] IsrSC 57(6) 817; [2002-3] IsrLR 311.

[9]      HCJ 5131/03 Litzman v. Knesset Speaker [2005] IsrSC 59(1) 577; [2004] IsrLR 363.

[10]    HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [1993] IsrSC 47(5) 441.

[11]    HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [1997] IsrSC 51(3) 46.

[12]    HCJ 1635/90 Jerzhevski v. Prime Minister [1991] IsrSC 45(1) 749.

[13]    HCJ 502/99 Cohen v. Prime Minister (unreported).

[14]    HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[15]    HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55(4) 800.

 

The petitioner in HCJ 5261/04 represented himself.

For the petitioners in HCJ 5262/04 — N. Gur-Aryeh.

For the petitioners in HCJ 5263/04 — A. Nof.

For the petitioners in HCJ 5264/04 — S. Samina, B.Z. Gispan.

For the respondents — O. Mendel, A. Helman, High Court of Justice Department at the State Attorney’s Office.

 

 

JUDGMENT

 

 

President A. Barak

The prime minister wishes to promote a national-political plan. He considers this plan to be vital to the future of the State of Israel. It has serious ramifications in terms of the foreign and defence policies of the State of Israel. The prime minister gives instructions that the plan should be submitted to the Cabinet for its approval. Shortly before the time of the vote, the prime minister decides to exercise the power given to him in s. 22(b) of the Basic Law: the Government, and to remove from office two of the Cabinet ministers who oppose the plan and are working to prevent its approval. He does this in order to obtain a majority vote in the Cabinet. Is this decision lawful? That is the question before us.

The facts

1.    During 2004, the prime minister, Mr Ariel Sharon, began to promote a political plan that is called the ‘disengagement plan.’ The plan includes the evacuation of all of the settlements in the Gaza Strip and several settlements in Samaria. The prime minister decided to submit the plan to the Cabinet for approval. A discussion of the matter was scheduled for Sunday, 6 April 2004. On Friday, 4 April 2004, the prime minister sent letters to two Cabinet ministers, MK Avigdor Lieberman (the Minister of Transport) and MK Binyamin Elon (the Minister of Tourism), both from the National Union faction, removing them from office. The removal from office was carried out by virtue of the prime minister’s power in s. 22(b) of the Basic Law: the Government. The grounds for the decision to remove the ministers from office were the fact that both of the ministers had said and made it clear that they were vehemently opposed to the ‘disengagement plan’ and that they would do everything they could to prevent it from being approved by the Cabinet, and the assumption that, in view of this opposition, the two ministers would in any case not remain in the Cabinet, if the plan were approved. The prime minister was of the opinion that this was a political plan ‘of historic significance’ (s. 2 of the Attorney-General’s response), that it was essential for ‘ensuring the future welfare of the State of Israel’ (ibid.) and that it was of decisive importance in the context of international relations between the State of Israel and other countries’ (ibid.). For this reason, in the prime minister’s opinion, ‘the rejection of the plan by the Cabinet would have had very grave implications for the foreign relations of the State of Israel’ (ibid.). Therefore, the removal of the ministers from office was intended to ensure that the ‘disengagement plan’ would be approved by a majority of the Cabinet and would be implemented.

2.    The letters removing the ministers from office were signed as aforesaid on Friday, 4 June 2004. When they had been signed, but before they were delivered to the ministers who were removed from office, the members of the Cabinet were notified by telephone of the prime minister’s decision to remove the Minister of Tourism and the Minister of Transport from office. The letter to the Minister of Transport was delivered by a messenger from the prime minister’s office on the same morning. The prime minister informed the Minister of Tourism of his removal from office in a telephone conversation between them. Meanwhile, the efforts that were made to ascertain the physical location of the Minister of Tourism in order to deliver the letter removing him from office were unsuccessful. The Minister of Tourism refused to divulge his location to the Cabinet secretary in conversations that they had during that day. A messenger, who was sent to the home of the Minister of Tourism as well as to his office, did not find him at those locations. Finally it was decided — after the Cabinet received guidelines from the Attorney-General in this respect — that in the circumstances it was sufficient to send the notice by facsimile and by messenger to the home and office of the Minister of Tourism, together with notice by telephone. Notice as aforesaid was given to the minister’s assistant, but the attempt to speak with the minister himself was unsuccessful. Equally unsuccessful was the attempt to send the notice by facsimile to the minister’s home. A driver was sent to the minister’s home, and he tried to leave the letter concerning the removal from office in the mailbox, but, according to what the Cabinet secretary was told by the security officer at the Ministry of Tourism, the sentry on duty had received orders from the minister himself not to accept the letter. Finally, on Friday afternoon the letter removing him from office was placed on the reception desk of the office of the Minister of Tourism.

3. On Sunday, 6 June 2004, petitions were filed in this court, asking that we make an order nisi and an interim order, to the effect that the letters removing the ministers from office should be suspended and not come into effect. In the decision of this court (the honourable Justice E.E. Levy) on 6 June 2004, it was decided to deny the application for an interim order, and it was held that, at this stage of the proceedings, it appeared that the procedure that was followed for delivering the letters to the ministers was prima facie lawful, as was the notice to the Cabinet ministers of the prime minister’s decision in this regard.

4. The Cabinet meeting took place as planned on 6 June 2004. The Minister of Tourism came to this meeting, but when it became clear to him that the application for an interim order was denied by this Court, he left the meeting. It was decided in the Cabinet meeting to approve the ‘disengagement plan’ that the prime minister presented, by a majority of seven for and four against.

The arguments of the parties

5.    In the five petitions that were filed in this court, two main arguments were raised against the legality of the action of the prime minister, with respect to the removal of the Minister of Tourism and the Minister of Transport from office. The first argument was mainly a procedural one, according to which the procedure for removing the Ministers from office was unlawful, in view of the provisions of s. 22(b) of the Basic Law: the Government, for the following reasons: the period of forty-eight hours until the letters came into effect as intended included the hours of the Sabbath; the letter was not delivered to the Minister of Tourism himself; the telephone notice of the prime minister’s decision that was given to the ministers did not, according to the petitioners, comply with the conditions prescribed by law. The second argument argued before us — and this is the main one —was that the decision to remove the ministers from office was not in itself a lawful one. The petitioners argued that the prime minister is not authorized to remove a minister from office in circumstances where the reason for this decision is a political position that is held by that minister and that is opposed to a position or plan of the prime minister. This is especially the case in view of the fact that the Cabinet had not yet reached a decision on the matter, and there had been no claim that the minister concerned lacked the necessary abilities or qualifications, or had run his ministry improperly. A minister should not be dismissed merely for political reasons. This is especially so when the government and its basic principles won the confidence of the Knesset and also when the prime minister does not have unlimited powers but is primus inter pares. Alternatively, it was argued before us that even if the prime minister was authorized to remove a minister from office because his positions conflicted with the positions and plans of the prime minister, the decision to remove the ministers from office was extremely unreasonable, in the circumstances of the case, and therefore the court ought to intervene therein, since the purpose of the removal from office was to ensure an ‘artificial’ majority in the vote at the Cabinet meeting, and the use of the power to remove a minister from office merely in order to obtain a majority by uprooting the position of that minister ab initio is improper and extremely unreasonable. It was further argued that the removal from office was unlawful, since the ministers of the National Union faction had not departed from what was agreed in the coalition agreements and in the basic principles of the Government.

6.    In their response, the respondents asked us to deny the petitions. According to them, the prime minister’s decision was lawful, both from a procedural point of view and on the merits. With regard to the procedural aspect, the letters of dismissal were lawfully delivered to the two ministers, and the failure to deliver the letter physically to the Minister of Tourism did not undermine the validity of the removal from office, both in view of the reasons in the Attorney-General’s guideline in this matter, and in view of the purpose of the Basic Law: the Government and the fact that the minister knew that he had been removed from office. There was also no defect in the fact that the period of time from the decision to remove the ministers from office until it came into effect included the Sabbath, nor in the fact that the notice of the removal from office was given to the other Cabinet ministers by telephone. On the merits, the respondents argued that the prime minister’s discretion pursuant to the Basic Law also includes circumstances in which he is seeking to promote an important political plan to which one of the ministers is opposed and wishes to frustrate. The prime minister may remove a minister from office for this reason even when there is no argument with respect to the qualifications of the minister or the manner in which he carries out his job. This can also be seen from the purpose of the Basic Law: the Government and from the broad discretion given to the prime minister by virtue of his special status in the system of government in Israel. Moreover, the decision to remove the Ministers from office, in the circumstances of this case, does not warrant the intervention of this court, since it is reasonable on the merits. We are speaking of an important and essential political plan, whose approval by the Cabinet was of extreme importance, in defence and policy contexts. The removal of the two ministers from office was reasonable and even necessary, and it certainly does not warrant the intervention of this court, particularly in view of the broad discretion that the prime minister has in this context.

7.    On 20 June 2004 a hearing took place on the petitions. Two days later (22 June 2004), it was unanimously decided to deny all of the petitions, with a stipulation that the reasons would be given separately. The following are our reasons.

8.    As can be seen from the dispute between the parties, there are two issues before us. One is whether the removal from office was lawful, in the procedural sense. The other is whether the decision to remove the ministers from office was lawful on the merits. The question of the intervention of this court will be determined by these. Let us begin with the first question.

The procedural aspect

9.    Consideration of the petitioners’ arguments and the procedural issues that they raised has led us to the conclusion that they are insufficient in order to undermine the validity of the decision to remove the ministers from office. Section 22(b) of the Basic Law: the Government provides that ‘The prime minister may, after notifying the Government of his intention to do so, remove a minister from office; the office of a minister ends forty-eight hours after the written notice of his removal from office has been delivered to him, unless the prime minister changes his mind before that.’ There is no dispute that the written notice of dismissal was delivered to the Minister of Transport. With respect to the Minister of Tourism, we accept the position of the respondents that it is possible, in the circumstances, to regard the Minister of Tourism as someone to whom written notice of removal from office ‘has been delivered,’ within the meaning of this term in the Basic Law: the Government. There is no dispute that the Minister of Tourism was, in fact, aware of the prime minister’s decision, since the prime minister himself notified him of this by telephone. Messengers were sent both to the home and the office of the Minister of Tourism. At the same time, the Minister of Tourism refused to divulge his physical location and so in practice he frustrated the possibility of physically delivering the written notice of removal from office. There is no dispute that the requirement of delivery in s. 22(b) of the Basic Law: the Government must be satisfied in accordance with the letter of the law, not only because of the rule of law (and the rule of the constitution), but also in order to preserve the status of a Cabinet minister, his ability to know with certainty whether it has been decided to remove him from office, and the ability to calculate the forty-eight hours from the time of delivery of the written notice of removal from office until the removal from office comes into effect. As we shall clarify below, this period has an importance of its own, particularly in the context of the prime minister’s power to remove a minister from office, but the requirement of delivery ‘to’ the minister who is being removed from office must be interpreted not only ‘in accordance with the letter of the law,’ but also ‘in accordance with its purpose.’ This purpose concerns, as aforesaid, clarity and certainty, and a clear allocation of forty-eight hours from the moment of delivery until the removal from office comes into effect. We are satisfied that, in such circumstances where the minister was notified of his removal from office by telephone, messengers searched for him at his home and his office, and mainly where the Minister himself refused to divulge his location, the written notice of removal from office may be regarded as having been ‘lawfully’ delivered, within the meaning of s. 22(b) of the Basic Law: the Government.

10. An additional argument of the petitioners concerned the period of time between the delivery of the letter of removal from office and the coming of the removal from office into effect. According to s. 22(b) of the Basic Law: the Government, the removal from office comes into effect forty-eight hours after it has been delivered to the minister. In the case before us, the delivery took place on Friday morning and the Cabinet meeting was on Sunday, a little more than forty-eight hours later. The argument is that the Sabbath should not be included within the framework of these forty-eight hours, and therefore when the Cabinet voted the removal from office had not yet come into effect. The Attorney-General asked us to reject this argument, so we must ask whether the Sabbath should be included in the case before us in the calculation of the forty-eight hours. Our answer to this question is yes, and therefore the petitioner’s argument in this regard should be rejected.

11. This position of ours is based on the interpretation and purpose of the provision according to which the removal from office comes into effect only forty-eight hours later, as stated in s. 22(b) of the Basic Law: the Government. Indeed, this provision has a double purpose: first, the right to change one’s mind. Removal from office is not an insignificant matter; it is a special step that has broad ministerial and political implications. The forty-eight hours are therefore intended to allow the person who decided upon the removal from office — the prime minister — to change his mind (see and cf. HCJ 621/76 Segal v. Government of Israel [1], at p. 12). Second, giving time to the various parties and institutions to act — should they wish to do so — with respect to the decision of the prime minister. A decision to remove a minister from office does not merely affect the minister himself: it affects the party on behalf of which he was appointed, and the faction of which he is a member; it concerns the entire government and its internal balance of power; it concerns the relationship between the Knesset — which expressed confidence in the government and its composition — and the government, as well as the relationship between the Knesset and the prime minister. Therefore the forty-eight hours constitute a kind of balancing mechanism, which is intended to suspend the removal of office from coming into effect to allow other parties and institutions to take action. At the same time, this period was set at forty-eight hours only, in order to allow the prime minister to make effective use of this power and to carry out his role as head of the government. Upon examination of the circumstances of the case, and in view of this double purpose, we have reached the conclusion that the Sabbath, which fell in the middle of the forty-eight-hour period, is a part of the period and therefore the removal from office became effective on Sunday morning, before the Cabinet meeting. As to the right of changing his mind, we have not heard any argument that the prime minister wished to change his mind or that he was unable to do so because of the Sabbath. As to ensuring sufficient time for the action of other parties and institutions, there was in fact sufficient time for this purpose. The prime minister’s decision concerning the removal from office was conveyed to the two ministers on Friday morning. There were several hours before the Sabbath began. An additional twelve hours passed from the end of the Sabbath until the time when the removal from office came into effect. During this time, petitions were filed in this Court and even an application to grant an interim order was heard. Admittedly, we are not speaking of a long or significant period of time, but it is a sufficient period of time for the purpose of realizing the various purposes underlying s. 22(b) of the Basic Law: the Government.

12. We could have reached a similar conclusion not only on the basis of the purpose of s. 22(b) of the Basic Law: the Government, but also in view of s. 10(c) of the Interpretation Law, 5741-1981. This section provides that ‘when calculating a period of time, rest days, court vacation or statutory holidays shall also be included, unless they are the last days of the period.’ It follows that according to this provision, the calculation of the period should also include the Sabbath. I should mention, in passing, that even if this is the case, it does not constitute a basis for the interpretation of s. 22(b) of the Basic Law: the Government. The Interpretation Law is an ordinary statute, whereas s. 22(b) of the Basic Law: the Government is a constitutional super-legislative provision. There is a basis for the argument that this provision cannot — in the absence of another provision in the basic law itself — define terms in the basic law (see HCJ 1384/98 Avni v. Prime Minister [2], at pp. 210-211). This provision can, of course, assist in the interpretation, but it is not binding within the framework of interpreting the term ‘forty-eight hours’ in s. 22(b) of the Basic Law: the Government.

13. The last argument — from the procedural viewpoint — that was presented to us was that the notice to the Cabinet of the removal from office was not delivered to the Cabinet ministers lawfully. Indeed, it is provided in s. 22(b) of the Basic Law: the Government that the removal of a minister from office takes place ‘after the [prime minister] has given notice to the Cabinet of his intention of doing so.’ The petitioners argue that the notice must be given by the prime minister personally and certainly not by telephone. Therefore the alleged defect is that the notice was given by the Cabinet secretary, on Friday morning, by telephone, to the Cabinet ministers and not to the Cabinet itself at its meeting. We have found no merit in this argument. Indeed, notice to the Cabinet of the intention of removing a minister from office is a condition for carrying out the removal from office lawfully. This is not merely a formal requirement, but it reflects the status of the whole Cabinet as a collective entity and the balance between the status of the Cabinet and the Cabinet ministers on the one hand, and the status of the prime minister on the other. But we have not found in either the language or the purpose of the section a requirement that the notice should be conveyed specifically in writing, or by the prime minister personally. What is important is the notice and the knowledge, and in this context no claim has been brought before us that any of the Cabinet ministers was not notified of the intention or that the manner in which the notice was given was unlawful. We have found no basis for the argument that the notice must be given to the Cabinet, as distinct from the ministers, and specifically at a Cabinet meeting, particularly in view of what is stated in the Basic Law: the Government, according to which the government is composed of the prime minister and other ministers (s. 5(a)). It follows that this argument too should be rejected.

14. The conclusion is therefore that there were no procedural defects in the decision to remove the Minister of Tourism and the Minister of Transport from office that justify its being set aside, and it follows that there is no ground for our intervention on this basis. Consequently, it becomes necessary to examine the main argument in the petitions before us, that the prime minister unlawfully exercised the power given to him under s. 22(b) of the Basic Law: the Government. Let us therefore turn to examine this aspect, which is the substantive one.

The normative framework

15. The power of the prime minister to remove a minister from office is found in s. 22(b) of the Basic Law: the Government:

‘The prime minister may, after notifying the Cabinet of his intention to do this, remove a minister from office; the office of a minister is terminated forty-eight hours after the written notice of removal from office has been delivered to him, unless the prime minister changes his mind before that time.’

The provision gives the prime minister power to remove a minister from office. It does not set out the scope of the discretion that the prime minister has when making a decision of this kind. We learn from the basic principles of our legal system that the discretion is not absolute. ‘Israeli law does not recognize “absolute” discretion’ (per Justice M. Cheshin in HCJ 6741/99 Yekutieli v. Minister of Interior [3], at p. 682). There is no public official in Israel who has absolute discretion. This is the rule, and it also applies to the prime minister. All executive discretion is limited, by its very nature. What are the limits that apply to the discretion of the prime minister when removing a minister from office? The decision in this regard is based on the purpose of s. 22(b) of the Basic Law: the Government (see, for example, Avni v. Prime Minister [2]). Within this framework, we should take into account the basic principles of the structure of government in Israel, as reflected in the relevant provisions of the various Basic Laws and the fundamental principles of our legal system.

16. The power of the prime minister to remove a minister from office is founded upon two conflicting aims. The first aim concerns the strengthening of the status and the independence of a Cabinet minister and the Cabinet as a whole, as these derive from the system of government in Israel, the relationship between the Knesset and the Cabinet and the relationship between the prime minister and the Cabinet as a whole and the ministers in it. The second aim concerns the strengthening of the status, authority and powers of the prime minister, vis-à-vis the other members of the Cabinet, vis-à-vis the Cabinet as a whole and vis-à-vis the Knesset. The prime minister’s power to remove a minister from office — just like the scope of this power and the discretion underlying it — are the product of a balance between these two conflicting aims.

The status of a Cabinet minister and of the Cabinet as a whole

17. Several fundamental principles that can be seen from the Basic Law: the Government in particular and from the Israeli legal system in general indicate the status of a Cabinet minister and of the Cabinet as a whole. First, Israel is a parliamentary democracy. This is a system of government in which the executive authority — which is the government (s. 1 of the Basic Law: the Government) requires the confidence of the Knesset in order to hold office (s. 3 of the Basic Law: the Government). Moreover, the Knesset can pass a vote of no confidence in the government and thereby terminate its office (s. 28 of the Basic Law: the Government). According to s. 5(a) of the Basic Law: the Government, ‘The government is composed of the prime minister and other ministers.’ Admittedly the prime minister is the person who forms the government (s. 7(a) of the Basic Law), but once the government has been formed, it must appear before the Knesset and notify it of its basic principles, its composition and the distribution of portfolios between the ministers, and ask for the confidence of the Knesset (s. 13(d) of the Basic Law). These provisions, when taken together, show that the Knesset votes confidence in a particular composition of the government. A minister who has been included as a member of the government at the beginning of its term of office has received the confidence of the Knesset. This is of special importance. The Knesset is the legislature of the State (s. 1 of the Basic Law: the Knesset) and the representative organ of state that is elected by the sovereign, which is the people (HCJ 3267/97 Rubinstein v. Minister of Defence [4], at p. 508 {172-173}). The Knesset expressed confidence in a particular composition of the government, including the holding of office by every minister therein. In addition, if a minister is included in the government after confidence has already been expressed, although the renewed confidence of the Knesset is not required and a Cabinet decision is sufficient, nonetheless the notice of this decision must be given to the Knesset and the office of the minister becomes effective only when the Knesset has approved the notice (s. 15 of the Basic Law). The significance of this is that the Knesset is involved in the formation of the government, and is concerned therein both at the beginning of its term of office — within the framework of the vote of confidence — and subsequently — within the framework of the approval of the government’s notice about the addition of a minister to the Cabinet. Second, the government in Israel is a collective entity. The Basic Law: the Government distinguishes between powers given in the Basic Law to the government and those given to the prime minister (see, for example, ss. 24(b), 31 and 39 of the Basic Law). Thus, for example, the Basic Law: the Government provides that ‘the Cabinet shall determine the procedures for its meetings and work, the manner of its deliberations and the way in which it makes its decisions, whether on a permanent basis or for a particular matter’ (s. 31(f) of the Basic Law). The powers given to the government are given to the prime minister and the other ministers jointly, since ‘the government is composed of the prime minister and other ministers” (s. 5(a) of the Basic Law: the Government). Cabinet decisions are therefore decisions of the government as a whole, i.e., a decision of the various ministers who comprise it. A Cabinet minister —like the Cabinet as a whole — is in this sense a ‘constitutional organ.’ The collective responsibility of the Cabinet before the Knesset (s. 4 of the Basic Law: the Government) also establishes the status of the Cabinet as a collective entity, as well as the status of each of the ministers who comprise it. Third, the proportional method of elections in Israel (s. 4 of the Basic Law: the Knesset) usually leads to the governments in Israel being coalitions of various factions that represent several parties that contested the election for the Knesset (see HCJ 1601/90 Shalit v. Peres [5], at p. 363 {218-219}). In general, appointing someone as a minister does not merely reflect the ministerial aspect of his position. It also reflects the party political aspect of giving executive power to representatives of the various factions that are members of the government (cf. HCJ 1080/99 Duek v. Mayor of Kiryat Bialik [6], at p. 612). ‘A minister who sits at the Cabinet table as a representative of a party or a movement undoubtedly fulfils a political function. He expresses opinions and outlooks, a political and social approach, that are espoused by the public that elected him and by the movement that regards him as its representative in the government’ (per Justice D. Levin in HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [7], at p. 426 {289}). This coalition aspect establishes and strengthens the status of a Cabinet minister as well as the status of the government as a whole as a coalition of factions, which wields executive power in Israel.

The status of the prime minister

18. The prime minister is a minister (s. 5(a) of the Basic Law: the Government). Any law that derives from the status of a minister derives also from the status of the prime minister. Notwithstanding, the prime minister is a special kind of minister. He is first and foremost among the ministers. This is the case because of several provisions in the Basic Law: the Government. First, it is the prime minister who forms the government. The President of the State gives the task of forming the government to a member of the Knesset (s. 7(a) of the Basic Law: the Government). When the government has been formed by that member of the Knesset, he becomes the prime minister (s. 13(c) of the Basic Law: the Government). ‘… The prime minister has the main power with respect to forming the government, determining the identity of the ministers who hold office in it and the positions that they hold…’ (per Justice E. Rivlin in HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [8], at p. 833 {326}). Second, the Cabinet owes collective responsibility to the Knesset, but the ministers are personally responsible to the prime minister for the offices to which they are appointed (s. 4 of the Basic Law: the Government). This is personal responsibility of each minister to the prime minister in respect of his carrying out his office as a minister. Third, it is the prime minister who conducts the Cabinet meetings (see and cf. s. 16(a) of the Basic Law: the Government). Fourth, the resignation or death of a prime minister means the resignation of the government as a whole (ss. 19 and 20 of the Basic Law: the Government). Moreover, the prime minister has the power, in certain circumstances and with the consent of the President of the State, to bring about the dissolution of the Knesset (s. 29(a) of the Basic Law: the Government). Finally, if a minister ceases holding office, or he is temporarily incapable of carrying out his office, the prime minister or another minister designated by the Cabinet deputizes for him (s. 24(b) of the Basic Law: the Government). It follows that the prime minister is a member of the Cabinet, but his status is a special one. He is the head of the government. It is he who forms it. It is he who decides its composition and who will hold the various offices in it, and it is he that directs its main activities and objectives.

The authority to remove a minister from office

19. These conflicting aims — both the one concerning the status of the government and its ministers and the one concerning the status of the prime minister — are manifested in a series of arrangements that all serve to balance the importance of upholding the status of the prime minister and his ability to lead the government, on the one hand, and the recognition of the status of the Cabinet ministers and the government as a whole, on the other. The Basic Law: the Government recognized the status of a Cabinet minister and of the government as a whole, but at the same time it recognized the special status of the prime minister. It created various mechanisms that are intended to preserve both the status of a Cabinet minister and the government as a whole, and the status of the prime minister. Thus, for example, the confidence of the Knesset upon the formation of a government is given to the government as a whole, and not merely to the prime minister (s. 13(d) of the Basic Law). The prime minister cannot appoint a minister to the initial composition of the government without this appointment receiving the confidence of the Knesset; should there be a need to add a minister to the Cabinet after its initial formation, this is done in accordance with a proposal of the prime minister, but the decision in this regard is within the purview of the entire Cabinet, and notice of this must be given to the Knesset, which has the power to approve the notice or not (s. 15 of the Basic Law: the Government); the appointment of deputy ministers is made by the minister in charge of the ministry, but the consent of the prime minister and the approval of the Cabinet as a whole is required for this (s. 25 of the Basic Law: the Government). Indeed, the common factor in these and other provisions is the desire to ensure that the prime minister is able to fulfil his role as the head of state, including his ability to direct and manage government business, while at the same time preserving the status of the government as a whole and the other ministers who compose it.

20. Section 22(b) of the Basic Law: the Government, which concerns the power of the prime minister to remove a minister from office should be interpreted against this background. Indeed, the Basic Law: the Government gives the prime minister the power to remove a minister from office. This is a special power that indicates the power of the prime minister to decide the composition of his government. It reflects the special status of the prime minister and preserves his ability to manage the government and to allow it to achieve its goals (see and cf. W.I. Jennings, Cabinet Government (1947), at p. 163). The Basic Law: the Government could have provided a different arrangement with respect to this issue of the authority to remove a minister from the government after its formation. In systems of government such as the presidential system that exists in the United States, it is accepted that the status of the president as the head of the executive branch is much stronger. The ministers (‘the secretaries’) are appointed and dismissed by the president without any de facto intervention on the part of the legislature (see B. Schwartz, A Commentary on the Constitution of the United States — The Powers of Government, vol. II, (1963), at p. 39). By contrast, the Basic Law: the Government, in its original 1968 version, did not include any provision with respect to the removal of a minister from office and a removal of this kind could only take place upon a vote of no confidence in the government as a whole or the resignation of the whole government. In 1981, the Basic Law: the Government was amended by adding a provision that allows the prime minister to remove a particular minister from office without any connection to the question of a vote of confidence in the Knesset (section 21A of the Basic Law: the Government; the Basic Law: the Government (Amendment No. 3). 5741-1981). The Basic Law: the Government of 1992 included two arrangements concerning the removal of a minister from office. The first gave the prime minister the power to remove a minister from office (s. 35(b)) and the second gave the Knesset the power to remove a minister from office, with a majority of seventy members, after a majority of the members of the Knesset Committee so recommended and the minister in question was given a right to state his case before the Knesset Committee and before the Knesset (s. 35(c)). In the current version of the Basic Law: the Government, the arrangement that was finally chosen is that the power to remove a minister from office is given to the prime minister. The Knesset no longer has the power to dismiss an individual minister, but only the power to vote confidence or no confidence in the government as a whole. Alongside all these, s. 11(g) of the Transition Law, 5709-1949, has remained in force, and this provides that the government can remove a minister from his office if the minister or his faction votes against the government (see A. Rubinstein, The Constitutional Law of the State of Israel, vol. 2, (fifth edition, 1996), at pp. 742-743). So we see that the various arrangements, both in Israel and in comparative law, are all based upon different balancing points between the status of the prime minister and the status of a minister in his government. Therefore the question before us is what are the parameters of the prime minister’s discretion when exercising his power to remove from office one of the ministers in his government, as stated in s. 22(b) of the Basic Law: the Government.

The parameters of the prime minister’s discretion when removing a minister from office

21. The prime minister is a part of the administrative authority and the principles that apply to the administrative authority and its employees apply also to the prime minister. It follows that, like any public official, his discretion is not absolute. He must act reasonably and proportionately; he must consider only relevant considerations; he must act without partiality and without arbitrariness; he must act in good faith and with equality. Therefore the power to remove someone from office should be exercised ‘… fairly, without irrelevant considerations and for the public good’ (per President Shamgar in Movement for Quality Government in Israel v. Government of Israel [7], at p. 417 {276}). Like any power involving discretion, the prime minister also has a zone of reasonableness, within the framework of which he can select one of several reasonable options. In so far as each option is legal, this court will not intervene in this decision nor will it replace the prime minister’s discretion with its own (see Movement for Quality Government in Israel v. Prime Minister [8], at pp. 840-848 {336-348}). But the prime minister’s discretion is not unlimited; it is delineated by those situations of extreme unreasonableness. If a decision of the prime minister to remove a minister from office is extremely unreasonable — or a decision not to remove a minister from office is extremely unreasonable — it would be an unlawful decision, and the court would exercise its power of judicial review. Indeed, the grounds for judicial review and the substantive law are united (see and cf. HCJ 5131/03 Litzman v. Knesset Speaker [9]).

22. When will there be grounds to hold that the removal of a minister from office is unlawful, that it is unreasonable in the extreme? The answer to this question can be derived from the balance between the two different goals that underlie the purpose of the Basic Law: the Government. On the one hand, it is clear that the Basic Law: the Government did not give the prime minister unlimited power that would negate the status of a government minister, and the role of the government as a whole, as a collective entity with powers of its own. It follows that we should interpret the power of the prime minister in such a way that reflects the role of the government as a whole, with its various members, the fact that the appointment of the minister won the confidence or the approval of the Knesset, and the coalition-based form of government that is practised in Israel, where, in effect, the ministers — especially those who are not from the prime minister’s party — are chosen by their parties and not by the prime minister. It is natural that ‘when he is required to exercise his discretion, the prime minister may also address party-political considerations…’ (Justice D. Levin in Movement for Quality Government in Israel v. Government of Israel [7], at p. 427 {291}). On the other hand, it is clear that the Basic Law: the Government sought to maintain the status and the independence of the prime minister, as well as his ability to change the composition of the government in accordance with various needs that may arise during its term of office, while giving expression to the ability of the prime minister to manage and lead the government, and the responsibility of the ministers to him (s. 4 of the Basic Law: the Government). What is the proper balance between these two conflicting goals?

23. In our opinion, the proper balance is reflected in the approach that the prime minister is authorized to remove a minister from office only if the prime minister is convinced that this will promote the ability of the government to function properly as the executive branch of the State and to realize the policy goals which have been set. ‘The powers granted to the prime minister to appoint ministers and removing them from office are therefore a means for advancing the aforesaid purposes of improving the government’s image and functioning and public confidence in it’ (Justice E. Rivlin, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 846 {345}). This balance properly reflects the status of the government as a collective body that has won the confidence of the Knesset, on the one hand, and the prime minister’s need to adapt the composition of the government to various changes and developments, while preserving its ability to function properly, on the other. This criterion provides a proper solution in those cases where a minister is at odds with government policy or acts contrary to the principles of collective responsibility (see Movement for Quality Government in Israel v. Government of Israel [7], at p. 423 {282}, and Z. Segal, Israeli Democracy (1991), at pp. 130-131). It also includes an assessment of the minister’s functioning and his success in his office (see and cf. HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). Furthermore, this criterion includes those cases in which removal from office is required in order to maintain public confidence in the government, which is an important and relevant consideration within the framework of the ability of the government to function as the executive branch of the State. Indeed, maintaining public confidence in the government is a substantial and important consideration when scrutinizing the discretion in the removal from office (see Movement for Quality Government in Israel v. Prime Minister [8], at p. 898 {419}; Rubinstein and Medina, Constitutional Law of the State of Israel, at p. 708). Therefore, the criterion that removal from office will be deemed lawful only if the prime minister is persuaded that it is capable of promoting the government’s ability to function properly as the executive branch of the State and to realize the policy goals that have been set, properly addresses the cases where a member of the government is involved in a grave incident that affects the standing and image of the government, public confidence in it and its ability to lead and serve as an example, as well as its capacity to inculcate proper forms of conduct (see Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at pp. 460-461; Movement for Quality Government in Israel v. Government of Israel [7], at p. 423 {282}). This criterion — according to which the removal of a minister from office will be lawful if it is based upon the prime minister’s belief that it will promote the government’s ability to function properly as the executive branch of the State and to realize the policy goals that it has set — allows the prime minister to take account of ‘political’ considerations, which include the ‘need to preserve a coalition and to ensure the continued confidence of the Knesset…’ (my remarks in Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). It also includes situations where the conduct of a particular minister may ‘… cause irreparable national harm,’ because it impairs ‘… the proper functioning of the government and increases the chance that an erroneous decision may be made, which may have disastrous consequences for the State’ (Justice E. Goldberg in HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [11], at p. 65).

24. Indeed, this criterion reflects the special standing of the prime minister as the person responsible for the proper and effective management of the work of the government as a whole. It emphasizes the idea that ‘the main consideration in exercising the powers of the government and the prime minister is the public interest’ (my remarks in HCJ 1635/90 Jerzhevski v. Prime Minister [12], at p. 848). It expresses the principle in the Basic Law: the Government, that the ministers are responsible to the prime minister for the performance of their office. This criterion focuses on the prime minister’s discretion and assumes as its premise that the prime minister must have this discretion. It reflects the prime minister’s ability to remove a minister from office, even though the minister may have won the confidence of the Knesset when it expressed its confidence in the government as a whole, and irrespective of the fact that usually he will be the representative of a faction and party that contested the elections. It gives the prime minister a tool that allows, in certain circumstances, a change in the composition of the government. ‘The power, under this section, is unique both because of the standing of the prime minister concerning the composition of the government and because of the political nature of the government’ (per Justice Y. Zamir, in Movement for Quality Government in Israel v. Government of Israel [11], at p. 58). It is therefore a criterion that reflects the need to prevent ‘… “disruptions” to the functioning of the government’ (Movement for Quality Government in Israel v. Government of Israel [11], at p. 59).

25. But at the same time this criterion reflects the caution that the prime minister must show when removing a minister from office. The government and its ministers are not subordinate to the prime minister. They constitute a collective, constitutional organ. The executive branch of the State is the government, not the prime minister. When a minister has been appointed, and certainly when this appointment has won the confidence or the approval of the Knesset, it is not possible to remove him from office over a trifling matter. The decision to remove him from office must be supported by a basis of fact, as well as an objective reason that is capable of furthering the government’s ability to function properly and to fulfil its constitutional role as the executive branch of the State (s. 1 of the Basic Law: the Government). An objective reason of this kind is also required in order to preserve public confidence in the government and its actions. Since a minister is responsible to the prime minister (s. 4 of the Basic Law: the Government), when the prime minister is considering whether the minister should continue to hold office, it is appropriate that he should take into account the manner in which he has carried out his office. This criterion therefore reflects a proper balance between the status of a minister in the government and the government as a whole, and the need to preserve the ability of the government to function and to be managed by the prime minister, while realizing its constitutional role.

Removal from office on political grounds

26. Can the prime minister remove a minister from office because of his political opinions and because of his opposition to a political initiative that the prime minister is advancing? The answer to this question must be examined in accordance with the aforesaid criterion. The answer is yes, if the prime minister is persuaded that the removal from office will further the ability of the government to function properly as the executive branch of the State, and to realize the policy objectives that it has set. Therefore political considerations per se, within the framework of the prime minister’s decision to remove a minister from office, are not improper. They should be examined within the framework of all of the circumstances. It has been held that ‘… regarding a matter involving party politics, one cannot rule out taking into account considerations that are the product of political circumstances… party political considerations may be legitimate, in certain circumstances, but they should be examined with a proper balancing of the other considerations…’ (per President Shamgar, in Movement for Quality Government in Israel v. Government of Israel [7], at pp. 420, 423 {280, 285}; see also Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). It has also been held that ‘… no one will dispute the fact that the variety of considerations that the prime minister may take into account with respect to the appointment of a minister or his removal from office may include, inter alia, political considerations concerning the stability of the government, forming a lasting coalition and other considerations of a political nature, which are legitimate, and even essential, considerations in the process of forming a government and appointing ministers’ (per Justice D. Beinisch, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 939 {469}). These political considerations can also include policy issues. ‘… the constitutional authority for the appointment and removal of ministers is mainly intended to realize policy objectives, and even policy objectives of a political nature — including the need to appoint ministers with the proper skills and experience —which is the responsibility of the prime minister’ (per Justice D. Dorner in Movement for Quality Government in Israel v. Prime Minister [8], at p. 949 {482}). It follows that the mere fact that the removal from office was based upon policy opinions of that minister does not invalidate the removal from office, just as it does not validate it. We must examine whether, in the circumstances of the case, the prime minister was persuaded that the removal of the minister from office — because of the policy positions of that minister and because of the difference between them and the government’s positions — might further the government’s ability to function properly as the executive branch of the State, and to realize the policy goals that have been set.

Removal from office before a Cabinet vote

27. Some of the petitioners’ arguments were devoted to the question whether the prime minister can remove a minister from office in order to obtain a majority for a Cabinet vote. Their answer was no, on account of the importance of the principle of majority decision and preserving the independence of the discretion of Cabinet ministers. We cannot accept this position. If it is determined that the prime minister has indeed removed a particular minister from office, because he thought that the removal from office was required in order to further the ability of the government to function properly as the executive branch of the State and to realize the policy goals that it had set, this should not be prevented merely because it was done before a Cabinet vote and in order to influence the outcome of the vote. This is because the proper functioning of the government is manifested, inter alia, in its ability to make decisions that reflect policy objectives and national interests. What therefore is the point of waiting to see how things turn out, if the purpose of the removal from office is to further the activity of the government? It is possible that the impropriety in the minister’s actions — for which the prime minister wishes to remove him from office — is his actual vote and opposition to the policy that the prime minister wishes to advance. In these circumstances, if it is accepted that the removal from office was carried out by the prime minister after he was persuaded that this was required in order to further the activity of the government and its ability to meet the policy challenges that face it, it should not be held that the prime minister’s decision is lawful if — and only if — it was made after that minister expressed his opposition to a proposal within the framework of a Cabinet meeting or its decisions. Not only is such an interpretation not implied by the Basic Law: the Government itself, which merely requires notice to the government of the removal from office (s. 22(b) of the Basic Law) — but it also conflicts with the purpose of the Basic Law: the Government and the need to give the prime minister, as required by his special position, a tool to adapt the composition of the Cabinet to the constitutional role of the government.

The status of the basic principles

28. Is the prime minister bound by the basic principles of the government when he wishes to exercise his power under s. 22(b) of the Basic Law: the Government? Our response to this question is no. Indeed, the basic principles of the government have importance. This is not merely because they generally express the outcome of various coalition agreements that were signed and so, de facto, they constitute the government, but mainly in view of the constitutional role of these basic principles, as can be seen in s. 13(d) of the Basic Law: the Government, according to which ‘When the government has been formed, it shall appear before the Knesset, give notice of the basic principles of its policy, its composition and the distribution of portfolios between the ministers, and seek a vote of confidence…’ Therefore the confidence of the Knesset in the government is not merely personal but it also addresses the basic principles of its policy. This means, in practice, the realization of the concept of the confidence of the Knesset in the government, as well as the right of the public to know the principles and the objectives of the government, as it has been formed (cf. s. 1(a) of the Government Law, 5761-2001, and Shalit v. Peres [5]). But this importance of the basic principles does not limit the prime minister’s discretion when he is about to decide a question of removing a minister from office. There are two main reasons for this. First, we have discussed the fact that the Basic Law: the Government gave the prime minister, rather than the Knesset, the power to remove a minister from office. Restricting the prime minister to the basic principles of the government means de facto restricting him to the Knesset’s vote of confidence as it was expressed when the government was first formed (s. 14(d) of the Basic Law: the Government). As we have seen, this is not the arrangement that was chosen in the Basic Law: the Government, with respect to the power of the prime minister and his relationship with the Knesset. Second, it is inappropriate to regard the basic principles as boundaries of the prime minister’s power under s. 22(b) of the Basic Law: the Government. This power — according to the provision in the Basic Law itself — is a power involving discretion. The basic principles — like a political or coalition agreement that establishes them (see s. 2 of the Government Law, 5761–2001, and Jerzhevski v. Prime Minister [12], at pp. 846-848) — are incapable of limiting this discretion, not merely because the aforesaid discretion is stipulated in the Basic Law, but also because of the nature of goals and objectives, which require modification with the passing of time. Limiting the discretion of the prime minister to the basic principles means uprooting his ability to steer the government as the executive branch of the State, in accordance with changing needs. This is not what the Basic Law: the Government says, nor is it its purpose. Therefore we cannot accept the petitioners’ argument in this context, and we do not need to decide the question whether the prime minister did, in fact, act contrary to the basic principles or not, either in his policy or in his decision to remove from office ministers who acted in accordance with what is stated in the aforesaid basic principles.

The scope of the intervention of this court in the decision of the prime minister

29. Indeed, it is natural that the spectrum of cases, in which the prime minister may be persuaded that the removal of a minister from office may further the ability of the government to function properly as the executive branch of the State and to realize the policy goals that it has set, is very broad. This is especially so in view of the fact that we are speaking, in the final analysis, about a tool that has been given to the prime minister so that he can guide the ship of State to safety, while maintaining its cohesion and its ability to rise to the various goals and challenges that it faces. This breadth of the spectrum of cases, just like the purpose of giving discretion precisely to the prime minister, sheds light on the scope of the discretion entrusted to him. This is very broad discretion (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 460; HCJ 502/99 Cohen v. Prime Minister [13]), or ‘broad in the extreme’ (per Justice E. Rivlin, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 846 {345}). This cannot be restricted in a sweeping manner that will undermine the position of the prime minister, as it appears from the provisions of the Basic Law: the Government. This broad scope of the discretion in the Basic Law also determines the scope of the intervention of this court in the decision of the prime minister to remove a minister from office or not to do so. It should be noted that the scope of judicial review of the decisions of the prime minister concerning the removal of a minister from office is a mirror image of the scope of the power of the prime minister. The judicial review is narrow in nature because of the broad spectrum of considerations that the prime minister may take into account within the framework of the discretion given to him when deciding to remove a minister from office. This broad spectrum is what determines the question when removal from office is lawful and when it is not lawful. Its breadth is what limits the scope of judicial review. In this sense, it is true that ‘the zone of reasonableness is as broad as the power itself’ (per Justice M. Cheshin in Movement for Quality Government in Israel v. Prime Minister [8], at p. 916 {439}; Litzman v. Knesset Speaker [9]; and cf. Movement for Quality Government in Israel v. Government of Israel [11], at p. 68). Moreover, we should remember that the parliamentary system of government in Israel means that review of the actions of the government and the prime minister is usually the purview of the Knesset, which votes its confidence in the government and also has the power to vote no confidence in it. This review of the Knesset — and the political establishment as a whole — also affects the breadth of the prime minister’s discretion and consequently the degree of intervention of this court (see and cf. HCJ 5167/00 Weiss v. Prime Minister [14]; HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [15]). Notwithstanding, it should be recalled that the power of the prime minister is not absolute. There are situations in which he is not entitled to make use of the power that is given to him, and in any case there exists judicial review — as distinct from parliamentary review — if he has exercised his power and removed a minister from office. Does the case before us fall within this framework?

From the general to the specific

30. The prime minister wished to advance a national political plan, and in his opinion this is a plan ‘that is vital for the future of the State of Israel, a plan that has serious implications, inter alia, for foreign affairs and the security of the State of Israel’ (para. 62 of the response of the Attorney-General). No one denies that the prime minister clearly exercised his power on the basis of national political considerations, namely his desire to advance the ‘disengagement plan.’ In these circumstances, we are persuaded that the removal from office falls within the scope of considerations whose main purpose is to further the ability of the government to function properly as the executive branch of the State and to realize the political goals that it has set, while maintaining public confidence in the government. The existence of political negotiations, while addressing international and defence issues of the State, certainly falls within the framework of the role of the government in Israel and is included in the framework of its policy goals. The prime minister thought that the positions and the opposition of the Minister of Transport and the Minister of Tourism would frustrate this process, and for this reason it was correct to remove them from office. The response of the Attorney-General also shows the importance of the timing that was chosen. A vote of no confidence in the government was scheduled for 7 June 2004, because of the failure to approve the ‘disengagement plan.’ On 8 June 2004, the prime minister was obliged to take part in a political debate in the Knesset. These reasons were added to the position of the prime minister, that there was special importance to the timing of the government’s decision (on 6 June 2004) with respect to the approval of the ‘disengagement plan,’ because of serious aspects of foreign affairs of the State of Israel and undertakings that the prime minister had given in the international arena. It should be further noted that Justice Levy proposed, when he heard the application for an interim order in this case, that the Cabinet meeting should be postponed to a later date, but the prime minister was unwilling to postpone the date of the meeting, for the aforesaid reasons. It need not be said that we are not expressing any position on the question whether the political plan is an appropriate one or not. The only issue that we are discussing is whether the removal of the ministers from office by the prime minister, for the purpose of facilitating the adoption of the plan by the government — at the time and in the circumstances when it was done — is constitutional or not. In this respect, we are satisfied that the removal from office falls within the prime minister’s zone of reasonableness, as stated in s. 22(b) of the Basic Law: the Government. In any event, and in consequence thereof, there are no grounds for our intervention in this decision.

31. For these reasons, we have decided to deny the petition.

 

 

Justice M. Cheshin

Section 22(b) of the Basic Law: the Government (5761-2001) tells us the following:

‘Termination of the office of a minister

22.(a) …

(b) The prime minister may, after notifying the Government of his intention to do so, remove a minister from office; the office of a minister ends forty-eight hours after the written notice of his removal from office has been delivered to him, unless the prime minister changes his mind before that time.

 

     (c) …

The question relevant to our case is this: what considerations may the prime minister take into account when he decides to remove a minister from office? More precisely, what considerations may the prime minister not consider as a basis for removing a minister from office? The law does not tell us either the former or the latter considerations, and, as is our wont, we will learn and discover the nature of those considerations from the matter at hand. We are speaking of the composition, structure and management of the government, and everyone knows and understands that we are dealing here with an issue that is replete with policy and politics. The material is the material of policy and politics; the substance of which the government is made is the substance of policy and politics; the atmosphere is an atmosphere of policy and politics; everywhere you turn, the environment of the government is policy and politics, and the prime minister and the Cabinet ministers live and breathe policy and politics from morning to evening, every day, continuously. And just as issues of policy and politics lead to the formation of a government, the same is true with regard to the continuation of the government’s existence and management, both outwardly and inwardly. All of this implies, and it can be understood from the context, that when removing a minister from office the considerations of the prime minister will mainly be considerations of policy and politics.

2.    What is the scope of the prime minister’s discretion when removing a minister from office? Indeed, ‘absolute’ discretion is neither known nor found in our legal system. No one holds unlimited office or power. An authority that holds power by law — any authority — holds its power in trust for the public, and there is no trustee whose power knows no limits. But it is also true that we will find it difficult to describe an example from life — from our life — where by removing a minister from office the prime minister’s discretion will overstep its limits. The power of the prime minister extends far and wide, as far as the eye can see; his power is so broad — ‘broader than broad’ — that it resembles a ‘black hole’ which sucks in almost all considerations. This does not include or justify considerations based on corruption, God forbid, or considerations bordering on corruption. But apart from these considerations of a corrupt nature, we will have difficulty in finding considerations that are irrelevant. This is true of national considerations and political considerations, as well as of personal considerations.

            So much for the scope of the discretion.

3.    As to the scrutiny of the court with regard to the removal of a minister from office — and this is the other side of the coin — it has been said that the discretion of the prime minister in this regard moves in the stratosphere, where the legal atmosphere is weak and rarefied. Such is the legal atmosphere, and such is the scrutiny of the Court. Indeed, the strength of the court’s scrutiny is determined, inter alia, by the breadth and the depth of the power of the competent authority, naturally in inverse proportion. And since we know that the power of the prime minister to remove a minister from office is all-embracing, we also know that the strength of the court’s scrutiny is small. Admittedly, it is possible that in certain circumstances — for example, because of overwhelming national considerations — the court will compel a prime minister to remove a minister from office. See, for example, Movement for Quality Government in Israel v. Government of Israel [7] (the Deri case); Amitai, Citizens for Good Government and Integrity v. Prime Minister [10] (the Pinhasi case); Movement for Quality Government in Israel v. Prime Minister [8] (the Hanegbi case, minority opinion at pp. 881 {393} et seq. and 939 {468} et seq.). But our case is one where the prime minister himself wishes to remove a minister from office, and in this context we will find it difficult, as aforesaid, to find a consideration that will escape from the gravitational force of the prime minister’s authority.

4.    When the prime minister decides to remove a minister from office, and all the preliminary conditions required by statute are fulfilled, we will have difficulty finding a court that will order him — contrary to his decision — to sit at the Cabinet table with a minister whom he does not want. Indeed, the solution to the issue of the removal of a minister from office is not to be found in the court. The solution is to be found in the standing of the prime minister in his party, in the mutual relationships between the parties, in the standing of the government in the Knesset, in public opinion. Just as the power and the strength of the prime minister derive from his party, from the coalition agreements, from the confidence of the Knesset and from public support, so too that party, those agreements and with them the confidence of the Knesset and public support will also determine the limits of his power to remove a minister from office. In other words, when we consider the nature of the material, we will know — in principle — that the authority and power of the prime minister to remove a minister from office stops with his party, the coalition agreements, the confidence of the Knesset and public support. In general, it may be said that considerations that lead to the formation of a government are also the ones that will determine the government’s path, and they are considerations that a prime minister can and may take into account when he decides to remove a minister or ministers from office. I repeat that this is the case when the prime minister wishes to exercise his power to remove a minister or ministers from office. It is not the case when the prime minister refuses to exercise his power and thereby harms a value of great importance in national life.

5.    Finally, my colleague President Barak says in his opinion that when the prime minister wishes to remove a minister from office, it is incumbent upon the prime minister to act reasonably and proportionately, to consider only relevant issues, to act without partiality and without arbitrariness, to act in good faith and with equality. Within the limits of rhetoric, I agree with my colleague, but pitfalls await us in these guidelines. Take, for example, the principle of reasonableness. How will this principle further us if we believe — as I do — that with the exception of considerations that can be regarded as considerations of a corrupt or quasi-corrupt nature, the prime minister is entitled and authorized to consider (almost) every consideration that exists: national considerations, political considerations, personal considerations? And if this is the case with respect to reasonableness, it certainly applies to proportionality. The same applies with respect to the guideline of relevant considerations, the guideline prohibiting partiality and arbitrariness, etc.. In fact, as I have expressed my opinion above, with the exception of considerations of a corrupt or quasi-corrupt nature, I will have difficulty seeing a court intervene in the proceeding of removing a minister from office. This proceeding is for the Knesset and the coalition partners to judge, for their judgment — in the main — and not for the judgment of the court.

 

 

Vice-President E. Mazza

The reasons of my colleague, the President, explain well the constitutional outlook that served as a basis for our decision, on 22 June 2004, to deny the petition.

 

 

Justice E.E. Levy

1.    I accept the approach of my colleague, Justice M. Cheshin, that the power of the prime minister to remove a minister from office ‘is all embracing,’ and this determines, inversely, the scope of the power of review of this court. Therefore I have joined in denying the petitions, but I found it necessary to add several comments.

2.    Amendment no. 3 of the Basic Law: the Government, which gave the prime minister the power to dismiss a minister who holds office in his government and was incorporated in the Basic Law: the Government of 2001, was preceded by a draft law in the same spirit, which was debated in the Knesset in 1981 and was intended, according to the explanatory notes, to help the prime minister contend, inter alia, with what were defined as ‘small, extortionist parties’ (see the draft Basic Law: the Government (Amendment no. 3)). During the debate on the draft law, MK Amnon Rubinstein grimly described the status of the prime minister at that time, as someone who ‘… is leading a strange alliance of independent, semi-feudal ministers, each of whom has his own domain that may not be touched… the result, of course, is that it is impossible to put any real national policy into effect, there are no priorities, there is no possibility of shaping economic policy, which clearly, primarily and absolutely requires national priorities’ (Divrei HaKnesset  (Knesset Proceedings) (5741) 2693, session dated 13 May 1981, at p. 2694).

Similar remarks were made by Knesset Member Moshe Shahal: ‘… It is impossible to replace ministers, and they have almost taken possession of private estates. From the moment that a minister is appointed to the position, it is difficult, almost impossible, for the prime minister to do his job and to say to a particular minister: you have not succeeded in your job, I want to replace you with someone else’ (ibid., at p. 2695). Later on in his remarks, Knesset Member Shahal did not conceal the main target of his criticism:

‘The problem of the prime ministers is with the ministers in their party, with whom they cannot work and whom they cannot dismiss, and this power, which the law intends to give to the prime minister is a power that will allow him power inside his party, which will enable him to conduct the business of his government in an orderly manner.’

3.    The picture that emerges from the debate in the Knesset, to someone who tries to understand the purpose of Amendment no. 3 of the Basic Law: the Government is that the Amendment greatly extended the power of the prime minister in the relationship between him and his ministers, mainly in the following areas:

a. The creation of direct accountability of each minister to the prime minister, for the performance of the special portfolios given to him (s. 4 of the Basic Law: the Government (2001)). It follows that a failure of a minister in carrying out his job can serve as a ground for removing him from office, by virtue of the power that was given to the prime minister in s. 22(b) of the Basic Law.

b.     Preventing ‘extortion’ by small parties.

c.     Giving the prime minister tools to deal also with the lone minister who ‘casts off all restraint’ and makes it difficult for the government to implement its policy.

Let us examine the conduct of the prime minister in the current case, and how it fits with the purpose of Amendment no. 3 of the Basic Law: the Government.

4.    No complaints were made against Ministers Elon and Lieberman, with regard to their personal conduct, nor were there any objections to their performance as ministers. Moreover, they did not take action against Cabinet decisions that had already been made and that were effective before their dismissal, and consequently they had not caused any difficulties for the implementation of government policy. On the contrary, the positions of the two ministers with respect to the withdrawal from the territories held by Israel and with regard to the evacuation of Jewish settlements were known to the prime minister from the day when the government was formed, since the National Union faction made it clear in the coalition agreement that it objected to the establishment of a Palestinian state west of the Jordan, regardless of its borders. It follows that it is also clear that Ministers Elon and Lieberman in particular, and the National Union faction in general, did not breach the coalition agreement and therefore they are not to be included among those rebellious ministers or among the ‘small, extortionist parties’ that led to the amendment to the law, so that the prime minister would be able to deal with them. In these circumstances, we cannot fail to reach the conclusion, which in practice is agreed by all, that the gulf that was created between the two ministers and their faction and the prime minister arose from the decision of the latter to adopt a new political policy, which was different from the one that formed the basis of the coalition agreement, namely the advancement of the plan that he conceived and that is known as the ‘disengagement plan.’ Here it should be clarified that the prime minister is certainly entitled to abandon one political policy and to adopt another policy, when he thinks that the change in circumstances and the welfare of the State of Israel require this. But to the same extent it is also the right of the ministers, if not their duty, to state their opinion in the Cabinet and to give expression to the outlook of their voters, for if one says otherwise, only persons who blindly follow the proposals of the prime minister and are prepared on a permanent basis to abandon their own opinions and espouse his will hold office in the government. I think that it is unnecessary to say how distant such a scenario is from the practice of democracy of which we are proud.

Notwithstanding, the new outlook of the prime minister is, with all due respect, primarily his own outlook, and it remains such, as long as the government has not adopted it and given it validity in one of its decisions. In view of the aforesaid, logic dictates that the decision to remove ministers from office on the ground that their beliefs will make it difficult to implement government policy cannot be made before the Cabinet vote on that policy, but only thereafter. This leads to a further conclusion, that the prime minister acted as he did because of a concern that the vote of the two ministers against his plan would, when joined with the vote of additional ministers who opposed it, lead to the creation of a majority against his plan. He decided to prevent this outcome by dismissing two of the opposing ministers and in this way he intended to bring about a change in the balance of power in the Cabinet. And if further evidence is needed of the fact that the dismissals were intended solely in order to obtain a technical majority, it is sufficient to point out the fact that once the majority in the Cabinet was assured, the prime minister saw no further need to raise the threat of removal from office against other ministers who opposed his plan, including ministers from his own party.

This is an example of how the objectives that Amendment No. 3 of the Basic Law: the Government was intended to achieve (namely, dealing with rebellious ministers and with ‘small, extortionist parties’) were entirely abandoned, and how that amendment was used for purposes that the initiators of the amendment probably never imagined.

5.    I saw fit to make my comments because I fear that even in the fifty-sixth year of Israel’s independence, the parliamentary democratic system and especially the culture of government that requires restraint, even when the legislature has given the executive branch a broad power whose limits have not been clearly defined, have not yet been fully developed. The government has been given fields of operation that are very broad in scope, and their effect on the State in general, and on each of its citizens in particular, is great, and sometimes fateful. An example of this is the power to declare war (see s. 40 of the Basic Law). Imagine the possibility that a prime minister, for objective reasons or for improper internal considerations, initiates a move of the latter type (a declaration of war), in which it is apparent from the outset that he will not win a majority in the Cabinet. But the prime minister can circumvent this obstacle easily, just as it was done in the case before us, by dismissing ministers and creating an artificial majority. It need not be said that the ramifications of such a decision are likely to be fateful, and I ask myself whether this is merely an illusion that the Israel system of government is sufficiently resilient to prevent. Regrettably, I find it difficult to answer this question in the affirmative.

6.    Therefore, I think that it would be proper if the legislature formulated more efficient means of control over powers of the type that s. 22 of the Basic Law addresses. I am not unaware of the fact that the actions of the government are already subject to the scrutiny of the Knesset. Thus, for example, s. 40(c) of the Basic Law requires the government to notify the Foreign Affairs and Defence Committee of the Knesset of its decision to declare war. Moreover, the prime minister himself has a duty to give notice to the plenum of the Knesset in this regard. However, the time framework for giving the notices was defined in s. 40(c) of the Basic Law to be ‘as soon as possible,’ and one may wonder what the benefit of such a notice would be, even if in consequence the Knesset passes a vote of no confidence in the government, when that war, with all its horrors, is already being waged with full force (in this respect, cf. s. 9(6) of the Government Law).

 7. The appointment of ministers is the final link in the lengthy process of forming a government. This process ends only when the government and the person who heads it appear before the Knesset and win its confidence, after they present to it the basic principles of their policy. A similar process is also involved in bringing a new minister into the government. He too does not enter into his office until the Knesset approves the notice of the prime minister about his joining the Cabinet. It follows that both the government as an entity and the individual minister derive their power from the Knesset (s. 13(d) of the Basic Law). Against the background, I wonder whether it would not be appropriate that the process of removing ministers from office should be done in the same manner and with the same seriousness, since we are speaking of removing from office persons in whom the Knesset has expressed its confidence, and who are members in the central executive body, and there is no need to elaborate upon the decisive impact of its decisions on each of us. The removal of Ministers Lieberman and Elon from office — in a hasty proceeding, on the eve of the holy Sabbath, when the purpose was that the forty-eight hours required for the dismissal to come into effect, as stated in s. 22(b) of the Basic Law, would pass by the time that the Cabinet meeting convened on Sunday, thus creating a majority for the proposal of the prime minister — is, in my view, far from being a process that should exist in a democracy.

8.    However, and this is the main point, notwithstanding my reservations as to the proceeding that was carried out and my concerns as to its future repercussions, we should also emphasize the following: the prime minister did not make use of a provision of law that he created for his own needs, but of a power that the Knesset gave him. This power in s. 22(b) of the Basic Law: the Government is broad in the extreme, and the lacuna in the work of the legislature — defining the limits of the power and determining processes for controlling the use thereof — cannot be filled by the court in case law. This is particularly the case when dealing with a Basic Law. Therefore as long as s. 22(b) of the Basic Law continues to exists in this form, it seems to me that the approach of my colleagues, that the prime minister acted within the scope of the power given to him, is correct, and there is no basis for the intervention of this court.

 

 

Justice D. Beinisch

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

 

 

Justice J. Türkel

The question before us is whether the decision of the prime minister to make use of the power given to him in s. 22(b) of the Basic Law: the Government and to remove from office two of the government ministers who oppose the plan that he wishes to promote in order to obtain a majority in the Cabinet vote is lawful. My answer to the question is this: it is lawful, but it is not right. In other words, according to the language of the section, as it has been interpreted by my honourable colleague, President Barak, the prime minister was competent to do it, but he ought not to have done it.

In this respect, I agree with the comment of my honourable colleague, Justice Levy in his opinion, that ‘logic dictates that the decision to remove ministers from office on the ground that their beliefs will make it difficult to implement government policy cannot be made before the Cabinet vote on that policy, but only thereafter.’ I also accept his recommendation that the Knesset should have control mechanisms over the use of the power. I further feel myself obliged to point out that this case deals with the dismissal of only two government ministers; would this apply to a decision to dismiss a larger number of ministers? I am not certain, and we will leave this question until its time comes.

Notwithstanding, for the reasons set out by my colleague the President, I am of the opinion that there is no alternative to denying the petitions.

 

 

            Justice A. Procaccia

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

I wish to add the following comment.

The basic principles of democracy in Israel govern, inter alia, the procedural rules of decision-making in the various collective administrative bodies. Underlying these rules is the principle that decisions are made by a majority of those participating in the vote, that a member of the body making the decision is free, and even obliged, to express his opinion in matters being discussed, according to his outlook and conscience, and that in general he need not fear dismissal or removal as a result of an objective position that he holds with respect to an issue that is being discussed and decided. This process of freedom of expressing an opinion in a decision making body is vital for reaching a decision after considering a wide variety of points of view, relevant information and different ways of weighing conflicting interests and values. Freedom to express an opinion in the decision making process is also consistent with general values of freedom of expression, which run through every facet of life and human activity. This procedure of decision-making is accepted in executive institutions of various public bodies, local authorities, boards of directors of statutory corporations, planning and building authorities and, to a large extent, also on boards of directors of commercial enterprises. This mechanism of decision making is accepted, in the main, also in the government. The ongoing activity of the government is founded upon decision-making that is preceded by a discussion among the government ministers, in which the positions of the participants are raised, and the decision is made by a majority of the participants in the vote, while abstainers are not included in the count. This is the case in the Cabinet as a whole, as well as in Cabinet committees. This proceeding is expressed in the Cabinet Work Rules (ss. 19 and 35 of the Rules, revised as of 27 July 2003). The freedom to express an opinion and the free flow of objective positions and outlooks of the members of the decision-making body advance the decision-making process and shape its content, and they constitute a central and vital component of the way in which every administrative body operates, including the Cabinet. This is the case when we are referring to a professional issue that is to be decided by the administrative body, and also when we are referring to a minister who has a political role in the government, and expresses within this framework political opinions and views with respect to the political and social path that he deems fit. Strict adherence to this procedure of decision-making is vital for the proper functioning of public administration, including the government. Moreover, it promotes an important public interest.

Against this background, the power given to the prime minister under s. 22(b) of the Basic Law: the Government to dismiss a minister is far-reaching when it is exercised in the context of an objective position that the minister espouses with respect to a matter that is to be decided by the Cabinet, even when it is related to a matter that lies at the heart of a political issue that the prime minister wishes to promote. The interpretation of President Barak extends the power of the prime minister to dismiss a minister on the basis of a political opinion that he expresses in good faith on an issue of policy, where this opinion conflicts with the policy that the prime minister wishes to promote. This power is unparalleled in other collective bodies, and it is inconsistent with the procedure of decision-making that is commonly practiced therein, nor should it be applied in any way to their work procedures. It is also unacceptable and undesirable in the day-to-day, routine work of the government. It is a unique power that should be exercised only when it is absolutely essential to promote, in the words of the President, the proper functioning of the government as the executive branch and to realize the policy goals that it has set.

The exceptional and unique nature of this power of dismissal that is given to the prime minister with respect to a minister in the government requires that it is exercised very rarely, and only in special and exceptional contexts where the public interest, which requires the furthering of the government’s ability to function properly, and the realization of the national policy goals that it has set, clearly overrides the conflicting public interest that aims to protect the stability of the government and the integrity of its accepted decision-making process, including the right of every minister to express his objective opinion freely, without fear of dismissal or removal. I agree therefore with the position of the President, that the spectrum of cases in which the prime minister may exercise this power is broad and varied. Nonetheless, in my opinion the broad variety of grounds for exercising this power does not derogate from the duty to refrain from adopting this measure except when, in the prime minister’s opinion, there exists a need of supreme national importance that justifies it, even at the price of harming the stability of the government and the accepted and proper decision-making process, and this assessment falls within the zone of reasonableness according to the accepted criteria of public law. The strength of the need justifying the dismissal of a minister because he holds a controversial opinion must be clear, unique and of very great weight, when considered against the conflicting interest that seeks to protect the stability of the structure of the government, the propriety of its actions and the maintenance of its work routine in accordance with its procedures. When applying this criterion to the exercising of the prime minister’s power, the control mechanisms that exist in the sphere of political forces and parliamentary scrutiny of government activity are insufficient. The rules of public law apply and have their say.

In the case before us, the prime minister wished to promote a political plan to which he attributes fateful significance for society and the State. The promotion of the plan necessitated, in his opinion, the dismissal of the two ministers who opposed it, in order to obtain the majority that was required in order to adopt it as a government decision. In view of the centrality of the plan underlying the matter, the measure that was adopted in order to promote it, by way of dismissing the opposing ministers, did not depart, in this case, from the extreme and rare criterion that is required in order to exercise the power of dismissal, and in the balance of conflicting public interests, the action of the prime minister does not fall outside the zone of reasonableness, in accordance with the rules of public law.

            On this basis, I agree that the petitions against the prime minister should be denied.

 

 

Petition denied.

11 Heshvan 5765.

26 October 2004.

 

 

.

 

 

HCJ 11243/02

1.  Moshe Faiglin

2.  Hagai Yekutiel

v.

1. Mishael Cheshin, Chairman of the ElectionsCommittee

2.  Naomi Hazan, KM

3.  Ya’akov Stotland

4.  The Likud Movement

 

The Supreme Court Sitting as the High Court of Justice

[May 15, 2003]

Before President A. Barak, Vice-President S. Levin, Justices E. Mazza, T. Strasberg-Cohen, D. Dorner, Y. Turkel, D. Beinisch, E. Englard, A. Rivlin, A. Procaccia, and E. Levi  

 

Petition to the Supreme Court sitting as the High Court of Justice, pursuant to section 6 of the Basic Law: The Knesset.

 

Facts: Petitioner wished to be a candidate in the elections for the sixteenth Knesset. Petitioner included, with his candidacy application, a “Statement of Agreement” pursuant to section 57(i) of the Knesset Elections Law. Petitioner did not add any additional materials to note that he had been convicted of the criminal offense of incitement and sentenced to six months imprisonment, to be served as community service. Additionally, petitioner did not subject a request “to expunge the disgrace” of his conviction to the Chairman of the Central Elections Committee. In light of these circumstances, petitioners asked the Court to hold that petitioner was ineligible to compete for the Knesset elections.

 

Held: The Supreme Court held that petitioner could not compete in the Knesset elections, as he had not fulfilled the technical requirements of the Knesset Elections Law, including the requirement to submit a request to “expunge the disgrace” of his conviction. Justice E. Levi, in a dissenting opinion, asserted that petitioner was eligible to compete in the Knesset elections. The Court split as to the substantive question—whether the offence of which the petitioner was convicted did “involve disgrace.”

 

Basic Laws cited:

Basic Law: The Knesset, §§ 6, 6(a), 7, 7A

 

Legislation cited:

Knesset Elections (Consolidated Version) Law-1969, §§ 56, 56B, 56B(1), 57(i), 142, 143

The Penal Code-1977, §§ 133, 134, 151

 

Israeli Supreme Court cases cited:

[1]HCJ 705/78, The “Chai” Party for the Givaataim Municipal Council v. The Elections Officer, IsrSC 32(3) 608

[2]HCJ 6790/98 Avretz v. The Elections Officer for the Municipality of  Jerusalem, IsrSC 52(5) 323

[3]HCJ 2573/99, Ba-Gad v. The Elections Committee for the Knesset, IsrSC 43(3) 193.

[4]HCJ 5769/93 Hamza v. The Elections Officer for Shahb (unreported case)

[5]EA 2/84 Neiman v. Chairman of the Central Elections Committee, IsrSC 39(2) 225

[6]EA 1/65 Yaakov Yeredor v. Central Elections Committee, IsrSC 19(3) 365

[7]HCJ 753/87 Boronstien v. Minister of Interior, IsrSC 42(4) 462

[8]EA 1/88 Moshe Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 42(4)177

[9]C.App. 2316/96 Issacson v. Political Party Registrar, IsrSC 50(2) 529

[10]HCJ 3090/97 Cohen v. Southern District Commissioner, Ministry of Defense IsrSC, 52(2) 721

[11]HCJ 6859/ 98 Ankonina v. Or Akiva Elections Official, IsrSC 52(5) 433

[12]Crim.A. 6696/96 Binyamin Kahane  v. the State of Israel, IsrSC 52(1) 535

[13]HCJ 436/66 Menahem Ben Aharon v. Head of the Pardesia Local Council, IsrSC 21(1) 561

[14]HCJ 251/88 Wajia Oda v. Talel Rabi, IsrSC 42(4) 837

[15]CA 2211/96 Cohen v. Cohen, IsrSC 50(1) 629

[16]HCJ 6163, 6177/92 Eisenberg v. Minister of Building and Housing, IsrSC 47(2) 229

[17]HCJ 103/96 Cohen v. The Attorney-General, IsrSC 50(4) 309

[18]EA 11280/02 The Chairman of the Central Elections Committee v. Ahmed Tibi, IsrSC 57(4) 1

[19]CA 10596/02 Leah Ness v. Likud Movement, IsrSC 57(1) 769

[20]F.Crim.A. 1789/98 State of Israel v. Kahane, IsrSC 54(5) 145

 

Israeli Magistrate Court cases cited:

[21]CC (Jerusalem) 3996/95 State of Israel v. Faiglin

 

United States Supreme Court cases cited:

[22]Brandenburg v. Ohio, 395 U.S. 4442 (1969)

 

Israeli books cited:

[23]11 S.Z. Feller, Foundations of Penal Law (1994)

[24]I. Levi & A. Lederman, Principles of Criminal Liability (1981)

 

Israeli articles cited:

[25]R. Gabizon, A Dishonorable Offense as a Disqualification for Holding Public Office, 1 Mishpatim 176 (1965)

 

Miscellaneous:

[26]Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997)

 

 

For the petitioner— Haim Misgav, Tom Misgav, Yekutiel Hagai

For respondent 1— Dina Zilber

For respondent 2— Dafna Holtz-Lechner

For respondent 3— Ron Dror

For respondent 4— Eitan Haberman

 

 

 

JUDGMENT

Vice-President S. Levin

1.    Elections for the sixteenth Knesset were held on January 28, 2003. Petitioner, Moshe Faiglin, wished to run in the elections as part of the Likud List.  He was number 40 on the list.  The final date for submitting lists of candidates for the Knesset was December 20, 2002.  Faiglin appended a signed Statement of Agreement to the candidate list submitted by the Likud, in which he declared:

 

I have read and understood sections 6 and 7 of the Basic Law: The Knesset, and the provisions of section 56 of the Elections Law (Consolidated Version)-1969… I declare that to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.

 

Faiglin did not add any other documents to the Statement of Agreement. He did not note that he had been convicted of offences for which he was sentenced to six months of community service or that, on the day of the submission of the candidate list, seven years had not yet passed from the day he finished serving that sentence. Nor did he ask the Chairman of the Elections Committee to determine that, under the circumstances, the offences which he was convicted of did not involve “disgrace.” 

 

     On December 14, 2002, Knesset Member and Vice-Chairman of the Knesset Naomi Hazan submitted a petition to the Chairman of the Elections Committee. Ya’akov Stotland also submitted a petition on December 16, 2002. These petitions requested that the Chairman of the Elections Committee declare that Mr. Moshe Faiglin could not be elected to the Knesset, and that he should be removed from the Likud candidate list.  The Chairman of the Committee requested responses from both Faiglin and the Attorney-General.  After these responses were received, and short oral arguments were heard, the Chairman of the Committee decided that Faiglin would be removed from the candidate list. This was a result of his delay in submitting a “request to expunge the disgrace” as well as due to the concealment of facts.  The Chairman of the Elections Committee also determined that the offences of which Faiglin was convicted involved “disgrace.”

 

     On December 30, 2002, Faiglin and others appealed from the decision of the Election Committee. Their petitions were heard, along with other matters, before a panel of eleven justices on January 7, 2003  On January 9, 2003 we handed down our majority decision, against the dissenting opinion of Justice E. Levi, to deny the petition. Our reasoning is set forth below.

 

2.    On February 9, 1997, Faiglin was convicted of incitement and of the publication of inciting materials under sections 133 and 134 of the Penal Code-1977, and of an offence under section 151 of the Code. On November 11, 1997, he was sentenced to 18 months imprisonment, of which he was to effectively serve six months of community service. At the same time, Mr. Faiglin was put on six months probation.  Mr. Faiglin did not appeal the judgment and served his sentence.

The petitioner’s conviction and the sentence which he served are at the heart of the matter at hand.  Their significance becomes clear in light of the provisions of section 6 of the Basic Law: The Knesset and section 56B of the Knesset Elections (Consolidated Version) Law.  Section 6 of the Basic Law sets forth limitations on the right to be elected to the Knesset.  Section 6 (a) of the Basic Law provides:

6(a). Every citizen of Israel who, on the date of the submission of a candidates list containing his name, is twenty-one years of age, shall have the right to be elected to the Knesset, provided that a court of law has not deprived him of that right pursuant to statute, or that he has been sentenced, in a final verdict, to serve more than three months imprisonment, and on the day of the submission of the list seven years have not yet passed from the date upon which he finished serving his sentence, unless the Chairman of the Central Elections Committee determined that, under the circumstances, the offence of which he was convicted does not involve disgrace.

Section 56B, which implements the general provisions of section 6 of the Basic Law, provides:

56B. The following provisions apply to an offence which “involves disgrace” under section 6 of the Basic Law: the Knesset:

(1)(a) A candidate shall submit to the Central Committee, together with his Statement of Agreement to be a candidate as stated in section 57(i), a declaration regarding section 6 of the Basic Law;

(b)A candidate, or anyone who wishes to be a candidate, who has been convicted of an offence as stated in section 6 of the Basic Law, and requests that the Chairman of the Central Committee decide that the offence does not “involve disgrace,” shall submit a request to the Chairman of the Central Committee, together with his indictment, the judgment, and all other relevant material, no later than the day of the submission of the candidate list.

(c) The decision of the Chairman of the Central Elections Committee shall be final and shall be presented to the Central Committee no later than 28 days preceding the election.

From these provisions it is apparent that a candidate who wishes to run for the Knesset must submit a statement regarding section 6 of the Basic Law: The Knesset. If that person has been convicted and sentenced to imprisonment for a term which exceeds three months, he must request that the chairman of the Central Election Committee determine that the offence does not “involve disgrace.”  This must be done no later than the day of the submission of the candidate list to the Central Elections Committee. If he does not do so, the conviction is presumed to be dishonorable.

In his decision, the Chairman of the Elections Committee noted that there is an exception to the right to be elected, and to that exception “there applies another exception—an exception to the exception—which is: where the Chairman of the Central Elections Committee determines… that the offence which the individual was convicted of is not dishonorable under the circumstances.” The Chairman of the Elections Committee also determined that Faiglin had the responsibility to submit a request to “expunge the disgrace” of his actions no later than the time of the submission of the candidate list. Faiglin, however, submitted no such request. Only after Mr. Stotland petitioned for a declaration that Mr. Faiglin could not, by law, be a candidate for the Knesset, did Faiglin request that “the Chairman determine that his actions were not dishonorable.” Faiglin claimed that he was unfamiliar with the law; However, the Chairman of the Elections Committee weighed this claim harshly—in the Statement of Agreement which Faiglin submitted, he explicitly declared that he read the provisions of sections 6 and 7 of the Basic Law and the provisions of section 56 of the Elections Law. As such, the Chairman believed, it should have been clear to Faiglin that, pursuant those sections, imprisonment includes community service. Faiglin also declared that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.” The Chairman of the Elections Committee noted in his decision that he did not receive a satisfying explanation from Faiglin.

3. This Court reviews decisions of the Chairman of the Central Elections in its capacity as the High Court of Justice. Faiglin has not convinced us that there is cause to intervene in the Chairman’s conclusions, both with regard to his delay in submitting the request and also with regard to his concealment of the facts. On the contrary—this Court has, in the past, strictly construed the dates and times set forth in elections laws. The legislature sets forth a strict schedule, and the many dates follow one another and are dependent upon each other.  Reality demands that these dates be preserved in order to prevent chaos in the elections.  Compare: HCJ 705/78, The “Chai” Party for the Givaataim Municipal Council v. The Elections Officer [1]; HCJ 6790/98 Avretz v. The Elections Officer for the Municipality of  Jerusalem [2]; HCJ 2573/99, Ba-Gad v. The Elections Committee for the Knesset [3]. See also HCJ 5769/93 Hamza v. The Elections Officer for Shahb [4]This is one of the cases in which the public interest in the uniformity of election law takes precedence over the interest of the candidate to be elected. 

A strict approach to dates and times can also be discerned in sections 142 and 143 of the Elections Law.  Thus, for example, section 142 of the Elections Law provides that “when a certain action shall be completed a certain number of days preceding the elections, the Central Committee, with a two-thirds majority, may extend that date for up to five additional days, if it finds sufficient reason to do so.” Section 143 of the Elections Law, as amended by Amendment 49, provides that “section 142, and any other legislative provision allowing extension of dates, shall not apply to petitions and appeals under this Law.” 

  Faiglin argued that the Chairman of the Central Election Committee granted him an extension to submit a request to “expunge the disgrace.”  Indeed, after the submission of the requests to remove Faiglin from the candidate list, Faiglin submitted a request to extend the period to respond to those requests. The Chairman of the Central Election Committee determined that “ex gratia, I consent that the period for the submission of his response—in fact, his request—shall expire on Friday, December 20 2002, at 2:00pm.” Faiglin’s interpretation of this decision, however, is groundless. The decision only approves the submission of the request; the decision does not approve that the submission of such a request will be considered a request to “expunge the disgrace” which was submitted on time.  Moreover, the Chairman of the Central Elections Committee does not have the authority to extend such dates.

4.    All these suffice to deny the present petition, as we decided on January 9, 2003. As such, we have no need to discuss the other claims submitted by the respondents. Under these circumstances, there is no need to take a position concerning whether Faiglin was convicted of dishonorable offences. 

Justice I. Englard

I agree with the judgment of my colleague, the Deputy President.

Justice E. Levi

1. The right to be elected in enshrined in section 6(a) of the Basic Law: The Knesset, which reads:

6(a). Every citizen of Israel who, on the date of the submission of a candidates list containing his name, is twenty-one years of age or over shall have the right to be elected to the Knesset, provided that a court of law has not deprived him of that right pursuant to statute, or he has been sentenced, in a final verdict, to serve more than three months imprisonment, and on the day of the submission of the list seven years have not yet passed from the date upon which he finished serving his sentence, unless the chairman of the Central Elections Committee determined that, under the circumstances, the offence of which he was convicted does not involve disgrace.

Section 56B, especially sub-section(b) of the Knesset Elections (Consolidated Version) Law-1969, compliments the provisions of section 6:

A candidate, or anyone who wishes to be a candidate, who has been convicted of an offence as stated in section 6 of the Basic Law, and requests that the Chairman of the Central Committee decide that the offence does not “involve disgrace,” shall submit a request to the Chairman of the Central Committee, together with his indictment, the judgment and all other relevant material, no later than the day of the submission of the candidate list.

2.  At the end of 1995, an indictment was submitted against the petitioner in the Magistrate Court of Jerusalem, in light of petitioner’s activities in the “Zu Artzeinu” movement. It was alleged that the petitioner conspired to incite the Israeli public in an attempt to frustrate the decisions of the government and the Knesset, subsequent to the signing of the “Oslo Agreements.” It was also alleged that the petitioner and his colleagues called upon the public to disrupt the operation of the authorities by blocking roads, by protesting before the government offices in Jerusalem, and by erecting new settlement outposts in Judea and Samaria which would be manned by armed persons, while ignoring the military declaration that certain regions be considered “closed military territory.” It was also claimed that the petitioner and his colleagues called for detaining cars which displayed license plates of the Palestinian Authority, and when the time came, the frustration of evacuations of territories in the area of Judea and Samaria. Due to all these activities, petitioner was charged with the offence of incitement under chapter 1 of paragraph 8 of the Penal Code-1977, and the offence of unlawful assembly under section 121 of that law.

Petitioner did not deny his connection to the relevant publications, and the court determined, in its judgment of September 1997, that the petitioner intended to sabotage the implementation of government policy to the extent that it would undermine the stability of the government.  Therefore, it was determined that the petitioner’s actions did not constitute legitimate protest. Petitioner was convicted of the offences of incitement, inciting publications and unlawful assembly, under sections 133, 134 and 151 of the Penal Code-1977. The court sentenced him to 18 months of imprisonment, of which he was to serve six months of community service. He was also sentenced to six months of probation.

The parties did not appeal the judgment of the Magistrate Court.

3.    The petitioner was placed on the 40th spot on the Likud list for elections for the sixteenth Knesset. Pursuant to section 57(i) of the Knesset Elections Law, the petitioner signed a “Statement of Agreement” which included a declaration that he read and understood the provisions of sections 6 and 7 of the Basic Law and section 56 of the Elections Law.  The petitioner also declared that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.”

Petitioner had been sentenced to imprisonment.  Seven years have not yet passed since he finished serving his sentence.  Therefore, he is among those included in section 6(a) of the Basic Law, meaning that, in order him to be elected into the Knesset, he must first approach the Chairman of the Elections Committee, so that the latter may determine that the offences of which petitioner was convicted of were not dishonorable.  However, the petitioner did not do so until December 20, 2002, in response to the petitions that called for his disqualification.

Respondent number 1 inferred, from the fact that the petitioner signed the “Statement of Agreement,” that petitioner was aware of his obligations to submit a request as stated in the latter part of section 6(a) of the Basic Law.  Moreover, his signing of the “Statement of Agreement” constituted a declaration that he was not prevented from running in the Knesset elections.  This declaration, according to the Chairman, was inaccurate at best, and perhaps even unfaithful to the truth.

Respondent number 1 also dealt with the question of the “dishonorable” element in the offences of which the petitioner was convicted. Regarding this, the Chairman concluded that they:

undermine society and destroy the foundations upon which government and public administration rest. Indeed, were others to imitate the actions of Mr. Faiglin it could be said: In those days, there was no king in Israel and each person did as he saw fit. See Judges 21:25. The fabric of society would unravel. The offences of which Mr. Faiglin committed are extraordinarily dishonorable; and they are dishonorable even for one who does not wish to be elected for Knesset.

See para. 17 of the Chairman’s decision.

4. The Right to be Elected: A Fundamental Right

All agree that the right to vote and the right to be elected is the soul of democracy—they incorporate the principles of equality, of freedom of expression, and of the freedom of assembly.  See EA 2/84 Neiman v. Chairman of the Central Elections Committee, [5] at 264; EA 1/65 Yaakov Yeredor v. Central Elections Committee, [6] at 382; HCJ 753/87 Boronstien v. Minister of Interior, [7] at 473.  Deprive a person or group of their right to be elected, and you have deprived them of their right to express the political opinion which they have formed and of the right to participate in shaping the government. Indeed, such restrictions are not well-received by those who love democracy. Objections to those restrictions fade, however, when they are directed at a minority group; especially in those cases where the majority believes that the minority’s political positions will undermine the foundations of democracy. As such, and still fully aware of the fundamental importance of these rights, the majority deprives the minority of its right to compete in democratic elections.  There is but a short distance between these actions and forcing the minority to search for other manners of influence and expression, even if they constitute prohibited activity.  In order to prevent this, the legislature must plan with wisdom, so as not to perpetuate the rule of the majority in unlawful ways on the one hand, while preventing the minority from fighting for its opinion, on the other.  In this area, the Court performs a critical function, as it is supposed to review legislation intended to restrict the right to vote and to be elected, in order to ensure that the glory paid to these rights is more than simply lip service.

Indeed, this is the position consistently taken by our caselaw as expressed by President Shamgar in EA 1/88 Moshe Naiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, [8] at 185-86. His opinion remains relevant for us today.

Basic liberties, such as the freedoms of speech and religion, and the insistence on equality in elections, are part and parcel of our government system, and thus also of our judicial system.  The opinions and views of those in society are always different and variegated—in a free society, the differences are overt; in a totalitarian society, the differences are hidden.  The exchange of ideas, the clarification of views, as well as public debate and the desire to know, teach and convince are available to every opinion, every view, and every belief in a free society.  Making exceptions and distinctions between citizens, granting some rights while others not, is opposed to the truth that lies at the base of our liberties. Such inequities, in a democratic society, would present the same internal contradictions inherent in the actions of an individual who preaches against democracy while, at the same time, wielding the very rights that democracy grants.  Even unacceptable opinions and views should be debated, and peaceful ways of persuasion should be taken up against even these. Prohibitions and restrictions are extreme devices which are a last resort.  Our point of departure is that the freedom of speech should be granted even to those whose opinions seem mistaken and even dangerous.

To complete, I will add what is obvious—when you prevent an individual from being elected, you deprive others of their right to elect that candidate. The voters, as this Court noted in EA 2/84, [5] at 263, “wish to elect a candidate according to their preferences, based on their right to equality under the provisions of the Elections Law.  From the perspective of the voter, restricting the right to be elected includes an indirect limitation of the freedom of expression, as this deprives him of his ability to connect with others for the advancement of his views and opinions, as the candidate which he would prefer would have represented them.”

All this must guide us as we decide the petition at hand, and not only in our decision regarding the substantive question—whether there is disgrace in the offence that the petitioner was convicted of—but also the procedural claims—petitioner’s delay in submitting his request to the Chairman of the Elections Committee.  I have chosen to open with the procedural claim since, as the majority has concluded, if the petitioner cannot overcome this first obstacle, there is no reason to examine the second.

5.    As stated, the petitioner submitted his request to the Chairman of the Central Lections Committee on December 12, 2002, and failed to meet the date set by section 56B(b) of the Elections Law. For the purposes of this discussion, I am willing to presume that, absent explicit authorization, the Chairman of the Elections Committee could not extend the period for the submission of the request. Nevertheless, I am of the opinion that, considering the special circumstances of this case, the petitioner could still bring his case before the Chairman of the Elections Committee and request a substantive decision as to the question of whether there was disgrace in his conviction. What the petitioner lacked, was provided in the petitions submitted by respondents numbers two and three, the Vice-Chairman of the Knesset, MK Naomi Hazan and Mr. Stotland. These respondents did not raise the procedural claims which formed part of the basis for the Chairman’s decision—petitioner’s concealment of his conviction from the Election Committee and his delay in submitting his request regarding the “disgrace” of his conviction, a delay which has critical significance due to the tight elections schedule prescribed by the law.  These respondents based their petition upon a different cause—the “disgrace” inherent to petitioner’s conviction. As such, the matter of “disgrace” was open to respondent one, not as an alternate cause for the disqualification of the petitioner, but as the single, sole cause.

I emphasized the significance of the basic right to compete in the elections, since this is what obligates us—even when a candidate neglects a provision, we should aspire to maintain his right to be elected, so long as this is not opposed to the law, and so long as it serves the law’s purpose.  In this regard, and with respect to the status of the basic rights and their relationship to other rights, I find the words of Justice M. Cheshin, in C.App. 2316/96 Issacson v. Political Party Registrar [9], quite appropriate.  There, in my colleague’s decision to allow the “Arab Movement for Change” to register as a political party, he noted:

We are dealing with an individual’s fundamental, basic rights—with the freedom of assembly, the freedom of expression, and the right to vote and be voted for—and we all know that the force of these rights radiates into their surroundings, and that they are powerful in conflicts which may arise between them and other rights.  That blinding light which shines, from the basic rights, out in all directions also expands the areas over which they extend, thus limiting opposing rights.  In other words: we must do our best to expand the boundaries of the basic rights—here, the right to assemble as a political party—while simultaneously limiting the boundaries of those provisions which restrict and limit these rights.

I fully approve of my colleague’s words, especially in this current situation. This in light of an additional rule of construction in our caselaw, which provides that if “two possible interpretations stand before us, one based on the legislation’s language and the other on the legislation’s purpose, we should choose whichever interpretation least violates the basic right.” See HCJ 3090/97 Cohen v. Southern District Commissioner, Ministry of Defense, [10] at 737; HCJ 6859/ 98 Ankonina v. Or Akiva Elections Official, [11] at 454. With regard to the petitioner, he is the one responsible for submitting a petition for a declaration to “expunge the disgrace” under section 56B(b) of the Elections Law. This is only natural, since he himself has the greatest interest in not being disqualified. However, and so I suggest to interpret section 56B(b) of the law, we should not infer from here that there is no possibility that a request to review the disgrace of the offence be brought by someone else. Such other persons would not be limited by the schedule imposed upon the candidate, for would they be so limited, respondents two and three would also be prevented from bringing their petition. As such, we must infer that, if in the context of deciding with regard to a request to disqualify the candidate, the Chairman of the Central Elections Committee determines that his conviction is not dishonorable, it would be unreasonable not to perceive this as a green light for the candidate to run for the Knesset, even if he himself never approached the Chairman of the Elections Committee as specified in section 56B(b) of the law, or if he missed the date set in that section.

Had respondents two and three based their petition solely upon petitioner’s delay in submitting his request, or solely upon the fact that petitioner concealed facts from the committee, it is doubtful whether petitioner could be granted any remedy.  However, as stated, this is not the case, as the question of “disgrace” is the only claim which respondents two and three brought before the Chairman. Since this issue was raised, it demands a substantive decision, not merely a decision which would, in the words of my colleague, Justice M. Cheshin, in paragraph 12 of his decision, “cover all the bases.” 

In light of this, I am of the opinion that the examination of the current petition should not have stopped with the procedural claims, since it became unnecessary to decide these latter claims after the submission of the petition for the disqualification of the petitioner based on a claim of “disgrace.” Therefore, it would have been just to examine the substantive question of the “disgrace” involved in the petitioner’s conviction.  However, my esteemed colleagues are faithful to their view that the petitioner did not meet the procedural conditions and thus see themselves as exempt from discussing the question of “disgrace.” In this situation, and since the decision in this petition has already been made, and my reasoning can no longer affect the petitioner’s situation, at least not with regard to the elections for the sixteenth Knesset, I did not think it right to expand upon my reasoning where they had already decided in advance to base their judgment upon a different claim.  Nevertheless, I will not hide my opinion that I find it difficult to understand how there is dishonor in the offence of incitement of which the petitioner was convicted, an offense which is meant to protect the structure of the regime and not its content, and about which it has been said that “it would be appropriate to consider its invalidation…and replacement with an offence which is more suitable for our system. The wording of the offence is too vague and its boundaries too wide.  It reflects a worldview which is not democratic. It suits a mandatory government, which is not a government of the people. It does not award sufficient weight to freedom of expression.” These are the words of my colleague President Barak in Crim.A. 6696/96 Binyamin Kahane  v. the State of Israel, [12] at 585; see also Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997)

I also wish to draw attention to another matter, which I also commit myself not to expand upon. The language of section 6(a) of the Basic Law provides that the “disgrace” in the actions of the petitioner will be examined “under the circumstances.” As is known, our caselaw does not see “disgrace” as a formal ingredient of the specific offence of which an individual has been convicted, but rather that as that severe moral flaw which accompanies the circumstances of its execution.  See HCJ 436/66 Menahem Ben Aharon v. Head of the Pardesia Local Council IsrSC 21(1) 561, [13] at 564; HCJ 251/88 Wajia Oda v. Talel Rabi IsrSC 42(4) 837, [14] at 839; C.A. 2211/96 Cohen v. Cohen IsrSC 50(1) 629, [15] at 632; HCJ 6163, 6177/92 Eisenberg v. Minister of Building and Housing IsrSC 47(2) 229, [16] at 266; HCJ 103/96 Cohen v. The Attorney-General IsrSC 50(4) 309, [17] at 327. With regard to the “disgrace” involved in the petitioner’s actions, as viewed from the perspective of the “circumstances,” I wish to make several comments:

a. The events which provided the grounds for the petitioner’s conviction took place in 1995, against the background of what was seen, as the Magistrate Court stated in its convicting judgment, as “a feeling of helplessness before the repeated injuries to the Jewish population, at the hands of Palestinian terrorists.”  See para. 8 of the judgment.  The Court determined that “in the relevant period, the accused lived, like many others, with the strong feeling that the government’s policy was mistaken—a mistake that would cost human life and harm national security.”  See pg. 47 of the judgment.  The Court added that the petitioner’s action exceeded the bounds of the freedom of speech, However, it seems that even the Magistrate Court was of the opinion that the petitioner and his colleagues demonstrated “openly that they did not intend to act violently, and restrained themselves before the violence of the police.”  See pg. 10 of the judgment. These reasons explain the lenient punishment imposed upon the petitioner.

b. Petitioner was not the only one, during those long-ago days, who objected to the government’s policies. As the wave of terrorism intensified, opposition to the “Oslo Agreements” formed a central part of the platform of many public figures, and this position played a central role in their campaigns during several Knesset elections. Moreover, many of these public figures have actually been elected to the Knesset, and more than a few have climbed to the highest ranks of the executive branch.  In light of all this we must ask whether we should continue to visit upon the petitioner the sins of his past. Under these circumstances, should we see the petitioner as one who was then, or is now, set upon destroying the foundations of democracy in Israel? Can it be said today of the petitioner—despite the harsh events which have been the fate of the State of Israel since 1995—that he is, in the words of Justice Haim Cohen in HCJ 436/66, [13] at 564, “unfit to enter the congregation of the just…and that he is unfit to be publicly responsible for the decisions and actions which matters of the public and public security depend upon.” It seems that my answer to these questions is clear.  It is all the more clear in light of the fact—a fact which must be emphasized and encouraged— that the petitioner decided to channel his activities into the institutions of public democracy, as any person who wishes to participate in the government and influence its activities should do.

For all these reasons I have abstained from joining the majority. 

 

Justice T. Strasberg- Cohen

 

I agree with the judgment of my colleague, Vice-President S. Levin and with the conclusion that he reached.  Although his reasoning is sufficient to reach his decision here, I would also join the opinion of the Chairman of the Election Committee, who believed that the offences at issue here are dishonorable.

 

Justice A. Procaccia

 

I agree with Vice-President S. Levin’s judgment and reasoning.  I will add, although it is not necessary, that I am of the opinion that the offences of which Faiglin was convicted are dishonorable. As such, even had the procedural claims not sufficed to disqualify Faiglin, his candidacy could still be disqualified based on substantive grounds.   

 

“Disgrace” means a negative element which denotes more than a mere breach of the law.  This is a concept which carries moral weight, and which stems from the value, views, and moral standards of the public.  This is a multi-faceted concept which depends upon the nature of the offence committed and the circumstances under which it was committed, and which must be examined in the specific context in which it is employed.  Thus, the disgrace involved in an offence in the context of disqualification from holding public office or disqualification from being employed in a profession that serves the public, is not the same as the disgrace involved in the context of an individual’s candidacy in public elections.

 

Here, we are concerned with the offences of incitement and inciting publication of which Faiglin was convicted. Faiglin’s actions were directed against the policies of the government, and were directly opposed to the foundations of the democratic structure upon which our government system is based.  Faiglin was convicted of conspiracy to frustrate the execution of government policies in Judea and Samaria. He intended to force the government to change its policies by calling upon the public to carry out unlawful actions in order to impair the operation of the government, hamper the authorities, and break down the obedience to the rule of law in the State.  His actions were a danger to “rule of law, public security and public order, as well as a danger to social stability and the stability of the government, all of which are a product of democratic elections.”  CC (Jerusalem) 3996/95 State of Israel v. Faiglin [21] (judgment of November 11, 19997). These attempts to dictate governmental activities by incitement conflict with the democratic idea, which is built upon the rule of the majority acting within the bounds of the rule of law.  These offences against the democratic public order are not mere breaches of the law—they find their foundation in the rejection of the democratic foundation of society, and the foundation of the structure of the government.  Such offences provide sufficient reason to infringe an individual’s right to be elected into the very institution that he wishes to destroy.

 

 This view of “disgrace” is consistent with section 7A of the Basic Law: The Knesset, which provides that one may not be a candidate for the Knesset if he, as evidenced by his actions, rejects the existence of the State of Israel as a democratic state. See section 7A(a)(1) of the Basic Law. Rejecting the democratic character of the State precisely means the refusal to acknowledge the sovereignty of the people, and the rejection of the rule of law. It means a desire to change the regime and government policy through force or other unlawful means.  If such actions suffice to infringe the right to be elected even where an individual has not been prosecuted or convicted for such actions, a fortiori where the individual has been convicted of offences of this character. As such, there is a connection between the concept of “disgrace” with regard to the disqualification of a candidate who has been convicted of an offence which undermines the foundations of our system, and the disqualification of a candidate whose actions—even where he has not been convicted of them—constitute a rejection of the democratic existence of the State.

 

Section 6(a) of the Basic Law; The Knesset deprives an individual of his right to be elected if that individual has been sentenced to serve more than three months imprisonment, where seven years have not yet passed since the end of his sentence. The presumption is that conviction and sentencing are sufficient to deprive one of the right to be a candidate for election, if insufficient time has passed to “expunge the disgrace” of the individual’s actions. This is the rule, and no element of “disgrace” need be found in order to apply it.  Any person who wishes to deviate from the rule bears the burden of proving that his conviction lacks the element of disgrace.  Only if he succeeds in doing so may that individual become a candidate.

 

Faiglin bears the burden of proving the absence of disgrace.  He has not carried this burden.  The offences which he was convicted of are dishonorable according to the fundamental values of the democratic regime.  This is sufficient to disqualify him from being elected for Knesset, as state in section 6(a) of the Basic Law: The Knesset.

 

President A. Barak

 

I agree with the judgment of my colleague, Vice President S. Levin.  Indeed, none contest the fact that Mr. Faiglin did not meet the provisions of section 56B(1) of the Knesset Elections (Consolidated Version) Law-1969. He did not submit a request to the Chairman of the Elections Committee to the effect that he determine that the offences which he committed were not dishonorable.  Additionally, Mr. Faiglin added a “Statement of Agreement” to the Knesset candidate list, which stated that we was able to compete in the elections. This situation led the Chairman of the Elections Committee to disqualify the petitioners’ candidacy, and I have found no cause for our intervention in this decision.

 

2.    My colleague, Justice E. Levi, elevates the significance of the fundamental rights to vote and be voted for. He emphasizes the judgments of this Court that have concretized these principles. He notes the significance of preserving these principles, especially regarding the freedom of opinion of a minority group, and regarding ensuring the fairness of the rules of the political game.  Needless to say, I agree with all of the above, and these very principles served as the basis for my opinion that it was appropriate to accept the appeal from the decision of the Central Election Committee to disqualify the Balad party list (EA 131/033 [18]), to reject the appeals regarding the Committee’s approval of Mr. Baruch Marzel’s candidacy (EA 55/03 [18] and EA 83/03 [18]), and to reverse the decision of the Central Elections Committee to disqualify MKs Azmi Bishara (EA 50/03 [18]) and Ahmed Tibi (EA 11280/02 [18]) from running in the current elections. See The Chairman of the Central Elections Committee v. Ahmed Tibi [18]

 

3.    Of course, these principles also apply to the case at hand.  However, it is not only the facts that are at issue here; we also consider the relevant statutory provisions. The language and purpose of these provisions are clear. Regarding the language of these provisions:  the law clearly provides a date for the submission of the request to the Chairman of the Central Elections Committee (“no later than the day of the submission of the candidate list”). It also provides who shall submit the request (“anyone who wishes to be a candidate.”) Regarding the purpose of these provisions: it is obvious that realizing the right to vote and be voted for involves, and even depends upon, clear and ordered rules with regard to dates, procedures and rules.  These rules should guarantee a number of interests, including the transparency of the elections, their fairness and regularity, as well as ensuring their equality. See CA 10596/02 Leah Ness v. Likud Movement, [19] at 775-76. It is not the law’s purpose to allow for its own circumvention by allowing for the submission of the request to the Chairman of the Elections Committee after the date specified by the law.  It does not allow its own provisions to be rendered superfluous by allowing requests to be submitted by one who is not supposed to do so. Its object is not to violate the principle of equality by giving an advantage to a person who submitted a request to the Chairman of the Elections Committee via a member of the Committee, while other candidates cannot do so. Thus, I am of the opinion that it is our very adherence to the fundamental principles at issue here that lead to the conclusion that the petitioner was lawfully deprived of his right to run for election.

 

4.    Though it is unnecessary, I will add that even if the interpretation that my colleague, Justice E. Levi, gives to these provisions of the law should be adopted, I find it hard to ignore the “Statement of Agreement” which the petitioner himself submitted—as required by law. Therein he noted that he read and understood the provisions of sections 6 and 7 of the Basic Law: The Knesset and the provisions of section 56 of the Elections Law. He agreed that “to the best of my knowledge and understanding, the above sections do not prevent me from running for the Knesset.” He did this despite the fact that under section 6(a) of the Basic Law it is clear that absent a determination by the Chairman of the Central Elections Committee that the petitioner’s actions were not dishonorable, he could not run, as he had been convicted and sentenced to serve over three months imprisonment and, on the day of the submission of the candidate list, seven years had not yet passed since the completion of his sentence. 

 

5.    With regard to the substantive issue—the disgrace in the petitioner’s actions—I see no reason to decide in the matter. I note, however, that in this case I agree with the position of the Chairman of the Central Elections Committee, Justice M. Cheshin, and with the opinions of my colleagues, Justices T. Strasberg- Cohen and A. Procaccia.

 

Justice E. Mazza

 

I agree with the judgment of my colleague, Vice-President S. Levin, and like him I prefer not to take a position with regard to the question of whether, under the circumstances, the offences which the petitioner was convicted of are dishonorable, as per section 6 of the Basic Law: The Knesset.

 

Justice Y. Turkel

 

Like most of my colleagues, I am also of the opinion that the petition of Moshe Faiglin should be denied. I support the reasoning of my esteemed colleague, Vice-President S. Levin. The main reason for my position is that we should have true equality between the candidates, and this aspiration cannot be realized without strictness and stringency with regard to every jot and title of the election laws. The door of candidacy must be wide open or well-locked, and cannot be only partially open or shut.

 

2.    Therefore, it is not necessary to discuss whether the offences of which Faiglin was convicted of are “dishonorable,” as per section 6 of the Basic Law: The Knesset. Nevertheless, since my esteemed colleague, Justice T. Strasberg- Cohen, commented that “the offences which Faiglin was convicted of are dishonorable,” I will briefly add my own comment.  I am of the opinion that, under the circumstances, the offences of which Faiglin was convicted of were not dishonorable. In this regard, I rely upon the reasoning of my esteemed colleague, Justice E. Levi. The following remarks by Justice H. Cohen, regarding the dishonor of offences, hold true in our case as well:

 

This dishonor means moral turpitude which, when attributed to a person, attests to the fact that that he is unfit to enter the congregation of the just, and this “dishonor” must remain with the person even after his punishment. As the verse states: “his reproach shall not be wiped away.” See Proverbs 6:33.

 

 

HCJ 436/66, [13] at 564. In this regard, Justice (as he was then) A. Barak has said:

 

The expression “offence which…involves disgrace” is vague, since the word “disgrace” is uncertain in its application. Not every offence “involves disgrace,” and there are certainly offences which are not dishonorable. The line between the different offences must be drawn according to a moral standard. In HCJ 184/73 Hudayfee v. Amar IsrSC 27(2) 746, 750 we stated that “we do not look to the formal elements of the offense, but rather to the circumstances under which the offence was committed. It is these circumstances which point to any moral severity implied in the term disgrace.”

See also HCJ 6163/92, [16] at 266; HCJ 103/96, [17] at 327; R. Gabizon, A Dishonorable Offense as a Disqualification for Holding Public Office 1 Mishpatim 176 (1965) [25]; 11 S.Z. Feller, Foundations of Penal Law 30 (1994) [23]; I. Levi & A. Lederman, Principles of Criminal Liability 20-24 (1981) [24]. Regarding the offence of incitement see F.Crim.A. 1789/98 State of Israel v. Kahane [20]; M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997) [18].

 

Indeed, the offences of which Faiglin was convicted are severe.  However, we do not look to whether the offences themselves are severe, but rather to the circumstances under which they were committed.  These circumstances, as they were described in the decision of the Magistrate Court, attest to popular sentiments of “pain,” which were “in response to harsh terrorist attacks,” and the “the opinion of many people, who have come to feel that the government does not consider their opinions or respect their views.” See pp. 8-9 of the judgment.  I find no “unforgivable shame” in such actions and, in my opinion, where a person protests against a public issue which is significant to him, and this protest is done peacefully, as is apparent from pages 9-10 of the judgment, his actions are not even slightly dishonorable. Therefore, had the decision regarding the petition rested solely upon the issue of “disgrace,” I would have granted the petition.

  

Justice B. Beinisch

I agree with the judgment of my colleague, Vice-President S. Levin.  Like him, I am also of the opinion that Mr. Faiglin’s petition should be denied, since he did not meet the demands of section 56B of the Knesset Election (Consolidated Version) Law-1969, in combination with the provisions of section 6 of the Basic Law: The Knesset.  As such, he has not met the procedural conditions for submitting his candidacy.  Nevertheless, since my colleagues have taken a position regarding the substantive matter of “disgrace,” I will not refrain from expressing my own opinion in the matter. I would add my voice to that of the Chairman of the Central Elections Committee, Justice M. Cheshin, and assent to the opinions of my colleagues, the President, Justice Strasberg Cohen and Justice Procaccia.  Like Justice Procaccia, I am also of the opinion that any person, who has been criminally convicted of an offence which is entirely directed at undermining the foundations of our democratic system and government, has been “disgraced” to the extent that he is disqualified from running in the elections. I also agree with her that there is a strong connection between the dishonor of the petitioner due to his criminal conviction, and the separate disqualification cause provided for in section 7A(a)(1) of the Basic Law. 

 

As such, the petition should be denied.

 

Justice D. Dorner

1.    I agree with the judgment and reasoning of my colleague, Vice-President S. Levin, and with the comments of my colleague, President A. Barak, in so far as they regard the denial of the petition due to the petitioner’s failure to fulfill the provisions of section 56(b) of the Knesset Elections (Consolidated Version) Law-1969.

 

The procedural rules for submitting one’s candidacy in the elections are not technical conditions which may be waived if the candidate is otherwise eligible. These are substantive conditions, which were intended to ensure the principle of equality, which is at the heart and soul of our system of election law.

 

2.    As such, there is no need to discuss the question of whether the offences of which the petitioner was convicted are dishonorable.  However, since my colleagues addressed this question, adopting conflicting positions regarding the matter, I shall also express my own opinion.

 

Incitement may, under certain conditions, constitute a dishonorable offence under section 6 of the Basic Law: The Knesset. One of the objects of this provision is to prevent the candidacy of persons who have been convicted of activity which is intended to undermine our democratic regime. At the same time, however, we should note that any activity which takes place outside of the parliament, including entirely legitimate activities such as strikes and protests, not only express the opinions of the participants but, sometimes by disrupting our daily life, are also intended to influence the government and change its policies.

 

In the matter at hand, as is apparent from the judgment of the Magistrate Court, petitioner initiated and organized protests around the country in which thousands of people participated, with the intention of forcing the government to change its policy by disrupting the order of daily life. The legitimacy of the government was denied. In its verdict, the court emphasized that the protests were not violent. Even when confronted with the violence of the police, the petitioner instructed protestors to refrain from violence. The court determined that the petitioner intended to advance views to which he was deeply and faithfully committed, and that he took a position regarding a serious public controversy. In light of these factors, petitioner received a light sentence.

 

Petitioner, as stated in the judgment of the court, exceeded the bounds of legitimate protest, and was therefore convicted. Petitioner’s actions, however, which were expressed through non-violent activities, do not involve that disgrace which disqualifies a candidate from the Knesset.  Similar to the authority to disqualify pursuant to section 7A of the Basic Law: The Knesset, the power to disqualify pursuant to section 6 of the Basic Law should be strictly construed. The offence of unlawful political protest should only be deemed dishonorable in extreme cases—which the petitioner’s case is not.   

 

Justice E. Rivlin

I agree with the judgment of my colleague, Vice-President S. Levin.

 

Section 6a of the Basic Law: The Knesset deprives an Israeli citizen, who has been sentenced to serve over three months of imprisonment, of his right to be elected to the Knesset if, on the day of the submission of the candidate list, seven years have not yet passed from the end of his sentence. The Basic Law provides only one way to remove this obstacle—the determination of the Chairman of the Central Elections Committee that the offence of which the individual was convicted is not, under the circumstances, dishonorable.

 

2.    The petitioner before us was convicted of incitement—including inciting publication and unlawful assembly.  He was sentenced to serve six months imprisonment and twelve months of probation.

 

The petitioner, as he was required, did not submit a request to the Chairman of the Central Elections Committee to determine that the offences of which he was convicted were not dishonorable. Additionally, in the statement which he submitted to the Central Elections Committee, he declared that, to the best of his knowledge and understanding, he was eligible to run for the Knesset. These omissions suffice to deprive the petitioner of his right to present his candidacy. Therefore, it is unnecessary to address the question of whether the petitioner’s conviction was, under the circumstances, dishonorable.

 

3.    With regard to offences of incitement, this Court has already stated that “it would be appropriate to consider its invalidation…and replacement with an offence which is more suitable for our system. The wording of the offence is too vague and its boundaries too wide.  It reflects a worldview which is not democratic. It suits a mandatory government, which is not a government of the people. It does not award sufficient weight to freedom of expression.” Crim.A. 6696/96 Binyamin Kahane v. The State of Israel, [12] at 585 (Barak, P.). See also Professor M. Kremnitzer & H. Ganaim, Sedition and not Incitement, Incitement in Penal Law: Legi Lata and Legi Fernada (1997) [26]. Similarly, in the Unites States, in the first half of the 20th century, there were remnants of colonial incitement laws. See The Smith Act (1940); The Subversive Activities Control Act (1950). The United States Supreme Court discussed the constitutional difficulty of applying those criminal provisions, and of their possible infringement upon the freedom of speech.  The Court clearly distinguished between mere advocacy and incitement to immediate illegal activity—between expressing invalid opinions and actually acting towards their realization. In Brandenburg v. Ohio, 395 U.S. 4442 (1969) [22], the United States Supreme Court required proof that words of incitement were intended to incite immediate illegal action, as well as requiring the probability of the materialization of the danger.

In light of the above, it is doubtful whether our offence of incitement attributes sufficient weight to freedom of speech, see Crim.A. 6696/96 [12], and this may effect the question of “disgrace.” Nevertheless, it is doubtful that this is the case here since, according to the judgment of the Magistrate Court, the petitioner’s behavior exceeded the bounds of legitimate protest.  In any case, for the reasons given by my colleague, Vice-President S. Levin, I concur with his judgment. 

May 15, 2003

 

 

 

 

 

 

 

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

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

 

 

 

 

H.C. 104/87

Dr. Naomi Nevo

v.

1. National Labour Court

2. Jewish Agency for Israel

3. Jewish Agency National Staff Committee

4. Union of Office Workers - Central Committee

 

 

In the Supreme Court sitting as High Court of Justice

[October 22, 1990 ]

Before: Bach J., Netanyahu J. and Ariel J.

 

Editor's Summary

 

                Petitioner, Dr. Naomi Nevo, was employed for many years by the Jewish Agency for Israel as a sociologist. On reaching the age of 60, she received a notice from her employers that she was to retire on pension, in accordance with the provision in the Pension Rules relating to Jewish Agency employees. This stated that the retirement age for men was 65 and for women 60.

               

                Petitioner brought an action in the Regional Labour Court asking for a declaration that the above provision was void as being discriminatory. Her action was dismissed and so was her appeal to the National labour Court. Hence, her petition to the High Court of Justice against the National Labour Court and against her employers, the staff committee and the union of office workers.

               

                In allowing the petition and making absolute the order nisi against the respondents, the Court held as follows:

               

1.       In accordance with a well-established criterion, as laid down in case law, discrimination is present wherever the principle of equality is infringed, i.e., where persons are treated differently even where there is no relevant difference between them. Accordingly, the distinction between men and women in respect of retirement age in the provision in question must be examined to determine whether it is "relevant", i.e., whether it serves any legitimate purpose.

 

          The submission of counsel for the Jewish Agency that the provision for early retirement of women conferred benefits on them, enabling them to receive pension monies earlier and taking into account the extra burden that they had to undergo over the years as wives and mothers, was not acceptable. Nor was it relevant that, as submitted, many women were satisfied with the arrangement for early retirement.

 

On the contrary, the differentiation in ages of retirement for men and women amounted to discrimination, for the following reasons:

 

a)      the age differential was irrelevant in the context of alleviation from the burden of work, there being no difference between men and women in this respect;

b)      earlier retirement for women has a number of negative social, personal and economic implications. Inter alia, early retirement may curtail a promising career and entail a lower pension payment then if the woman were allowed to continue to work for a further 5 years;

c)       there is no justification in compelling a woman who reaches 60 years of age to retire, since at that age she is relieved of much of the domestic responsibilities which made her working life more difficult in earlier years. On the other hand, allowing a woman the option to retire at 60 is acceptable;

d)      in 1987, the statute known as the Male and Female Workers (Equal Retirement Age) Law was enacted by the Knesset. This statute came into force subsequent to the judgment of the National Labour Court in the present case and after the instant petition had been submitted to the High Court. Nevertheless, from the wording of the statute and the explanatory notes to the bill that preceded it, it is clear that the legislator regarded earlier compulsory retirement for women as being discriminatory;

e)       an examination of the jurisprudence of the Court of the European Community, as well as of English case law, shows that those jurisdictions also regard differentiation in retirement age as constituting discrimination.   Moreover, it is stressed in the English cases that intention or motive to discriminate does not have to be proved - suffice it for discrimination to exist in fact.

 

Nor is there any basis in the contention that early retirement for women assists in renewing the labour force and alleviating unemployment. There is no reason why women should suffer more than men for these reasons.

 

2.       With regard to the statutory position prior to the 1987 statute, a number of provision did include a differentiation between men and women as to retirement age - as for example several sections in the National Insurance Law, the securing of Income Law, 1980 and the Severance Pay Law, 1963. On the other hand, labour legislation prior to 1987 which required equality between the sexes contained no reference to retirement age. Nevertheless, in interpreting the relevant provision in this case, the basic presumption in favour of equality and against discrimination must be applied, in accordance with the provision of section 1 of the Women's Equal Rights Law, 1951 which prohibits discrimination against women in respect of any legal act.

 

3.       The 1987 statute does not operate retroactively. However, it should not be inferred from this that therefore in the period prior to its enactment differentiation in retirement age between men and women was permissible. At any rate, contrary to the respondents' contention, the statute certainly does not deprive the petitioner of her right to postpone her retirement until the age of retirement for men.

 

4.       The High Court of Justice can justifiably intervene in the decision of the Labour Court in this case, in view of the substantial legal error in that decision and because justice requires such intervention.

 

5.       This is one of the exceptional cases where a court is justified in intervening in the content of a labour agreement for reasons of public policy, in view of the discriminatory provision which affects the rights of women.

 

6.       In view of the above, the Court must act to annul the affect of the discrimination by declaring that the offending provision in the Jewish Agency Pension Rules is totally void.

 

 

Israel Supreme Court Cases Cited:

 

[l]         F.H. 10/69 Boronowski v. Chief Rabbis of Israel, 25(1) P.D. 7.

[2]        Cr. A. 112/50 Yosifoff v. Attorney General, 5 P.D. 481.

[3]        Cr. A. 5/51 Steinberg v. Attorney General, 5 P.D. 1061.

[4]   H.C. 30/55, Committee for Preservation of Requisitioned land in Nazareth v. Minister of Finance, 9 P.D. 1261.

[5]        H.C. 953/87, 1/88, Poraz v. Mayor of Tel Aviv-Yafo, 42(2) P.D. 309.

[6]   H.C. 85/89 Beit Herut Workers Cooperative for Agricultural Settlement Ltd. v. GIazmann, 41(3) P.D. 526.

[7]        H.C. 98/69, Bergmann v. Minister of Finance 23(1) P.D. 693.

[8]        H.C. 153/87 Shakdiel v. Minister for Religious Affairs, 42(2) P.D. 221.

[9]        C.A. 337 337/61 Lubinski v. Assessment Officer, Tel Aviv, 16 P.D. 403.

[10] M.A. 166/84 (H.C. 780/83) Central Yeshiva 'Tomchei Tmimim' v.State of Israel, 38(2) P.D. 273.

[11]      H.C. 363/87 Yehuda v. Rosh Ha'ayin Local Council, 41(3) P.D. 755.

[12]      H.C. 525/84 Hatib v. National Labour Court, 40(1) P.D. 673.

[13]      H.C. 410/76 Herut v. National Labour Court, 31(3) P.D. 124.

[14] H.C. 105/87 Hebrew University of Jerusalem v. National Labour Court, 42(3) P.D. 557.

 

Israel Labour Courts Cases Cited:

 

[15]      N.L.C.H. 45/13-117 Air Services Ltd. v. Sela, 17 P.D.A. 284.

[16]      N.L.C.H. 47/2-11 'Paz'Oil Company Ltd. v. Yom-Tov, 19 P.D.A. 164.

[17]      N.L.C.H. 33/3-25 Air Stewards Staff Committee v. Hazin, 4 P.D.A. 365.

[18] N.L.C.H. 35/4-8 Israel Ports Authority v. Executive Committee of the Histadrut, 7 P.D.A. 143.

 

English Cases Cited:

 

[19]      Reg. v. Birmingham C.C. Equal Opportunities Commissions,[1989] A.C. 155 (H.L.).

[20]      James v. Eastleigh B.C. [1990] 2 All E.R. 607 (H.L.).

 

International Cases Cited:

 

[21]      Marshall v. Southampton AHA [1986] 2 All E.R. 584 (C.J.E.C.)

[22]      Defrenne v. Belgium [1974] C.M.L.R. 494.

 

 

A. Feldman, F. Raday - for the Petitioner;

H. Bar-Sadeh - for Respondent Number 2.

 

 

JUDGMENT

 

BACH J,: 1. Dr. Naomi Nevo (hereinafter: the Petitioner) was employed by the Jewish Agency for Israel, which is Respondent Number 2 (hereinafter: the Respondent), as a senior sociologist as from July 1, 1962, and as Director of Sociology in the Settlement Department as from August 1, 1983. The terms of employment of Respondent's employees, including the Petitioner, are set forth in the Jewish Agency Employees' Terms of Employment of February 1966 (hereinafter: Terms of Employment), which is derived from an agreement between the executive of the Respondent in the one hand and the Central Committee of the Union of office Worker's in Israel together with the Jewish Agency for Israel Staff Committee on the other hand. The Terms of Employment covers the Jewish Agency    Staff Pension Rules of August 1, 1953 as well, which set forth the retirement arrangements for Respondent's employees.

 

            In paragraph 6 of the Pension Rules (hereinafter: Paragraph 6) it is stated:

           

"The age for retirement on pension is 65 for a man and 60 for a woman".

           

            In accordance with this paragraph, the Petitioner was notified that she must retire from work on February 1, 1985, the date on which she would reach 60 years of age.

           

            The Petitioner viewed the aforementioned Paragraph 6 as a discriminatory provision. She applied to the Regional Labour Court in Tel Aviv requesting that it declare that the Paragraph discriminates in an invalid and prohibited manner, and that it order the Respondent to continue to employ Petitioner until age 65, or alternatively, compensate her for the losses suffered as a result of her retirement at age 60.

           

            Petitioner's employment by Respondent continued beyond age 60, following Respondent's agreement to delay Petitioner's retire­ment until the Regional Labour Court rendered its decision; however, on November 27, 1985, when the Regional Labour Court gave its decision dismissing Petitioner's complaint, her employment was terminated. The Petitioner appealed the Regional Labour Court's judgment to the National Labour Court. That Court, sitting in a seven-judge panel, dismissed the appeal by a majority and held that setting a different retirement age for men and women does not constitute invalid discrimination. Two members of the court expressed the contrary opinion in a dissenting opinion. The petition before us is to annul the majority's decision.

           

            2. The following are the focal points of the dispute in this petition:

           

            a. Does setting different retirement ages for men and women constitute discrimination?

           

            b. How should legislative intent regarding retirement age be interpreted when various social welfare enactments concerning retirement rights distinguish between men and women?

           

            c. What is the impact of the enactment of the Male and Female Workers (Equal Retirement Age) Law, 5747-1987, on this petition?

           

            d. Is it proper for a judicial forum to intervene in the labour agreement which is the subject of this petition?

           

            e. Should the High Court of Justice interfere with the Labour Court's decision in this case?

           

            f. What is the appropriate relief?

           

            We will deal with these issues respectively.

           

            A. Does Setting Different Retirement Ages For Men And Women Constitute Discrimination?

           

            3. When we are called upon to address a claim of invalid discrimination, it is appropriate that we be guided by the words of President Agranat, in F. H. 10/69[1], at page 35, when he addressed the question of when a distinction is discriminatory:

           

"One must always distinguish... between invalid discrimi­nation (hereinafter: discrimination) and a permitted distinction. The principle of equality, which is simply the other side of the coin from discrimination, and which the law of every democratic country strives, for reasons of justice and fairness, to realize, means that, as to the object concerned in hand, it is necessary to treat equally people between whom there are no substantial differences which are relevant to their object. If they are not treated equally, then we are confronted with discrimination. In contrast, if the difference or differences between various  people are relevant to the object in hand, then treating them differently as required by such object will be a permitted distinction, so long as the differences justify this".

 

            Similar statements have been made in numerous cases, including: [2] Cr.A. 112/50, at page 490; [3] Cr.A. 5/51, at page 1068; and [3] H.C. 30/55, at page 1265.

           

            Accordingly, in order to ascertain whether Paragraph 6 is discriminatory, we must examine it in light of the following question: in the instant case, is there a legitimate purpose, as to the realization of which the distinction between the genders is relevant?

           

            There are two purposes in setting a mandatory retirement age for older employees, neither of which can, at prima facie, be invalidated:

           

            A. To enable the employee to rest, in his old age, from his daily toil;

           

            B. To allow the employer to revitalize the ranks of his employees and hire new, younger manpower, to replace those who retire.

           

            Is the distinction between the genders as to retirement age relevant to the realization of these two goals?

           

            4. Learned counsel for Respondent argues that Paragraph 6 constitutes a privilege, in that in practice it confers a benefit upon women. In his opinion, the paragraph also advances the cause of equality between the genders in that it makes things easier for women, since earlier retirement age reduces the extra burden on women, engendered by the fact that the working woman is also a mother and wife. According to his argument, alongside the obligation of retiring at age 60 the privilege of receiving pension payments must be reckoned with. He adds that in his opinion (which he bases on an affidavit submitted by a female employee), many women are content with this arrangement, and many even ask to advance their retirement date immediately upon becoming eligible for full pension benefits.

 

            5. I am not persuaded by these reasons, nor by their cumulative weight, and I have reached the conclusion that the aforesaid distinction does indeed constitute discrimination.

           

            The reasoning underlying my conclusion follows, and is based in part on the arguments of learned counsel for Petitioner:

           

            A. The distinction is completely irrelevant to the alleviation of burdens. There is no support whatsoever for the proposition that as a rule women, more than men, require alleviation of burdens upon reaching the age of 60. It appears that it is precisely when male and female employees reach this age that the need for the distinction is totally eliminated. The fact that life expectancy for women is higher than that for men perhaps even points to the opposite conclusion.

           

            B. Earlier retirement does not constitute a positive advantage, but on the contrary has many negative consequences:

           

            (l) Retirement from work has many negative personal, mental and social consequences. Frequently, a person who retires from his employment because of his advancing age feels that he is no longer a participant in the productive sector of society. He feels that he has been deprived of the satisfaction of working and receiving compen­sation for his labour. This feeling is also strengthened by society's attitude, which in many cases treats him as an "old man" who no longer serves any useful purpose. The situation is more acute in our day, where average life expectancy has increased and people remain healthy even at an advanced age. For this reason, the number of years have increased in which an older person, of sound body and mind, is forced, despite his capabilities, to leave his activities in the labour market and gaze, frequently in frustration, on the progression the accordingly of life's activities in which he can no longer take part.

           

            (2) Imposing an earlier retirement age on women also has negative economic consequences:

 

            (a) A woman who has not worked sufficient years to be eligible for full pension benefits loses 5 years in amassing these benefits. This is the Petitioner's situation, where at the age of 60 she had accrued a pension rate of 55.3% of the salary determinative for pension purposes; whereas were she allowed to retire at age 65, the aforementioned rate would increase to approximately 69.3%.

           

            (b) Women lose five years of salary. A full salary with benefits is much higher than a pension payment.

           

            (c) Frequently, it is precisely at the end of a person's working years that he reaches the height of his career, and also his highest salary. Loss from early retirement arises both from loss of the higher salary itself, and from the fact that the pension allowance - calculated as a percentage of salary at the time of retirement - is lower.

           

            (3) In Positions requiring lengthy academic training, such as that of the Petitioner, entry into the labour market generally occurs at a relatively late age. For the employee to utilize his full potential for advancement, he needs to take advantage of working years later in life.

           

            The problems of extracting the full potential for advancement is particularly acute in the case of women. Many women cannot devote the bulk of their energies to work during the period when they are bearing and raising their children. As a result they lose many years necessary for career advancement. The early retirement requirement is therefore likely to harm women in particular.

           

            (4) Earlier retirement age is also likely to have consequences on career progress in the period preceding retirement. This is because of the employer's tendency to prefer advancement of an employee with a later retirement date.

           

            Let us illustrate this with a practical example: a position of department head becomes vacant in a particular office, and two of his deputies are competing for the same position. Let us assume that both of them have equal experience and similar qualifications, and they are both 58 years old. However, one of the candidates is a woman and the other a man. Undoubtedly, the man in this case will have a conspicuous advantage given that the members of the selection committee know that if he is chosen he will be able to fulfil his position over the course of 7 years, until retirement age, whereas the woman will have to retire after two years, namely, shortly after "learning the ropes" in the new position.

 

            C. It is difficult to appreciate the conceptual reason for this discrimination, particularly when it operates at the age of 60. It is possible to understand and justify a certain difference in approach to employment conditions of men and women at earlier stages of life. During the years when a woman is fulfilling her role as a mother to small children, she is entitled to consideration, primarily regarding hours of employment and vacations, and not requiring has to carry out tasks involving particular physical exertion. However, when a woman reaches the age of 60, and her children in most cases have already left their parents home and established independent lives of their own, it is precisely at this moment that the woman, if she is interested, is able to make more available devote more time to work. To force her, because she is a woman, to retire from her work at this stage of her life and abandon the realization of her hopes in this area is indeed discrimination, which under modern conditions of life seems unjustified, unreasonable, and unacceptable.

           

            I do not find fault with giving women the option to retire; this is likely to be to the advantage of all concerned. But there is no justification for the arrangement whereby the woman is obligated to retire, while a man employed in the same job and at an identical age, is entitled to continue working.

 

            D. The fact that creating a gap between the mandatory retirement age for women and the corresponding age for men constitutes unjustified discrimination has in fact also now been recognized by the legislature also with the enactment of the Male and Female Workers (Equal Retirement Age) Law on March 17, 1987 (hereinafter: Retirement Age Law).

           

            The term "retirement age" is defined as follows in section I of this Law:

           

'"Retirement age' means the age on attaining which a male or female worker must retire from employment in accordance with the provisions of a collective agree­ment applying to him or her".

           

            Following this is section 2 of the Law, which states:

 

"When a collective agreement prescribes for a female worker a retirement age lower than that prescribed therein for a male worker, then, notwithstanding anything provided in that collective agreement, the female worker shall have the right to retire from employment at any age between her retirement age and the retirement age prescribed for a male worker".

 

            In the explanatory notes accompanying the Male and Female Workers (Equal Retirement Age) Bill, 5747-1987, it is made clear that the purpose of the law is to eradicate the unjust discrimination between the sexes in this area. And it is stated therein, at page 106:

           

"The retirement age currently provided in collective agreements creates discrimination between men and women in that a female employee is forced to retire in most cases five years before the retirement age for male employees.

 

The requirement that she retire earlier directly harms her potential for advancement at work, the salary she receives, and her ability to accumulate pension rights. The aim of the bill is to eliminate the existing discrimina­tion in this matter and prescribe the same retirement age for male and female employees".

 

            Arguably, the legislature in this Law allows for a certain disparity between the sexes and in this mistural creates a certain discrimination to the man's detriment, in that women are granted the option of earlier retirement, which is not granted to men. But this argument is only superficially logical. The primary purpose of this law is indeed to eliminate discrimination in the mandatory retirement age gap, but this fact is not contradicted by the legislature's desire not to deprive women of the right to earlier retirement, to which they are entitled under a collective agreement.

           

            The matter is explained thus at the end of the aforementioned explanatory notes to the bill, where it is stated:

           

"Nevertheless, it is proposed to allow the female employee, to the extent she so desires, to preserve her             right to retire from employment before the uniform retirement age, if she has such a right under the collective agreement applicable to her".

 

            The aforementioned Law was passed by the Knesset after the National Labour Court had handed down its decision in this case and after the instant petition was filed. Since it is not stated that the Law has retroactive effect, it does not apply to Petitioner's case. However, it is certainly possible to learn from that Law, and from the reasoning in the explanatory notes to the bill, that the above-mentioned distinction between men and women in a collective agreement constitutes invalid discrimination.

           

            E. The principle that a gap between the mandatory retirement age for men and women constitutes invalid discrimination has been recognized in international case law as well. An instructive and leading example of this can be found in the decision of the Court of Justice of the European Communities in the matter of Marshall v. Southampton AHA (1986)[21].

           

            This decision dealt with the appeal of an English woman who had served as senior officer in a public institution and whose employment was terminated the age of 62, against her will, for the sole reason that she was a woman and the retirement age for women was 60, as opposed to the corresponding age of 65 for men. The woman appealed to the court of the European community and argued that terminating her employment constituted gender discrimination, and that it was, inter alia, a breach of EC Council Directive 76/ 207.

           

            These provisions include at the outset general guidance, which states:

 

"Equal treatment for male and female workers consti­tutes one of the objectives of the Community, in so far as the harmonization of living and working conditions while maintaining their improvement are inter alia furthered" (ibid. [21], at 588).

 

            Within the framework of this general guidance, and with a view to its realization, Article 5 of the Directive states:

           

"1. Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimi­nation on grounds of sex.

 

2. To this end, member states shall take the measures necessary to ensure that ... (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employ­ment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended..."(ibid. [21] at 589).

 

            And after an exacting analysis of all the relevant arguments, the court reaches at the following conclusion:

           

"...for an employer to dismiss a woman employee after she has passed her sixtieth birthday pursuant to a policy of retiring men at the age of 65 and women at the age of 60 and on the grounds only that she is a woman who has passed the said age of 60 is an act of discrimination prohibited by art 5(1) of Directive 76/207" (ibid., at 591).

 

            6. No doubt it is highly likely that many women are satisfied with the existing situation, and they view the possibility of early retirement on pension as constituting a right. However, as noted above, this right is secured by the option to retire on pension at age 60, and the desire to grant this right does not require or justify forcing the woman to retire at that age even against her will.

           

            7. Respondent's arguments and the Labour Courts' holdings emphasized that the motivation for including Paragraph 6 in the Pension Rules and including a similar paragraph in other collective agreements was not to discriminate against women, but, to the contrary, to alleviate their position.

           

            I am prepared to assume that Petitioner's employer did not intend to discriminate against her and the other female employees when it signed the Labor Constitution. However, the Respondent's intentions are not conclusive as to the question that we are called upon to determine, because the test for assessing the existence or nonexistence of discrimination is objective and not subjective. The motive for creating a distinction between men and women is not determinative in the matter addressed, and for the purposes of determining the existence of discrimination, it is necessary to examine the final outcome as it appears in social reality.

           

            English case law concerning gender discrimination has been decided in a similar spirit. In the House of Lords decision in the appeal of Reg. v. Birmingham C.C. Ex p. Equal Opportunities Commission (1989) [19], the question of whether arrangements, which resulted in the situation that girls needed better marks than boys to be accepted for certain schools, constituted invalid discrimination.

           

            Lord Goff held in this case, at page 1194, as follows:

           

"There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned ... is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex".

 

            An even more far-reaching decision, only recently handed down by the House of Lords in England - James v. Eastleigh B. C. (1990) [20] - addressed the complaint of a 61 year old man against the local council. The man complained about the fact that he was charged an entrance fee to a public swimming pool, while at the same time, his wife, who was the same age, entered the pool without charge. The difference arose from the fact that the wife was on pension, while the plaintiff would be entitled to free entrance as a retiree on pension only at the age of 65. The House of Lords found that this distinction constituted discrimination against the man on the basis of his sex. I see no need to comment on the result reached by the House of Lords in this case. However, I wish to rely upon the following principle, set forth in the decision at page 612, as follows:

 

"The council in this case had the best of motives for discriminating as they did. They wished to benefit 'those whose resources were likely to have been reduced by retirement' and 'to aid the need [sic], whether male or female'. The criterion of pensionable age was a convenient one to apply because it was readily verified by possession of pension book or a bus pass. But the purity of the discriminator's subjective motive, intention or reason for discriminating cannot save the criterion applied from the objective taint of discrimination on the ground of sex".

 

            8. As to the second purpose in setting a compulsory retirement age, i.e., in order to replenish the ranks of the employees, I do not see that it is in any way relevant to distinguishing between the sexes. The Manufacturers' Association of Israel, which was requested by the National Labour Court to express its opinion in the appeal, claimed that acceptance of the appeal is contrary to the best interests of the national economy because of the unemployment problem. It is difficult to understand why it is necessary to sacrifice particularly the female public in order to achieve this important purpose. In my opinion, it is best that we ignore this rationale.

           

            Consequently, from this perspective as well there is no reason to compel women to retire on pension at an earlier age, so that here again it is obvious that the discrimination is invalid.

 

            9. Discrimination is a menace which engenders a feeling of deprivation and frustration. It impairs both the sense of belonging and positive motivation to participate in the life of society and contribute to it. A society in which discrimination is practiced is an unhealthy one, and a state in which discrimination is practiced cannot be regarded as properly governed. It is worth noting in this regard the words of my colleague Justice Barak, in H.C. 953/87, 1/88 [5], at page 332:

 

"...there is no more destructive force in society than the sense among its members that they are subject to different Standards. The sense of inequality is one of the most oppressive feelings. It harms the forces which unite society. It harms man's self-image".

 

            It appears that there is not always sufficient vigilance regarding discrimination when it works against women. As to this matter, see for example the facts which formed the background for C.A. 89/85 [6], at page 531.

 

            Let us assume, hypothetically, that the early retirement age were to apply to the members of a particular community, for the reason that that community prefers to remain within the family circle and regard participation in the labour market as secondary, and that compulsory retirement constitutes special protection for them because of the great burden they bore during their early years. I have no doubt whatsoever that a generalization of this type, and the resultant determination, would be immediately portrayed as blatant discrimination. Certainly I would in no way need to enumerate the general negative consequences of this distinction to support the determination that we have here is invalid discrimination.

           

            When a court encounters a distinction between groups, it must scrutinize closely whether this distinction is based on stereotyped general perceptions, which are based on nothing but prejudice.

           

            Upholding the discriminatory retirement age distinction between men and women may reinforce the view that women cannot be equal in the labor market, and in practice this may impair equality of opportunity for women.

           

            I find the above sufficient to determine that Paragraph 6 is a discriminatory paragraph, and accordingly reverse the decision of the majority in the National Labour Court.

           

            However, the labour Court's main line of reasoning in determining that the paragraph is not discriminatory was based on legislation which in its opinion amounted to constitutional approval, direct or indirect, of the distinction between women and men in all matters related to compulsory retirement age.

           

            We will now address this reasoning.

           

            B. How should the legislative intent regarding retirement age be interpreted, in light of the legal situation existing at the time the decisions were given in the Labour Courts?

           

            10. First we shall review the legal situation regarding retirement age, as it was when the Petitioner's matter was addressed by the labour courts, i.e., prior to the enactment of the Retirement Age Law.

           

            In legislation expressly providing for retirement age for employees, no distinction whatsoever was made between the sexes. Thus, in paragraph 18(a) of the State Service (Benefits) Law [Consolidated Version], 5730-1970, a uniform retirement age of 65 was set for all employees in the civil service; in paragraph 18(a)(l) of the Courts Law [Consolidated Version], 5744-1984, the retirement age for judges was set at 70 with no distinction between the sexes; and in paragraph 13 of the Israel Defence Forces (Permanent Service) (Benefits) Law [Consolidated Version], 5745-1985, the uniform retirement age was set at 40.

           

            On the other hand, in the social welfare legislation a distinction is made between the sexes as to the age at which entitlements to various benefits begins or ends: the age of 65 for men and 60 for women. In the National Insurance Law [Consolidated Version], 5728-1968, this distinction is repeated several times: Section 12 (a) regarding qualification for old-age pension, section 127C(a) regarding entitlement to unemployment allowance, section 127U regarding entitlement to general invalidity insurance, section 127Y(c) regarding non-cessation of invalids' entitlement to special services, section 127AP regarding entitlement to vocational rehabilitation and section 127AU(a)(1) regarding entitlement to vocational training. In section 2(a)(4) of the Assurance of Income Law 5741-1980, the distinction exists regarding entitlement to assurance of income, and in section 7A of the Invalids (Pensions and Rehabilitation) Law [Consolidated Version], 5719-1959, regarding entitlement to pension supplements. This is also the case in section 33A of the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 5710-1950, regarding the obligation of an employer to continue to employ a worker beyond retirement age, and in section 11(e) of the Severance Pay Law, 5723-1963, regarding dismissals beyond the age of 60 in the case of a woman, and 65 in the case of a man.

 

            There is another reference to the age distinction of 60 for a woman and 65 for a man, not in the area of social welfare legislation, in section 3(a) of the Emergency Labour Service Law, 5727-1967, regarding retirees who are liable to Labour service during emergency situations.

           

            In the legislation which addressed the requirement of equality between the sexes up until the enactment of the Retirement Age Law, retirement age was not cited among the areas in which equality is required. The Male and Female Workers (Equal Pay) Law, 5724-1964, only dealt with pay; section 42(a) of the Employment Service Law, 5719-1959, provides that the Employ­ment Service shall not discriminate between the sexes in referrals to places of employment; the Employment (Equal Opportunities) Law, 5741-1981, dealt solely with equality in acceptance has emplagment and in creational training, and its replacement (which was enacted after the beginning of the litigation in the Petitioner's matter) - the Employment (Equal Opportunities) Law, 5748-1988, provides that an employer shall not discriminate against women in hiring, work conditions, job advancement, training or continuing education and in dismissals or severance pay. Retire­ment age, accordingly, did not fall within the areas in which the legislator expressly required equality.

           

            In those sectors where the legislature did not prescribe a retirement age, the matter was determined in Labour agreements between employees and employers. Regarding Histadrut employees it was provided in 1983 that the retirement age between the sexes would gradually be equalized. Nonetheless, it may be said that as a rule the distinction between the sexes regarding retirement age existed in most of the labour agreements at the time that Petitioner's matter was considered by the labour courts.

 

            11. On the basis of the above, the two labour courts, the regional and the national, held that the distinction between the sexes regarding retirement does not fall within the realm of discrimination.

           

            Their conclusions were three-fold:

 

            a. The legislature regulated the provision of benefits linked to retirement on pension in accordance with the non-uniform retirement age set forth in the relevant labour agreements. Thus the legislature made it clear that it agreed with the distinction provided for in those agreements.

 

            b. The fact that in the laws in which the legislature regulated retirement age, it established a uniform retirement age, indicates that its failure to deal with the retirement age as to other sectors was intentional.

 

            c. In the statutes relating to equality between the sexes (until the Retirement Age Law) there was no reference to retirement age. Hence, the legislature did not view the distinction between the sexes in this matter as amounting to discrimination.

 

            I quote from the opinion of the National Labour Court*:

 

"It is a basic assumption that a distinction in a statute is 'reasonable', and does not contradict public policy or create invalid discrimination, so why should an iden­tical provision in a collective agreement or collective arrangement be viewed as creating invalid discrimination?"

 

            12. Respectfully, I do not accept these conclusions.

 

            I accept the statement of the Labour Court that it is a basic assumption that the legislature does not discriminate. Accordingly, where there is a doubt as to the right interpretation uncertainty, the enactment must be understood in light of that basic assump­tion. That is, that interpretation must be applied which accords with the basic principle of equality and lack of discrimination and with the Women's Equal Rights Law, 5711-1951, which gives legislative force to this basic right, specifically, as to women.

 

            In other words: when a question of interpretation comes before this Court, it is entitled, and even obligated, to uphold the basic freedoms and to interpret the legal issues that come before it in their light. In the words of Justice Landau, in H.C. 98/69 [7], at page 698: "It is... only right - precisely in the borderline cases where a statutory provision can be construed in two ways - that we prefer the construction that upholds the equality of all persons before the law over one that sets it at naught". And as Justice Barak stated in H.C. 153/87 [8], at page 274: "Between two possible interpretations, we must choose that which guarantees equality in the optimal sense, and reject the interpretation that contradicts equality".

           

            Furthermore, the Women's Equal Rights Law states in section 1:

 

"A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal pro­ceeding, against women as women, shall be of no effect".

 

            Retirement from work constitutes a legal proceeding. As a consequence of this act, the status of a person is changing, and his rights and duties are altered (and see Justice Witkon's broad interpretation of the term "legal act" in section 1 of the Women's Equal Rights Law in C.A. 337/61 [9], at page 406). Accordingly, we should not prima facie draw inferences as to the matter before us from statutory provisions which refer to the distinction between men and women in other matters unrelated to retirement age. I would also not assign great weight to the argument that the Women's Equal Rights Law cannot be given special status, and that therefore subsequent enactments may contradict it:

 

"The basic conception is, that in enacting a new statute, it is the legislature itself that must repeal or narrow down the old Statute. If the legislature has not done so, the assumption is that it wanted to give effect to both statutes, simultaneously the other, each according to the scope required by its terms".

 

            So held Justice Barak in H.C. 953/87, 1/88 [5], supra, at page 334, in addressing the meaning of the Jewish. Religious Services Law [Consolidated Version], 5731-1971, as against the Women's Equal Rights Law which preceded it.

           

            This statement is true whenever we consider two statutes which may contradict each other. But in our case we must give even more weight to the Women's Equal Rights Law. This statute reflects an important and fundamental value, a principle which shapes life in our state as a well-ordered state. The Women's Equal Rights Law proclaims a value which should encompass our entire legal system. Accordingly, where a matter which contradicts that statute is not expressly stated, the interpretation of the statute compatible with the principle of equality between the sexes must be preferred.

           

            This statement is all the more true in the case before us, where it is merely sought to draw an inference from other statutes which contradicts the Women's Equal Rights Law.

           

            We will now address the labour courts' reasoning anew, against the background of the principles we outlined above.

           

            It should not be inferred from the legislature's silence regarding labour agreements which create a distinction in retirement age that it intended to approve this discrimination. This also applies to silence on the part of the legislature regarding retirement in statutes relating to women's rights. The fact that the legislature set a uniform age whenever it dealt expressly with retirement age can perhaps be interpreted in two ways, but I think the preferable conclusion is that this fact also points more in the direction of negating sex discrimination in this area.

 

            This is particularly so in light of the enactment of the Retirement Age Law, which clearly takes exception to that discrimination.

           

            Section 12 of the National Insurance Law [Consolidated Version], which sets forth the age of entitlement to old-age pension, is the enactment closest to our issue. This paragraph does obligate a woman to retire at age 60, but rather permits receipt of the pension from this age onwards. The distinction protects women in practice from the creation of a double injustice. For in the existing situation, if the entitlement to old-age pension were determined in an equal manner (that is, starting at age 65), the woman who retires in accordance with labour agreements would suffer a shortfall for 5 years. This paragraph, accordingly, permits the woman to retire safely at age 60, but it does not require this.

           

            It is to be noted and emphasized that the same argument was considered at length in the decision in Marshall [21], supra. There too the authorities relied upon welfare legislation, according to which a woman was eligible for pension at age 60, while a corresponding age of 65 was established for men. It was argued that it should be deduced therefrom that the existence of a gap regarding mandatory retirement age between men and women does not constitute invalid discrimination.

           

            The court rejected this claim, holding, inter alia, at page 599:

           

"... a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex. . . ".

 

            Accordingly, it was held that a woman's obligation to retire at age 60 should not be inferred from such legislation.

           

            A similar claim was also raised before the House of Lords in the James [20] decision, supra, and there too it was held that the notion that discrimination is permitted should not be inferred from the existence of various statutes establishing benefits for women from age 60 and for men only from age 65, and in the absence of an express statutory provision permitting as much, discrimination of this nature is forbidden. The decision held at page 613, as follows:

           

"Statutory pensionable age is still used in some other statutory contexts ... as the basis of entitlement to enjoy certain other benefits or concessions... But it is impossible to infer from these or any other specific statutory provisions requiring or authorising discrimi­nation in defined circumstances the existence of a general exception to the prohibition of sex discrimi­nation in the provision of goods, facilities and services imposed by s. 29 of the Sex Discrimination Act 1975 such that discrimination in favour of women and against men between the age of 60 and 65 is always permitted. In the absence of express statutory authority derived from some other enactment, such discrimination is prohibited".

 

            In sum:

 

            It is true that the statutory provisions which indicate on their face the legislature's recognition of differences between men and women for specific purposes, including the age at which they are entitled to pension, cannot be ignored. However, it should not be deduced, by way of interpretation, that the legislature has thereby granted permission for establishing a gap between man and woman regarding compulsory retirement age. For this, explicit legislation would be required. No such legislation exists, but on the contrary, wherever the compulsory retirement age is referred to in connection with a specific category of employees, a uniform age is provided, and it is now explicitly prescribed in the Retirement Age Law that this type of gap is invalid and should not be put into practice.

           

            C. Significance of the Retirement Age Law

           

            13. Thus we arrive at the question: how does the Retirement Age Law directly impact upon our issue?

           

            We already noted above that the Retirement Age Law was enacted on March 17, 1987 (namely, after the National Labour Court handed down the decision in this case, and after the petition was filed), and as the text of the Law does not indicate a date on which it comes into force, it is in effect from the date of its publication (March 26, 1987), and onwards.

           

            Learned counsel for the respondent (who submitted his brief after the Law was enacted) argues that this Law answers the question presented in this petition, and that accordingly considera­tion of the petition is unnecessary because it is solely theoretical. He bases his statement on two decisions of this Court: M.A. 166/84 (H.C. 780/83) [10] and H.C. 363/87 [l l].

           

            Respectfully, I do not accept this argument. In the two decisions noted, statutes were considered which retroactively settled the problem on which this petition was based. In those cases, since the legislature had dealt with the matter, there was no further room for the involvement of this Court. In the case before us, the legislative arrangement does not apply retroactively to the Petitioner, so that her problem remains as it was. Accordingly, this proceeding is not superfluous.

           

            As stated, the legislature did not make any statement as to how to act during the period preceding the effective date of the Retirement Age Law. On the one hand, it could be inferred from the fact that the legislature established an effective date from that point onwards, that in so doing the legislature answered the question in the negative. According to this interpretation, a woman's right to choose when to retire between the ages of 60 and 65 should not be applied retroactively. This possibility is certainly reasonable, since retroactive application is likely to bring with it uncertainty and disorder in the economy. Likewise, since this law is a result of a social process, it is only reasonable to fix a point in time when the social change, on account of which the law was enacted, "crystallized", so to speak.

           

            On the other hand, it could be argued that this statute is merely the unavoidable result of a social and legal situation. For, as shown above, the same result would have been reached even if it had not been enacted (I will not enter here into the question of whether the Retirement Age Law really institutes the desired equality. For purposes of this issue, it is sufficient that women were given the opportunity to retire at an age equal to the retirement age for men). Moreover, it is unsatisfactory that the statute which eliminated discrimination against women on retirement is that which will deny relief to the Petitioner; while if the statute had not been enacted, the Petitioner would have been entitled to it.

           

            In practice, a problem of interpretation arises here, the method of clarifying which we have already considered in the previous section: when several possible reasonable interpretations arise, we prefer that which upholds basic rights over the option which limits them. Accordingly, I find that the enactment of the Retirement Age Law does not negate the Petitioner's right to retire at an age equal to the retirement age for men.

 

            It could be queried whether we are not thus undermining the purpose of the law. For there is no doubt that along with the goal of achieving equality in retirement, the legislature apparently sought to achieve another goal: application of the change in an organized fashion, with the aim of preventing uncertainty, legal claims, excessive monetary expenses, and so on.

           

            I therefore wish to make it clear that my holding herein is merely that the Retirement Age Law does not preclude the Petitioner, who claimed her right to retirement on the basis of equality before she left her job, and before the Retirement Age Law was enacted, from being entitled to that right.

           

            I do not see the need, within the context of this petition, to express an opinion regarding the potential influence of this decision on the situation of other women in positions similar to that of the Petitioner, in that they too were forced to retire on pension at age 60. The same applies to the question of whether women, who reconciled themselves to the situation and retired without resorting to litigation, will now be able to request cancella­tion of the arrangement which has entered into affect for them.

           

            I will note only the existence of a precedent for limiting the application of a fundamental decision regarding women's equal rights in the case law of the Court of the European Community:

           

            Judgment was given in favour of the plaintiff in the case of Defrenne v. Belgium (1974) [22], which also concerned discrimina­tion between men and women, being an equal pay for equal work claim. However, the Court placed a time limit on the effect of the rule which it laid down in this decision, holding that the Court would not entertain claims submitted for the balance of salary for periods preceding the date of the decision (see regarding this matter E.C. Landau, The Rights of Working Women in the European Community (Luxembourg, 1985) 23-26).

           

            However, as noted above, I do not intend to decide this issue, which does not concern the Petitioner.

           

 

            D. Will The High Court of Justice intervene in the Labour Court's decision in this case?

           

            14. In H.C. 525/84 [12], President Shamgar dealt at length with the topic of the High Court of Justice's intervention in the decisions of the Labour Court, reviewing the development of the case law on the topic. In summing up his remarks, the President reaches the conclusion that the test is two-fold (see page 695 of the judgment):

           

            (l) Whether substantial legal error has been disclosed in the Labour Court's judgment;

           

            (2) That justice requires intervention in the Labour Court's decision.

           

            I have no doubt that the present case justifies our intervention. The determination that the said distinction does not fall within the definition of discrimination is a substantial legal error. Justice requires the intervention of this Court, since Petitioner was denied the basic rights of equality and freedom of occupation.

           

            E. Is it appropriate that a judicial forum intervene in the labour agreement which is the subject of this petition?

           

            15. Collective labour agreements and collective labour arrange­ments are the outcome of negotiations between employee representa­tives and employers. As a contract, they reflect the will of the parties, and accordingly, in light of the principle of freedom of contract, the court should abstain from intervening in its content as far as possible. There is considerable intricacy in a collective agreement or arrangement, and the various terms constitute a part of a whole in which every detail is part of a system of balances and compromises at which the parties arrived in their deliberations. Moreover, since agreements of this nature affect a broad community, the fact that many parties rely upon its content must be considered.

           

            In the National Labour Court's judgment it is stated that the specific provision we are dealing with here "is the result of collective negotiations between two of the central organizations in labour relations in Israel - the General Federation of Labour (Histadrut) and the Manufacturers' Association, and the Terms of Employment obligating the Jewish Agency and its employees is also the result of a bilateral arrangement, to which the largest employee organization in the State is a party". These remarks show clearly the extent of the effect of the agreement with which we are dealing. I will accordingly repeat the Labour Courts ruling (N.L.C.H. 45/117-13 [15], at page 289; N.L.C.H. 47/11-2 [16], that the Court will intervene as little as possible contents of collective agreements or arrangements.

           

            I think that this case is among the few in which the Court will intervene in the contents of a labour agreement, despite the principles noted above.

           

            In N.L.C.H. 33/25-3 [17] the National Labour Court held that courts are authorized to intervene in the contents of a collective agreement for "public policy reasons" pursuant to section 64 of the Ottoman Civil Procedure Law. In our case, the relevant section is section 30 of the Contracts (General Part) Law 5733-1973 (here­inafter: the Contracts Law), which states: "A contract the making, contents or object of which is ... contrary to public policy is void". Section 31 of the Contracts Law provides that section 19 of that Law should apply to section 30. Section 19 states that "Where a contract is severable, and the ground for rescission relates only to one part thereof, such part alone shall be capable of rescission.

 

            It is appropriate to quote the following statement from N.L.C.H. 33/25-3 [17], supra, at page 378:

           

"...If in a regular contract the court will invalidate a provision which contains 'discrimination' which is contrary to 'public policy'- all the more so in the case of a collective agreement. Just as in the administrative law area the Supreme Court did not hesitate to invalidate 'discrimination', there is likewise no room for such hesitation where a collective agreement is concerned. In its contractual part, the collective agreement is nothing but a contract between the parties; in its normative part - it is closer to legislation, by imposing norms on the individual through an external source, a source which represents the individual's interests, but not the individual qua individual. If in a regular contract a provision which the individual explicitly agreed to would be invalidated because of 'public policy', it is that much more appropriate to invalidate for the same reason this type of provision when it applies to the individual because of his being a member of a larger group...".

 

            In H.C. 410/76 [13], at page 130 et seq., Deputy President Landau (as he then was) adopted this rule (although the case ruled otherwise on the merits).

           

            I consider it right to apply this ruling to the matter before as also. Paragraph 6 creates a discriminatory arrangement which impairs the rights of women to participate equally in the domain of labour. Accordingly I believe that this paragraph is contrary to public policy, and therefore it is right for this Court to intervene and nullify it.

           

            It should be further noted, that if the aforementioned applies as to collective labour agreements, which were duly signed and registered, then this statement is certainly correct regarding other labor agreements, such as the "Terms of Employment" which is the subject of our present discussion.

           

            Respondents' counsel argues that work and retirement conditions are areas which the employees and employers must shape in the course of their negotiations, and if indeed a social change has occurred which justifies a change in the retirement age of women, the Petitioner should have waited until the signing of a new labour agreement, which would reflect the change.

           

            This argument cannot justify acquiescence in a discriminatory distinction for so long as it is contained in an existing agreement. The judge who wrote the minority opinion in the National Labour Court commented on this topic as follows*:

           

"Notwithstanding the importance of the parties' positions in labor relations, I reject reliance on this agreement as a basis for justifying distinctions in retirement age. If the courts in the United States would have taken this approach when they came to determine the justification for discrimination between whites and blacks, it is doubtful whether this discrimination would have been invalidated even to this day".

 

            16. To conclude the elucidation of this point I see the need to mention in this context once more the provisions of section 1 of the Women's Equal Rights Law, which, as noted, states:

           

"A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal proceeding, against women as women, shall be of no effect".

 

            If this is the legislature's guidance regarding the interpretation and application of a statute, it is all the more necessary to act in this manner regarding the application of a labour agreement and the determination of its validity.

           

            F. What is the appropriate relief?

           

            17. The National Labour Court held in its judgment that, even had it reached the conclusion that Paragraph 6 is discriminatory, it would have been precluded from granting the Petitioner relief. The court based its decision, inter alia, on the fact that a condition for declaratory relief is that "the situation as to which a declaration is sought is clear and unambiguous" (N.L.C.H. 35/98-4 [18], at page 158), a condition which in the court's opinion does not exist herein.

           

            The court raised the question of which is the optimal state of equality - making the retirement age of men equal to the retirement age of women (that is, 60) or the opposite? The ambiguity raised by this question was one of the reasons for the National Labour Court's decision that declaratory relief should not be granted. At first sight, we are also confronted with this dilemma. For who can assure that it is more correct to make the retirement age of women equal at 65 than to make the retirement age of men equal at 60; or should it be held, as it is now set forth in the Retirement Age Law, that the retirement age of 60 is optional for women?

           

            True, we described the negative consequences of early retire­ment at the outset of the judgment, but at the same time we have not ignored the fact that there are those who view early retirement (women as well as men) as an arrangement which benefits the worker.

           

            But it seems to me, after additional consideration, that this problem may be overcome without particular difficulty.

           

            The accepted age for retirement on pension today is 65. This is the age fixed in the agreement in question as the retirement age for men, and the Petitioner seeks to eliminate the discrimination which acts against her in Paragraph 6 and make her situation equivalent to that of men in all matters related to the compulsory retirement of employees.

 

            As we have found that there is indeed invalid discrimination as to this point, and that this discrimination is not based in a statutory provision, we must act to eliminate it and grant the Petitioner the requested relief.

           

            18. In light of everything stated herein, I would recommend to my esteemed colleagues that we make the order nisi absolute, in the sense that it is declared that that part of Paragraph 6 which sets forth a different compulsory retirement age for women is null and void .

           

            The parties are required to engage in negotiations on the practical effects of this judgment regarding Petitioner's rights. If an agreed-upon solution in this matter is not found within a reasonable time, the Petitioner may once again apply to the Regional Labour Court regarding this matter.

           

            Respondent shall pay costs to the Petitioner in the sum of 6,000 NIS, as of today.

           

            NETANYAHU J.: It saddens me that in the Israel of our day it was not clear and self-evident that forcing the retirement of a woman from her work at an earlier age than a man constitutes discrimination.

           

            Ever since the generation of the founders and pioneers, women have taken, and continue to take in our day, an equal part with men in endeavour in all areas of life, and do not lag behind men in doing so, despite the additional burdens women bear as wives and mothers.

           

            In my view, the discrimination is reflected not only in the financial loss she suffers from her retirement at a younger age, but also, and in my opinion, primarily, in that she is precluded, at precisely the age where she is more free to do so, from achieving, fulfilling, and flourishing in the realization of her various talents and skills.

           

            I associate myself with the opinion of my colleague Justice Bach that Paragraph 6 of the collective agreement is invalid as being discriminatory.

           

            ARIEL J.: I agree. In H.C. 953/87, 1/88 [5], cited by my colleague the Hon. Justice Bach, I was given the opportunity and privilege to make, inter alia, the following statement, at page 342:

           

"The equal status of women within the context of the principle of the equality of the sexes is not merely formal, and it should and must extend in a practical and real manner across all fields of our lives".

           

            Hence, it is clear that I am in agreement with the conclusions reached by my esteemed colleague, in consideration of the reasons presented by him.

           

            As to our intervention in the ruling of the National Labor Court, I am persuaded that in this case intervention in the National Labour Court's decision is also justified by the position I expressed in H.C. 105/ 87 [14], at page 567-568, regarding the need to confine this Court's intervention in judgments of labour courts solely to cases in which intervention is necessary to do justice, since we are involved here with a ruling with impact upon the law in general.

           

Judgment given on October 22, 1990. Decided as stated in the judgment of  Bach, J.

HCJ 5853/07

Emunah — National Religious Women’s Organization

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Knesset

4.   Haim Ramon

HCJ 5891/07

1.   Tmura — the Legal Struggle against Discrimination Centre

2.   Ahoti for Women in Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Haim Ramon

HCJ 5914/07

Legal Forum for the Land of Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Attorney General

4.   Knesset

5.   Haim Ramon

 

The Supreme Court sitting as the High Court of Justice

[6 December 2007]

Before Justices A. Procaccia, A. Grunis, E. Arbel

 

 

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

 

Facts: MK Ramon was convicted of committing an indecent act. According to statute, a person is barred from being a member of the Knesset or a cabinet minister only if he has been convicted of an offence involving moral turpitude and is given a custodial sentence. The court that sentenced MK Ramon did not give him a custodial sentence and it held that the offence did not involve moral turpitude.

Shortly after serving the sentence of community service, MK Ramon was appointed a member of the government with the position of Deputy Prime Minister. The appointment was approved by the Knesset. The petitioners challenged the appointment on the ground that, in view of the conviction, the appointment was unreasonable in the extreme.

 

Held: (Majority opinion — Justice Procaccia) There is no legal basis for cancelling the appointment on the ground of extreme unreasonableness. Since the court that sentenced MK Ramon held that the offence did not warrant a custodial sentence and did not involve moral turpitude, the government considered the question of MK Ramon’s conviction before making the appointment and the Knesset approved the appointment, the decision to appoint MK Ramon falls within the margin of reasonableness and judicial intervention is not warranted.

(Majority opinion — Justice Grunis) The ground of unreasonableness in judicial review is highly problematic, especially with regard to a decision of a collective body where it is difficult to know the reasons for the decision. It would appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is actually replacing the discretion of the authority with its own discretion. Consequently, the use of relatively narrower and more concrete grounds, such as irrelevant reasons, irrelevant purposes or discrimination, should be preferred to the use of the ground of unreasonableness. In the specific circumstances, the court is no better placed than any citizen of the state to determine whether the decision is unreasonable. Therefore the court should refrain from intervening in the decision.

(Minority opinion — Justice Arbel) The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the government and its members. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. The appointment should therefore be set aside as unreasonable in the extreme.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

 

Legislation cited:

Basic Law: The Government , 5761-2001, ss. 1, 6, 6(c), 13(d), 15, 23(b), 28(a).

Basic Law: the Knesset, ss. 1, 6(a), 42, 42A(a).

Civil Service (Appointments) Law, 5719-1959, s. 46(a)(1).

Criminal Register and Rehabilitation of Offenders Law, 5741-1981.

Municipalities Ordinance, s. 120(8).

Penal Law, 5737-1977, s. 348(c).

State Comptroller Law [Consolidated Version], 5718-1958

Israeli Supreme Court cases cited:

[1]      HCJ 6163/92 Eisenberg v. Minister of Housing [1993] IsrSC 47(2) 229; [1992-4] IsrLR 19.

[2]        HCJ 652/81 Sarid v. Knesset Speaker [1982] IsrSC 36(2) 197; IsrSJ 8 52.

[3]      BAA 11744/04 Ziv v. District Committee of the Bar Association (unreported decision of 8 August 2005).

[4]        CSA 4123/95 Or v. State of Israel [1995] IsrSC 49(5) 184.

[5]        HCJ 4523/03 Bonfil v. The Honourable Justice Dorner [2003] IsrSC 57(4) 849.

[6]      HCJ 436/66 Ben-Aharon v. Head of Pardessia Local Council [1967] IsrSC 21(1) 561.

[7]      HCJ 5757/04 Hass v. Deputy Chief of Staff, General Dan Halutz [2005] IsrSC 59(6) 97.

[8]      HCJ 5562/07 Schussheim v. Minister of Public Security (unreported decision of 23 July 2007).

[9]      HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [1993] IsrSC 47(5) 404; IsrSJ 10 258.

[10]    HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [1993] IsrSC 47(5) 441.

[11]    HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [2003] IsrSC 57(6) 817; [2002-3] IsrLR 311.

[12]    HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [1997] IsrSC 51(3) 46.

[13]       HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

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

[15]       LFA 5082/05 Attorney General v. A (unreported decision of 26 October 2005).

[16]    CA 3398/06 Antitrust Authority v. Dor Elon Energy in Israel (1988) Ltd (unreported decision of 15 June 2006).

[17]        HCJ 5261/04 Fuchs v. Prime Minister of Israel [2005] IsrSC 59(2) 446; [2004] IsrLR 466.

[18]    HCJ 1400/06 Movement for Quality Government in Israel v. Deputy Prime Minister (unreported decision of 6 March 2006).

[19]    HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [2002] IsrSC 56(6) 117.

[20]       HCJ 325/85 Miari v. Knesset Speaker [1985] IsrSC 39(3) 122.

[21]    HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55(4) 800.

[22]       HCJ 306/81 Flatto-Sharon v. Knesset Committee [1981] IsrSC 35(4) 118.

[23]       HCJ 1843/93 Pinchasi v. Knesset [1994] IsrSC 48(4) 492.

[24]       HCJ 1139/06 Arden v. Chairman of the Finance Committee (unreported).

[25]       HCJ 9156/06 Pollak v. Members of the Seventeenth Knesset (unreported).

[26]    HCJ 12002/04 Makhoul v. Knesset (unreported decision of 13 September 2005).

[27]    HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [2005] IsrSC 59(5) 865.

[28]       HCJ 4668/01 Sarid v. Prime Minister [2002] IsrSC 56(2) 265.

[29]       HCJ 1284/99 A v. Chief of General Staff [1999] IsrSC 53(2) 62.

[30]       HCJ 727/88 Awad v. Minister of Religious Affairs [1988] IsrSC 42(4) 487.

[31]       HCJ 194/93 Segev v. Minister of Foreign Affairs [1995] IsrSC 49(5) 57.

[32]       HCJ 1635/90 Jerezhevski v. Prime Minister [1991] IsrSC 45(1) 749.

[33]       HCJ 7074/93 Suissa v. Attorney General [1994] IsrSC 48(2) 748.

[34]       HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[35]       CrimA 121/88 State of Israel v. Darwish [1991] 45(2) 633.

[36]    HCJ 11243/02 Feiglin v. Chairman of Election Committee [2003] IsrSC 57(4) 145.

[37]       HCJ 251/88 Oda v. Head of Jaljulia Local Council [1988] IsrSC 42(4) 837.

[38]       HCJ 103/96 Cohen v. Attorney General [1996] IsrSC 50(4) 309.

[39]       CrimA 115/00 Taiev v. State of Israel [2000] IsrSC 54(3) 289.

[40]    HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [1998] IsrSC 52(4) 547.

[41]    HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [2005] IsrSC 59(3) 145.

[42]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[43]       HCJ 73/85 Kach Faction v. Knesset Speaker [1985] IsrSC 39(3) 141.

[44]       HCJ 1956/91 Shammai v. Knesset Speaker [1991] IsrSC 45(4) 313.

[45]       HCJ 108/70 Manor v. Minister of Finance [1970] IsrSC 24(2) 442.

[46]    HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [1987] IsrSC 41(1) 757.

[47]    HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [1993] IsrSC 47(2) 147.

[48]       HCJ 156/75 Daka v. Minister of Transport [1976] IsrSC 30(2) 94.

[49]    HCJ 5131/03 Litzman v. Knesset Speaker [2005] IsrSC 59(1) 577; [2004] IsrLR 363.

[50]    CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [1959] IsrSC 13 1026; IsrSJ 3 53.

[51]    HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[52]       HCJ 3379/03 Mustaki v. State Attorney’s Office [2004] IsrSC 58(3) 865.

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

[54]       HCJ 89/64 Greenblatt v. Israel Bar Association [1964] IsrSC 18(3) 402.

[55]    HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [1971] IsrSC 25(1) 325.

[56]    HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [2000] IsrSC 54(1) 49.

[57]    HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [2004] IsrSC 58(5) 108.

[58]    HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security (unreported decision of 24 October 2006).

 

For the petitioner in HCJ 5853/07 — P. Maoz, M. Hoffman.

For the petitioners in HCJ 5891/07 — Y. Bitton, E. Moreno.

For the petitioner in HCJ 5914/07 — J. Fuchs.

For the prime minister, the government and the Attorney General — D. Briskman.

For the Knesset — N. Elstein.

 

 

JUDGMENT

 

Justice A. Procaccia

We have before us three petitions that seek to prevent the appointment of MK Ramon as a minister in the Israeli government. In the meanwhile, MK Ramon joined the Government and was appointed a minister with the title of Deputy Prime Minister. The reliefs sought in the petitions, in view of the circumstances, are therefore that we declare the appointment of MK Ramon as a cabinet minister unreasonable in the extreme, with the result that he is disqualified from holding office in the Government, and that we order the appointment to be cancelled (the alternative reliefs stated in HCJ 5914/07 and HCJ 5853/07).

Background and proceedings

2.    On 23 August 2006 an indictment was filed in the Tel-Aviv Magistrates Court against MK Ramon for an offence of an indecent act without consent, in contravention of s. 348(c) of the Penal Law, 5737-1977. The indictment alleged that while he was a member of the Knesset and Minister of Justice, on 12 July 2006, in the Prime Minister’s office, MK Ramon kissed and stuck his tongue into the mouth of the complainant, without her consent. The complainant is an IDF officer who was working at that time in the office of the Prime Minister’s military attaché.

On 20 August 2006 MK Ramon gave notice of his resignation from the government, and this resignation came into effect on 22 August 2006. While the criminal proceedings were pending, MK Ramon did not hold office as a minister in the government.

On 31 January 2007 the Tel-Aviv–Jaffa Court convicted MK Ramon of the offence with which he was charged.

3.    At the sentencing stage, MK Ramon asked the court to cancel his conviction, relying on a report of the probation service that was submitted in his case. The report recommended that community service be imposed upon him without a conviction. The position of the defence and the probation service with regard to cancellation of the conviction was based on a classification of the offence as one of the most minor of sex offences, MK Ramon’s lack of prior convictions, his many years of public service and his contribution to public life in Israel. Emphasis was also placed on the significant damage that would result from the conviction of MK Ramon as an elected official, and the serious harm that he and his family would suffer should the conviction be upheld. The prosecution opposed the cancellation of the conviction and emphasized the nature of the offence and the fact that it was committed by a member of the Knesset and a government minister against an army officer serving in the Prime Minister’s office. It also discussed the injury caused to the complainant by the act, and the manner in which the defence had conducted the case, which, it argued, had caused her particular harm. The prosecution also opposed the cancellation of the conviction on the ground that MK Ramon did not express sincere regret during the trial, which is a basic requirement for cancelling a conviction -  but only at the sentencing stage. It particularly emphasized the need to send a message to the public that would deter similar offences. The prosecution asked the court to hold that the offence committed by MK Ramon was one that involved moral turpitude.

4.    After considering the question of cancelling the conviction and examining all of the relevant considerations, the Magistrates Court arrived at the conclusion that the conviction should be upheld. In so doing, it preferred the public interest over the interest of MK Ramon.  It held that cancelling the conviction might obscure the public message required in the circumstances and minimize the criminal aspect of the act, and it therefore denied the defence’s request in this regard.

Notwithstanding, when it considered the actual sentence, the court addressed the question of the moral turpitude involved in the offence, in view of the prosecution’s request during its arguments  that the sentence should determine that the circumstances in which the offence was committed by the defendant involved moral turpitude. The defence opposed this request. The court rejected the prosecution’s request, and it explained its position as follows (para. 16e of the sentence):

‘In the defendant’s case, we have reached the conclusion that the overall circumstances in which the offence was committed do not justify a determination that the offence involved moral turpitude. The isolated and unplanned act was committed by the defendant following a meaningless conversation, in a mental state of indifference. The act lasted two to three seconds and ended immediately. Allowing the conviction to stand contrary to the recommendation of the probation service and the finding that the defendant’s acts did not involve moral turpitude constitutes a proper balance between the different interests and a fair expression of the different factors that have arisen in this case, including considerations of proper legal policy.’

The court sentenced MK Ramon to 120 hours of community service, and ordered him to compensate the complainant in a sum of NIS 15,000. It rejected the prosecution’s request that it should give MK Ramon a suspended prison sentence. It said in the sentence, inter alia (paras. 17 to 20):

‘In his final remarks, counsel for the defendant asked the court to show his client justice and mercy; we are receptive to this and will do so in sentencing.

The defendant’s punishment is his conviction.  We are aware of the mitigating circumstances set out above, and they have led us to think that the defendant’s sentence should be minimal, so that the future harm that he will suffer will be in proportion to the nature of the offence and the circumstances in which it was committed.

Here we should point out that in the sentence we have taken into account s. 42A(a) of the Basic Law: The Knesset, and we have adjusted the sentence to its provisions.

We therefore order the defendant to perform 120 hours of community service, in accordance with a programme that will be drawn up by the probation service.

We order the defendant to compensate the complainant in a sum of NIS 15,000.’

5.    The judgment of the Magistrates Court became absolute when no appeal was filed by either of the parties. Even though the Attorney General was of the opinion that the circumstances of the offence of which MK Ramon was convicted do involve moral turpitude, he decided not to file an appeal on this issue, but his position on the question of moral turpitude remains unchanged (letter of the senior assistant to the Attorney General of 14 May 2007 (respondent’s exhibit 3)).

6.    After the sentence was passed, MK Ramon performed the community service that was imposed on him. Following changes in the composition of the Government, and especially as a result of the resignation of the Minister of Finance, the Prime Minister decided to reshuffle the Cabinet. On 4 July 2007 the Government decided unanimously to accept a proposal of the Prime Minister and, within the framework of its authority under s. 15 of the Basic Law: The Government, to appoint MK Ramon as a cabinet minister without portfolio, with the title of Deputy Prime Minister.

7.    On the same day, 4 July 2007, Minister Meir Sheetrit, on behalf of the Government, notified the Knesset that the Government had decided to appoint MK Ramon a member of the cabinet, and he requested the Knesset’s approval of this decision under s. 15 of the Basic Law: The Government. In Minister Sheetrit’s notice to the Knesset, he said, inter alia, the following:

‘I respectfully notify the Knesset that at its meeting today the Government decided as follows: Appointing ministers to the cabinet in accordance with section 15 of the Basic Law: The Government… I would like to say… before I give the notice, that the Prime Minister in his remarks at the cabinet meeting at which these changes to the cabinet were approved, said the following:

“MK Ramon was convicted in court. It should be pointed out that the court, when it considered the sentence, expressly determined the sentence in such a way that would not prevent him from engaging in public activity in the Knesset and the Government, even though the prosecution requested that it rule that his case involved moral turpitude, and also sought a sentence that would prevent him from returning to the Knesset and the Government. I have considered the appointment of Haim Ramon and all the factors relevant to this — on the one hand, the judgment, the sentence and everything related thereto; on the other hand, the contribution that the appointment of Haim Ramon will make to the Government, the Knesset and his (sic) work as Deputy Prime Minister. After I considered the matter, I decided that in the balance between the considerations, those supporting his appointment override those that oppose it, and therefore I made the decision after I studied the court’s decision on the matter.”

On the basis of these remarks of the Minister Sheetrit  the Prime Minister  proposed, and the Government decided, to appoint MK Haim Ramon as an additional member of the cabinet.’

8.    Following Minister Sheetrit’s notice, a debate took place in the plenum of the Knesset with regard to the Knesset’s approval of the Government’s decision to appoint MK Ramon to the cabinet. Ultimately the Government’s decision was approved by a majority of the Knesset, with 46 members of Knesset for, 24 members of Knesset against, and no abstentions. After the Knesset decision, MK Ramon made the declaration of allegiance and his appointment as cabinet minister came into effect.

The foregoing is the factual background underlying the petitions.

The petitioners’ arguments

9.    Two of the petitions were filed by women’s organizations, and one petition was filed by the Legal Forum for the Land of Israel, which is a group of lawyers that is active, inter alia, with regard to issues concerning proper Government in the State of Israel.

The petitioner in HCJ 5853/07, Emunah — the National Religious Women’s Organization, claims that the appointment of MK Ramon as a cabinet member and as Deputy Prime Minister is a step that is unreasonable in the extreme, and deals a mortal blow to the organs of government and the dignity of the cabinet. It says that this appointment attests to improper exercise of discretion by the Prime Minister, the Government and the Knesset, being in contravention of  tests laid down in case law for the appointment of public officials to various public offices. It particularly emphasizes in its arguments the criteria laid down by this Court in HCJ 6163/92 Eisenberg v. Minister of Housing [1] and it claims that Ramon’s appointment as a cabinet minister is inconsistent with the tests laid down in that case with regard to the appointment of a person with a criminal record to public office. It goes on to argue that the rule in Eisenberg v. Minister of Housing [1] was later developed and extended to various situations in which a candidate for public office has been disqualified even when he has not been convicted in a criminal trial but certain circumstances in his past and his conduct indicate that he is unsuited to the position from the viewpoint of his moral standards and integrity. According to the petitioner, MK Ramon’s conviction for a sex offence, even though it was held that it did not involve moral turpitude, is inconsistent with his appointment as a cabinet member in view of the circumstances in which the offence was committed and in view of the short period of time that has passed since he was convicted and served his sentence.

The petitioners in HCJ 5891/07 emphasize what they view as the serious harm to women occasioned by the appointment of MK Ramon as a cabinet minister. They say that the appointment is inconsistent with the need to protect the status, safety, liberty and dignity of women. It conflicts with their right to protection in their lives. According to their approach, appointing a person as a cabinet minister a short time after he has been convicted of a sex offence not only injures the victim of the offence but also all women in Israel, and seriously undermines public confidence in its elected officials. The finding of the Court that the offence does not involve moral turpitude does not exempt the Prime Minister, the Cabinet and the Knesset from exercising reasonable discretion with regard to the appointment. In the circumstances of this case, they are of the opinion that the discretion was exercised in an extremely unreasonable manner, and therefore the decision to make the appointment should be cancelled.

The petitioner in HCJ 5914/07 also claims that the decision to appoint MK Ramon as a cabinet minister is unreasonable in the extreme, and it involves a serious injury to Israeli women in general and victims of sex offences in particular. According to case law, a cabinet member should resign when an indictment is filed against him, and from a normative viewpoint this rule should be used as a basis for determining the proper normative standard for returning to public office after a conviction. It follows that only if the defendant is acquitted in his trial, or at the most if a judgment is given in his case without a conviction, may he return to hold office as a cabinet member. But once  MK Ramon was convicted of an indecent act, even if it was held that no moral turpitude was involved, he should not be allowed to return to the cabinet until the passage of a significant cooling-off from the time of his conviction. The petitioner goes on to argue that an analogy should be drawn in this case from the existing arrangement in the civil service, where a person would not be given a position if he was convicted of an offence of an indecent act, until the prescription period under the Criminal Register and Rehabilitation of Offenders Law, 5741-1981, has passed. It is argued that it is unreasonable that the normative standard for appointing an elected official to the cabinet should be lower than this.

The respondents’ position

10. The state in its reply refers to s. 6 and s. 23(b) of the Basic Law: The Government. It claims that these provisions set out the detailed statutory arrangement concerning a person's eligibility to serve as a cabinet minister even though he has been convicted in a criminal trial, both for the purpose of an appointment to the cabinet (s. 6) and for the purpose of terminating the office of a member of the cabinet (s. 23). The law provides in s. 6 that a person who has been convicted of an offence and sentenced to imprisonment may not be appointed to the cabinet if on the date of the appointment seven years have not passed since the date on which he finished serving his sentence or judgment was given, whichever is the later. These two cumulative conditions of a criminal conviction and a custodial sentence (including a suspended sentence) create a presumption of moral turpitude if the period specified in the law has not yet passed since the sentence was completed or the judgment was given. This presumption can be rebutted by a decision of the chairman of the Central Elections Committee that the offence does not involve moral turpitude. Such a decision is possible only when the court has not determined that the offence involves moral turpitude. Regarding a member of the cabinet who is convicted of a criminal offence, the Basic Law provides in s. 23 that his office will be terminated if he is convicted of a criminal offence which has been determined by the court as involving moral turpitude.

The state claims that the law created formal tests as to whether a person convicted of a criminal offence may hold office as a cabinet minister both for the purpose of appointing someone with a conviction as a cabinet member and for the purpose of whether someone who was convicted while serving as a cabinet member may continue to hold office. These tests were intended to create certainty and stability in applying the proper criteria for holding office as a cabinet member. It follows that since the court held that the office committed by MK Ramon does not involve moral turpitude and it refrained from imposing a custodial sentence, his appointment to the cabinet was consequently sanctioned, and there is no legal impediment to appointing him.

The state agrees that there may be exceptional situations in which a person satisfies the criteria for holding office as a cabinet minister according to the tests in the Basic Law: The Government, and yet there will still be an impediment to appointing him as a cabinet member, but this is not one of those cases. In this case, the balance struck by the court in the criminal proceeding — where, on the one hand, it determined that MK Ramon should be convicted of the offence that he committed but, on the other hand, it went on to hold that the offence did not involve moral turpitude — should be upheld. The law provides that the trial court in a criminal case is the competent forum for determining whether the offence committed by the defendant involves moral turpitude, and the High Court of Justice should not act as a court of appeal regarding the trial court’s decision in this respect, since this would undermine certainty and stability in this matter.

Moreover, the state claims that the discretion of the Prime Minister and the government when appointing cabinet ministers is very broad, and the court should only intervene in such matters on rare occasions. The Knesset’s approval of the Government’s decision to make the appointment adds a dimension of parliamentary involvement in the appointment process, and this reduces the margin for judicial intervention in the appointment process even further.

11. The Knesset’s position is that the petitions should be dismissed in limine, since there was no defect in the appointment process. The plenum of the Knesset held a debate on the matter and approved the appointment in accordance with s. 15 of the Basic Law: The Government . The Knesset acted in this regard by virtue of its constitutional power as the organ that supervises the government’s work. The Knesset’s power to approve the addition of a minister to the cabinet under s. 15 of the Basic Law is a sovereign power, which is exercised in the course of the internal proceedings of the Knesset. This is a political act that allows very little scope for judicial intervention, especially when it concerns the relationship between the Knesset and the government, with its special political complexities. 

The Knesset also argued that it approved the appointment of MK Ramon as a minister after holding a debate on the merits of the appointment and a vote in the plenum of the Knesset. The Knesset was informed of the background and all the factors relevant to the appointment, and it was told of the considerations that the Prime Minister and the Government took into account before deciding  on  the appointment. The Knesset therefore made its decision with a full knowledge of all the background facts and considerations relevant to the appointment. The exercise of judicial review with regard to acts of the Knesset in this context is very narrow and it is limited to very extreme and rare cases in which the fundamental principles of the system are significantly undermined. The petitioners did not indicate any such ground for intervention in the circumstances of this case. Since the fundamental principles of the system have not been significantly undermined, there is no basis for exercising judicial review of the Knesset’s decision to approve the Government’s notice concerning the appointment of MK Ramon as a cabinet minister. In view of all this, the petitions should, in the Knesset’s opinion, be denied.

Decision

The significance of the judgment in the criminal trial and its ramifications on the legitimacy of the appointment

12. MK Ramon was convicted of an offence of an indecent act. The court's sentence in the criminal trial did not include a custodial or a suspended sentence. It also determined that the offence did not involve moral turpitude, and it said in this respect that the sentence took into account s. 42A(a) of the Basic Law: the Knesset and tailored the sentence to its provisions. This section provides that if a member of the Knesset is convicted of a criminal offence and it is determined that it involves moral turpitude, his membership of the Knesset will cease when the judgment becomes final. The significance of this provision is that the court in the criminal trial passed sentence with the express intention of not terminating Ramon’s membership of the Knesset in accordance with that provision of the law. When judgment was given in the criminal trial, MK Ramon was not a member of the cabinet. Therefore the court’s judgment did not expressly address the provisions of s. 6 of the Basic Law: The Government , which concern the conditions that govern whether a candidate  convicted in a criminal trial is competent to be appointed a minister. Notwithstanding, it may be assumed, albeit implicitly, that when the court passed sentence and considered the question of whether the offence involved moral turpitude, it intended to effect an outcome in which, on the one hand, Ramon’s conviction for an offence of an indecent act would stand rather than being cancelled and that he would also serve a sentence, but by which, on the other hand, after serving his sentence, MK Ramon would be able to return to public activity in the Knesset, the Government or any other sphere of public life. In taking this approach the court sought to distinguish the criminal proceeding and its consequences in the criminal sphere from MK Ramon’s activity in public life. It saw fit, in the circumstances of this case, to exhaust the criminal trial, but at the same time it sought not to terminate Ramon’s activity in the public sphere, which it regarded as the proper balance between the aggravating and mitigating factors that coexist in this case. In doing so, the court intended, inter alia, to ensure that Ramon satisfied the statutory conditions for continuing to serve as a member of Knesset that are laid down in s. 42A of the Basic Law: the Knesset. It also implicitly sought to ensure that he satisfied the conditions for being appointed a cabinet minister as laid down in s. 6 of the Basic Law: The Government , even though it did not expressly address this issue, since Ramon’s appointment to the cabinet was not a relevant matter at that time.

The court’s judgment in the criminal trial paved the way for MK Ramon to satisfy the statutory conditions that would allow him to be appointed to the cabinet. The court was mindful of the statutory restrictions in s. 42A of the Basic Law: the Knesset and s. 6 of the Basic Law: The Government  when it couched its sentence in terms that excluded Ramon’s case from the scope of the statutory restrictions that would otherwise have prevented him from continuing to serve as a member of Knesset and from being appointed a cabinet minister.

And so, after he was convicted and served his sentence, MK Ramon was appointed a cabinet minister with the title of Deputy Prime Minister. The appointment was proposed by the Prime Minister, adopted and subsequently approved by the Knesset. The Knesset approved the appointment after holding a debate and a vote, following which MK Ramon took the declaration of allegiance to the state and entered into office.

‘Competence, as distinct from discretion’

13. Compliance with the minimal qualifications provided by law for the purpose of an appointment to public office or the inapplicability of statutory restrictions on such an appointment still leave the authority making the appointment with a duty to exercise discretion with regard to the propriety of the appointment. Compliance with formal qualifications for holding a position does not necessarily mean that a candidate is suited to a public office in various respects, including in terms of his personal and moral level and in terms of his basic decency. The authority making the appointment should exercise its discretion with regard to the appointment in accordance with the established criteria of public law; its considerations should be relevant, fair and made in good faith, and they should fall within the margin of reasonableness.

In our case, according to the proper construction of the judgment in the criminal trial, Ramon satisfies the requirements for being appointed a cabinet minister in the sense that the statutory restrictions upon his continuing to hold office as a Knesset member and his being appointed a minister under s. 42A of the Basic Law: the Knesset and s. 6 of the Basic Law: The Government  do not apply. Thus the ‘minimum requirements’ for the appointment are satisfied. But this does not exempt the authority making the appointment from the duty to exercise its discretion with regard to the suitability of the appointment from the viewpoint of the nature of the office, the character of the candidate, and the circumstances of time and place according to criteria that comply with the rules of public law.

The petitions before us focused on the validity of the discretion exercised by the authority making the appointment from the viewpoint of its reasonableness. It was argued that appointing MK Ramon as a cabinet minister was unreasonable in the extreme in view of the nature and circumstances of the offence of which he was convicted and in view of the short time that has passed since the judgment was given and Ramon finished serving his sentence.

We should therefore address the reasonableness of the appointment, against the background of all the circumstances of the case. In this context it is necessary, inter alia, to define the margin of discretion of the authority making the appointment, which casts light on the margin of reasonableness. This margin in turn influences and casts light on the scope of judicial review that should be exercised with regard to the reasonable of the discretion exercised by the authority making the appointment.

The appointment — the margin of reasonableness and the scope of judicial review

Competence for public office

14. The competence of a candidate for public office is examined in two main respects:

The first respect concerns the ethical quality and moral virtues of the candidate, alongside his professional and practical abilities. The ability of a candidate to take on responsibility for holding public office depends not only on his talents and abilities, but also on his moral character, his integrity and his incorruptibility. When an ethical or moral impropriety is discovered in a person's actions before his appointment or while he is holding public office, a concern may arise as to his suitability for the office from the viewpoint of his integrity and ethical conduct, which may impair his ability to carry out his duties.

The second respect concerns the fact that public confidence in civil servants and elected officials is an essential condition for the proper functioning of the civil service and the organs of government. All branches of public service rely on public confidence not only in the practical abilities of civil servants and elected officials, but also, and especially, on their standards of morality and humanity, their integrity and incorruptibility. Without this confidence, the civil service cannot, in the long term, properly discharge its functions at the required level for any length of time.

When persons who have been morally compromised are appointed to public office or left in office after they have gone astray, the ethical basis on which the organs of state and government in Israel are founded may be undermined. The fundamental ethical principles on which Israeli society and government are based may be seriously compromised. Public confidence in the organs of government, whose rank and standards are supposed to reflect the basic ethical principles on which social life in Israel is based, may be weakened.

The appointment process for public office always requires the appointing body to exercise discretion. It should consider all of the factors that are relevant to the appointment, including the competence of the candidate. This competence is measured not only according to the professional abilities of the candidate but also according to his moral and ethical standards. Examining suitability for  office from a moral viewpoint requires the consideration of a wide spectrum of factors, including the nature of the acts attributed to the candidate, whether they involved any impropriety, how serious they were, and to what extent they affect his moral and ethical standing; whether he was convicted in a criminal trial, whether he is suspected of committing offences, and whether any criminal investigations are pending against him; whether the acts attributed to him have been proved, or whether they are merely suspicions, and what is the strength of such suspicions; what is the period of time that has passed since the acts were committed; did he commit a single act or was the act a continuous one(Eisenberg v. Minister of Housing [1], at p. 262 {64-65}; HCJ 652/81 Sarid v. Knesset Speaker [2], at p. 197 {52}); and, finally, whether the acts involved ‘moral turpitude.’ The concept of ‘moral turpitude’ in the law reflects an ethical-moral assessment which indicates that under the circumstances a particular act was tainted by a grave moral defect (BAA 11744/04 Ziv v. District Committee of the Bar Association [3]; CSA 4123/95 Or v. State of Israel [4], at p. 189; R. Gavison, ‘An Offence Involving Moral Turpitude as Disqualification for Public Office,’ 1 Hebrew Univ. L. Rev. (Mishpatim) 176 (1968), at p. 180).

Conditions of Competence and Statutory Restrictions upon holding office

15. The process of appointing  a person to public office is often subject to conditions of competence and statutory restrictions that may disqualify a candidate from being appointed. When the restrictions disqualify a candidate from being appointed, the authority making the appointment is left with no discretion. There are a host of statutory restrictions that negate the competence of a person convicted of an offence involving moral turpitude from holding office. This is the case with regard to a person’s competence to be appointed a cabinet member (s. 6 of the Basic Law: The Government ), the right to be elected to the Knesset (s. 6(a) of the Basic Law: the Knesset), and being appointed to the civil service or a local authority (s. 46(a)(1) of the Civil Service (Appointments) Law, 5719-1959; s. 120(8) of the Municipalities Ordinance). The criterion of ‘moral turpitude’ that justifies restricting a person’s competence to hold public office is a moral defect that taints his action, thereby impairing his ability to bear the responsibility required for discharging the job both because of the damage to his ethical standing and because of the anticipated harm to public confidence in the office and the person holding it, and even in public system as a whole  (Or v. State of Israel [4], at p. 189; HCJ 4523/03 Bonfil v. The Honourable Justice Dorner [5], at p. 854; HCJ 436/66 Ben-Aharon v. Head of Pardessia Local Council [6], at p. 564).

The statutory restrictions that negate a candidate’s competence for holding public office close the gates upon his appointment and prevent him from being appointed. It does not follow that where the statutory restrictions do not apply to a candidate, his appointment is necessarily permissible from the viewpoint of the lawfulness of the discretion that the authority should exercise when making the appointment. The authority making the appointment should act reasonably in exercising its discretion with regard to the appointment. Its responsibility in this process comes under scrutiny even when the candidate satisfies the formal qualifications and is not excluded by the statutory restrictions laid down for an appointment to public office. Notwithstanding, it is important to point out that the competence of a candidate according to the criteria laid down in statute may affect the scope of discretion that the authority may exercise in the appointment process.

The balances required when exercising discretion in the appointment process

16. Exercising reasonable discretion in the process of appointing someone to a public office requires the authority making the appointment to contemplate a very wide range of considerations. It should consider whether the candidate is suited to the position from the viewpoint of his professional qualifications, and from the viewpoint of his personal qualities and moral standards; it should evaluate the degree of public confidence that the appointment under consideration will foster; it should consider the wider needs of the administration, and the ability of the candidate to contribute to it and further the public interest in discharging his duties.

When the proposed candidate has a criminal record or his actions are tainted in some other way, the authority should examine the effect that this factor has on his competence for the position. It should take into account the nature of the act attributed to the candidate, its seriousness, the nature of the impropriety that taints it, and its effect on his ability to carry out his duties; it should examine whether the nature of the candidate’s acts indicates an inherent ethical flaw in his conduct, which affects his ability to function properly in the proposed position and has an impact on the ethical image of public service. On the other hand, it is possible that the act was an isolated lapse, which even if it has an aggravating aspect, does not indicate a fundamental flaw in the candidate’s character (HCJ 5757/04 Hass v. Deputy Chief of Staff, General Dan Halutz [7]; HCJ 5562/07 Schussheim v. Minister of Public Security [8]). Against this background, it should consider the effect of the appointment on public confidence in the system of government (Eisenberg v. Minister of Housing [1], at para. 40). It should consider the fact that the candidate has a criminal conviction in its proper context or any other impropriety in his conduct in their proper context, and weigh them against the other considerations that support the appointment, and strike a balance between them. The main criterion when striking this balance lies in the question whether in the circumstances of the case the appointment may cause serious and pervasive harm to the image of the government in Israel and significantly undermine the respect that the citizen has for the organs of government.

17. The unreasonableness of appointing someone who has been convicted of a criminal offence to public office does not necessarily depend upon the offence involving an element of immorality or a finding that it involves moral turpitude (Eisenberg v. Minister of Housing [1], at para. 55). Similarly, the very existence of a criminal conviction is not a prerequisite for disqualification from public office. Indeed, by virtue of the discretion of the authority making an appointment, not only have persons who have been convicted in a criminal trial been disqualified for public office, but so too have persons who have confessed to committing a criminal offence, even though they were not brought to trial (for example, the persons involved in the 300 bus affair, Yosef Ginosar and Ehud Yatom). In other cases, the court has recognized the possibility of disqualifying persons from public office when a decision has been made to bring them to trial, even before their guilt has been proved. This occurred in the case of Minister of the Interior Aryeh Deri and Deputy Minister of Religious Affairs Raphael Pinchasi (HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at p. 422 {284}; HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 467). A similar outlook has been adopted with regard to public figures against whom a criminal investigation was started, even though it was later decided not to bring them to trial. This occurred with regard to the criminal investigations relating to Minister Tzachi Hanegbi that did not lead to the filing of an indictment (HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], at p. 851 {353}).

The need to consider the ethical and moral aspects of appointing someone to public office has also been extended to situations in which a decision was made not to open a criminal or disciplinary investigation against a candidate for conduct giving rise to a suspicion of an illegal act (Hass v. Deputy Chief of Staff, General Dan Halutz [7], at para. 10 of the opinion of Justice Levy; HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [12], at p. 65). Indeed, one should not rule out the possibility that the improper conduct of a candidate, even if does not amount to a criminal offence, is sufficiently serious that it would be unreasonable in the extreme to appoint him to public office or to allow him to continue to hold public office.

18. Considerations regarding a candidate’s competence for public office from an ethical viewpoint are of great weight. In very serious cases, the ethical stain on a person’s character may make his appointment to the position completely inappropriate, even when from the viewpoint of his professional abilities he is likely to make a contribution towards the issue that lies at the focus of the public system. In such a case, even the needs of the public system will defer to the stain on the person’s character. But in other situations, alongside an examination of the ethical aspect of the candidate’s character, the authority should consider the broader needs of the public administration and the ability of the candidate to contribute to it, and a proper balance should be struck between all of the relevant considerations and factors.  With regard to a cabinet appointment, one should consider, inter alia, the potential contribution of the candidate to the office, the importance of bringing him into the government for the purpose of preserving the coalition and the effective functioning of the government. On a matter relating to parliamentary political life, one cannot rule out a proportionate consideration of factors relating to political circumstances (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at para. 30). The authority should take into account the requirements of the position, the special abilities of the candidate and the benefit that his holding office would engender in furthering the general public interest. The authority making the appointment should weigh up all of the aforesaid factors and strike a proper balance between them, within the margin of reasonable discretion that is given to it. A candidate’s criminal record or any stain on his character should be considered in accordance with their circumstances and seriousness against other relevant general considerations: the professional qualities, when taken together with the proven or alleged impropriety of his actions, should be considered against the nature of the office, its status within the administration, and how uniquely qualified the candidate is for the office. A balance is required between all the various conflicting considerations (HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], at p. 445; HCJ 935/89 Ganor v. Attorney General [14], at p. 513). An appointment is a reasonable decision if it is made as a result of a balance that gives proper weight to the different values that are relevant to the case. Assessing the weight that is given to the different considerations is a normative act that is made in accordance with accepted social values, which in turn cast light on the relative importance that should be attributed to the various conflicting factors (LFA 5082/05 Attorney General v. A [15], at para. 19 of the opinion of President Barak; Eisenberg v. Minister of Housing [1], at pp. 263-264 {65-66}; CA 3398/06 Antitrust Authority v. Dor Elon Energy in Israel (1988) Ltd [16]). Within the margin of reasonable discretion, depending upon how broad it is, there may be different possible balancing points between the conflicting considerations, all of which may pass the test of reasonableness. The broader the margin of administration discretion when making an appointment, the broader the margin of reasonableness, and this extends the range of legitimate possibilities for finding different balancing points between the conflicting values in the appointment process. The margin of discretion in the appointment process is determined by various factors: the identity of the authority making the appointment, statutory provisions and judicial decisions regarding the competence of the candidate for the appointment, parliamentary involvement in the appointment and the other circumstances of the case.

19. The limits of judicial review and the scope of its application when examining the reasonableness of the discretion of the authority making the appointment are affected by the authority’s margin of discretion in this regard. The scope of judicial review of the authority’s decision is inversely proportional to the scope of the margin of discretion given to the authority making the appointment. The broader the margin of the administrative discretion, the narrower the scope for judicial intervention in the administrative act.

 

The authority’s margin of discretion when appointing a minister who has a criminal conviction

20. For the purposes of this case, we should examine the margin of discretion given to an authority when appointing someone with a criminal conviction as a member of the cabinet. This margin of discretion will cast light on the scope of judicial review regarding the appointment. We should examine whether in the circumstances of this case the decision to appoint MK Ramon as a member of the cabinet falls within the margin of reasonableness or whether it falls outside this margin in such a way that we need to intervene and amend it.

The margin of discretion given to the government when appointing a cabinet minister who has been convicted of a criminal offence is influenced by conflicting considerations that pull in opposite directions: on the one hand, such an appointment gives rise to the question of the weight of the criterion of integrity and ethical conduct in the appointment of elected officials to the most senior positions in state institutions. The image of public service and government institutions is closely related to the moral character of its employees and elected representatives. The standing of government institutions and the effectiveness of their functioning depend largely upon maintaining public confidence in them, not merely from the viewpoint of their professional standards but first and foremost from the viewpoint of their ethical standards. Without this confidence, state institutions will find it difficult to operate. The integrity and moral status of civil servants and elected officials affect the degree of confidence that the public has in state institutions. Appointing someone as a cabinet minister after he has been convicted of a criminal offence of an indecent act just a short time before the appointment, directly concerns the question of integrity and moral character in the appointment of elected representatives, and this factor has considerable weight in limiting the margin of discretion of the authority making the appointment.

21. But this consideration does not stand alone. There are additional conflicting considerations that operate in concert to broaden the margin of discretion given to the authority making the appointment and to limit the scope of judicial review regarding the appointment. The conflicting considerations are the following: first, the prime minister and the government have broad powers when forming the government and appointing cabinet ministers, which is a part of the political process that characterizes the structure of democracy; second, the fact that the statutory qualifications for appointing a minister with a criminal conviction are satisfied has certain ramifications upon the margin of administrative discretion given to the authority making the appointment; third, the parliamentary approval given to the government’s decision to make the appointment, which embodies the consent of the state’s elected body to the appointment and the identity of the person chosen for the office, affects the margin of discretion in making the appointment; and fourth, an absolute judicial decision of a national court, which held in the criminal trial that a distinction should be made between the criminal sanction imposed upon the public figure and the effect of the conviction on the defendant’s public activity, so that the former would not preclude the latter, also contributes to a broader margin of discretion when the competent authority makes the appointment. Each of these factors individually, and certainly when taken together, extends the authority’s margin of discretion in making the appointment, and the scope of judicial review is correspondingly limited.

We will now consider these matters in detail.

The scope of discretion in forming a government and appointing ministers

22. As a rule, the scope of the prime minister’s discretion in forming a government and the government’s discretion in appointing new ministers has two aspects: on the one hand, the discretion given to the prime minister in forming his government and in deciding upon its members is broad. So too is the government’s discretion in its decision to appoint a new member of the cabinet. On the other hand, this discretion is subject to judicial review and is not completely immune from it, since —

‘The prime minister is a part of the administrative authority and the principles that apply to the administrative authority and its employees apply also to the prime minister. It follows that, like any public official, his discretion is not absolute. He must act reasonably and proportionately; he must consider only relevant considerations; he must act without partiality and without arbitrariness; he must act in good faith and with equality’ (HCJ 5261/04 Fuchs v. Prime Minister of Israel [17], at pp. 463-464 {483}).

The discretion given to the prime minister and the government with regard to forming a government, appointing and replacing ministers, and adding a new member to the government is broad, because of the special nature of the power of appointment, which is ‘of a unique kind, both because of the position of the prime minister with regard to the formation of the government and because of the political nature of the government. It includes a large number of considerations and encompasses a wide margin of reasonableness’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 58). The prime minister’s special power with regard to the appointment of cabinet ministers and the termination of their office is intended to ensure the government’s ability to function and operate, and it is an integral part of the political process at the heart of the democratic system, which the court rarely subjects to the test of judicial review (HCJ 1400/06 Movement for Quality Government in Israel v. Deputy Prime Minister [18]; Movement for Quality Government in Israel v. Prime Minister [11]). The margin of reasonableness that characterizes the scope of the prime minister’s discretion when determining the composition of his government and the appointment of cabinet members is very broad, and his criteria include parliamentary, political and party considerations. This broad margin is intended to facilitate the government’s ability to function properly as the executive branch of the state, and to realize the policy goals that it espouses (Fuchs v. Prime Minister of Israel [17], at para. 29 of the opinion of President Barak). This broad discretion is founded on the public interest of ensuring the stability of the government and its ability to achieve its goals. Indeed —

‘When we address the discretion of the prime minister in a decision to appoint a minister, the margin of reasonableness for his decision, in which the court will refrain from intervening, is very broad, both because of the status of the prime minister as an elected representative and the head of the executive branch, and because of the nature of this power’ (Movement for Quality Government in Israel v. Prime Minister [11], per Vice-President Or).

The scope of the discretion of the prime minister and the government when appointing cabinet ministers, no matter how inherently broad it may be, varies according to the nature of the conflicting factors that they should consider during the appointment process. Discretion that is entirely based on professional qualifications for the position or on purely political or public considerations of various kinds cannot be compared to discretion that is exercised as a result of a duty to contend with the ethical-normative considerations that arise from a candidate’s criminal past or from another stain on his character, which affects his social and public standing and is relevant to his competence to hold office. The ethical-normative aspect of administrative discretion may affect its scope in this special context, and result in the discretion being narrower, and judicial review being correspondingly more rigorous.

23. The consideration concerning the ethical background of a candidate for appointment as a cabinet minister should be taken into account by the prime minister when determining the composition of his government, even when the candidate satisfies the statutory qualifications that are required for the appointment. The weight given to this consideration should be determined in accordance with the special circumstances of the case and with a view to the relative weight that should be given to other important considerations that are relevant to the appointment process.The broad discretionary authority given to the prime minister in the realm of appointments compels him to address a broad variety of considerations. The prime minister should examine, inter alia, the importance of appointing the candidate with reference to the field of activity for which he will be responsible and his skills and abilities as can be seen from his record in the past; he should assess the effect of the appointment on the composition of the government and its ability to function. Public, political and other considerations should also be included among the complex set of criteria that are a part of the appointment process. It is the task of the prime minister and the government to assess the relative weight of all the relevant factors in a reasonable manner, and to strike a proper balance when deciding upon the appointment.

It is the task of the authority making the appointment to strike a balance between the conflicting considerations when appointing a person to the cabinet who has been convicted in a criminal trial. Its discretion is broad, but not unlimited. The law will intervene and have its say when the appointment reflects an improper balance between all of the relevant considerations and it involves a real violation of the ethical principles accepted by society. The law will intervene where such an appointment is likely to harm the status of government institutions and public confidence in them in such a serious way that the appointment is unreasonable in the extreme.

Statutory qualifications and restrictions relating to appointments

24. As we explained above, ss. 6 and 23 of the Basic Law: The Government  lay down the statutory qualifications and restrictions that prevent a person who has been convicted in a criminal trial from being appointed as a cabinet member or that require the termination of his office as a cabinet member.

Section 6(c), which is relevant to this case, provides:

‘Qualification of ministers

6. …

(c) (1) A person shall not be appointed a minister if he has been convicted of an offence and sentenced to imprisonment, and on the date of the appointment seven years have not yet passed since the day on which he finished serving the sentence of imprisonment, or from the date of the judgment, whichever is the later, unless the chairman of the Central Elections Committee determined that the offence of which he was convicted does not, in the circumstances of the case, involve moral turpitude.

 

(2) The chairman of the Central Elections Committee shall not make a determination as stated in paragraph (1) if the court has held according to law that the offence of which he was convicted does involve moral turpitude.’

The conditions that disqualify a person from holding office as a cabinet member, as stated in s. 6(c), are ‘minimum requirements’ that, when they apply, disqualify a person for the appointment. Where the restrictions upon the appointment do not exist, it does not mean that we are dealing with a ‘negative arrangement’ regarding the exercise of discretion by the authority making the appointment, whereby any appointment whatsoever will be valid. Even when there is no statutory restriction upon holding office, the authority should exercise discretion in making an appointment and strike a proper balance between the relevant considerations, according to their proper relative weight (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 457). The statutory qualification test for a person convicted in a criminal trial to hold office as a minister is closely linked to the question of the moral turpitude involved in the offence. Where there is moral turpitude, he is disqualified from holding office; this however, does not mean that the absence of moral turpitude necessarily legitimizes the appointment.  The reasonableness of the discretion of the party making the appointment is examined on its merits, according to all the circumstances of the case.

Notwithstanding, the existence of statutory restrictions upon the appointment of a cabinet minister does influence the scope of discretion of the person making the appointment when exercising the power of appointment granted to him. The stipulation of the legislature regarding the conditions that disqualify a candidate who has been convicted of a criminal offence for being appointed a minister has ramifications on the scope of the power of the person making the appointment and the margin of discretion regarding a candidate whose appointment is not ruled out by the minimum requirements. The statutory restrictions reflect the criteria that the legislature regarded as the proper ones for ensuring the minimum ethical standard for someone joining the government. Admittedly, meeting the qualifications that derive from compliance with these restrictions does not amount to an automatic ethical certificate of approval for the appointment, and the authority should examine in depth whether the candidate is suitable for the position, first and foremost from the viewpoint of his ethical qualities (Eisenberg v. Minister of Housing [1], at pp. 256-257). However, the statutory restrictions upon an appointment do cast light on the ethical criteria required by the legislature for the purpose of the appointment, and the effect of this is to increase the margin of discretion of the person making an appointment where the candidate satisfies the statutory minimum requirements for the appointment.

As the court held in Movement for Quality Government in Israel v. Prime Minister [11] (at para. 8 of the opinion of Justice Rivlin):

‘… the criteria for eligibility laid down by the legislature are not irrelevant when examining the discretion of the prime minister. The further we depart from the statutory criteria, the more difficult it will be to find a reason and justification for intervening in the prime minister’s discretion within the scope of his authority. Indeed, if the legislature has determined that the conviction of a minister of an offence involving moral turpitude necessitates his removal from office, the court will not lightly say that even when the minister has been acquitted of the offence, or a decision was made not to bring him to trial at all, the minister should be removed from office.’

The Knesset’s approval of the appointment

25. Under s. 15 of the Basic Law: The Government , the addition of a minister to the cabinet requires giving notice to the Knesset and receiving the Knesset’s approval. This process subjects the decision of the prime minister and the cabinet to add a minister to the cabinet and the identity of the minister who was appointed to a public, political and parliamentary test. The Knesset’s decision is made after a debate, and it is made by virtue of the Knesset’s position as the supervisor of the government’s actions. The Knesset’s approval for the government’s decision to add a minister to the cabinet reflects parliamentary approval of the elected house of representatives for the appointment that was made by the executive branch (Sarid v. Knesset Speaker [2], at para. 5 of the opinion of Justice Barak).

All organs of government are subject to judicial review, and the Knesset is no exception (HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19]). But the status of the Knesset as the legislative branch, as enshrined in the Basic Law and as determined by the structure of our democracy, requires the court to exercise its judicial review of Knesset decisions with caution and restraint. As a rule, the court will refrain from intervening in Knesset decisions, and the basic criterion by which the scope of the court’s intervention is determined depends upon the nature of the decision from the viewpoint of the amount of harm that it inflicts upon the principles of the constitutional system and the basic notions that lie at its heart (per President Shamgar in HCJ 325/85 Miari v. Knesset Speaker [20], at p. 195; Movement for Quality Government in Israel v. Knesset Committee [19]). The scope of judicial review of Knesset decisions is determined, inter alia, in accordance with the nature and characteristics of the specific decision. Intervention in a decision relating to legislation cannot be compared to intervention in a quasi-judicial decision or a decision concerning the Knesset’s scrutiny of the Government’s actions (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]).

26. The Knesset’s approval of the Government decision to appoint someone who was convicted of a criminal offence as a new minister has two aspects. One aspect relates to its nature as an act of scrutiny of the Knesset as the body that supervises the actions of the Government. The other aspect is of a normative-ethical nature, with quasi-judicial overtones; it reflects the ethical outlook of the Knesset as to the competence of someone who has been convicted of a criminal offence to hold office as a minister in the government. The first aspect concerns the relationship between the Knesset and the Government, and it involves ‘a significant political component in which the judicial branch should not interfere, in order to prevent, in so far as possible, the “politicization of the judiciary” ’ (Sarid v. Knesset Speaker [2], at para. 7). The other aspect involves the Knesset in making an ethical and principled decision regarding the competence of a candidate to serve as a cabinet minister from the viewpoint of his ethics and character. This determination has a normative significance that concerns the determination and application of proper ethical and moral criteria to the holding of a very high office in the Government of Israel. This aspect of the Knesset’s decision with its ethical dimension opens the Knesset’s decision to more rigorous judicial review, since where the Knesset’s decision leaves the purely political sphere and addresses a question relating to considerations of public ethics as applicable to the office of elected representatives in government institutions, the scope of judicial intervention may become broader in so far as the ethical dimension is concerned (HCJ 306/81 Flatto-Sharon v. Knesset Committee [22]; Miari v. Knesset Speaker [20], at p. 127; HCJ 1843/93 Pinchasi v. Knesset [23], at p. 496; Amitai, Citizens for Good Government and Integrity v. Prime Minister [10]; HCJ 1139/06 Arden v. Chairman of the Finance Committee [24], at para. 5 of the opinion of President Emeritus Barak; Sarid v. Knesset Speaker [2], at p. 202 {56-57}; HCJ 9156/06 Pollak v. Members of the Seventeenth Knesset [25]; HCJ 12002/04 Makhoul v. Knesset [26]; HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [27], at pp. 899-900).

The limits of judicial review of a decision of the Knesset to bring  a minister into the government, who has been convicted of a criminal offence, are therefore influenced by the dual aspect of such a decision, which features both a manifestly political dimension and an ethical-normative one. The nature of the Knesset’s decision requires, on the one hand, the accepted degree of judicial restraint with regard to Knesset decisions, and, on the other hand, it may require a judicial examination of the ethical determination contained in it. This balance means that when a decision of the Knesset to approve the appointment of a minister to the cabinet amounts to an extreme and unusual departure from proper ethical criteria, it is likely to justify judicial intervention.

A judicial determination in a criminal trial

27. The court in which MK Ramon’s criminal trial took place directly addressed the question of the appropriate consequence of his Ramon’s criminal conviction with respect to the continuation of his path in public and political life. In the balance that the court struck when passing sentence, it held that a distinction should be made between the question of sentencing, in which MK Ramon should be held accountable, and the question of his public activity. According to its express and implied determination, Ramon’s act, despite the wrongdoing and impropriety inherent in it, is not supposed to impair the continuation of his public activity, either as a member of the Knesset or as a cabinet minister. As I have said, the court’s approach in the criminal trial does not mean that the body making the appointment is exempt from exercising independent and rigorous discretion with regard to the propriety of the appointment, even when the court has held that the offence should not be regarded as involving moral turpitude and the candidate should not be prevented from complying with the minimum requirements for the appointment. But it would appear that the court’s position has weight and significance within the context of the balances that the body making the appointment should strike when making a decision concerning the appointment. The position expressed by the court when it left the door open for MK Ramon to continue his public activity affects and influences the margin of discretion of the person making the appointment, and consequently also the scope of judicial review as to the reasonableness of that discretion.

The court in which the criminal trial was held was aware of all of the legal, moral and public aspects of the case that it tried. By virtue of its authority, the Magistrates Court is trained in striking the proper balance between the various considerations and conflicting interests in the complex case being heard before it. A final judgment that a criminal offence committed by a public figure neither warrants a custodial sentence nor involves moral turpitude, and in which the court clearly states its intention not to curtail the defendant’s public activity, has considerable significance and weight in guiding the discretion of the body making the appointment and it affects the limits of judicial review exercised with regard to his decision.

28. Regarding the margin of discretion given to the Prime Minister and the Government when appointing MK Ramon as a cabinet minister and the nature of the Knesset’s approval of this appointment, it is possible to summarize as follows:

In determining the margin of discretion, there are two forces that pull in opposite directions. On the one hand, the identity of the person making the appointment, the criteria determined by the statutory qualifications and restrictions and the existence of a judicial decision that the criminal act did not involve moral turpitude pull in the direction of broadening the power and discretion of the person making the appointment. On the other hand, the substantive-normative nature of the appointment decision and  its connection to the appropriate proper set of values that should be applied when appointing someone to a high public office expose it in this particular aspect to rigorous judicial review within the broad margin of reasonableness granted to the authority making the appointment. An extreme departure from the proper ethical weight that should be given to the normative-ethical considerations relating to the appointment decision, relative to the other considerations relevant to the appointment, will justify judicial intervention.

From general principles to the specific case

29. The reasonableness of the decision to appoint MK Ramon as a member of the cabinet is subject to judicial review. In this regard, the court should examine whether the authority making the appointment considered all the factors relevant to the matter, and whether it gave them their proper relative weight. At the end of the process, does the decision to make the appointment strike a proper balance between the conflicting considerations that lies within the margin of reasonableness, when taking into account the scope of this margin in the special circumstances of the case? 

30. In the case of MK Ramon, the authority making the appointment considered all of the factors relevant to the matter. On the one hand, it considered the importance of his expected contribution to the Government, in view of his abilities, his considerable experience and his knowledge of the matters required by the position. On the other hand, as can be seen from the statement made by Minister Sheetrit to the plenum of the Knesset, it considered his criminal conviction relating to an offence of an indecent act, with its circumstances and implications. It may be assumed that it also took into account the fact that the criminal trial ended only a very short time earlier. In its decision, the Government balanced the weight of the criminal conviction, its character and circumstances, as determined in the criminal trial, against the considerations relating to the importance of bringing MK Ramon into the Government at this time. In this balance, the scales were tipped in favour of approving the appointment, while having consideration for the weight and significance given to the conviction and its circumstances, and the short period of time that passed since the judgment was given.

In the circumstances of the case, it cannot be said that the Government decision to appoint Ramon as a cabinet member suffers from a manifest lack of reasonableness that justifies judicial intervention by setting it aside.

31. The Government’s approach in making the appointment, which was approved by the Knesset, is characterized by the distinction made, in the special circumstances of this case, between the criminal,  penal and moral aspect of the offence committed by Ramon and its consequences on a public level for an active public figure, whose horizons of activity have yet to be exhausted. Alongside this consideration, the authority making the appointment took into account the needs of the governmental system from a functional and political viewpoint. This approach of the  Government  is consistent with the outlook of the court that considered the matter in Ramon’s criminal trial. It does not conflict with the approach of the Attorney General, who, even though he still believes that the offence does involve moral turpitude, did not file an appeal against the judgment in the criminal trial and accepted the decision of the trial court in this regard.

32. Ramon’s act for which he was convicted in the criminal trial has complex legal, public and moral aspects.  His act was particularly serious and opprobrious not merely because of its actual character, but also because of the special context in which it was committed and his high public office (Minister of Justice), the fact that the complainant was an officer in uniform, and the fact that it occurred in the Prime Minister’s office, the headquarters of the executive branch, where the vital issues affecting Israeli society are decided.

Notwithstanding, the appointment process should consider, inter alia, whether the characteristics of the offence necessarily show the perpetrator as having a fundamental moral defect, which because of its nature should disqualify him from public office, or whether the incident was an isolated one, which,   irrespective of its impropriety, does not necessarily indicate incompetence to hold public office.

This examination is bound up with the question whether public confidence in the person holding office and the government may be significantly impaired by the appointment. An improper act always depends upon the circumstances, and it should be assessed and evaluated against a background of the conditions in which it was committed and in view of an overall examination of the qualities of the candidate, his personal and professional record, and the needs of the governmental network in which he is being asked to serve (Schussheim v. Minister of Public Security, para. 20 [8]; Hass v. Deputy Chief of Staff, General Dan Halutz [7]).

Despite the impropriety of the offence committed by MK Ramon, it was regarded both by the court in the criminal trial and by the authority making the appointment as an isolated incident that does not reflect any fundamental moral defect requiring his disqualification from public office. It was regarded as a momentary expression of human weakness, the result of special isolated circumstances, and did not indicate an innate aberration of conduct and character or a misguided set of values, which might indicate a fundamental incompetence to holding public office. On the other hand, the Prime minister and the Government thought that despite the difficulties inherent in the appointment because of the criminal conviction, the systemic needs of the Government justified bringing MK Ramon into the cabinet. His personal and professional contribution was required, in their opinion, to strengthen and promote the Government’s ability to carry out its various tasks.

As can be seen from Minister Sheetrit’s statement to the Knesset, in making the appointment the Prime minister and the Government assessed the special abilities of MK Ramon against the wrongdoing in the improper act of which he was convicted. In the balance that was made between the facts of the criminal conviction and the human weakness that it revealed, as well as the brief period of time that had passed since the sentence was completed, on the one hand, and the abilities and professional skills of the candidate, his expected contribution to public life and the importance of bringing him into the Government for various general reasons, on the other, decisive weight was given to the latter. In the circumstances of the case, the balance that was struck did not involve any defect that indicates extreme unreasonableness in the discretion exercised by the authority making the appointment. In striking the balance, there was definitely consideration of the question of whether the appointment was likely to substantively damage public confidence; in the special circumstances of this case, this question was mainly answered in the negative, since public confidence also recognizes the concepts of rectification and repentence in appropriate cases (Schussheim v. Minister of Public Security [8], at para. 29; Sarid v. Knesset Speaker [2]).

It follows, therefore, that within the margin of reasonableness given to the Government and the Knesset in the circumstances of the case under consideration, there are no ground for judicial intervention in the appointment of MK Ramon as a cabinet member.

Before concluding

33. Before concluding, I have read the remarks written by my colleague Justice Grunis with regard to the place and status of the ground of reasonableness among the grounds for judicial review of decisions of a public authority. I do not see eye to eye with my colleague on the question of the current and ideal scope of the ground of reasonableness in administrative law. It seems to me that we should leave this ground within the limits outlined by case law in recent decades. I do not intend to set out a wide-ranging response to the legal thesis set out in my colleague’s opinion, if only for the reason that it seems to me that addressing this complex issue is not essential for deciding the issue in the specific circumstances of the present case. I will content myself with discussing the very crux of the difference of opinion between us.

According to the approach of administrative law in recent generations, the ground of reasonableness acts as a main and essential instrument of judicial review of the administration, and it stands at the forefront of the protection of the individual and the public against arbitrary government. This ground is used to examine the rationality of government decisions as a normative concept, and the court has laid down criteria that it should consider when examining this. First, did the administrative authority consider all the relevant issues, and no irrelevant ones, or did it perhaps consider irrelevant and extraneous matters? Second, did the authority give each of the relevant considerations its proper relative weight, and did it thereby strike a balance that lies within the margin of reasonableness given to it? This margin of reasonableness may vary from case to case, according to the circumstances and characteristics of the specific case. Without any safeguard that the administrative decision is reasonable and rational, the individual and the public may be seriously harmed. It is insufficient for the administrative decision to be made with authority and in good faith. The decision should be rational and sensible within the margin of discretion given to the competent authority.

Limiting this tool of judicial review that is intended to examine the rationality of the administrative decision, which is what my colleague proposes, may lead to a revolution in the understanding of the principle of the legality of administrative action and limit the legal tools available to the court for examining the action of a public authority within the scope of the judicial protection given to the individual against executive arbitrariness. Restricting the ground of reasonableness may create a vacuum in judicial review that may not be filled by other grounds of review and may seriously curtail the willingness of the court to intervene in cases where the administrative authority in its decision did not consider all and only the relevant considerations, or  considered them but did not give them their proper relative weight, or also considered irrelevant considerations. It is easy to imagine the damage that such a process can be expected to cause to the concept of the legality of administrative action and the purpose of protecting the citizen in his relationship with the government, which lies at the heart of the definition of the grounds of judicial review of administrative action.

Needless to say, the existence of the ground of reasonableness, like the other grounds of judicial review of public authorities, requires great care when applying it in practice. It is true that because this ground is wide-ranging and has a high degree of abstraction, there is a concern that its application in the specific case, if  done without proper restraint and sufficient care, may result in the court encroaching upon areas that lie beyond the scope of the law, where it ought not to tread. The concern that the court will replace the ‘unreasonable’ discretion of the administrative authority with its own ‘reasonable’ discretion and thereby appropriate the authority for itself is no empty concern, and should not be ignored. My colleague addresses this in his characteristically analytical way. At the same time, this concern in itself should not, in my opinion, affect the existence of this important tool of judicial review or the scope of its application. This concern should guide the administrative judge day by day and hour by hour when exercising the tool of judicial review, upon being required to decide in a specific case whether the act of the administrative authority satisfies the test of reasonableness. The judge should examine with care whether all the relevant considerations were considered, and no others; he should consider whether the authority arrived at a proper balance as a result of the relative weight given by it to each relevant consideration. There may be more than one balancing point. It may be placed at any point within the ‘margin of reasonableness’ given to the authority, and the breadth of this margin should be determined according to the case and its circumstances, in view of the specific issue under consideration.

The principle that examining the reasonableness of an administrative decision does not mean that judicial discretion replaces administrative discretion is a basic rule in administrative law, and it constitutes an essential element of the judicial review of administrative authorities. It coexists harmoniously with the other criteria for examining the reasonableness of administrative decisions.

Certain types of issue, according to their content, and the character of certain public authorities, according to their status and the nature of their responsibility in the government, may also affect the scope of the judicial discretion that should be exercised within the context of the judicial review of administrative authorities.

The correct and appropriate application of the aforesaid principles within the context of the ground of reasonableness does not create a real danger that the court will usurp the place of the administrative authority and do its work in a particular case. An unbalanced application of the aforesaid principles may lead to an undesirable result of this kind. Therefore the emphasis should be placed neither on the elimination of this tool of judicial review, nor on restricting its scope of application, as my colleague proposes. The emphasis should be placed on the proper methods of implementing and applying the long-established principles of administrative law — methods of implementation and application based on proper assessments and balances that are intended to ensure the rationality of administrative decisions, for the protection of both the individual and the public.

My response to my colleague — with regard to the crux of the difference of opinion between us — is therefore that we should not undermine an essential tool of judicial oversight of administrative authorities because of an inherent concern that it may be applied wrongly. The tool should be left as it is, with its full scope, and it should be protected. At the same time, care should be taken, day by day and hour by hour, to apply the principles on which it is founded correctly and properly. This will maintain the full protection currently given to the citizen in his relationship with the government, protect the status of the administrative authority against incursions into its sphere of activity, and coexist harmoniously with the whole constitutional system whose principles form the basis of Israeli democracy.

Conclusion

34. This court’s judicial intervention is restricted to examining the legal-normative reasonableness of the administrative action under examination. In this field, "the field of law", no ground was found for intervening in the appointment. This does not necessarily preclude a different approach to the issue under consideration from the extra-legal perspective of morality and public ethics, in which the considerations and the methods of striking a balance between them are not necessarily the same as the balance required by the law. Naturally, the individual and the public as a whole have the right to form their own ethical judgment regarding these matters, according to their own standards and moral principles.

35. I therefore propose that we deny the appeals.

 

Justice E. Arbel

The petitions before us concern ‘… imposing the rule of law on the government,’ inasmuch as   they concern  ‘public confidence in the actions of government authorities in general and of the supreme executive organ of state (the government) in particular’ (in the words of Justice Barak in HCJ 6163/92 Eisenberg v. Minister of Housing [1], at pp. 238, 242 {24, 30}; see also Justice H.H. Cohn, ‘The Qualifications of Public Officials,’ 2 Mishpat uMimshal (Law and Government) 265 (1994), where he discusses these remarks).

1.    The Prime Minister sought to appoint MK Haim Ramon as a minister in his government, in the capacity of Deputy Prime Minister. The petitions in this case were filed with the purpose of torpedoing the appointment. In the interim, MK Ramon was appointed to the post, after the Government, pursuant to s. 15 of the Basic Law: The Government  (hereafter, also: ‘the law’ or ‘the Basic Law’) notified the Knesset of the appointment and the Knesset approved it. The petitions therefore are concerned with cancelling the appointment of MK Ramon as a cabinet member.

I agree with the legal analysis and principles set out by my colleague Justice Proccaccia in her opinion. We all agree to the premise that under the Basic Law the Prime Minister has broad discretion in appointing ministers in his government, and that judicial review of this power of the prime minister should be exercised sparingly, carefully and with great restraint. In addition, I agree that there are several obstacles that stand in our way when we consider whether we should intervene in this decision of the prime minister: the limited scope of intervention in decisions of the prime minister relating to the formation of the government; the fact that, as required by law, the Knesset gave its approval to the Government notice regarding the appointment of MK Ramon as a minister; and the finding of the Magistrates Court that the act did not involve moral turpitude, when read together with s. 6(c) of the Basic Law. Notwithstanding, unlike my colleague, I am of the opinion that these three obstacles are countered by significant considerations that were not properly taken into account at the time the decision was made to appoint MK Ramon as a minister. These mainly concern the significance of the criminal conviction and the findings of the Magistrates Court in his case, the short period of time that has passed since the conviction and the nature and lofty status of the position to which he was appointed.

2.    The discretion given to the prime minister in decisions concerning the formation of the government is very broad and encompasses a wide range of considerations (HCJ 3094/93 Movement for Quality of  Government in Israel v. Government of Israel [9], at pp. 423, 427 {284, 290-291}; HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [12], at pp. 58-59; HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], at pp. 846-847 {345-348}, and the references cited there). Notwithstanding, these decisions should satisfy the criteria of judicial review, like all administrative decisions: they should satisfy the requirements of reasonableness, fairness, proportionality and good faith, and they should contain no arbitrariness or irrelevant considerations (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 840, 846-847 {336-337, 345-348; Movement for Quality Government in Israel v. Government of Israel [12], at p. 54, although there the question under discussion was the power to remove a minister from office; HCJ 4668/01 Sarid v. Prime Minister [28], at p. 281). The relevant considerations should be taken into account when making decisions. Ignoring a relevant consideration, giving inappropriate weight to a relevant consideration or striking an unreasonable balance between the various considerations may lead to the decision being found to lie outside the limits of the margin of reasonableness, with the result that it is unlawful (HCJ 1284/99 A v. Chief of General Staff [29], at pp. 68-69).

On appointing a person with a criminal conviction to be a cabinet member and public confidence

3.    The decision under review — a decision to appoint a cabinet member — is governed by s. 6 of the Basic Law, which provides in subsection (c):

‘Qualification of ministers

6. …

       (c) (1) A person shall not be appointed a minister if he has been convicted of an offence and sentenced to imprisonment, and on the date of the appointment seven years have not yet passed since the day on which he finished serving the sentence of imprisonment, or from the date of the judgment, whichever is the later, unless the chairman of the Central Elections Committee determined that the offence of which he was convicted does not, in the circumstances of the case, involve moral turpitude.’

 

(2) The chairman of the Central Elections Committee shall not make a determination as stated in paragraph (1) if the court has held according to law that the offence of which he was convicted does involve moral turpitude.’

According to the ‘minimum requirement’ provided in s. 6(c)(1) of the Basic Law, a conviction in itself is insufficient to prevent someone becoming a member of the government. It is also essential that a custodial sentence was handed down and that the period of time stipulated in the section, which is a kind of purification period, has not passed since the candidate finished serving the sentence or the judgment was given. Indeed, case law has held that the existence of a criminal record in itself does not preclude the appointment of a person to public office, nor does it rule out his competence for the position. It has also been held that ‘in the absence of statutory qualifications, case law qualifications should not be laid down…’ (HCJ 727/88 Awad v. Minister of Religious Affairs [30], at p. 491). This is certainly the case where the legislature has provided statutory qualifications, as was done with regard to the appointment of a minister. Notwithstanding, as my colleague also emphasized, the fact that the law has determined statutory qualifications does not mean that it is possible to appoint as a government minister anyone who is not disqualified by the ‘minimum requirement.’ The arrangement in s. 6(c) of the Basic Law does not exhaust the grounds for disqualifying a person from holding office as a cabinet member, and even when the basic disqualification does not apply, the authority making the appointment should decide the question of the appointment after exercising discretion that includes an examination of all the relevant considerations and striking a balance between them (Movement for Quality Government in Israel v. Prime Minister [11], at p. 867 {374 }; HCJ 4267/93 Amitai, Citizens for Efficient Government  v. Prime Minister [10], at pp. 457-458). In other words, a distinction should be made between the question of whether the minimum requirements laid down by the legislature are satisfied and an examination of the discretion that was exercised in the decision to make an appointment.

This is also relevant to our case. The petitions before us do not concern the question of the power of the prime minister to appoint a minister to his government, since this power exists as long as the candidate satisfies the statutory minimum requirements, and there is no dispute that no statutory disqualification exists in the case of MK Ramon, since he was not given a custodial sentence at all. The petitions address the question of the discretion exercised by the Prime Minister as the person who had the authority to decide to appoint MK Ramon to the Government in the capacity of Deputy Prime Minister. We are not dealing with a question of authority but with a question of the reasonableness of discretion.

4.    My colleague discussed the principles laid down by case law with regard to the discretion that should be exercised when considering the appointment of someone who has been convicted in a criminal trial to a senior public office and the weight that should be attached to this consideration, and I shall therefore refrain from discussing this matter fully except where I need to do so in order to state my opinion.

The fact that a person is a competent candidate for holding office as a cabinet member according to the statutory requirements does not rule out the possibility — and in my opinion the duty — to take into account his criminal record, together with other relevant considerations, when exercising discretion in making the decision with regard to the appointment (Eisenberg v. Minister of Housing [1], at pp. 256-257 {54-56}; Amitai, Citizens for Efficient Government v. Prime Minister [10], at p. 459; HCJ 194/93 Segev v. Minister of Foreign Affairs [31], at p. 60; Movement for Quality Government in Israel v. Prime Minister [11], at pp. 843 {340-341}). A criminal conviction may not disqualify someone from being appointed to public office, but it is always a relevant consideration of paramount importance, since an appointment to public office of a person who has a criminal record has an effect on the functioning of the public authority, and the public’s attitude to it and confidence in it (Eisenberg v. Minister of Housing [1], at pp. 258 {57-58}; Segev v. Minister of Foreign Affairs [31], at p. 61).

This approach is based on the fundamental principle that the public authority is a public trustee (Eisenberg v. Minister of Housing [1], at pp. 256-257 { 54-56}; Movement for Quality Government in Israel v. Prime Minister [11], at pp. 843 {340-341}). The Government, the Prime Minister and the members of the Cabinet are public trustees. ‘They have nothing of their own, and everything that they have, they hold for the public’ (HCJ 1635/90 Jerezhevski v. Prime Minister [32], at pp. 839. 840; Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 461; regarding the duty of trust, see also HCJ 7074/93 Suissa v. Attorney General [33], at pp. 774-776). Trust is the cornerstone of the government’s ability to function. It plays an important role in forming the conceptual and practical outlook regarding the duties that the government owes to its citizens. The duty of trust that the government and each of its members owes to the public is an absolute condition for public confidence in the government, even though it alone is insufficient. Without public confidence in the government and its organs, a democracy cannot survive. A public figure is charged with the duty of trust in all his actions:

‘The duty of trust imposed on the prime minister and the members of the government is closely related to public confidence in the government. This is self-evident: a trustee who conducts himself like a trustee wins confidence, whereas a trustee who does not conduct himself like a trustee does not win confidence. The government needs confidence, not merely the confidence of the Knesset but also the confidence of the entire public. If a government conducts itself like trustees, the public will have confidence in the organs of state. If the government breaches that trust, the public will lose confidence in the organs of state, and in such a case the court will have its say’ (Movement for Quality Government in Israel v. Prime Minister [11], at p. 902 {420).).

The duty of trust is not discharged merely by means of decisions on questions of policy, initiatives, planning and action, but also by preserving a proper and unsullied image of public office and those who hold the highest offices.

5.    As I have said, when making a decision regarding the formation of the government, the prime minister is obliged to consider all of the relevant considerations, including the candidate’s criminal record, to give each of them its proper weight in the circumstances of the case and to strike a balance between them that is consistent with the fundamental principles of our legal system and their relative importance from the viewpoint of the values of society (Segev v. Minister of Foreign Affairs [31], at p. 61; Eisenberg v. Minister of Housing [1], at p. 263; HCJ 5562/07 Schussheim v. Minister of Public Security [8]).

A decision to appoint someone who has a criminal record to public office requires a balance between two sets of considerations: the first set of considerations concerns the principle of repentance. As a rule, a criminal conviction should not become a mark of Cain that the convicted person carries eternally on his forehead; he should not be punished for his crime after he has ‘paid his debt to society’ and amended his ways (see the remarks of Justice Dorner in Sarid v. Prime Minister [28], at p. 286). It is in the interest of both the individual and the public to allow even someone who has been convicted to start afresh. The second set of considerations concerns the major public interest in having an untarnished civil service, which enjoys the confidence of the public. The concept of ‘public confidence’ has become a widely-used expression, but it is precisely for this reason that we need to understand that it is not a theoretical concept, or even worse, merely a cliché. ‘Without trust the State authorities cannot function’ (HCJ 428/86 Barzilai v. Government of Israel [34], at p. 622 {104}). Public confidence is essential if the government is to be able to govern in practice. It is the cornerstone of the proper functioning of the civil service and the existence of a healthy society:

‘… without public confidence in public authorities, the authorities will be an empty vessel. Public confidence is the foundation of public authorities, and it enables them to carry out their function. The appointment of someone with a criminal past — especially a serious criminal past like someone who committed an offence involving moral turpitude — harms the essential interests of the civil service. It undermines the proper performance of its function. It undermines the moral and personal authority of the office holder and his ability to convince and lead. It undermines the confidence that the general public has in the organs of government’ (Eisenberg v. Minister of Housing [1], at p. 261 {64}).

Moreover —

‘The way in which the public regards the civil service, the confidence that the public has in the propriety of its actions and the integrity of its employees are prerequisites for the existence of a proper government…’ (CrimA 121/88 State of Israel v. Darwish [35], at p. 692).

The public’s confidence in the government and its members is derived to a large degree from their conduct and the integrity that can be seen in that conduct. For all of the reasons that I have discussed above, public confidence in its leaders should not be taken lightly. Public leaders are the standard-bearers who lead the nation; they are expected to act as an example and a role-model for the whole public. Public confidence cannot exist when someone who has recently been tainted is found in the rank and file of the civil service and government — and especially in senior positions. Moreover, civil servants who serve under members of the government and under the most senior public officials take their example from them; their conduct contributes to and affects the shaping of basic outlooks and accepted modes of conduct in the civil service, as well as the ethos of the whole civil service (Suissa v. Attorney General [33], at p. 781).

The disqualification in s. 6(c) of the Basic Law also reflects the balance between the two sets of considerations that we mentioned — between the principle of repentance, on the one hand, and the interest of preserving the integrity of the civil service and its officials, and public confidence in them, on the other (Sarid v. Prime Minister [28], at p. 287). But, as has been made clear, this balance does not exempt the person in authority from exercising discretion in each case, even when the disqualification does not apply to the candidate.

6.    The weight of the consideration concerning a candidate’s criminal record for holding office in public service vis-à-vis the other relevant considerations is not fixed or static. It varies from case to case according to the circumstances, inter alia in view of the nature of the criminal record and the character of the office under discussion:

‘Someone who committed an offence in his childhood cannot be compared with someone who committed an offence as an adult; someone who committed one offence cannot be compared with someone who committed many offences; someone who committed a minor offence cannot be compared with someone who committed a serious offence; someone who committed an offence in mitigating circumstances cannot be compared with someone who committed an offence in aggravated circumstances; someone who committed an offence and expressed regret cannot be compared with someone who committed an offence and did not express any regret for it; someone who committed a “technical” offence cannot be compared with someone who committed an offence involving moral turpitude; someone who committed an offence many years ago cannot be compared with someone who committed an offence only recently; someone who committed an offence in order to further his own agenda cannot be compared with someone who committed an offence in the service of the State’ (Eisenberg v. Minister of Housing [1], at p. 261 {64-65}).

It has also been said:

‘… the type of office that the civil servant is supposed to hold also affects the weight of the criminal past in the holding of that office. A minor position cannot be compared with a senior position; a position in which one has no contact with the public cannot be compared with one where there is contact with the public; a position not involving the control, supervision, guidance and training of others cannot be compared with one involving authority over others and responsibility for discipline. Someone who holds the office of a follower cannot be compared with someone who holds the office of a leader; an office that in essence does not make special ethical demands on its holder and on others cannot be compared with an office that is entirely devoted to encouraging a high ethical standard’ (Eisenberg v. Minister of Housing [1], at p. 262 {65}; see also Segev v. Minister of Foreign Affairs [31], at p. 61; HCJ 5562/07 Schussheim v. Minister of Public Security [8]).

Another consideration that has weight when appointing someone with a criminal record to public office is the degree to which the candidate is uniquely qualified for holding that public office. Thus it is customary to distinguish between a candidate who is one of many and a candidate who is unique and may in certain exceptional circumstances be the only person for the job. A distinction should also be made between an emergency, which requires the recruitment even of someone with a criminal record, and an everyday act of the civil administration that as a rule should be done by upright workers (Eisenberg v. Minister of Housing [1], at p. 262 {65}).

I should re-emphasize that although my opinion focuses on the consideration relating to a candidate’s criminal conviction and the findings of the court in his case — since these were not, in my opinion, given proper weight in this case — this is not the only consideration, and the review of the reasonableness of the decision should assume that the person making the appointment balanced this consideration against other considerations, such as the special abilities of the candidate, how suitable he is for the position, the tasks faced by the organization to which he is being appointed, etc. (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 870-871 {379}.

7.    Summing up this point, according to the principles laid down in Eisenberg v. Minister of Housing [1], usually the appointment of someone who committed a serious criminal offence in the past to a senior position in public service is unreasonable. Notwithstanding, this is not a sweeping rule of disqualification from every possible senior position in the public service. Like every administrative decision, this decision should also be based on a proper balance between the various relevant considerations, which should each be given the proper relative weight in the circumstances of the case (Sarid v. Prime Minister [28], at p. 280). But I should make it clear that in the case before us we are not dealing with a conviction for one of the most serious offences. I shall discuss the significance of this below.

The criminal trial that is the background to this case

8.    Was proper weight given to the criminal trial and the judgment relating to MK Ramon when the decision was made to appoint him a cabinet minister and Deputy Prime Minister? In order to answer this question, let us first consider the details of the conviction under discussion, since the petitioners’ claim is that it is because of these that the appointment is unreasonable.

MK Ramon was brought to trial and convicted of an offence of an indecent act without consent, under s. 348(c) of the Penal Law, 5737-1977 (hereafter: the Penal Law), in that, when he was Minister of Justice, he kissed and stuck his tongue into the mouth of the complainant, an IDF officer, who was working for the military attaché in the Prime Minister’s office. The event took place only a short time before MK Ramon went into a cabinet meeting that discussed the kidnapping of two IDF soldiers in the north and at the end of that meeting a decision was taken to go to war (the Second Lebanese War).

In the criminal trial, MK Ramon admitted that the kiss did indeed take place, but he claimed that the complainant was the one who initiated it and that he only responded to her. The Tel-Aviv – Jaffa Magistrates Court (the honourable Judges Kochan, Beeri and Shirizli) convicted him after it held that it regarded the complainant’s credibility as unimpeachable. The court held that MK Ramon’s version of events was mostly consistent and it discussed the emotion he displayed when he testified in the witness box, when he came close to tears because of the occasion and the circumstances. Notwithstanding, the court found that his version of events did not pass the test of logic and reasonableness, since it ‘… did not have a strong foundation, in some parts it was not supported by other testimonies and in other parts it was even in conflict with the evidence…’ (para. 26 of the verdict).

The findings of the Magistrates Court regarding MK Ramon are not flattering ones. Thus, for example, it was held that ‘in our opinion, the defendant’s testimony under cross-examination was a clear and characteristic example of how he tried to distance himself from anything that might implicate him, at the cost of not telling the truth, while at the same time he had no hesitation in besmirching the complainant’ (para. 26(c) of the verdict). His testimony was defined by ‘a distortion and misrepresentation of the truth,’ and the court also found that MK Ramon ‘… was not precise with regard to the facts, to say the least’ (paras. 28-29 of the verdict). In summary the court held:

‘… After reviewing and examining all the evidence, we found that the complainant’s statements are completely true. By contrast, we found that the defendant did not stick to the truth, tried to divert the blame from himself and direct it elsewhere, minimized his actions and his responsibility, and at the same time exaggerated the complainant’s role, distorted and misrepresented the facts in a sophisticated and insincere manner’ (para. 94 of the verdict).

Hardly a flattering description!

9.    In the sentence, the Magistrates Court considered the application made by MK Ramon’s counsel to cancel his conviction. The court discussed MK Ramon’s public standing, his extensive public activity, the distress and pain he suffered ‘as a result of the loss of the public career that was interrupted,’ as well as the considerable price that he paid because of the incident and the personal and professional damage that he was likely to suffer if the conviction stood. The court took into account the fact that this was an isolated incident, ‘which did not show that we are dealing with a sex offender or someone who has developed a criminal way of conducting himself,’ as well as the fact that the act was not one of the more serious sex offences, and it would appear that the lesson had been learnt. Notwithstanding, it was held that the higher the public standing of the defendant, the higher the standards and norms of behaviour that were expected of him. The court also took into account the injury to the complainant, the circumstances in which it was caused and the fact that the regret expressed by MK Ramon for the act at a late stage of the trial was inconsistent with the manner in which he conducted his defence. All of the considerations led the court to the conclusion that the public interest should be preferred to MK Ramon’s personal interest, since ‘cancelling the conviction in this case would obscure the message and blur the criminal nature of the act.’

The court also considered    the prosecution’s application to determine that the circumstances in which the offence was committed involved moral turpitude, but it denied it and held that:

‘… the overall circumstances in which the offence was committed do not justify a determination that the offence involved moral turpitude. The isolated and unplanned act was committed by the defendant following a meaningless conversation, in an emotional state of indifference. The act lasted two to three seconds and ended immediately.’

The court pointed out that ‘The defendant’s conviction is a punishment in itself’ and went on to say:

‘We are aware of the mitigating circumstances… and these have led us to the opinion that the defendant’s sentence should be minimal, so that the future harm that he will suffer will stand in due proportion to the nature of the offence and the circumstances in which it was committed.’

The court therefore sentenced the defendant to 120 hours of community service and ordered him to pay compensation to the complainant, while stating expressly that in passing sentence it had taken into account the provisions of s. 42A(a) of the Basic Law: the Knesset and had tailored the sentence to what is stated in that section. It should be explained that this section concerns the disqualification from the Knesset of any member who has been convicted in a final judgment of a criminal offence that has been held to involve moral turpitude.

Sentencing considerations, judicial review considerations and the issue of moral turpitude

10. As I have said, no one disputes the fact that MK Ramon satisfies the minimum requirements in s. 6(c) of the Basic Law, since he was not given a custodial sentence. He is therefore competent to hold office as a minister in the Israeli government. As I have explained, the question in this case is a different one, namely, did the decision to appoint him as a cabinet member — and in this case as Deputy Prime Minister — at the present time, fall within the scope of the margin of reasonableness?

MK Ramon was convicted of an offence that is one of the less serious sex offences. It was an act that does indeed appear to be an isolated incident that only lasted for several seconds. In view of all the circumstances, even though the conviction relates to a sex offence, I too share the opinion of the Magistrates Court that he should not be regarded as a sex offender. These considerations had a major effect on the sentence that the court handed down to MK Ramon and on the finding that the act did not involve moral turpitude.

Notwithstanding, these sentencing considerations, and even those that determine whether an act involves moral turpitude, are not identical to the considerations that should be taken into account when examining the reasonableness of appointing someone who has been convicted in a criminal trial to public office. The sentence is dictated by penal considerations, such as retribution, rehabilitation and deterrence of the individual and the public. The balance between these, when it is made against the background of the personal circumstances of the defendant and the circumstances in which the offence was committed, determines the sentence. Even if the sentence takes the interests of society into account, even if the court considers the message that may be conveyed by handing down a particular sentence to a convicted defendant, the principle of individual justice still lies at the heart of the sentencing decision. The individual who has been convicted is the focus of the decision, not the public or the public interest. Regarding the issue of moral turpitude, it has been held many times that the expression ‘offence involving moral turpitude’ does not address the elements of the offence of which the defendant was convicted but a serious moral flaw that was involved in its commission in view of the purpose of the legislation that speaks of that ‘offence involving moral turpitude’ (HCJ 11243/02 Feiglin v. Chairman of Election Committee [36], at p. 160; HCJ 251/88 Oda v. Head of Jaljulia Local Council [37], at p. 839; HCJ 103/96 Cohen v. Attorney General [38], at p. 326; R. Gavison, ‘An Offence Involving Moral Turpitude as Disqualification for Public Office,’ 1 Hebrew Univ. L. Rev. (Mishpatim) 176 (1968)). Our concern is with an ethical evaluation of the nature of the act:

‘ “Moral turpitude” accompanying an offence gives it a negative aspect that goes beyond the mere dimension of breaking the law. This is a concept that contains a negative moral-ethical judgment, a kind of moral stigma, which derives from ethical outlooks and moral criteria that are accepted by society.

This is a multi-faceted concept that takes on different forms when it is applied to the character of a specific offence and its circumstances, and the special context in which it is being considered…’ (per Justice Procaccia in Feiglin v. Chairman of Election Committee [36], at p. 162).

A decision as to whether an offence involves moral turpitude is made with reference to whether the public regards the offence as one that carries with it a stigma, which affects the ability of the person who was convicted to serve the public. The court deciding the question of moral turpitude is aware that from the viewpoint of the defendant its decision is likely to act as an exclusion from, or a readmission into, public life and public service. The focus of the consideration is the nature of the act against the background of the circumstances in which it was committed and against the background of society’s values and outlooks.

Whereas an offence involving moral turpitude emphasizes the immoral element in its commission, a criminal offence that may make it unreasonable to appoint its perpetrator to public office does not necessarily need to have an immoral aspect (Eisenberg v. Minister of Housing [1], at p. 266 {71}). Moreover, unlike the discretion exercised when sentencing someone and determining whether the offence involves moral turpitude, examining the reasonableness of discretion in a decision to appoint someone to office is different for the reason that it concerns judicial review of administrative discretion. Judicial review is carried out ‘… from the perspective of the fundamental principles of the legal system, as they are reflected in legislation and case law, and from the perspective of the fundamental values and norms of society’ (A v. Chief of General Staff [29], at p. 69). The offence and the circumstances in which it was committed are only one of many considerations that the person making an appointment should consider and that judicial review should take into account. Moreover, as I have said, in order to determine that an appointment to public office of someone convicted in a criminal trial is unreasonable, it is not essential that the act shows the person who committed it to be tainted by a moral stigma or moral turpitude. Sometimes it is sufficient that the nature of the position and the need to preserve public confidence in it do not allow someone convicted of a particular offence to hold that office. It follows that the fact that the court held that an act does not involve moral turpitude cannot rule out a finding that an appointment is unreasonable because of the conviction.

Everything said hitherto was merely intended to say that the mitigating circumstances discussed by the Magistrates Court in the sentence, as well as the finding that the act did not involve moral turpitude, cannot in themselves decide the issue in this case.

11. Admittedly, the act was one of the less serious sex offences and of short duration. It was an isolated event and the lesson has been learned. But all this cannot obscure and blur the fact that MK Ramon was convicted in a criminal trial. He no longer enjoys the presumption of innocence. He is not one of those persons who fell under the shadow of a criminal investigation that was opened against them but were never charged. At the end of a trial, he was found guilty (see and cf. Movement for Quality Government in Israel v. Government of Israel [12], at p. 57). As a rule, in such circumstances, when we are dealing with someone who has been convicted or has made a confession, the proper weight that should be attached to the question of public confidence is greater than the weight that it would be, were we speaking of someone who has merely been indicted and who protests his innocence (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at pp. 462, 467-468). The premise, therefore, is that when exercising discretion, the consideration of public confidence should be given considerable weight in the circumstances of the case. Was it indeed given the proper weight?

The time factor

12. Only a short period — several months — passed between the time when MK was convicted and served his sentence and his appointment to the position of Deputy Prime Minister. The time that passes from the conviction and serving the sentence until the appointment is relevant when considering the reasonableness of a decision to appoint someone to public office. The more time that has passed since the conviction and serving the sentence, the greater the tendency to prefer the considerations of repentance and rehabilitation and to think that the appointment will not undermine public confidence in public officials, and vice versa. The period of time that should pass from the time when the offence was committed and the sentence was served until the appointment varies according to the circumstances: ‘Certainly it is not measured in a few years. But decades also should not be required. The pendulum of time will swing between these two extremes, and it will stop in accordance with the circumstances of time and place’ (Eisenberg v. Minister of Housing [1], at p. 266 {72}; A v. Chief of General Staff [29], at pp. 73-74). In our case, only a few months passed from the time that sentence was passed on MK Ramon until he was appointed a minister in the Israeli Government. The relative lack of seriousness of the offence of which he was convicted cannot instantly efface the stigma inherent in the conviction. The appointment to the position of cabinet minister in the circumstances of the case, before the ink has even dried on the verdict and the sentence, and before the air has cleared, reflects an internalization, or at least an acceptance, of improper norms of conduct that should not be regarded as deserving of public forgiveness, as if they were mere acts of youthful impudence. I accept that the nature of the offence and the circumstances in which it was committed, as well as the fact that it is not one of the most serious offences, do not mean that decades should pass before MK Ramon’s appointment to a senior public office will be appropriate. But it is not right that only a few months pass before he returns to a senior position in public service.

The seniority of the position and the rule of law

13. The criminal conviction and the fact that the appointment decision was made a very short time after MK Ramon completed serving his sentence represent in my opinion the main difficulty in the discretion that was exercised in the appointment decision. Insufficient weight was given to the harm that the appointment would cause to public confidence in the Government and its members. An additional consideration that in my opinion was not given proper weight concerns the seniority of the position to which MK Ramon was appointed.

As I have said, in this case, where the conviction is a very recent one, considerable weight should attach to the question of public confidence. What is the picture that is conveyed to the public? Let us return to the beginning of the affair. When the police investigation against him began, MK Ramon suspended himself from the position of Minister of Justice. In doing so, it should be said, he acted properly. MK Ramon’s job was ‘kept for him’ and two ministers held office in his stead as Ministers of Justice on a temporary basis until it was known how his trial would end. A short time after MK Ramon finished serving his sentence, he returned to the cabinet, this time in a more senior position of Deputy Prime Minister. It should be remembered that the importance of the position requires considerable weight to be given to the consideration of preserving public confidence (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 471).

As I have said, the more important the office, the greater the weight of the consideration concerning the criminal record of the candidate. It has been held in the past that the importance of the position is not determined merely on the basis of formal tests such as seniority and job description, but also in accordance with the extent to which the public identifies the office holder with public service and the damage that will be caused to public confidence in public service if the appointment takes place (Eisenberg v. Minister of Housing [1], at p. 267 {72}). The importance of the position to which MK Ramon was appointed, namely Deputy Prime Minister, requires us to consider that this is a position that involves representation of the whole government. The role of Deputy Prime Minister, even though it is not defined in legislation, is a very senior position. Whoever holds this position represents the government and the state, and therefore very careful consideration should be given to the question of public confidence in view of his appointment to hold the post and to represent the whole government. This is a position that requires a special degree of confidence that the public will feel towards the person holding the position and towards the whole institution to which he belongs and which he represents. In such circumstances, a distinction should be made between the possibility of allowing someone who has been convicted to rehabilitate himself and to return to live a normal life after he has completed his sentence, and between placing him ‘… at the top of the administrative pyramid’ (Eisenberg v. Minister of Housing [1], at p. 266 {69}).

The short period of time and the appointment to such a senior position both convey a message to the public that the criminal trial is unimportant, and that a criminal conviction has no significance in the public sphere.

14. The findings of the Magistrates Court in MK Ramon’s case are serious, and as stated they include findings with regard to distortion and misrepresentation of the truth, not telling the truth and conduct intended to besmirch the complainant. Indeed, not only are the conviction and the judicial findings regarding the offence important, but so too is the defendant’s conduct during the trial. The fact that someone who was convicted after such serious findings were reached in his case nonetheless returned to public office immediately after he finished serving his sentence and was even given a more senior and more prestigious office is unreasonable. It reflects a normative approach that it is hard to accept. Prima facie, it does not take into account the need to maintain public confidence in public service and its integrity. A decision of an authority to appoint someone to public office while treating a criminal conviction, de facto, as insignificant, as if it had never happened or was carried away by a gust of wind, cannot be regarded as a decision that gave proper weight to the interest of maintaining public confidence in public office. The requirement that the more senior the office of a public figure, the stricter the standard of conduct that he is expected to follow, was drained of all significance in the case before us. Such a decision cannot be regarded as a decision based on a commitment to the rule of law. The following remarks should be taken to heart by the general public, and by authorities and persons in charge of them:

‘… The rule of law is not created ex nihilo, nor is it something intangible. It should be reflected in a tangible and daily observance of binding normative arrangements and in their de facto application to everyone, in the realization of basic freedoms, in guaranteeing equality and in creating a general atmosphere of trust and security. The rule of law, public welfare and the national interest are not contradictory or conflicting concepts. They are intertwined, interrelated and interdependent.

The court is specially charged with the practical realization of these expectations, but every state authority has the duty to act to realize these goals.

A sound administration is inconceivable without care being taken to uphold the rule of law, for it is this that protects us against anarchy and guarantees the stability of the system of government. This order is the basis for the existence of political and social frameworks and the safeguarding of human rights, none of which can exist in an atmosphere of lawlessness’ (Barzilai v. Government of Israel [34], at p. 554-555 {53}).

The message that the appointment conveys is that even if a criminal trial takes place, and even if it ends in a conviction, it may be said, possibly by way of hyperbole, that no one is accountable. The criminal stain that MK Ramon carries at this time is capable of tarnishing the whole Government, and this was not given proper weight. The quick appointment to a senior position, only a short time after the criminal trial ended and the sentence was served, sends a message to the public that there are no values, that one organ of Government has no respect for the work of the others, nor does it act in concert with them, even though all of these are essential for the existence of a democracy.

The nature of the offence and the effect it has on the public

15. Moreover, an additional consideration that should have been considered concerns the nature of the offence of which MK Ramon was convicted. The offence of an indecent act is relatively low on the scale of sexual offences, in view of all the circumstances. Notwithstanding, this does not diminish the seriousness of the act. As the Magistrates Court said: ‘… An offence was committed which, in other circumstances, might have been considered an offence that was not especially serious, but in view of all of the circumstances in which the offence was committed, it becomes more serious and acquires a dimension that has considerable public significance’ (para. 91 of the verdict).

An offence of an indecent act involves not only an injury to the person but also to the dignity of the victim of the offence as a human being, and to the victim’s autonomy as an individual, two things that are interrelated and closely intertwined. The existence of more serious sex offences in the statute books does not diminish the injury to dignity, nor to the autonomy of the individual:

‘Every woman and man is entitled to write his or her life’s story as he or she wishes and chooses, as long as no one encroaches upon the domain of another. This is the autonomy of free will. When a person is compelled to follow a path that he did not choose to follow, the autonomy of free will is undermined. Indeed, it is our fate — the fate of every man — that we constantly act or refrain from acting for reasons other than that it is our own free will, and in this way the autonomy of our will is found wanting. But when the injury to the autonomy of free will is a major one, then the law will intervene and have its say’ (per Justice Cheshin in CrimA 115/00 Taiev v. State of Israel [39], at pp. 329-330, even though that case concerned more serious offences).

The protection of the dignity and person of women is a social interest. No civilized society exists in which the dignity of women — or the dignity of any other person — is trampled without a murmur or without any proper response. The protection of society’s values, of which the value of human dignity is one, is not effected merely by prosecuting criminal trials and holding defendants accountable. It should be expressed wherever such expression is required by the nature of the matter. In our case, what is the message sent to the whole public — men, women and children — when they see that a cabinet minister was convicted of a sex offence that he committed against a young woman officer and then, within a short time, albeit after serving a sentence, he returns to a position that is at least equal to the one he held before his conviction, if not a more important one? It is a message that not only makes the criminal trial and the judicial ruling meaningless, but also erodes the values of respecting the person, dignity and wishes of women, especially in situations involving a disparity of forces (see also in this regard the remarks of Justice Strasberg-Cohen in A v. Chief of General Staff [29], at p. 76). It is a message that elected public officials do not need to be held to the high standard of ethics and the high standard of conduct that might be expected of them as persons who are supposed to serve as examples and models for the whole public (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470; Cohen v. Attorney General [38], at p. 326). How can the appointment be reconciled with the need to uproot norms that have no place in a civilized society? What message is sent to potential complainants that see the trials and tribulations endured by the complainant, who suffered denials and slanders, who underwent cross-examination ‘in a manner deserving of our respect’ (para. 10(a) of the verdict), who is found by the court to be a witness whose veracity is undoubted, and yet after her testimony is accepted, the conviction is reduced to nothingness?

16. I have not overlooked the fact that in sentencing MK Ramon the Magistrates Court expressly left open the possibility of his returning to the Knesset. But the Government went much further. It did not merely re-establish the status quo ante but it completely disregarded the explicit verdict and promoted someone who was recently convicted. The sentence handed down in the Magistrates Court sought to balance between the seriousness of the acts and the conduct of MK Ramon during the trial, as described above, and between the nature of the act and the circumstances in which it was committed. The Magistrates Court sought to achieve this balance by leaving the conviction as it stood, while imposing a light sentence and rejecting the proposition that the offence involved moral turpitude. The court expressly stated in its verdict that this balance was based on a premise that the MK Ramon suffered considerably as a result of the criminal trial and was likely to continue to do so as a result of the court refusing to cancel the conviction. Notwithstanding, the balance that the court struck does not, as I have said, make the exercise of discretion redundant when considering the appointment of MK Ramon to the cabinet.

I should emphasize that the decision in the petitions before us does not concern the competence of MK Ramon to serve as a member of the Knesset, which would give rise to the difficulty of undermining the will of the electorate. Intervening in a decision to appoint someone to the position of cabinet minister does not give rise to a similar difficulty, since it concerns a decision of the person in charge of the executive branch of government, in judicial review of his discretion, and it does not undermine the will of the electorate. Indeed, in the past when this court has considered petitions that sought to cancel the appointment of MK Raphael Pinchasi as chairman of one of the Knesset committees, it was held: ‘A distinction should therefore be made between the competence of a member of the Knesset to carry out his duties as a member of the Knesset and his competent to act in contexts outside the Knesset, such as in the context of the executive branch’ (HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [40], at p. 557; see also H. Cohn, ‘The Competence of Public Servants,’ Selected Writings (2001), at pp. 391, 402). This is also the position in this case.

I should clarify that I do not belittle the damage and mental anguish that MK Ramon certainly suffered as a result of being prosecuted in the criminal trial. Nor do I ignore the fact that the sentence was served in full or that the offence of which he was convicted was a relatively light one. But it is inconceivable that in the case of a public figure, who is expected ‘… to serve as an example to the people, to be loyal to the people and deserving of the trust that the people place in him’ (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470), where the damage that he suffered to his standing was a mitigating factor in his sentence, the outcome should be as it is in this case.

17. It should be emphasized that nothing in the aforesaid casts even the smallest doubt on the professional experience and abilities of MK Ramon to carry out the role given to him by the Prime Minister. In this respect, the offence of which he was convicted does not, in my opinion, have any effect or ramification on his ability to carry out this office. I am not questioning at all the additional considerations that were taken into account, and my assumption is that the Prime Minister, as the person who made the appointment, made the decision regarding the appointment after considering the tasks that confronted the Government and understanding the talents required of the ministers serving in the Government for the purpose of carrying out those tasks (see also Schussheim v. Minister of Public Security [8], at p. 846). I am prepared to accept that MK Ramon has the appropriate and proper qualifications and experience for the position. Nonetheless, it is well-known that disqualifying a candidate from holding public office does not depend only upon a connection between his criminal record and its effect on his professional ability to carry out the job for which he is a candidate, but also on his ethical and moral capacity to carry it out, unless a ‘real and urgent’ state of emergency makes it essential to appoint him as the only candidate (Sarid v. Prime Minister [28], at p. 280). In our case no such argument was made, and that is sufficient to prevent the conviction from being denied its proper weight.

A determination that a government decision to appoint a minister suffers from unreasonableness that goes to the heart of the matter creates a tension between the world of law and the world of politics, between two separate worlds that are governed by different sets of laws and different game rules. ‘The law is based, to a large extent, on ethics; democracy is based, first and foremost, on representation’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 63). When deciding petitions concerning the formation of the government, the court has the task of carefully balancing, with an approach of maximum restraint, the need to allow the public to be represented as it wishes by someone who was successful in an election and the need to preserve public confidence in government institutions and the proper moral standards of elected representatives (see CSA 4123/95 Or v. State of Israel [4], at p. 191; Movement for Quality in Government in Israel v. Government of Israel [9], at p. 429 {293-294}; HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [41], at p. 186).

This court has already, on several occasions in the past, considered the relationship between law and ethics, and between legal norms and ‘government culture’ norms (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 917-918 {440}; Movement for Quality Government in Israel v. Prime Minister [41], at pp. 157-158, 176-177). Petitions concerning the formation of the government — the appointment of a minister or his removal from office — often give rise to questions concerning the location of the border between the ethical sphere and the legal sphere, which decisions are determined by government culture norms and which are also determined by legal norms. The remarks made by Justice Cheshin in another case are pertinent in this regard:

‘… We should be always mindful of the fact that we are speaking of a government culture that is steeped in law — in norms from the field of criminal law — and the question we should ask ourselves is whether in this sphere that contains both government and law, the weight of law is so minimal that we will shrug it off and continue on our way without law. Surely allowing the demands of law to recede… is tantamount to giving up norms to which we, as people of law, regard ourselves as being committed, and which, moreover, we regard ourselves as obliged to disseminate and impose on those around us?’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 176).

He also held:

‘When we realize that the culture of “it simply isn’t done” has been undermined and that our standards have fallen very low, should the law not make itself clearly heard? Surely its voice should not sound merely like a piccolo, “clear and pure, but drowned out by the tumult?” ’ (ibid. [41], at p. 177).

President Barak also discussed the relationship between the rules of ethics and the rules of law and the proper place of the principle of reasonableness in regard to them, when he said:

‘One of the ways in which the rules of ethics become rules of law, in so far as the public authority is concerned, is through the value of reasonableness. An unethical act may, in certain conditions, be an unreasonable act. Indeed, I am of the opinion that a comprehensive application of the principle of reasonableness to all the acts of the executive branch — including acts that harm the integrity of the administration — is proper. Of course, in countries where the government exercises self-restraint, it is possible that there is no need to develop the principle of reasonableness and apply it to the field of governmental ethics. But in countries where this self-restraint is lacking — and the concept of “it simply isn’t done” is not sufficiently developed — the principle of reasonableness and the concept of the margin of reasonableness should be extended to all government acts’ (A. Barak, The Judge in a Democracy (2004), at p. 369).

There is no statutory restriction upon the appointment of MK Ramon, but it would appear that the appointment, in the circumstances described above, undermines those principles that support the rule of law, are essential to the existence of a civilized society, and ensure that public service enjoys and deserves public confidence. In such circumstances, I am of the opinion that this court has no alternative but to intervene in the appointment decision, in order to protect the norms to which our legal system is committed.

Postscript

19. I have read the opinion of my colleague Justice A. Grunis and the remarks of my colleague Justice Procaccia in response thereto. I agree in full with her remarks concerning the place and status of the ground of reasonableness in our law, and I would like add to them a few brief remarks:

a.     The premise of judicial review is the principle of the separation of powers. The separation of powers is essential for the existence of democracy. At the same time, the separation of powers does not imply that there is no connection between the branches of government. On the contrary, there is a connection between them: ‘… there is a reciprocal relationship between the different powers, so that each power checks and balances the other powers’ (HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [42], at p. 786; see also Barak, The Judge in a Democracy, at pp. 103-105). One of the expressions of the separations of powers lies in the principle, which has been mentioned innumerable times in the case law of this court, that the court will not intervene in a decision of the authority as long as it falls within the margin of reasonableness. The court does not examine whether it was possible to make a more correct, more proper, more efficient or better decision. As long as the decision that was chosen falls within the margin of reasonableness, there is no ground for the intervention of the court. Notwithstanding, it is obvious in my opinion that the principle of the separation of powers and the respect that each power shows the others — which also lie at the heart of my opinion — cannot render the function that the power has been authorized to exercise devoid of any real content. In our case, the rule of very narrow intervention in the decisions of the executive branch and the legislative branch cannot result in the decisions of those branches having a de facto immunity against judicial review. Moreover, where the court does not exercise its judicial review, it errs with regard to the principle of the separation of powers, the checks and balances that the powers owe to one other. In my opinion, restricting judicial review to various forms of procedural failures and questions of authority presents a real danger to the future of Israeli society and the proper functioning of the organs of government, since it leaves the court with a function that is almost totally technical and rules out real judicial review in which the court protects and promotes the values of society. In my opinion, restricting judicial review by an almost complete rejection of the ground of reasonableness leaves the public exposed to danger, since it is the public that will pay the price of those decisions that fall outside the margin of reasonableness.

b.     The difficulties raised by my colleague Justice Grunis in his opinion are indeed real ones, but as my colleague Justice Procaccia also says, the solution to them does not require complete or almost complete abandonment of the use of the ground of reasonableness, only great caution and maximum restraint that the court should adopt when exercising judicial review. Particularly in the case before us, I am of the opinion that the difficulty discussed by my colleague — the court being no better placed than any citizen of the state to assess the reasonableness of the decision — does not really arise. The reason for this is that the court has expertise with regard to assessing the weight of a criminal conviction, the time that has passed from the conviction and the serving of the sentence until the appointment, and the other considerations that I have discussed. No one can assess their weight as well the court. Moreover, even if it is true that determining the unreasonableness of the decision solely from the outcome that was reached — an outcome-based decision — gives rise to considerable difficulty, in the case before us the weight given to these considerations in making the decision can be seen not only from the outcome but also from the proceedings of the Knesset and all of the material presented to us. I should re-emphasize that ultimately I saw no reason to reconsider the approval given by the Knesset to the Government’s notice of the appointment, since this has been discussed in detail in the opinion of my colleague Justice Procaccia, it is not the subject of dispute in my opinion and I only saw fit to address the issues on which my opinion is based.

My remarks above address only a very small part of my position regarding the place and status of the ground of reasonableness as a tool of judicial review. The matter will, no doubt, arise in the future, and when it does, I shall discuss it in full.

Summary

20. The government’s ability to rule is based not only on the confidence expressed in it by elected representatives. The government’s ability to rule also depends ultimately on public confidence in it. As such, even if we assume that political and parliamentary considerations have considerable weight in determining the composition of the government, an essential condition for its proper functioning is a proper standard of principles, values and morality. When the court is called upon to exercise judicial review with regard to a decision that concerns the composition of the government, it should be guided, not only by the principles and rules that my colleague discussed, but also by the values and principles that society cherishes. Even in such a case it needs to strike a balance, which is merely a balance between different considerations:

‘When striking this balance, idealism that has no normative basis should be avoided. The judge does not aspire to the lofty and the pure that are unattainable. He does not contemplate an ideal society that has no real existence and cannot be achieved. He does not rely upon a perception of man as an angel. At the same time, the court should avoid a pragmatism that is based on market morality. The judge does not reflect the distorted views that are widespread in society. He does not direct his gaze at a sick society that is sinking into the abyss. He does not rely on a perspective that man is an animal… He takes current reality into account, but he does not regard it as the whole picture. The fact that “everyone does it” is not a criterion for the proper conduct of a civil servant. The fact that it is customary, commonplace and normal to act in a certain way does not make it the proper way to act…’ (Suissa v. Attorney General [33], at p. 781; see also H. Cohn, ‘Thoughts on Integrity,’ Selected Writings 417 (2001), at p. 451).

These remarks that were made in a different context are also apt in our case.

I have not overlooked the public debate surrounding the appointment in the prevailing circumstances and following the differences of opinion that surrounded the decision to bring MK Ramon to trial. Notwithstanding, judicial determinations are made in accordance with legal criteria, according to the basic principles of the State of Israel as a democratic state that espouses the rule of law and a culture of law, and the court has a duty to stand guard and protect these (see also Barzilai v. Government of Israel [34], at p. 585-586 {68-69}).

The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the Government and its members. As I have said, we are dealing with an issue that focuses on imposing ‘the rule of law on the government,’ to use Justice Barak’s expression in Eisenberg v. Minister of Housing [1], at p. 238 {23}. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. At the same time, I would emphasize that these remarks relate to the present moment, a short time after the events and the trial. Obviously, when a proper period of time has passed since the conviction and the serving of the sentence, the shadow cast by the criminal conviction and the disparaging remarks made by the Magistrates Court will fade, and it will no longer stand in the way of an appointment to a senior public office. I see no reason to consider the question of what should be the proper period of time that should pass before the appointment would be a proper one, since it has already been said in the past that ‘… any period of time that is determined contains an element of arbitrariness’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 175). We are not dealing with a question of mathematics, and in any case the determination depends inter alia on the nature of the position, the unique abilities of the candidate and the nature of the offence of which he was convicted, and these differ from case to case. Notwithstanding, a period of a few months, as in this case, is insufficient.

For all the reasons set out above, I am therefore of the opinion that it was right to issue an order nisi in the petitions. However, in view of my colleagues’ position, I have sought to set out my position, which, in essence, is that at the present time there is no alternative but to revoke the decision to appoint MK Ramon to the cabinet.

In conclusion I would like to refer to the remarks of Justice Türkel in A v. Chief of General Staff [29], where he cited remarks made originally by Justice Silberg:

‘If we seek to be a model state, a society that is a light unto the nations and a chosen people, we should remember — as Justice M. Silberg put it so well — that:

“Morality is the ideological basis of the law, and the law is the external, concrete form of some of the principles of abstract morality… The provisions of the law are — in the eyes of the legislature — the minimum moral standard that is required and expected of every citizen.

The desired ideal is that they will… coincide with one another to the fullest extent, as the water covers the sea’ (M. Silberg, Kach Darko Shel Talmud (1964), at pp. 66-67; emphasis in the original).”

This ideological basis is the infrastructure that enables the court to enforce legal norms that embody moral values. In my opinion, more than any other consideration, this is the cornerstone on which our decision stands’ (A v. Chief of General Staff [29], at pp. 77-78).

The image of society and the state is fashioned by decisions of the government in practical matters. Words are not enough. This consideration should be given a proper weight when making a decision to appoint someone to public office, and this is what should have been done in this case.

 

 

 

Justice A. Grunis

1.    With respect to the difference of opinion between my colleagues, I agree with the opinion of Justice A. Procaccia that the petitions should be denied. However, my approach is different from that of my colleague. According to my approach, in a case of this kind, where the Knesset approves the addition of a new cabinet minister, following a proposal of the Prime Minister and a decision of the cabinet, it is doubtful whether there is any basis for intervention by the High Court of Justice. Even if the court does intervene, it will do so only in a very rare and exceptional case. The present case does not justify intervention.

2.    Section 15 of the Basic Law: The Government sets out how a new minister can be brought into an existing government. The process begins with a proposal of the Prime Minister that is brought before the cabinet. The cabinet may decide to add a new minister. The Government is required to notify the Knesset of the decision and of the position that the new minister will hold. However, these steps alone are not sufficient. It is also necessary for the Knesset give its approval to the Government’s notice. In other words, the process of adding a new minister to the cabinet is not complete without a decision of the Knesset. The need for the Knesset’s approval is a characteristic of our parliamentary system, in which the formation of a government and its continuation in office depend upon the confidence of the Knesset. Thus, s. 13(d) of the Basic Law: The Government  provides that ‘The Government is constituted when the Knesset has expressed confidence in it,…’, whereas s. 28(a) of the Law states that ‘The Knesset may adopt an expression of no confidence in the Government.’

3.    In any case of court intervention in a decision of another branch, we need to take into account the relationship between three factors: the identity of the person or body that made the decision, the nature or classification of the decision and the error  tainting the decision or the ground for intervention. We shall address each of these, but we should emphasize that in this case we are not dealing merely with a challenge to a decision of an administrative authority. The addition of a minister to the government requires, as aforesaid, a decision of the Prime Minister, a decision of the Cabinet and a decision of the plenum of the Knesset. ‘The Government is the executive authority of the State’ (s. 1 of the Basic Law: The Government ). The government is the most senior administrative authority in the state. Of course, the rules applicable to judicial review of decisions of administrative authorities also apply in principle to decisions of the government. Nonetheless, the court will exercise great caution when intervening in a government decision (see HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], especially at pp. 836-837, 840-841 {316-328, 321-323}, per Justice E. Rivlin, at pp. 867-868 {359-360}, per Justice T. Or; I. Zamir, Administrative Authority, vol. 1 (1996), at pp. 89-91). Bringing a new minister into the cabinet does not take effect until the Knesset has made a decision. It follows that the success of the petition to the court depends on the court setting aside not only a decision of the most senior administrative authority, but also a decision of the Knesset. Naturally there should be a difference between judicial review of a decision of an administrative authority, and even of the Government, and judicial review of a decision of the Knesset. In our case, we are speaking of a decision of the Knesset that does not take the form of statute. Statutes are also the result of Knesset decisions, but the decisions to which we are referring give rise to different and separate questions. We are speaking of decisions of various kinds. Some of them have normative effect and may be made by various bodies in the Knesset, such as the Speaker, one of the Knesset committees, or the plenum. Since the ‘The Knesset is the parliament of the state.’ (s. 1 of the Basic Law: The Knesset), it follows that judicial review of its decisions should not be exercised in the same fashion and in the same manner as it is with regard to an administrative authority. Decisions made by the parliament, which was elected by the whole body of citizens, should not be treated in the same way as decisions of administrative authorities, even if we are speaking of the most senior authorities (see, for example, Movement for Quality Government in Israel v. Prime Minister [11], especially at p. 848 {332-333}, per Justice E. Rivlin; HCJ 73/85 Kach Faction v. Knesset Speaker [43], at pp. 158-159). When we speak of the identity of the body making the decision, we should distinguish between a situation in which a decision is made by the Knesset, such as in the present instance, and a case in which the Knesset takes no action and for that reason the administrative decision requiring the approval of the Knesset is not valid. Let us assume that the Prime Minister decides to bring a new minister into the cabinet and also that the cabinet makes a decision approving this. Were the minister to begin to act in the ministry over which he has been given responsibility before the Knesset has given its approval, we would say that the minister is acting ultra vires. If a scenario of this kind occured, it is possible that the court would act, since the seriousness of the defect is so blatant that prima facie little weight would be attached to the fact that the most senior administrative authority — the Government — has approved the appointment. Since the law requires the approval of the Knesset, if such approval was not given, it would appear that there would be a strong basis for the intervention of the court. The court’s intervention in such a case would constitute support and backing for the Knesset’s role, as opposed to intervention in a decision of the Knesset.

4.    In addition to examining the identity of the body that made the decision being challenged before the court, we should examine the decision in accordance with the nature of the act or decision. On this subject, it has been said in the past that the activity of the Knesset should be divided into three categories: legislation, decisions regarding internal parliamentary affairs, and quasi-judicial decisions (see, for example, HCJ 652/81 Sarid v. Knesset Speaker [2], at pp. 201-202 {55-56}; HCJ 1956/91 Shammai v. Knesset Speaker [44], at pp. 315-316; HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19], at pp. 141-142; HCJ 12002/04 Makhoul v. Knesset [26], and many other cases; A. Rubinstein & B. Medina, The Constitutional Law of the State of Israel (vol. 1, 2005), at pp. 235-259). Alongside the aforesaid three categories, there is another category of decisions — namely, decisions concerning parliamentary scrutiny of the Government. The main decision of this kind is a decision expressing confidence in the Government when it is formed. In addition to this decision, we should mention a decision of no less importance, which is the opposite decision — expressing no confidence in the Government (regarding the importance of such a decision in a parliamentary system, see Kach Faction v. Knesset Speaker [43]; C. Klein, ‘On the Legal Definition of the Parliamentary System and Israeli Parliamentarianism,’ 5 Hebrew Univ. L. Rev. (Mishpatim) 309 (1973), at pp. 312-313). Less significant powers given to the Knesset with regard to the formation of the government, its structure, and its composition, are the approval of government decisions regarding a change in the division of functions between members of the government (s. 31(a) of the Basic Law: The Government); transferring a power given by law from one minister to another (s. 31(b) of the Basic Law: The Government); combining, separating or eliminating government ministries; establishing new ministries (s. 31(c) of the Basic Law: The Government); and, of course, adding a new member to the cabinet.

5.    In addition to the aforementioned powers of the Knesset relating to the Government, the Knesset has additional powers of supervision. The ultimate possibility of exercising supervision is by means of primary legislation. The Knesset can pass various laws that increase or limit the powers of the executive branch. In this way, it is possible to exercise supervision of this branch. Another possible type of supervision is introducing a condition that the validity of subordinate legislation depend upon a decision of the Knesset (usually, one of the Knesset committees). The authority for such a requirement arises from an express provision in a Basic Law or an ordinary statute (for a general discussion of the Knesset’s supervisory role regarding subordinate legislation, see B. Bracha, ‘Towards Parliamentary Supervision of Subordinate Legislation? The Draft Basic Law: Legislation, Chapter 3,’ 7 TAU L. Rev. (Iyyunei Mishpat) 390 (1979)). In this context we should mention that this court has held that the scope of judicial review with regard to subordinate legislation that has received the approval of the Knesset is narrower than that exercised with regard to ordinary subordinate legislation that does not require such approval (see, for example, HCJ 108/70 Manor v. Minister of Finance [45], at p. 445; HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [46], at p. 774; HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [47], at p. 172; for a general discussion of the grounds for intervening in subordinate legislation, see HCJ 156/75 Daka v. Minister of Transport [48]). It follows that the fact that the Knesset approved an administrative decision — in that case subordinate legislation — narrows the scope of the scrutiny. In addition to supervision that has normative force, the Knesset has additional means at its disposal. We should mention the possibility of tabling motions, debates in the plenum or in one of the Knesset committees, submitting questions, and the activity of the Knesset (and especially the State Control Committee), with regard to reports and opinions of the State Comptroller (see chapter four of the State Comptroller Law [Consolidated Version], 5718-1958; for a general discussion of the Knesset supervision of government actions, see Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 2), at pp. 745-756).

6.    We therefore need to ask how we should rank the various types of Knesset decisions — legislation, parliamentary supervision, internal parliamentary matters, and quasi-judicial acts — from the viewpoint of judicial review. In other words, when will judicial review be relatively broad and when will it be narrow? There is no doubt that, with regard to primary legislation, judicial review is very limited. The court does not have the power to set aside a statute, except in those cases where there is a conflict between an ordinary statute and a Basic Law. At the other extreme of the spectrum lie quasi-judicial decisions of the Knesset or of one of its committees. Between these lie the decisions on internal parliamentary matters and decisions concerning parliamentary supervision of the executive branch. It can be said that insofar as a decision concerns the essence of the parliamentary function, namely legislation and parliamentary supervision of the executive branch, the court will tend to refrain from intervention. The relatively broad scope of intervention in quasi-judicial decisions is founded, it would appear, on the idea that the parliamentary minority needs to be protected against the excessive power of the majority (regarding the protection of a parliamentary minority, even with regard to a decision that is not quasi-judicial, see Kach Faction v. Knesset Speaker [43]; Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 1), at pp. 241-242). The difference in the scope of judicial review exercised with regard to different decisions is also explained on the basis of the political element in the decision under consideration. The greater the political element in a decision, the greater the restraint that is required of the court. This can be shown by means of a comparison between intervention in subordinate legislation that has received the approval of the Knesset and exercise of judicial review with regard to a vote of confidence in a new government. Clearly the court will intervene in a decision of the latter type only in extreme cases (see Movement for Quality Government in Israel v. Prime Minister [11]), and in cases where forgery, fraud, or a similar voting impropriety determined the result (see and cf. HCJ 5131/03 Litzman v. Knesset Speaker [49]). Decisions within the framework of parliamentary supervision are often decisions in which the political element is considerable. The court ought to distance itself from intervention in decisions of this kind (see the opinion of the majority justices in Movement for Quality Government in Israel v. Prime Minister [11]).

7.    Another factor that may affect the intervention of the court and its scope in decisions of the Knesset is the ground for the intervention or the defect in the decision or in the decision-making process. Broadly speaking, the defects can be divided into three types: ultra vires, procedural impropriety, and unreasonableness. In addition to these we should mention other defects such as discrimination, conflict of interest, incorrect interpretation of the law, and disproportionality.

8.    The defect of a procedural impropriety, in the context of judicial scrutiny of Knesset decisions, presents a special problem. The court has recognized expertise on the subject of procedural improprieties. Sometimes a claim is raised in the court that an administrative decision should not be allowed to stand because of an impropriety in the decision-making process. The willingness of the court to intervene in a decision because of a procedural impropriety is relatively high. One reason for this is that intervention on the ground of a procedural impropriety does not consider the question whether the decision on its merits was right, reasonable, or logical, since the court is not the competent body to make that decision. Another reason is that the court, and especially an appeals court, is responsible for correcting procedural improprieties that are found in the actions of lower courts. When the court sets aside an administrative decision because of a procedural impropriety, it compels the authority to act in accordance with the law. It tells the authority that it should comply with the provisions of the law in the process of making the decision. It follows that there is great justification for judicial intervention when a decision is not made in accordance with the proper procedure. On the other hand, insisting upon every detail of the proper procedure, no matter how minor, may make it difficult for the authority making the decision to function. Not every procedural defect is significant, nor should every impropriety in procedural matters result in judicial intervention. The problem is particularly obvious with regard to procedural improprieties in acts of the Knesset. There is a natural desire to refrain from judicial involvement in the activity of the Knesset, in view of the fact that the Knesset is the body elected by all the citizens of the state. This reluctance is highlighted in cases of internal parliamentary matters. This term often refers to procedural matters and the everyday proceedings of the Knesset. Therefore the court does not intervene with regard to the time at which a debate on a no-confidence motion in the government will be held (Sarid v. Knesset Speaker [2]), a petition against a decision of the Speaker of the Knesset to include a certain matter in a debate at the request of the Government when it is claimed that insufficient notice has been given (Shammai v. Knesset Speaker [44]), or a decision of the Speaker to postpone the holding of a vote on a draft law when the delay is a short one (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]). Notwithstanding, procedural defects may be very harmful, even when we are speaking of the actions of the Knesset. One example of this is the lifting of a Knesset member’s immunity without giving him an opportunity to state his case (see Pinchasi v. Knesset [23]). The justification for judicial intervention here derives from the fact that this was a quasi-judicial proceeding in which there was a serious flaw. It is possible that even when we are not speaking of a quasi-judicial proceeding in the Knesset, the court will intervene if the procedural flaw seriously harms an opposition party in the Knesset. Case law has held, in a very broad fashion, that the court will intervene if major values of the constitutional system are undermined (as in Sarid v. Knesset Speaker [2], at pp. 203-204). For example, if a decision of the Speaker of the Knesset denies an opposition party the right to address the Knesset, thereby committing a flagrant and ongoing breach of the rules of the Knesset, it is possible that the court ought to intervene. If the court does not grant relief, there would be no other body that could help to enforce the law upon the parliament. Thus, in my opinion, by intervening here the court would fulfil its classic role in the field of public law — the protection of minorities — which in this case concerns a parliamentary minority.

9.    The defect on which the petitioners base their petition against the decision to bring MK Ramon into the Government is unreasonableness. My colleague, Justice E. Arbel, accepts this argument and holds that the decision was unreasonable. My opinion is different. We should recall that in this case we are not speaking merely of a challenge to a decision of the Prime Minister and of the Government to appoint MK Ramon as a cabinet minister, but also of a challenge to a decision of the Knesset. The ground of unreasonableness is essentially different from the defects of ultra vires and procedural defect. When the court examines these two defects, the advantage and unique role of the court are self-evident. The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws. We should point out that questions of authority and procedural flaws arise also in the fields of criminal law and civil law. By contrast, the court has no special advantage or expertise on the subject of unreasonableness. Admittedly, the ground of unreasonableness is not new to our law and it was recognized in the early years of the state (see, for example, CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [50]). Notwithstanding, in recent decades, especially since the judgment of Justice A. Barak in HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], it has undergone a change and has almost developed into a kind of ‘supreme norm’ (like good faith and public policy). In the course of this development, it has swallowed up, like a person whose appetite is insatiable, specific grounds for judicial scrutiny that were recognized in the past (for example, the grounds of irrelevant purposes and irrelevant considerations). The great disadvantage of this ground in its current scope lies in its high degree of abstraction. The high degree of abstraction expands the role of judicial discretion and thereby increases legal uncertainty. It creates a huge disparity between its exalted position in the legal universe and its application in a concrete case. The development of the law in common law countries is done by the courts, inter alia by means of doctrines and subtests that apply very abstract norms, whether founded on statute or case law, on a more specific level. The ground of reasonableness is different in the sense that the passage of time has not resulted in the development of norms on a lower level of abstraction, which would make it easier for us to find a concrete solution and to reduce uncertainty when a claim of unreasonableness is raised. In this it differs, for example, from the ground of disproportionality (regarding the subtests of disproportionality, see for example HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [51] (opinion of Justice A. Barak); HCJ 3379/03 Mustaki v. State Attorney’s Office [52], at pp. 907-908; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [53], at pp. 839-840 {296-297}, and many other cases). Often use is made of the concept of weight in order to emphasize the concrete application of the ground of unreasonableness. Thus it has been said on more than one occasion that a decision will be set aside for unreasonableness even if the authority that made the decision took into account all of the relevant considerations, where it gave the wrong weight to one or more of the considerations that were taken into account (see Daka v. Minister of Transport [48], at pp. 105-106; HCJ 935/89 Ganor v. Attorney General [14], at pp. 514-516 (per Justice A. Barak); HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at pp. 420-421 (per President M. Shamgar); HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 464, and many other cases). Admittedly metaphors, such as weight, are an accepted tool of legal language. The imagery helps the court to analyze, develop its thoughts and convey the reasoning to the reader. At the same time, the use of metaphors may sometimes make the reasoning vaguer rather than clearer. The use of the image of weight in the context of unreasonableness admittedly helps to some extent. But we cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product, i.e., the outcome of the decision. In other words, the use of the metaphor of weight with regard to considerations that the competent authority making the decision took into account can sometimes, it would seem, be used to disguise disagreement with the result. The problem is particularly acute when the authority making the decision is a collective body.

10. The decision to approve the appointment of MK Ramon to the cabinet was approved by a majority of members of the Knesset, 46 versus 24. Where a decision is made by a body composed of a number of members, it is difficult to examine the considerations that were taken into account. Even if each of the members of the body publicly stated his reasons, it is impossible, or at least very difficult, to determine the relative weight that was given to each consideration in reaching the final result, which is a collective decision. This is the reason that the duty to give reasons, which usually applies to administrative authorities and other authorities, has not been applied, at least not in full, to authorities that are collective bodies (see, for example, HCJ 89/64 Greenblatt v. Israel Bar Association [54], at pp. 409-410; HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [55], at pp. 329-330; HCJ 306/81 Flatto-Sharon v. Knesset Committee [22], at p. 133). In the case before us, only a small number of Knesset members expressed their opinions during the debate in the plenum, and even they did not address the appointment of MK Ramon in specific terms but only in general statements (minutes of the 138th session of the seventeenth Knesset (4 July 2007). Clearly, in such circumstances it cannot be said with certainty what were the considerations that were taken into account by each of the members who voted to approve the decision. It is even harder to determine the weight given to each consideration. Therefore, what is done de facto by the judge who thinks that the decision is tainted by unreasonableness is to examine the outcome, i.e., the ramifications of the decision. Sometimes what is done in such cases can be referred to as ‘reverse engineering.’ In other words, the court examines the outcome, i.e., the decision, and in a process of hindsight it lists the considerations that it imagines were taken into account by the body that made the decision. If the final decision is unacceptable to the court, it will say that one of the considerations was given excessive weight or that a certain consideration was not taken into account at all. We therefore need to take with a grain of salt the remark that is sometimes made in this regard, that the court does not replace the discretion of the authority authorized by the law to make the decision with its own discretion (for use of this formula, see for example HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [56], at p. 69 (per Justice I. Zamir); HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [57], at p. 125; HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security [58], at para. 7(c) (per Justice E. Rubinstein); for a case in which, despite this statement, it was decided to intervene in the authority’s discretion, see Zidan v. Minister of Labour and Social Affairs [47]). It would therefore appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is indeed replacing the discretion of the authority with its own discretion. In this case we should remember that we are dealing with a collective body of 46 members of Knesset who voted for the decision to bring MK Ramon into the Government.

From our deliberations hitherto we see that the use of the ground of unreasonableness is highly problematic, especially when a decision of a collective body is challenged on this ground.

11. I do not intend to say that we should ignore or cancel the ground of unreasonableness. In my opinion, the use of relatively narrower and more concrete grounds — such as irrelevant reasons, irrelevant purposes, or discrimination — should be preferred. These grounds or defects have a lower level of abstraction and therefore their use will reduce the scope of judicial discretion and increase legal certainty. The use of the ground of unreasonableness will be justified in extreme cases, only when all the possibilities of judicial review on the basis of more precise grounds have been exhausted, and especially when the case involves a violation of human rights. It is possible that we should return to the use of the term extreme unreasonableness, which it would appear has been forgotten to some extent. Of course, this verbal test also suffers from imprecision and involves a significant amount of judicial discretion. Notwithstanding, the use of the adjective ‘extreme’ acts as a warning to the court. The court should refrain from replacing the authority’s discretion with its own discretion, not merely as a matter of rhetoric but also in practice.

12. The petition before us raises a claim of unreasonableness with regard to a decision of the plenum of the Knesset, which gave its approval to a decision of the Prime Minister and the Government to add a minister to the cabinet. The new minister is MK Ramon, who was convicted a few months ago of a sex offence. MK Ramon was sentenced. The sentence he was given and the determination of the court that the act does not involve moral turpitude lead to the result that the conditions provided in the law were not violated by the appointment (I am, of course, referring to the provisions of s. 42A of the Basic Law: The Knesset, and s. 6 of the Basic Law: The Government). Should this court determine that the decision of the Knesset, when it approved the appointment, was unreasonable? My answer to this question is no. The body that made the ultimate decision that completed the appointment process was the parliament. The decision to approve the appointment is clearly a political one. Naturally, the members of the Knesset had a duty to take into account the fact that the new minister had been convicted of a sex offence. We cannot say how this consideration compared with other relevant considerations. The alleged defect in the decision is not one of ultra vires. The defect on which the petitioners rely does not concern a procedural impropriety in the process in which the Knesset reached its decision. We are not even dealing with a question of the interpretation of statute, nor with a decision that violated an existing right of an opposition minority. The claim is that the decision to bring MK Ramon into the Government is unreasonable. As stated, this ground is very amorphous, because of its high level of abstraction. In these specific circumstances, the court is no better placed than any citizen of the state to determine the question of the reasonableness of the decision. We are not dealing with a matter that requires legal expertise. On the basis of all the aforesaid, my conclusion is that the court should refrain from intervening in the decision.

13. The determination that the court will not set aside the decision to bring MK Ramon into the Government does not amount to a ratification of that decision (see and cf. Movement for Quality Government in Israel v. Prime Minister [11]). Non-intervention is not equivalent to giving approval or legitimizing a decision. All that the court is saying is: ‘In the circumstances of the case, it is not for the court to determine whether the decision is improper.’ The court leaves the question in the public domain. It may be assumed that there will be citizens who will think that the appointment of a cabinet minister who has committed a sex offence is absolutely wrong. They may think that such an appointment is a stain on the Government. Even if this is the case, the matter does not require the court to intervene. We are distinguishing between our opinion as citizens and our thinking as justices. Public opinion and judicial opinion are not necessarily the same thing, and it is right and proper that they should not be.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

26 Kislev 5768.

6 December 2007.

 

 

HCJ 8035/07

HCJ 8146/07

 

 

Petitioners in HCJ 8035/07:

1.  Ronen Eliahu

2.  Erez Hindi

3.  Lemon Grass Tel Mond

4.  City Thai Ltd.

5.  Patai Lemon Grass Ramat Aviv Restaurant Ltd.

6.  Romy Ron Ltd.

7.  Honey and Cinnamon Lemon Grass Ltd.

8.  Ginger – Lemon Grass Ltd.

9.  Sheli veShel Michal Ltd.

10. Rafi Michaeli

11. Dror Kakon

12. I.S.R. Lemon Grass

13. Dov Swirsky

14. Glatt Peking Ltd.

15. Rafi levy

16. The Red Asian Restaurant (2003) Ltd.

 

Petitioners in HCJ 8146/07:

1.  Israeli Ethnic Restaurant Association

2.  Peking Restaurant, Lahak Debi Dining and Events Ltd.

3.  Yakuza Sushi Roll Restaurant Ltd.

4.  Korusin (Malha) Restaurant, Ginossar Ethnic Ltd.

5.  Lychee – We Are Different Food Restaurant Ltd.

 

v.

 

Respondents in HCJ 8035/07:

1.  Government of Israel

2.  Ministry of Industry, Trade and Employment

3.  Director of the Support Unit in the Ministry of Industry, Trade and Employment

Respondents in HCJ 8146/07:

1.  Government of Israel

2.  Minister of Industry, Trade and Employment

3.  Minister of the Interior

 

 

 

The Supreme Court sitting as the High Court of Justice

[23 January 2008]

 

Before Justices E.E. Levy, S. Joubran, Y. Elon

 

Petition for an Order Nisi

 

Israel Supreme Court cases cited:

[1]     HCJ 5626/97 Lerner v. Director General of the Employment Service (1997) (unreported).

[2]     HCJ 2836/98 Lerner v. Director General of the Employment Service. Minister of  Labour and Welfare (1998) (unreported).

[3] HCJ 9647/02 Ben David v. Minister of the Interior (2003) (unreported).

[4]  HCJ 3445/05 SushiMai Ltd. v. Ministry of Industry, Trade and Employment (2005) (unreported).

[5]  CJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673.

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

[7]  HCJ 3872/93 Mitral Ltd. v. Prime Minister [1993] IsrSC 57(5) 485.

[8]  HCJ 9723/01 Levy v. Director of the Department of Industry and Services for Issuing Permits to Foreign Workers [2003] IsrSC 57(2) 87.

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

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

[11] HCJ 4947/03 Beer Sheba Municipality v. Government of Israel (2006) (not yet reported).

[12] HCJ 4593/05 United Mizrahi Bank v. Prime Minister (2006) (not yet reported).

[13] HCJ 956/06 Association of Banks in Israel v. Minister of Communications (2007) (not yet reported).

[14] HCJ 5496/97 Mardi v. Minister of Agriculture [2001] IsrSC 55(4) 540.

[15] CA 4912/91 Talmi v. State of Israel [1993] IsrSC 48(1) 581.

[16] LCA 7678/98 Benefits Officer v. Doctori (2005) (not yet reported).

[15] HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94.

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

[17] CA 10078/03 Shatil v. State of Israel (2007) (not yet reported).

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

[19] HCJ 4638/07 Al-Aqsa Al-Mubarak Co. Ltd. v. Israel Electrical Corp. (2007) (not yet reported).

[20] CA Angel v. Bodesky [1992] IsrSC 46(4) 434.

[21] CA 1639/01 Kibbutz Ma'ayan Zvi v. Krishov [2004] IsrSC 58(5) 215.

[22] HCJ 366/03 Commitment to Peace and Social Justice Association v. Minister of Finance (2005) (not yet reported).

[23] HCJ 4769/90 Zidane v. Minister of Employment and Welfare [1993] IsrSC 47(2) 147.

[24] CA 524/98 State of Israel v. Zion Insurance Co. Ltd. [1998] IsrSC 52(2) 145.

[25] HCJ 6962/03 Media Most Co. Ltd. v. Cable and Satellite Broadcasting Council [2004] IsrSC 59(3) 14.

[26] HCJ 4542/02 "Kav La'Oved" Association v. State of Israel (2006) (not yet reported).

[27] AAA 1347/07 Gorong v. Minister of the Interior (2007) (not yet reported).

[28] HCJ 10843/04 Helpline for Foreign Workers v. State of Israel (2007) (not yet reported).

 

For the petitioners in HCJ 8035/07 – D. Holz-Leczner

For the petitioners in HCJ 8146/07 – R. Jarac; S. Luria Hai-Am

For the respondents – M. Zuk

 

JUDGMENT

 

Justice E.E. Levy

1.  The petitions before us concern the decision in principle of the Government to reduce the number of non-Israeli employees in the ethnic restaurant branch (various types of Asian restaurants).  This policy was formulated more than a decade ago, and it has been the issue in several petitions filed in this Court (HCJ 5626/97 Lerner v. Director General of the Employment Service [1]; HCJ 2836/98 Lerner v. Director General of the Employment Service, Minister of Labor and Welfare [2]; HCJ 9647/02 Ben David v. Minister of the Interior [3]; HCJ 3445/05 SushiMai Ltd. v. Ministry of Industry, Trade and Employment [4]).  At present, when the Government is taking concrete steps to implement the policy, it has once again been laid on the doorstep of this Court.

2.  The petitioners, the owners of dining establishments, object to a string of decisions that were made between the years 2004-2007 in which, at the first stage, the number of permits for employing foreign chefs in ethnic and mixed restaurants was reduced, and later, the granting of a permit became conditional upon payment of a high wage to the worker, reflecting the expertise for which the restaurant sought to employ him. In 2009, it was decided that in this branch, it will be permitted to employ only foreign experts, i.e. workers with special skills, whose monthly wage will not be less than twice the national average wage – a sum which today is equal to 15,000 NIS (Government decision no. 2445 of 15 August 2004; no. 3021 of 6 January 2005; no. 4099 of 9 August 2005; no. 4617 of 29 December 2005; no. 446 of 12 September 2006 and no. 1205 of 15 February 2007).

Needless to say, this wage rate is several times the rate currently paid to migrant workers in this branch. It is no wonder, therefore, that these government decisions outraged the restaurateurs, and they were joined in their protest by others, including the Minister of Tourism and senior officials in his office, the Mayor of Jerusalem, the Chairman of the Knesset Finance Committee, members of the Knesset Economic Committee and other public officials. They all explained how much damage these decisions would cause, not only to the ethnic restaurant branch but to the entire Israeli economy.  When their efforts failed and the Government persisted in its position, the petitioners sought the intervention of this Court, asking that we direct that the previously prevailing situation be restored, at least until they are able to recruit Israeli workers to replace those who are presently employed.

The Petitions

3.  The petitioners estimate that the number of migrant workers required for the approximately 250 oriental restaurants operating in Israel today is 1,400.  Without these workers, so it is claimed, these restaurants cannot exist: these workers are at the heart of the restaurants and they alone have the necessary expertise, as it were from the womb, in the preparation of the food that is served.  The petitioners add that the government decisions inflict a mortal wound on the restaurateurs' freedom of occupation, and that although all agree that increasing the rate of employment of Israelis is a worthy cause, the measures that have been adopted to advance this cause are not proportionate.  First, there is no connection between the cessation of employment of migrant workers and opening up of the branch to Israelis.  Significant efforts have been invested by the Ethnic Restaurant Association, in conjunction with the Ministry of Industry, Trade and Employment, to train Israeli workers in the art of oriental cooking, but they have all been in vain. Israelis, even those who are involved in the culinary field, refuse to touch this work.  The petitioners do, it is true, mention that in recent months, the Ministry of Industry – which is responsible for the training of replacement personnel – has been running a trial program to train some one hundred Israelis to work in the branch, but it will be many months before this program bears fruit, if at all.

The petitioners further argue that the ethnic restaurants in Israel provide a livelihood for thousands of local workers, including suppliers, service providers, agricultural workers and food manufacturers, and they make a real contribution to the tourism sector, which provides employment for many more Israelis. According to an expert opinion written by financial consultants and attached to petition HCJ 8146/07, in recent years the number of Israelis employed in the ethnic restaurant branch has increased at a significantly higher rate than the average rate of growth in other branches of the economy (P/26).  Collapse of the branch as a result of government decisions will therefore entail damage that greatly outweighs the benefit gained by reducing the number of migrant workers.  This is even more the case in view of the fact that the non-Israeli workers in the branch constitute only a minute proportion – no more than one percent – of all the foreign workers in the economy; moreover, in other branches the Government – surprisingly – has increased the numbers due to a shortage of workers. Even if the branch is not destroyed, the petitioners are concerned that the financial burden on their businesses will lead to a price increase and harm the population at large, and particularly the weak sectors, who will no longer be able to afford to eat in those restaurants.  Furthermore, they argue, the ability of the public to enjoy the varied food culture available at present, in which the oriental restaurants play an ever-growing part, will be diminished.

The third argument of the petitioners is that it is possible to achieve the same objective by less harmful means, for example, by requiring them to employ a given number of Israelis for every foreign worker. In concrete terms, it was argued that the government edicts are arbitrary with respect both to the number of permits allocated and to the rate of pay that was fixed, and they were not preceded by consultations or discussions with people in the restaurant business.  Why a non-Israeli chef should earn twice the average national wage is a puzzle to the petitioners.  In fixing this wage, they complain, the Government did not draw a distinction between experts in the different branches of industry and services.  The result, devoid of logic in their view, is that a foreign expert in the culinary field will earn an identical wage to that of his counterparts in the fields of medicine or engineering for example, in a manner that deviates significantly from the norm in the restaurant business.

The petitioners supported their petitions with the reports of several investigative committees that were set up by governments over the past decade; these committees recognized the special nature of the branch of ethnic restaurants and the importance of distinguishing it from other branches in which foreign workers are employed (Yankowitz Committee Report of 10 March 1996; Ben-Zvi Committee Report of 14 January 1998; Buchris Committee Report of 16 July 2001; Tal Committee Report of October 2002).  Their position is also supported by the expert opinion of chef Israel Aharoni, which was attached to the petition in HCJ 8146/07, and which explained the complexity of the training required in oriental cookery and the importance of the continued employment of foreign chefs, even if Israelis learn the trade, due to the special nature of the ethnic kitchen and the working methods employed therein. Finally, the petitioners attached expert opinions from accountants who wrote that setting the wage of expert workers at a rate that is twice the average national wage will cause financial losses to a number of restaurants (P/24, P/25).

Discussion

4.  "Freedom of occupation is the freedom to employ or not to employ", stated Justice D. Dorner in CJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [5]  (at p. 682), following Aharon Barak, who wrote at greater length: "A law that imposes an obligation to employ violates freedom of occupation.  A law that requires not to employ violates freedom of occupation" (Interpretation of Law 3, 597 (1994). See also Ran Hirschl, "Israel's 'Constitutional Revolution': The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order", 46 Am. J. Comp. L.  427, 440 (1998)).  Nevertheless, in HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel [6], this Court chose not to decide on the question of violation of the freedom of occupation of an employer who is restricted in the employment of foreign workers (per Justice A. Procaccia, para. 21).

This is the basic issue in the case at hand, and in providing a normative answer to it, two aspects of restriction of employment must be considered.  The first is that aspect within the parameters of which the employment of foreign workers whose knowledge or skills are vital for the operation of the businesses in Israel is prohibited – whether absolutely or by a substantial reduction of the number of permits issued.  These workers, as such, are not different from any other resource that is vital for the business, and the restriction of which threatens to negate the employer's ability to operate it (cf. HCJ 3872/93 Mitral Ltd.. v. Prime Minister [7], at p. 505).  And what is the restriction of a businessman's ability to obtain the resources necessary for operating his business, if not a violation of his freedom of occupation? 

'The policy of employment of foreign workers, with all the restrictions that apply by virtue thereof, must take into consideration, inter alia, the basic right of a person to freedom of occupation, and the possible violation of this right where his business requires the employment of foreign workers for whom it is difficult, or impossible, to find replacements amongst local workers …. In the implementation of its general policy, the competent authority ought to consider, inter alia, the occupational requirement of the individual, [and] the extent to which his business is liable to suffer if he is not permitted to employ a foreign worker' (per Justice A. Procaccia in HCJ 9723/01 Levy v. Director of the Department of Industry and Services for Issuing Permits to Foreign Workers [8], at pp. 93, 95).

Another dimension of the restriction of employment draws upon the economic aspect of the right to freedom of employment.  This right, where it involves a commercial enterprise in which a person wishes to engage, also relates to the ability to engage in it under conditions of economic profitability.  A person who proves that he is no longer able to run a profitable business due to a governmental restriction has lifted the burden of proving that his freedom of occupation has been violated.  The criterion ought to be objective, and it should examine whether a reasonable business owner could continue operating a business of a particular type at an acceptable level, despite the additional costs incurred as a result of the legal restriction. Relevant here are rules that restrict the employer's freedom of occupation in that they fix the wage conditions applicable to his workers, including those wages that raise his wage bill in a manner that  forces him to reduce the number of workers.  Indeed, "the question of whether the decision of the authority constitutes a violation of freedom of occupation must be examined materially and not formally.  Freedom of occupation is [also] violated when the decision of the authorities indirectly affects the realization of freedom of occupation in practice" (Lam v. Director General of the Ministry of Education, Culture and Sport [5], at pp. 681, 693).  At the same time, however, we will recall that the State is not under an obligation to create conditions of economic profitability, but only to refrain from actions that counteract such conditions.

Harming the Economic Interest of the Entrepreneur

5. The economic aspect of freedom of occupation extends even beyond the bounds of this right, for it involves financial interests of the person who claims to have been injured.  The owner of a business, even if he is unable to prove that his freedom of occupation has been denied, may be harmed by the very fact that his business has become more expensive.  What shall we call such harm? Does it amount to the restriction of a constitutional right to property, or is it positioned at a lower normative level?  Does this additional cost, which in some aspects resembles costs that are incurred by virtue of the tax laws, bite into the property of the businessman?  In the overall accounting, does it take something away from him?  And to whom does this additional sum that must be paid "belong"?  These are difficult and complicated questions. They involve different conceptions of the right to property.  They confront a nuclear concept of the term "property" with a wider understanding of it.  They raise the question of whether regulatory aspects of the actions of an administrative authority, upon the existence of which the ability of the businessman to realize his economic interest is largely dependent, violate his constitutional right.  They deal with the relationship between the owner of a business and his environment (Charles A. Reich, "The New Property", 73 Yale L.J.  733, 772 (1964)); Yoseph M. Edrey, "Constitutional and Normative Obstacles for the New Tax Legislation" 8 Taxes vol. 6 (1994) a20, 25; Joshua Weisman, "Constitutional Protection of Property: 42 Hapraklit 258, 267 (1995); Aharon Yoran, "The Extent of Constitutional Protection of Property and Judicial Intervention in Economic Legislation" 28 Mishpatim 443, 447 (1997); Eyal Gross, "Property Rights as Constitutional Rights and Basic Law: Human Dignity and Liberty" 21 Iyunei Mishpat 405, 410, 438 (1998); Gregory S. Alexander, "The Social-Obligation Norm in American Property Law", 94(4) Cornell L. Rev. 745 (May, 2009) and refs. therein).

Not for nothing did this Court refrain from ruling on issues such as these, when they arose in the past.  "Does protection of property", asked Justice I. Zamir rhetorically, "also extend to restrictions on employment contracts, such as a provision concerning the minimum wage?" (CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 470.  See also President A. Barak, ibid. at p. 431; HCJ 4562/92 Zandberg v. Broadcasting Authority [10], at p. 816; HCJ 4947/03 Beer Sheba Municipality v. Government of Israel [11], per Justice D. Beinisch, at paras. 7-8; HCJ 4593/05 United Mizrahi Bank v. Prime Minister [12], per President A. Barak, at para. 9); HCJ 956/06 Association of Banks in Israel v. Minister of Communications [13], per Justice E. Hayut, at para. 7). Indeed, the question of the damage to property and the extent of its protection requires extensive examination, and necessitates in-depth consideration of legal questions, both theoretical and practical, that are not simple.

However, even if the allegedly injured party did not succeed in lifting the burden of proof, the matter will not be at an end if he showed, instead, that a protected legal interest of his – even one of lesser import than a constitutional basic right – was violated.  When I say "protected interest" I am referring to an interest that would justify the transfer of the burden of proof onto the shoulders of the State to show that the violation was lawful.  An anchoring link is required, which would change a "regular" interest into one that gives rise to a claim vis-à-vis the authority.  This link could lie, inter alia, in a statutory act that confers a right – one that does not enjoy constitutional status – by means of an administrative action in which the person's interest is guaranteed, or through a person's reliance on existing government policy or legitimate expectations in light thereof. In the words of Justice Zamir:

'Protection is generally granted to vested rights.  In certain circumstances, however, the interest of reliance or the need to fulfill legitimate expectations also justify the granting of protection to an interest that does not amount to a right in the accepted sense or to an interest that has not yet crystallized into such a right' (HCJ 5496/97 Mardi v. Minister of Agriculture [14], at p. 552.  See also CA 4912/91 Talmi v. State of Israel [15], at p. 625; LCA 7678/98 Benefits Officer v. Doctori [16], per Justice A. Procaccia, at para. 20).

Judicial Review

6.   When a governmental action violates a right or a protected interest, recourse to administrative law to examine the constitutionality of that action is justified. This involves an examination of the purpose of the action and the extent of the harm that it causes, and use is made of tools that originate in the criteria of the limitation clause in the Basic Laws (HCJ 4541/94 Miller v. Minister of Defense [15], at p. 138). These tools render the review of administrative actions more precise, and facilitate the judicial decision-making process   (HCJ 3648/97 Stamka v. Minister of the Interior [16], at p. 777; CA 10078/03 Shatil v. State of Israel [17], at para. 22 of my judgment).  Their efficacy, as well as the need to invest the process of judicial review in all its aspects of the administrative enterprise with a systematic and consistent character, justify their application both when a constitutional right is affected, and when a right or a protected interest which have a lesser normative status are affected (HCJ 5016/96 Horev v. Minister of Transport [18], at p. 43; HCJ 4638/07 Al-Aqsa Al-Mubarak Co. Ltd. v. Israel Electrical Corp. [19], per Justice U. Fogelman, at para. 8).

Even though identical tools are used for the examination, the distinction between violating a constitutional right and a value of a lower status finds expression in the contents that are revealed by application of these tools.  I am referring mainly to the third criterion of proportionality, i.e. the "narrow" criterion, that places on one side of the scales the benefit of the administrative action and on the other, the damage, in all its aspects.  Clearly, where the right that has been violated is a constitutional right, the other side – counterbalancing the violation – must be more heavily weighted.

Assessment of the harm and determination of constitutionality require both a factual and a normative basis.  We refer to the facts particularly at the stage of identifying the violation, in determining its magnitude and in examining proportionality.  Most of the factual issues can only be resolved on the basis of information submitted by the parties to the court and proved in their evidence, since the judicial body is generally lacking independent tools with which to establish facts (CA Angel v. Bodesky [20], at p. 437; CA 1639/01 Kibbutz Ma'ayan Zvi v. Krishov [21], at p. 273; Barak supra, at p. 479). At first, the burden of submitting the information is borne by the petitioner, who is claiming a violation of a right.  If he is successful, the burden moves onto the shoulders of the administrative authority, which must show that the violation is lawful (United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 428, per President Barak; HCJ 366/03 Commitment to Peace and Social Justice Association v. Minister of Finance [22], paras. 10, 18 of my judgment). The factual examination need not necessarily reflect hindsight.  A well-founded expectation that a factual development will eventuate is sufficient.  However, the person making a claim about a situation that has not yet occurred bears the burden, which at times is not light, of showing a real chance that his expectations will be realized.

7. The normative aspect expresses itself primarily in the requirement of a proper purpose for the administrative act and in the test of "narrow proportionality" mentioned above.  In investigating this aspect we must follow the dictates of logic and morality and the public consensus; we must identify the fundamental elements of the regime and of the prevailing social order; and we must locate and develop concepts of the good on which they are based.  The advantage of the High Court of Justice here lies in the fact that it is an external body that is not involved in the administrative act; in its freedom from the political partisanship which is dominated primarily by passing trends; in the analytical tools which the law makes available to it,   and in the special role reserved for it in advancing the basic principles of justice and morality, mandated by its name and by the judicial tradition that developed in the court from the early days of the State.  At the same time, as a body that is scrupulous in maintaining the separation of powers in the substantive sense, the Court will take care not to put itself in the shoes of the administrative authority in determining appropriate policy and implementing it, even if it believes that it would be better to adopt a different policy.  "The application of powers vested in the court", wrote President M. Shamgar, "should be properly exercised in a way that refrains from turning the Court into a body that actively shapes the economic policy that it deems to be correct or preferable"  (United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 331 [emphasis in original]; see also HCJ 4769/90 Zidane v. Minister of Employment and Welfare [23], at p. 172; CA 524/98 State of Israel v. Zion Insurance Co. Ltd. [24], at p. 151; HCJ 6962/03 Media Most Co. Ltd. v. Cable and Satellite Broadcasting Council [25], at p. 30). Indeed, the court does not, and does not purport to engage in determining practical policy.  The point of departure for judicial review is that insofar as the court is asked to deal with questions of policy, it will refrain from doing so.  As stated in the specific context of the issue with which we are concerned:

'Tackling the issue of foreign workers is complex.  It involves taking into consideration a wide range of interests.  It involves taking into consideration the foreign workers themselves, their employers, and the needs of the Israeli economy and Israeli society as a whole.  It gives rise to difficult professional, economic and social questions that require responses on different planes.  In these circumstances, the intervention of the court in the selection of measures by the administrative authority for dealing with the issue confronting it will be narrow and limited' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 14).

Armed with all the above, I am now able to examine the arrangement that is the subject of this case.

Employment of Chefs from Overseas in the Field of Ethnic Restaurants

8.  The phenomenon of migrant workers has a significant impact on the Israeli economy and on the employment market in general.  Even those who support the phenomenon cannot deny the complex problems to which it gives rise, some of which are interconnected.  Several of them have been dealt with in past judgments of this court (HCJ 4542/02 "Kav La'Oved" Association v. State of Israel [26]; AAA 1347/07 Gorong v. Minister of the Interior [27]; HCJ 10843/04 Helpline for Foreign Workers v. State of Israel  [28]), and it will suffice to mention the detriment to the employment of Israeli workers, the rate of pay that is dragged downwards due to the effect of cheap labor, the negative treatment of the "foreign" worker – the few legal protections result in consistently decreasing his marketability – and the problems of the existence of a large sector that is not perceived to be an integral part of Israeli society, although it has lived and functioned within the society for many years.  After a long period in which governments in Israel ignored these problems, a policy for dealing with them began to take shape.  There will be those who argue with the degree of success of this policy, with the suitability of the measures that are adopted within its framework or with the conceptions on which it is based.  But it would seem that it is no longer possible to avoid the conclusion that without regulatory intervention, no response will be found for the whole set of problems as described, in that market forces alone are inadequate to provide a solution, as reality has proved time after time.  In order for this policy to succeed, it must take a comprehensive view of the issue.  This is no simple task that has been laid on the shoulders of the State, in view of the complexity of the problems, the myriad interests and interested parties that are involved, and the direct and indirect effects of any policy that will be adopted on the economy, on society and on the individual.

9.  Do the decisions that are the subject of this proceeding have an inordinately damaging effect on the protected interests of the individual, i.e. of the restaurateur who wishes to employ foreign chefs?  We are concerned, first and foremost, with the factual question.  The petitioners laid on our doorstep – as I mentioned above – evidence of a violation of their freedom of employment – a violation which according to them has already occurred and will become even more severe in future.  In my view, however, the material that was submitted does not constitute sufficient grounds for the existence of a violation of this constitutional right, in any of the aspects presented above.

First, it is clear that the government decisions do not prevent the restaurateurs from employing foreign workers.  Permits will be issued, even if their number will be lower than in the past and even if the cost involved in obtaining them is higher.  I have not found in the petitions, nor even in the oral pleadings, a claim that the number of permits for the employment of foreign experts in each restaurant is not in keeping with the required number of workers. The petitioners do not argue that even were they prepared to accept the pecuniary decree, the number of permits offered to them would not meet their employment needs.  Indeed, the Government does not wish to deny the restaurateurs the ability to benefit from the particular characteristics of those workers – which give them, at least at present, an advantage over the employment of Israelis, and I am referring to the knowledge, the skills, the work ethic and even to appearance and language.  On the contrary, in acknowledging that these workers have special characteristics that render them sought after in the local restaurant sector, the Government seeks to entrench their position such that on the one hand, a person who does not meet these special criteria will not be employed, and on the other, those who are employed will be suitably recompensed.  This policy, so it has already been ruled, attributes suitable weight to the interest of the employer in allocating permits for the employment of foreign workers (Polgat Jeans Ltd. v. Government of Israel [6], at para. 15).

The crux of the matter is, therefore, the economic profitability of employing those workers under the new conditions, and in practice - the relationship between the commercial advantages inherent in their employment and the cost to the employer.  There is no doubt that setting a wage rate at twice the national average greatly increases the latter component.  But will the effect on the benefit that the employment of those workers brings to the business be so drastic as to negate the profitability of the enterprise?  I cannot deduce this from the information that was submitted by the petitioners.  The expert opinions relating specifically to a limited number of restaurants – four out of two hundred and fifty (P/24) – which, it was argued, would face financial loss, do not suffice, nor does the general statement that this would be the fate of "many other restaurants" (P/25). What is required is specific data on the effect of the new policy on this branch, and the petitioners did not provide this.  More importantly, the expert opinions that were submitted relate to the existing system of management of the restaurants.  Nothing in the data that was presented indicates that it is not possible to operate an ethnic restaurant successfully, in a reasonable manner, even with the new rates of pay.

At the present time it is difficult to say whether implementation of the new policy will deprive the ethnic restaurants in Israel of their ability to exist as profitable enterprises or affect their special cultural character, or whether the petitioners will succeed in finding a solution for the problems that have arisen, particularly if the State provides some support.  The unknowns are numerous.  Is the wage that is currently paid to non-Israeli chefs reflective of their true market power?  Is the price level at the ethnic restaurants, and their number, in keeping with the demand for the service that they offer?  Will the new policy, along with the effort that is being invested in the training of Israelis in the art of ethnic cookery, lead to an opening up of the branch to Israeli labor?  Will the owners succeed in adapting themselves to the new regulatory policy?  These and other questions require solutions in real life.  I have not been offered even the beginning of a satisfactory answer to them, and therefore I cannot establish that the petitioners laid the grounds for a conclusion concerning a violation of their freedom of employment.  The same applies with respect to the question of a violation of a property right, which was not even mentioned in the petitioners' pleadings.  They did not base their petitions on this issue, and did not submit evidence to prove it.  What they omitted, the court will not complete in their stead.

10.  The foundation has not, therefore, been laid for determining that any of the constitutional rights of the petitioners has been violated.  Things are different with respect to the question of damage to a protected economic interest, the status of which is inferior to that of a constitutional right.  There is no doubt that even if the petitioners succeed in keeping their businesses operating under the new conditions, the direct effect of the new policy – the need to pay a wage that is higher than the norm and an increase in costs – will worsen their financial situation.  Indeed, the petitioners have no vested right to be permitted to employ workers at low wages, but a change in the policy that prevailed for many years, in the framework of which the wages of foreign workers were not dealt with, provides the required opening for putting the decisions to the tests of proper purpose and proportionality.

I have already discussed the proper nature of the purpose, and we are therefore left with the question of proportionality.  In my view, the State succeeded in showing that its decisions were compatible with the requirements of all three tests of proportionality.  First, at the present time and as long as reality has not proved otherwise, there is no basis for challenging the assumption concerning the existence of a rational connection between the policy that is implemented and the purpose that the government wishes to achieve. Support for the State position can be found not only in the dictates of common sense, but also in the data that was submitted by learned Counsel for the State, Adv. M. Zuk, which relates to what is happening in other branches in which foreign workers are employed.  The data indicates a clear connection between the change in the rate of employment of non-Israeli workers, and the change in the number of Israeli workers employed in the agricultural sector (para. 56 in the State's response) and in the construction sector (para. 55).  In the latter sector, the results of the government policy to limit the dimensions of employment migration, which led to a significant increase in the number of Israelis who were employed, was demonstrated (ibid.). The argument of the petitioners concerning the exclusive characteristics of the restaurant business is not devoid of logic, but they will have to back it up with factual data, which at present they do not have.

11.  On the matter of the alternative measure, I will mention again the combined aims of the government policy: to increase the number of Israelis employed; to narrow the gap between the value of labor of the employee – Israeli and non-Israeli – and between the rate of pay he receives, and to reduce the number of foreign workers who are not essential to the employer. I find it difficult to envisage any alternative to the solution adopted by the State that could achieve these aims.  The petitioners' proposal to employ a certain number of Israelis per each foreign worker does not meet the requirement, since it would appear that a fundamental element in achieving those aims is raising the status of the said field of employment.  In these circumstances, the foreign workers would continue to be employed at low rates of pay, similarly low pay would be offered to Israelis, and the latter will continue to shun this field of employment.  As for the rate of pay that was set, it would appear that any rate that was set would have been arbitrary to some extent, for in the nature of such things it is difficult to quantify precisely the value of the employment of foreign experts in each of the restaurants, as it is in relation to each of the other branches of labor.  The main thing, in my view, is that the rate which is set is acceptable and not obviously excessive.  Finally, I will say that the new arrangement has been implemented gradually, and it has not struck the petitioners like a thunderbolt out of the blue. In this way, undoubtedly, the detrimental effect on them has been reduced in a manner befitting the rationale underlying the second criterion of proportionality.

12.  As for the balance of benefit:  here, too, the petitioners are hindered by the absence of factual data which could indicate the extent of anticipated damage in all the areas that they claim.  At present, the basis has not been established for the claim whereby the policy that has been adopted will reduce the number of Israelis employed, because it will affect the leisure culture of the public, harm the tourist industry or widen the gap between the different classes in Israel.  All that has been placed on the side of the drawbacks is the added costs to the restaurateurs – an economic interest which prima facie, and from a normative aspect, does not counterbalance the potential benefit in realizing the government aims.  The balance that was struck is not without foundation.  It is not unreasonable.  Its source does not lie in some governmental caprice, but rather, in policy that was formulated after extensive investigation of the subject, and which is compatible with the economic and social agenda of the Government.  It does not, therefore, warrant judicial intervention.  How the balance of benefit will appear with the passage of time and as the results of the selected process become clear, only time will tell.  At the present point in time, the State has succeeded, in my opinion, in showing that this balance tilts in favor of its decisions, and with this it has fulfilled its obligation to demonstrate that the harm caused by these decisions does not exceed that which is required.

Damage to Other Protected Values

13.  I also find the claim of discrimination between employers, which is based on the different rules governing each of the branches requiring foreign workers, to be unsubstantiated at present.  This is a dual-pronged argument: first, that the policy of reducing the number of permits was not implemented in relation to other occupations, i.e. a similar norm should have been instituted not only in relation to restaurants but in all the branches that avail themselves of foreign workers; secondly, the determination in relation to the wage that must be paid is not sufficiently sensitive to the special characteristics of the branch of ethnic restaurants, which is to say that the branches should have been differentiated.  The reason for dismissing the claim of discrimination, in both its aspects, does not lie in this apparent contradiction, but in arguments touching upon the substance of the matter.

First, in relation to the number of permits:  It has already been ruled that each branch in the economy has its own needs, and each branch has a policy befitting its own context.

 'Policy relating to branches is directly influenced by the needs of the branch for personnel of different types, and it changes from branch to branch in accordance with the structure, the requirements and the particular problems of each.  This is a matter of different arrangements that are engendered by different requirements, and this does not give rise to a claim of discrimination' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 17).

Accordingly, it is possible to adopt a policy that distinguishes between the different branches on the basis of the degree of necessity of employing non-Israeli workers.  In the case before us, the Government decided that in the industrial and services sectors, insofar as there is a need for employing non-Israelis, it is experts that are required.  These, as I have already ruled, are available to the restaurateurs, as long as they fulfill the wage requirements.

As for the rate of pay: the argument of the petitioners is that "it is not possible to compare an expert oceanographer with an expert heart surgeon, architect, builder or expert ethnic chef" (para. 32 in HCJ 8035/07), which prima facie seems to be a seductive argument, but which in effect is worthless.  It must be recalled that the government decisions are not aimed at fixing a unified wage rate for immigrant workers.  Rather, they seek to set a minimum level below which employment of a non-Israeli will not be permitted, thus realizing the principle that requires that there be an advantage to hiring a foreign worker, other than his willingness to work for a low wage.  In order for the argument concerning discrimination to succeed, the petitioners would have had to show that in other branches, such as those specified above, the wage rate that was fixed was not effective in the realization of this principle. Not only did the petitioners not do so – once again the factual aspect of their petition was deficient – but it seems that in most of the occupations to which the argument relates, that principle is anyway realized by virtue of the special skills of the workers, to the extent that there is no longer a need to guarantee it by setting a particular wage rate. Justice Procaccia discussed this as well, writing as follows:

'In the industrial sector, the arrangement for issuing permits for the employment of foreign workers with special expertise is built on high wages.  In the fields of agriculture and construction, the arrangement is built on the employment of workers with regular skills.  This difference reflects on the level of wages paid to the workers' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 17).

At the same time, I will emphasize what seems to me to be obvious, i.e. that the declarations of the State concerning the common normative basis for its policy in each of the branches that have recourse to migrant workers, cannot remain on paper alone.  Wherever the State encounters difficulty in standing by its word and realizing the aims that served as its beacon in this matter – and I need only mention the discussion in the abovementioned case of Helpline for Foreign Workers v. State of Israel [28] – it will have difficulty in remaining convincing about its proper management of the whole issue.

14.  If I saw fit to dwell further on any of the arguments of the petitioners, it would be on the matter of the right of pleading, or what they call the "duty to consult" prior to the said decisions being taken.  As the petitioners themselves demonstrated, the formation of the present policy was preceded by a long process of investigation throughout which – as transpires from the appendices to the petitions – the petitioners expressed their position openly, by means of a serious lobby of public figures, with appearances in committees charged with the subject and in letters that were sent to the competent bodies. In these circumstances, there is no doubt that their position did not remain unheard, and it is as well-known as it need be to the decision-makers.  Thus the purpose underlying the right to plead has been realized.

I do not make light of the petitioners' concerns.  It is natural that a person looks out for his own interests. It is also natural that the owner of a business strives to maximize his profits.  But the Government – with a wide perspective – sought to provide a response to problems that extend beyond the particular concern of the petitioners, and the latter have not, as yet, succeeded in showing that they cannot adapt themselves to this policy, or that its disadvantages, overall, outweigh its advantages.  The burden of proof required for establishing grounds for judicial intervention has therefore not been lifted.

For this reason, I propose to my colleagues that we deny the petitions and cancel the interim order that was issued.  I further propose that we obligate the petitioners, in each of the petitions, to pay the respondents costs in the amount of 20,000 NIS.

 

Justice S. Joubran

I agree.

 

Justice Y. Elon

I agree.

 

Decided as per the judgment of Justice E. E. Levy.

 

16 Iyyar 5768

21 May 2008

 

 

            C.A. 86/63

 

           

HASSAN EL-ZAFDI

v.

BARUCH BENJAMIN AND ATTORNEY-GENERAL

 

           

In the Supreme Court sitting as a Court of Civil Appeal.

[July 11, 1963]

Before Olshan P., Silberg J., Witcon J., Cohn J.  and  Manny J.

 

           

Inter-religious law - guardianship of child of Jewish mother and Moslem father - jurisdiction of religious courts - Palestine Order in Council, 1922, arts. 51 and 55 - Women's Equal Rights Law, 1951, secs. 3 and 7 - Adoption of Children Law, 1960, sec. 11.

 

The child in this case was born to a Jewish mother and a Moslem father. According to Jewish law, the child was Jewish, following the mother, and according to Moslem law it was Moslem, following the father. On the death of the mother, the child was placed with its Moslem aunt, but when the father learned that German reparations were payable to the mother he applied to the District Court for the appointment of a maternal uncle as guardian. The Court appointed an uncle as sole guardian and at the instance of the Attorney-General ordered him to place the child in a Jewish institution. The father however, applied to the Sharia Court which decided that both the father and child were Moslems and that the child should be handed over to the father. The Attorney-General and the guardian, after having unsuccessfully contested the jurisdiction of the Sharia Court, did not take part in these proceedings. For some reason, the father nevertheless did not proceed to enforce the judgment of the Sharia Court and instead applied again to the District Court to have the appointment of the guardian set aside and for an order that the child and its property be delivered up to him. His application was denied and he appealed.

 

Held                  The father was the natural guardian of the child whichever personal law applies to either of them. Such natural guardianship did not, however, relieve the court of its fundamental duty of acting always in the interests of the child alone. In a case of "mixed" parentage, the President of the Supreme Court is empowered to decide whether either of the two religious courts concerned or the District Court has jurisdiction, and no party might apply to a religious court without the President's approval; for an application to the District Court no approval is necessary. Any decision made by a religious court with approval of its jurisdiction could not oust the jurisdiction of the District Court. Where a child's religion, as here, could not be certainly determined, the "territorial" principle applied and the child's interests were paramount. There was sufficient evidence before the District Court to show that it was in the interests of the child not to be placed under the guardianship of the father.

 

Israel cases referred to:

 

(1)   H.C. 72/62 - Oswald Rufeissen v. Minister of the Interior (1962) 16 P.D. 2428; S.J. (Special volume) 1.

(2)       C.A. 209/54 - Franz Steiner v. Attorney-General (1955) 9 P.D. 241.

(3)       Motion 121/55 - Orah Fruchter v. Bernard Fruchter (1955) 9 P.D. 1361.

 

Y. Ben-Yishai for the appellant.

The first respondent appeared in person.

M. Cheshin, Deputy State Attorney, for the second respondent.

 

COHN J.                     The fate of a young child whose parents' sins are being visited on her is to be decided in this appeal. This mother was Jewish and died when the child was still in her first year. The appellant claims to be the father of the child and to evidence that has produced her official birth certificate; and if it is pleaded before us that the appellant's paternity has not been sufficiently proved, the child's birth certificate is, in my opinion, good prima facie evidence and, no atcempt having been made to upset it, we must presume that it is true and on the strength of it hold that the appellant is indeed the father of the child. The appellant is stated to be a Druze in the birth certificate, but he asserts that he is not a Druze but a Moslem; and for the purpose of this appeal I assume, without deciding, that he is in fact a Moslem.

 

2. Litigation over and concerning the child commenced in 1960 when the appellant asked the Tel Aviv District Court to appoint him and an uncle of the deceased mother, one Baruch Benjamin, as the guardians of the person and property of the child. On that application the appellant argued that he and the deceased had lived as husband and wife, although unmarried, and that the child was their daughter; and that German reparations had been received in the name of the deceased to which the child is entitled to succeed. With regard to this application, the learned judge said in his judgment

"The applicant does not argue that he is legally the father of the child. Neither he nor his counsel says that. Clearly, had the applicant urged that he is the father, he could not have claimed to use the    money for bringing up the child, since as her father it was his duty to do so. In view of this situation the court appointed only the uncle of the child as guardian and gave him leave to obtain a Succession Order to the deceased's estate. He was also given leave to use money received after the Succession Order was obtained for the maintenance and up-bringing of the child."

 

3. Notwithstanding the appointment of Mr. Baruch Benjamin alone as the child's guardian, the appellant was able to get the child placed under the control of a couple by the name of Saliman, by means not explained to us. By virtue of his powers under the Welfare (Procedure in Matters of Minors etc.) Law, 1955, the Attorney-General instituted further proceedings in the District Court, submitting, as the learned judge stated in his judgment

 

"that the minor is now living with the Saliman family in shocking inhuman conditions and that the Saliman family looking after the child are elderly people, Mrs. Saliman suffering from trachoma, and they live in a hut open to the weather, and that the applicant ... does not visit the child nor is concerned about her ... and that for some nine months has not seen the child or at all been interested in her, and that he himself appears to be undeveloped and lives with a woman of doubtful conduct."

 

The Attorney-General petitioned that the appellant be denied his (natural?) guardianship and that the child be allowed to be adopted.

 

            The learned judge heard counsel for the Attorney-General, the appellant and the guardian Mr. Baruch Benjamin and directed the guardian to take the child away from the Saliman family and take her to "the social department of Tel Aviv Municipality so that arrangements might be made for her in an institution".

           

            We are told that the guardian did so and that the child is now in an institution.

           

4. Upon changing lawyers, the appellant was advised that the District Court had no jurisdiction in the matter and that exclusive jurisdiction lay with the Sharia Court since he was from birth a Moslem. The appellant did not remain idle and applied to the Yaffo Sharia Court. It appears from the decision of this court ... of October 8, 1962, filed with the District Court, that the appellant had asked three things from the Sharia Court - a declaratory judgment that he was a Moslem and not a Druze, a determination that he was the child's father and his appointment as the child's legal guardian, and the annulment of the guardianship of Mr.Baruch Benjamin (who was summoned as defendant in the Sharia Court) and an order that the latter deliver the child to him "together with all rights and property".

 

            Both Baruch Benjamin and the Attorney-General appeared before the Sharia Court and pleaded that it had no jurisdiction in the matter. After this plea was dismissed by the court, they no longer took part in the hearings.

           

            The Sharia Court, after hearing two witnesses (and two others regarding their credibility), held that the appellant was a Moslem "by origin" and the child his daughter. The court also held as follows:

           

"Lawful marriage relations existed between the parents (of the child) since marriage is determined according to the factual situation, as laid down by the sages... . And I hereby determine that the daughter is Moslem following the religion of her father and she can be adopted in accordance with the rulings of religious scholars; and in accordance with the application ... to appoint the father the guardian of his said daughter because he is capable of bringing her up, dealing with her affairs and managing her property in the best possible manner, in addition to the provisions of the Women's Equal Rights Law 1951, section 3(a) that both the mother and the father are natural guardians of their children and where one of them dies the survivor remains the natural guardian - I hereby appoint Hassan EI-Zafdi (the present appellant) as lawful guardian of his daughter Ziva EI-Zafdi and order that she should be delivered to him by any one under whose control she may be together with all the property due to her, and the father shall hand her over to his aunt Muhtia Hussin EI-Dagma with whom she was previously."

 

5. For some reason the appellant did not execute the judgment of the Sharia Court but made a new application to the District Court asking for the cancellation of Mr. Baruch Benjamin's appointment as guardian and order against him to hand over the child and her property. The learned judge refused the application, hence the present appeal.

 

            In a detailed and basic judgment the learned judge considered carefully Moslem, Jewish and English law, and Dr. Cheshin who represented the Attorney-General so elegantly and knowledgeably, also tilled every corner of the field of law to gather proof that this appeal should be dismissed. For myself, with all respect and esteem for the learned judge and appreciation of noted counsel, the questions which arise here are short and very simple and they need not detain us long.

           

6. Section 3 of the Women's Equal Rights Law, 1951, provides as follows:

 

"(a) Both the mother and the father are the natural guardians of their children; where one parent dies, the survivor shall be the natural guardian.

 

(b) The provisions of subsection (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interests of the children as the sole consideration".

 

Under section 7 of the same Law,

 

"All courts shall act in accordance with this Law; a tribunal competent to deal with matters of personal status shall likewise act in accordance therewith, unless all the parties are eighteen years of age or over and have consented before the tribunal, of their own free will, to have their case tried according to the laws of their community".

 

            Dr. Cheshin submits that the father referred to in section 3(a) is not the natural but only the legal father. Unlike his other submissions, this one does not merit acceptance. First, the word "parent" in the second part of the subsection indicates that we are concerned with a person who played a part in the pregnancy of the child. Secondly, the word "natural" indicates that we are concerned with guardianship created naturally and not depending upon the operation of the law (other than this statute). Thirdly, the Law draws a comparison between the father and the mother: just as the mother is natural and does not require legal recognition, so also the natural father is intended. Fourthly, and this is the main point, unlike English law, Israeli law does not recognize the status of the legal father as distinct from the natural father; and the terms of a Knesset enactment are not to be interpreted according to the meaning they can possess in the laws of one or other religious community (Rufeissen v. Minister of the Interior (1)).

 

            It follows that the appellant is the natural guardian of his daughter, whatever personal law applies to him or her;and all research into what this personal law is and its provisions is irrelevant here.

           

7. However, the natural guardianship of the appellant over his daughter does not by itself release the court (or any religious tribunal) from the basic absolute duty to adjudicate in guardianship matters affecting children "with the interests of the children as the sole consideration". What the Law calls "the power of a court or tribunal" is but the sacred duty which it may not disregard. I cannot express the matter more becomingly and incisively than Silberg J. when he said

 

"The test of the child's interests ... cannot be otherwise than one of two things, either it is not a serious consideration at all or it alone must be deemed the decisive absolute element ousting (in the event of conflict) every other consideration. No compromise is possible here: it does not lend itself to division and it is not to be mingled and confused with any other consideration whatsoever... . The Israeli legislature was therefore justified in laying down - and this to my mind is the correct meaning of section 3(b) - that the interests of the children are to be the final determinative consideration, both when they conflict with the rights of guardianship provided in section 3(a) and when they conflict with the provisions of a foreign law... No happier expression of this is to be found than the formula coined by one of our great poskim: the rule of matter is that all depends on where the bet din sees the better interests of the child lie (Responsa Radbaz, Part I, 123)" (Steiner v. Attorney-General (2) at p. 251-52)

            With regard to the child's interests here the learned judge was persuaded, both when dealing with the Attorney-General's application as above and again when dealing with the present application of the appellant, that the child should not be returned to the appellant's relatives but should remain in the institution where she is at present. The learned judge points out that the child was taken from the Saliman couple, the aunt and uncle of the appellant, because she was suffering there; and that she feels better, is developing well and receiving proper education in the institution where she is at present. Furthermore the reports of the Welfare Officer which served the Attorney-General as cause for his initiative, were not denied or controverted at all; before us as well appellant's counsel did not try to argue that these reports were incorrect or that meanwhile the situation at the Salimans has changed to the better.

 

8. The only submission of appellant's counsel in this regard was that the interests of the child required that she be brought up and educated in her religion, Islam, and not in a Jewish institution. I agree that generally the interests of children require that they grow up in the parents'faith; but I do not agree that every other interest must yield to this religious interest. The court facing the choice either to endanger the physical and mental health of the child by handing it over to members of its religion, if these are not fit or capable to rear and educate it, or to hand it over to teachers who, though not of its faith, will look after all its due needs - the court has the duty to be concerned with the health of the child and not its religion: the saving of endangered life displaces religion. That is simple and obvious.

 

            Nonetheless, I have not at all been persuaded that the child here is a Moslem. We have two judgments before us, one by the learned judge holding that the child is Jewish, and the other of the Sharia Court holding that she is a Moslem. In this situation, and without entering into the question whether the Sharia Court had jurisdiction to decide as it did, prima facie doubt exists as to the religion of the child; or one may say that she is Jewish according to Jewish religious law and Moslem according to Sharia law and thus a member of two religions, in theory if not in practice. In either event her interest alone must be decisive in respect of guardianship and her upbringing and education. Since there is doubt or conflict as to her religion, that cannot be an element, or be of importance, in finding where her interests lie.

           

            Moreover, where a person has dual nationality, the prevailing view today is that we look to the "effective" nationality, operative, real and manifest (see M. Silberg, Personal Status in Israel, pp. 247-50 (in Hebrew)). Presumably the same applies to a person with dual religion, the effective operative religion is followed in case of a conflict of laws. All this applies to an adult capable of giving effectivity to one of the nationalities or religions of his by actual conduct or expression. It is otherwise with a minor whose conduct and expression does not stem from a voluntary and thought-out act from which conclusions can be drawn in law. It appears to me, and I have no doubt about it, that such effectivity as regards a child is only its interest. When in the case of a child there is a choice between the law of two religions or two nationalities, one must choose that law the operation of which will yield greater benefit to the child, not only because in any case one must place the child's interests at the head of all consideration but also because the child, had he the ability of effecting a voluntary and thought-out act, can be presumed to act and express himself, and thus give effectivity, according to that religion or nationality from which it will derive the greatest benefit. Thus, even assuming that the present child is of dual religion, her "effective" religion is Judaism because her interests lie in growing up and living as she does at present and not in the home of the Salimans or of the appellant.

 

9. Appellant's counsel argues, though only half-heartedly, that the child's interests were already decided upon by the Sharia Court and that is the end of the matter. It is, however, not so. Although that judgment states that the appellant "is capable of bringing her up, dealing with her affairs" etc., and two witnesses attested to that in the Sharia Court, with all deference to their credibility and knowledge, the Sharia Court did not decide that it was in the child's interests to be in the home of the appellant and be brought up there. On the contrary, the judgment ordered the appellant to hand over the child to the couple in whose home she had previously been. And the Sharia Court said nothing about the fact that the child's interests require or justify her being placed with this couple, just as it says nothing about the frightful conditions described in the Welfare Officer's reports (which apparently were not brought to its knowledge).

 

  However, I was not in the least persuaded that the Sharia Court had jurisdiction in this matter and I am almost of the opinion, and not only for the reasons of my honourable friend, Witkon J., that it did not. Since, in any event, there is no finding in the judgment as to the needs of the child and her interests, I find no need to go into the question of jurisdiction, especially as the appellant himself turned to the District Court after the Sharia judgment had been given and undertook the burden of proving the interests of the child precisely in the District Court.

 

10. In one incidental matter appellant's counsel, it seems to me, was right. The learned judge stated in his judgment that as regards the possible adoption of the child he was doubtful whether in the light of section 11(1) of the Adoption of Children Law, 1960, the appellant's consent was necessary and that perhaps an adoption order might be made without his consent. Although the judge was doubtful in express terms, his observations imply that in fact he had made up his mind that the condition in section 11(1) of the said Law obtained*. The question whether the condition has been met in the case of the appellant, or whether his consent may be forgone by virtue of the existence of one of the other conditions in section 11, or whether his consent should properly be first sought since none of these conditions exist - these questions will not occur nor come up for decision so long as there is no application to court for adoption by a particular adopter. When the time arrives for such an application to be heard, the court will consider the applicability of section 11 on the evidence adduced on the hearing of the application.

 

            I would affirm the judgment of the District Court, though not for the reasons therein set out, and dismiss the appeal.

           

SILBERG J     The story of the child in dispute exposes the fact that we do not possess either the system or machinery for a fundamental solution of the problems of inter-religion law. We wait for that in vain. For while in the area of conflict of private international law we are more or less sustained by the Common law and domestic case law, in the exclusively Israeli field of conflict of religious laws we have a single provision in the Palestine Order in Council which skirts in a most superficial manner the edges of the problem.

 

2. Were I therefore called upon to decide the basic question of the "quality" of this child, whether she is Moslem according to the personal religious law of the father or Jewish according to the personal religious law of the mother, I would openly confess that I do not know. The religious laws contradict one another and the civil law is silent. The Common law does not deal with such conflicts and Palestine or Israeli case law has not yet said its piece on this complex subject. Elsewhere (Personal Status in Israel, p. 355) I have recommended that when a civil court had to deal with such "dual religion" it should adopt as a principle of interreligion choice the test of effectiveness customary under the Hague Convention relating to nationality of 1930. I am happy to confirm that my learned friend, Cohn J., agrees. This test, however, has manifestly no place in the case of a child of four and a half years. My learned friend's suggestion in paragraph 8 of his judgment that in this situation the court should deduce the effective religion in the light of the child's interests does not, with all respect, commend itself to me. Religious belonging may obviously affect the question of the child's interests and in any event the child's interests cannot determine its religious belonging, for the "effect" cannot be its own "cause".

 

3. We are, nevertheless, fortunate in the case of the present child and it is not upon us to resolve the basic insoluble problem of her religious affiliation. The present matter can, in my opinion, be decided directly or analogously under article 55 of the Order in Council which states that

 

"Where any action of personal status involves persons of different religious communities, application may be made by any party to the Chief Justice, who shall ... decide which Court shall have jurisdiction."

 

The reason for this provision is absolutely clear: where two different religious laws are likely one way or another to affect the determination of a dispute between parties, it is proper that another instance, superior and "neutral", should decide which judicial tribunal is to go into the matter.

 

4. I was originally inclined to say that since the child here was of "dual religion"; she is herself a person belonging to two different religious communities; and because - even without having recourse to the Interpretation Ordinance - the plural nearly always includes the singular, the phrase "persons of different religious communities" includes "a person of different religious communities", from which it would follow that article 55 applies directly to the child in dispute.

 

5. Afterwards, however, I decided not to lay down any hard and fast rule about this extreme idea. It could be urged against me that the child in all truth does not belong to two different religions since each of these religions claims that the child is entirely its and its alone. That would be like a glass concave on one side and convex on the other, not concave and convex together but all depending from which side it is viewed.

 

6. In spite, however, of this precise conceptual distinction, the ratio of article 55 applies with equal logic both to two people who truly belong to different religious communities and to one person whom two religious communities claim. The ultimate object of article 55 is to find a "third address" which can decide, and that is essential to an even larger extent when the source of the inter-religious dispute dwells within the very person himself. Hence - at least analogously - the provisions of article 55 are applicable here.

 

7. Article 55, it will be recalled, provides that the President of the Supreme Court (who now stands in the shoes of the Mandatory Chief Justice) can decide which court shall have jurisdiction in the matter and that means that he can decide that the competent court is one of the religious courts of the communities concerned or the District Court. A party cannot go to a religious court of one of the communities without first arming himself with the consent of the President of the Supreme Court; a party may turn to a District Court even without jurisdiction first being vested in that court under article 55 (Fruchter v. Fruchter (3) at p. 1365-66).

 

8. The conclusion that arises from the foregoing is very briefly and simply that guardianship is a matter of personal status under article 51 of the Order in Council; it is a matter of personal status where a child's religious affiliation is "claimed" by two different communities, the Jewish and the Moslem, and obviously the Sharia Court could not deal with the matter without first obtaining the consent of the President of the Supreme Court in accordance with article 55; such consent was neither asked for nor obtained; the District Court on the other hand was competent to deal with the guardianship at all stages even without a prior application to the President of the Supreme Court and the decision of the Sharia Court of 8 October 1962 made without such authority as aforesaid could not serve as a bar to that; the Court took evidence about the place where the child had previously been, the absence of being cared for, the uncleanliness, the eye disease, the father's relation to the child and his relations with another woman which were said to be immoral and abnormal; if after all this the court decided by virtue of section 3(b) of the Women's Equal Rights Law, 1951, that the child's interests required that she should not be given into the father's guardianship, we may not go against this conclusion even if it be said - for the reasons explained in paragraph 2 above - that here it is impossible to determine the child's religion. "The interests of the child" is a territorial principle applicable to members of all religions.

 

            I do not agree with the argument of counsel for the Attorney-General that article 52 of the Order in Council denies in its very terms jurisdiction to the Sharia Court to deal with the present guardianship. In my view, the Sharia Court's lack of jurisdiction stems only from article 55 as 1 have explained above.

           

            For these reasons I join in the opinion of my learned friend, Cohn J., that the appeal should be dismissed. I will not express my opinion or indicate my hesitations about the child's adoption since the time for that has not yet been reached.

           

            Finally, I find it a pleasant duty to note the high standard of argument of counsel for the Attorney-General, Dr. Michah Cheshin.

           

MANNY J.                 I concur in the judgment of my honourable friend, Silberg J..

 

WITKON J.                This tragic and complex case can, in my opinion, be decided on the single point put to us by counsel for the Attorney-General, and 1 would be satisfied with that. The point was that the Sharia Court cannot have jurisdiction unless the matter lay in its exclusive jurisdiction under article 52 of the Palestine Order in Council, and that jurisdiction depends on the child, a "party" thereto, being of the Moslem religion and no other. The jurisdiction test is both positive and negative at the same time. Here a person is involved which each of the two said religions claims as belonging to it, and the laws and rules of each of them merit our recognition.

 

            In parenthesis I would observe that the concept, 'dual religion, creates a difficult dialectic problem when we speak as here of two religions each of which says to a person "You are entirely mine" and does not admit the possibility of the person belonging also to another religion. By regarding a person as a member of two religions we at once lend force to the claim of each of the religions and ignore the exclusiveness of the claim. But from the viewpoint of the religions the "coexistence" of the two claims has no place and in their contemplation the reverse is the situation. May it be said, with the same logic, that since each of the two religions denies the possibility of the person belonging to the other of them as well, it is as if it refuses to accept him into its ranks if it cannot have him completely and exclusively, and thus he falls between two stools and becomes one of those spirits that dwell in limbo.

           

            In any event, I think that as regards the child here the condition which gives exclusive jurisdiction to the Sharia Court - that she is a Moslem and not of any other religion - does not exist here. Ipso facto the matter comes within the jurisdiction of the District Court and that court has exercised in is an unexceptional manner.

           

OLSHAN P.               I also am of the opinion that the religious court had no jurisdiction to deal with the child's case. Therefore the situation is as it was before appellant's counsel applied to the religious court.

 

            There remains the fact that the appellant himself, who purports to be the child's father, brought the matter before the District Court. There is no disputing that in the absence of jurisdiction in any other court, it is the District Court which alone is competent.

           

            The District Court's decision was based on the child's interests and this consideration is determinative in accordance with the Women's Equal Rights Law.

           

            The frightful conditions in which the child was kept when she was with the appellant certainly justify that decision.

           

            The appeal should be denied.

           

            Appeal dismissed.

            Judgment given on July 11, 1963.

 

* Under section 11(1) a parent's consent is unnecessary where it has been satisfactorily proved that the parent has abandoned the child or has constantly failed to fulfill his duty towards it (Ed.).

 

 

H.C.J. 282/61

 

           

MAHMUD EL-SARUJI et al.

v.

MINISTER OF RELIGIOUS AFFAIRS AND THE MOSLEM COUNCIL. ACRE

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 6, 1963]

Before Silberg J., Landau J. and Berinson J.

 

 

 

Administrative law - consultative body appointed by Minister- judicial review of its powers and activities.

 

The petitioners complained generally of the alleged interference of the Minister of Religious Affairs in matters affecting the Moslem Community of Acre and more particularly of the activities and powers of the local Moslem council appointed by the Ministry.

 

Held. The departure from the country of Moslem leaders and officials as a result of the events of 1948 had led to a complete collapse of all Moslem institutions and their ceasing to function. In order to remedy the situation and recreate these institutions the Ministry had not proceeded under any express statutory provision but by virtue of general power vested in the Government and within the framework of the State budget. In the course of doing so, it appointed the second respondent with which to consult and to act as its agent in the distribution of necessary funds for various public Moslem purposes. No evidence of misuse of funds had been adduced. In all these circumstances, the High Court of Justice would not intervene to control the action by the Ministry or its agent, either generally or specifically, in its choice of advisers or in resolving the public political problems with which it is faced.

 

M.N. Huari for the petitioners.

Z. Bar-Niv, State attorney, Z. Terlo and M. Cheshin for the first respondent.

E. Berenblum for the second respondent.

 

LANDAU J. The order nisi granted to the three petitioners, residents of Acre and members of the Moslem community there, calls upon the Minister of Religious Affairs and the Moslem Council of Acre to show reason "why the first respondent should not cease from interfering in matters affecting Moslems, their charitable trusts, courts of law and personal situation, and why he should not procure that the activities and powers of the Moslem Council in Acre, appointed by him, should not cease and it be dispersed."

 

The petitioners' application, as formulated in the order nisi, contained two separate complaints, one general, regarding the position of the Moslem Council in the country as a whole, and one regarding the powers and activities of the Moslem Council of Acre (or more precisely the Consultative Council for Moslem Religious Affairs of Acre).

 

            Under the first complaint, petitioners' counsel tried to show the lack of organisation and neglect which in his opinion prevail in respect of the affairs of the Moslem community in the country. Let it be said at once that this Court is not the suitable forum for voicing general complaints of this kind. The affidavit on behalf of the first respondent, made by Mr. S.Z. Kahana, the director-general of the Ministry of Religious Affairs, describes the changes that have occurred with regard to the country's Moslem Community, in the following terms:

           

"Upon the termination of Mandatory rule and the outbreak of the War of Independence the religious institutions of the Moslem Community in the country collapsed. Senior religious personnel, muftis and qadies - except for the late Sheikh Ta'ahar Tabri (who died in 1959), Mufti and Qadi of the Tiberias district - fled from the country. The system of religious jurisdiction broke down completely. Most of the officials concerned in religious services fled. The communal educational system and social welfare and health institutions ceased to exist. Among those who left the country were also the members of the Supreme Moslem Council and its Wakf Committee (bodies founded at the beginning of Mandatory rule) and the members of the Governmental Awkaf Commission, appointed by the High Commissioner by virtue of the Palestine (Defence) Order in Council, 1937. Israeli Moslems thus remained without religious organisation and religious leadership."

 

            We accept this as an accurate description of the situation created as a result of the War with which the State of Israel on its foundation was fettered by the Arab states and the flight of a large part of the Moslem population from its territory. Mr. Kahana's affidavit goes on to describe the steps taken by his Ministry to repair as far as could be the organisational breakdown of the Moslem Religious Community in Israel: the jurisdiction of the Moslem religious courts was restored on a new legal basis by the Sharia Courts (Validation of Appointments) Law, 1953, and the Qadis Law, 1961. These courts continue to act under the powers granted to them by article 52 of the Palestine Order in Council. Petitioners' counsel did not dispute that in his summation and so retracted the deprecatory remarks about the Qadis of these courts which he had permitted himself to indite in paragraph 10(c) of the petition.

 

            Mr. Kahana went on to detail in his affidavit the different measures taken by the Ministry of Religious Affairs in order to fill the vacuum created in the provision of religious requirements, religious education, charity, social welfare and so on for the country's Moslem Community. In so doing, the Ministry of Religious Affairs did not act under express statutory provision but by virtue of general governmental powers resting in the Government and its Ministries, within the financial framework of the State's Budget approved by the Knesset.

           

            The petitioners and those for whom they speak are not pleased with the existing order of things. I assume that in complaining they express the view of some part of the members of Acre's Moslem community, although I do not know whether they constitute a majority of the community. They would prefer the autonomy of the Moslem community regarding all the matters raised in their petition, but that is certainly a public-political problem not for this Court to be concerned with. Under the democratic regime existing in our country, the Knesset is the arbiter in matters of this kind and it possesses the authority to initiate changes in the existing position through the enactment of new laws, if it finds it proper so to do.

           

            The main burden of the petitioners' complaints, to all appearances, concerns the administration of Moslem charitable and religious trusts (awkaf). Under the British Mandate these trusts were administered by the Supreme Moslem Religious Council, set up by an order of the High Commission of 20 December 1921 (N. Bentwich, The Laws of Palestine, vol. 2, pp. 395 ff.). Among the functions of the Council, appointed in the manner prescribed by the order, was the control and administration of Moslem charities (paragraph 8(1)(a)). There were also set up a General Awkaf Committee and local awkaf committees under paragraphs 10 ff. In 1937, the administration of Moslem charitable trusts was transferred to a Commission appointed by the High Commissioner under the Defence (Moslem Awkaf) Regulations, 1937 (Official Gazette 1937, Suppl. 2, No. 730-731). That continued to be the position until the end of the Mandate when members of the Commission left the country and became absentees. The original order of 1921 was wholly repealed by section 25 of the Qadis Law, 1961; petitioners' counsel was mistaken in maintaining that the repeal went only to the provision relating to the appointment of qadis. It is questionable, however, whether as a result of the repeal, the said Regulations of 1937 were also repealed. In his summation, the State Attorney argued that these also were repealed by implication. It seems to me that this argument is inconsistent with what is said in paragraph 3(k) of Mr. Kahana's affidavit. What emerges from the latter is that the 1937 Regulations were not repealed and that the administrative powers of the appointed Commission became "absentee property" in the sense of section 1(a) ad finem of the Absentees' Property Law, 1950, upon its members becoming absentees. I hesitate from ruling definitively on this question which was not exhaustively argued in these hearings, but I incline to the latter view, that the 1937 Regulations exist independently, without being linked to the 1921 Order, although the Commission replaced the body instituted by the 1921 Order. The Regulations indeed vest in the Commission the powers of the Council under the old order (see regulation 5) but they are not, for that reason alone, to be regarded as an enactment intended merely to amend the Order. The result, it would appear, is that the Government to which the powers of the High Commissioner passed may but is not bound to appoint a new Commission under the 1937 Regulations and, so long as it does not, public Moslem religious and charitable trusts continue to be managed by the Custodian of Absentees' Property who took the place of the Commission that existed on the eve of the establishment of the State. I have found no basis for the vague submission of petitioners' counsel in his summation, that the right to control the funds of these trusts lies in any event with the Moslem residents now living in the country. No precedent was cited to base this view.

 

            The petitioners' complaints about the second respondent's activities are in the main that it acts without authority and has no proper concern for Moslem religious matters in Acre. The petition also alleges misuse of funds entrusted to its members. From the affidavits in reply by Mr. Muhmad Habashi, one of such members, and by Mr. Kahana it emerges that the council was established by the Minister of Religious Affairs as a consultative body on matters of religious, social welfare and educational services. The Ministry of Religious Affairs is also assisted by the Council in implementation of the activities initiated by the former for the benefit of the Acre Moslem community. To this end money is on occasion passed to the Council intended for the requirements of the city's Moslem community and the Council lays out the money in accordance with the directions and under the prescribed supervision of the Ministry. When the said affidavits were made on behalf of the respondents, the members of the consultative Council were Sheikh Mussa Tabri, the principal Qadi, who acted as chairman, Sheikh Jemal Saadi, Imam and preacher of the Aljezar Mosque, Ahmad Edalbi, a notable of the community, and the deponent Muhmad Habashi who is also a deputy mayor of Acre.

 

            This is not a commission appointed under enacted law but, as I have said, a consultative council which the Minister of Religious Affairs appointed in order to maintain contact with the Moslem community of the city. In so far as the council is entrusted with the allocation of money for the community's requirements, it acts as agent of the Ministry of Religious Affairs. The Minister of Religious Affairs is interested in choosing advisers in this field, whom he considers to be fit for the task of representing the community, and this Court will not direct him to choose other fitter advisers. As for the activity of the Council, we allowed petitioners' counsel to cross-examine at length but in spite of his protracted assault on the witness, Mr. Habashi, his efforts were in vain as regard the matters touched upon in cross-examination. The impression one obtains from the cross-examination is of conflict between contending groups of community workers. No indication was given to us of misuse of funds or of other acts contrary to good order on the part of members of the Council. In my opinion, the order nisi should be discharged.

 

SILBERG J. I agree.

 

BERINSON J. I agree.

 

            Order nisi discharged.

            Judgment given on February 6, 1963.

HCJ 721/94

El-Al Israel Airlines Ltd

v.

1. Jonathan Danielowitz

2. National Labour Court

 

The Supreme Court sitting as the High Court of Justice

[30 November 1994]

Before Vice-President A. Barak and Justices Y. Kedmi, D. Dorner

 

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

 

Facts: The first respondent, who is employed by El-Al as a flight attendant, has a stable relationship with another man. Under a collective agreement, El-Al gives every permanent employee a free aeroplane ticket, every year, for that employee and his/her spouse (husband or wife). Under a collective arrangement, a free ticket is also given to a companion recognized publicly as the employee’s husband/wife. The first respondent asked El-Al to give him a free ticket for his companion, but his request was denied.

 

Held: (Majority opinion — Vice-President A. Barak, Justice D. Dorner) Not giving the respondent a free ticket for his same-sex companion amounted to discrimination, since a distinction on the basis of the difference between a heterosexual and a homosexual relationship is unjustified in the context of employee benefits.

(Minority opinion — Justice Y. Kedmi) Linguistically, only a heterosexual couple can be called a ‘couple’; the concept of the ‘couple’ linguistically only applies to an union of male and female that can, conceptually, have children. Therefore a distinction between a same-sex companion and an opposite-sex companion is a distinction between persons who are fundamentally unequal, and this does not amount to discrimination.

 

Petition denied, by majority opinion (Vice-President M. Shamgar and Justice D. Dorner), Justice Y. Kedmi dissenting.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 7, 8.

Contracts (General Part) Law, 5733-1973, ss. 14, 31.

Criminal Law Ordinance, 1936, s. 152(2).

Employment Service Law, 5719-1959, s. 42.

Equal Employment Opportunities Law, 5748-1988, ss. 2, 2(a) 2(c).

Equal Employment Opportunities Law (Amendment), 5752-1992.

Equal Remuneration for Female and Male Employees Law, 5724-1964.

Equal Retirement Age for Female and Male Employees Law, 5747-1987.

Government Corporations Law, 5735-1975, s. 18A.

National Insurance Law [Consolidated Version], 5728-1968, s. 8.

Penal Law, 5737-1977, s. 351(3).

Penal Law (Amendment no. 22), 5748-1988.

Women’s Equal Rights Law, 5711-1951, s. 1.

 

Israeli Supreme Court cases cited:

[1]      FH 13/84 Levy v. Chairman of Knesset Finance Committee [1987] IsrSC 41(4) 291.

[2]      HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[3]      EA 2/88 Ben-Shalom v. Central Elections Committee for Twelfth Knesset [1989] IsrSC 43(4) 221.

[4]      HCJ 114/78 Burkan v. Minister of Finance [1978] IsrSC 32(2) 800.

[5]      HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 150.

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

[7]      HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[8]      HCJ 507/81 Abu Hatzira MK v. Attorney-General [1981] IsrSC 35(4) 561.

[9]      HCJ 301/63 Streit v. Chief Rabbi [1964] IsrSC 18(1) 598.

[10]    HCJ 693/91 Efrat v. Director of Population Registry at Ministry of Interior [1993] IsrSC 47(1) 749.

[11]    HCJ 1000/92 Bavli v. Great Rabbinical Court [1994] IsrSC 48(2) 221.

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

[13]    HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.

[14]    HCJ 141/82 Rubinstein v. Knesset Speaker [1983] IsrSC 37(3) 141; IsrSJ 8 60.

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

[16]    FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[17]    HCJ 30/55 Committee for Protection of Expropriated Nazareth Land v. Minister of Finance [1955] IsrSC 9 1261.

[18]    CrimA 112/50 Yosipof v. Attorney-General [1951] IsrSC 5 481; IsrSJ 1 174.

[19]    HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221; IsrSJ 8 186.

[20]    CrimA 224/63 Ben-Ami v. Attorney-General [1964] IsrSC 18(3) 225.

[21]    HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [1983] IsrSC 37(3) 17.

[22]    HCJ 4169/93 — unreported.

[23]    HCJ 410/76 Herut v. National Labour Court [1977] IsrSC 31(3) 124.

 

Israel National Labour Court cases cited:

[24]    NLC 33/25-3 Flight Attendants Association v. Hazin [1973] 4 IsrNLC 365.

[25]    NLC 44/85-0 – unreported.

 

American cases cited:

[26]    Welsh v. United States 398 U.S. 333 (1970).

[27]    Califano v. Westcott 443 U.S. 76 (1979).

[28]    Boutilier v. Immigration Service 387 U.S. 118 (1967).

[29]    Nemetz v. Immigration & Naturalization Service 647 F. 2d 432 (1981).

[30]    Braschi v. Stahl Associates Co. 544 N.Y. Supp. 2d 784 (1989).

[31]    Yorkshire Towers Co. v. Harpster 510 N.Y. Supp. 2d 976 (1986).

[32]    Two Associates v. Brown 502 N.Y. S. 2d 604 (1986).

[33]    E. 10th St. Assoc. v. Estate of Goldstein 552 N.Y. Supp. 2d 257 (1990).

 

English cases cited:

[34]    Dyson Holdings Ltd v. Fox [1975] 3 All E.R. 1030 (CA).

 

European Court of Human Rights cases cited:

[35]    Norris Case 142 Eur. Ct. H. R. (Ser. A) (1988).

[36]    Modinos v. Cyprus Case 259 Eur. Ct. H. R. (Ser. A) (1993).

 

Canadian cases cited:

[37]    Schachter v. Canada (1992) 93 D.L.R. (4th) 1.

[38]    R. v. Turpin [1989] 1 S.C.R. 1296.

[39]    Vriend v. Alberta (1994) 6 W.W.R. 414.

[40]    Egan v. Canada (1993) 103 D.L.R. (4th) 336.

[41]    Haig v. Canada (1992) 94 D.L.R. (4th) 1.

[42]    Layland v. Ontario (Consumer Protection & Commercial Relations) (1993) 104 D.L.R. (4th) 214.

[43]    Canada (A.G.) v. Mossop [1993] 1 S.C.R. 554.

 

Jewish Law sources cited:

[44]       Genesis 1, 27; 1, 28; 2 24; 5 2; 6 19.

 

For the petitioner — Y. Winder, A. Ben-Israel

For the first respondent — S. Donevitz, O. Kalmaro

 

 

JUDGMENT

 

 

Vice-President A. Barak

A collective agreement and a collective arrangement confer a benefit on a ‘spouse’ (husband or wife) or a ‘companion recognized as a husband/wife’ of an employee. Is this benefit conferred also on an employee’s same-sex companion? That is the question before the court in this petition.

The facts and the litigation before the Labour Court

1.    The first respondent (the respondent) works as a flight attendant for the petitioner (the El-Al company). Under the collective agreement, every (permanent) employee is entitled to receive free (or discounted) aeroplane tickets for himself and his ‘spouse (husband/wife)’ once a year. Under a collective arrangement (entitled ‘professional guidelines’), aeroplane tickets (as of 1 January 1986) are given to ‘a companion recognized as the husband/wife of an employee of the company if the couple live together in a joint household as husband and wife in every respect, but they are unable to marry lawfully.’

2.    The respondent applied (on 21 January 1988) to the petitioner with a request to recognize his male companion as his ‘companion’ for the purpose of receiving an annual free or discounted aeroplane ticket. In his request, the respondent explains that he has a stable and long-term relationship (since 1979) with another man. The relationship involves, inter alia, running a joint household and cohabiting in a private apartment purchased jointly. The respondent’s request was refused.

3.    The respondent applied to the Regional Labour Court. He asked the court to declare him entitled to receive free or discounted aeroplane tickets for his male companion, just as El-Al gives these to its employees’ spouses. According to a procedural agreement, it was agreed that the court would first consider the underlying question whether an El-Al employee is entitled to a free or discounted ticket for a same-sex ‘companion’. On this question, the Regional Labour Court (Justice Lubotsky and public representatives Ozeri and Pinchas) held that the provision of the collective agreement (which confers the right to the benefit on a ‘spouse’) does not confer a right on a companion of an employee, and this does not involve improper discrimination. However, the provision of the collective arrangement conferring a benefit on persons recognized as a couple (despite their being unable to marry lawfully) but not conferring the same benefit on a same-sex couple (who are also unable to marry lawfully) is a discriminatory provision. This discrimination is prohibited by the provisions of the Equal Employment Opportunities Law, 1988. Under the provisions of this law (in s. 2) — as amended in the Equal Employment Opportunities (Amendment) Law, 1992 — an employer may not discriminate against any of his employees in their conditions of employment ‘on the basis of sex, sexual orientation, personal status or their being parents.’ Because of this prohibited discrimination, the discriminatory provision in the collective arrangement was disqualified. By virtue of the procedural agreement, the Regional Labour Court went on to consider whether the respondent in fact cohabits with his companion.

4.    El-Al appealed to the National Labour Court. The National Labour Court (President M. Goldberg, Vice-President S. Adler, Justice Y. Eliasof and public representatives R. Ben-Yisrael, Abrahamovitz, Friedman and Galin) dismissed the appeal.[*] It was held that the respondent does not fall into the category of those entitled to a discount under the collective agreement, since the expression ‘spouse (husband/wife)’ does not include a same-sex companion. It also held that the respondent does not fall into the category of ‘persons recognized as the husband/wife of an employee’ in the collective arrangement, since a recognized companion, in the context of the collective arrangement, does not include same-sex companions. Notwithstanding, the court held that this position constitutes improper discrimination on the basis of sexual orientation, contrary to the principle of equality set out in the Equal Employment Opportunities Law, as amended in 1992. This improper discrimination, contrary to provisions of the law, gives the respondent (as of 2 January 1992) a right to demand for himself the benefit that was not conferred on him for discriminatory reasons.

5.    The petition before us is directed against the decision of the National Labour Court. El-Al (the petitioner) asks for a ruling that its refusal to give the respondent an aeroplane ticket for his companion does not constitute improper discrimination under the Equal Employment Opportunities Law as amended in 1992. El-Al’s contention is that this law — in the 1992 amendment — added an additional type of prohibited discrimination (‘sexual orientation’) but it did not confer rights to receive benefits that an employee was not previously entitled to receive. The respondent argued before us that there is no reason why we should intervene in the National Labour Court’s judgment, which ruled that a cause of action based on discrimination was created by the Equal Employment Opportunities Law, justifying giving aeroplane tickets for the respondent’s companion as of the date when the law was amended (on 2 January 1992).

The interpretive construction

6.    The respondent (the flight attendant, the employee) may base his argument to receive the benefit (a free or discounted ticket) for his companion on two legal constructions. According to the first construction, his right is founded on the collective agreement that gives benefits to ‘a spouse (husband/wife)’ and on the collective arrangement that gives a benefit to ‘a person recognized as the husband/wife of an employee.’ According to this construction, the term ‘spouse’ (in the collective agreement) and the term ‘recognized companion’ (in the collective arrangement) should be interpreted according to their purpose to include also a spouse of the same sex and a recognized companion of the same sex. The respondent’s right to receive the benefit is contractual, and it is founded on the text of the collective agreement and the collective arrangement, just like the respondent’s right to receive the benefit for himself. This legal model is interpretive in nature. It is intrinsic to the actual text. In this the respondent’s right to receive benefits — for his companion and for himself — derives from the legal meaning of the contractual text that is chosen from among its various linguistic meanings. Naturally this right accrues to the employee when the conditions entitling him to it are fulfilled.

7.    The interpretive construction was rejected by the Labour Courts. They held that the (legal) meaning of the term ‘spouse (husband/wife)’ in the collective agreement does not include same-sex companions. The National Labour Court pointed out that —

‘In the case before us, the parties to the collective agreement expressly showed that they did not mean a same-sex companion. The collective agreement says “spouse (husband and wife)”. The words “husband and wife” attached to the term spouse show that the parties used the term spouse in its narrow sense. It follows that this expression in the collective agreement does not include recognized companions and same-sex companions who are indisputably not “husband and wife”.’*

With regard to the term ‘person recognized as a husband/wife’ in the collective arrangement, the National Labour Court held that this does not include persons of the same sex who cohabit. The National Labour Court pointed out that the ‘term “recognized companion” does not appear by itself, but it is accompanied by the words “as husband/wife”.’* This use of language shows ‘that the intention of the drafter was not to include persons of the same sex.’*

The statutory construction

8.    A second legal construction is also available to the respondent. This construction starts with the premise that the contractual right to receive a benefit is conferred only on a companion who is not the same sex as the employee. According to this construction, the contractual arrangement (the product of the interpretive construction) is a discriminatory arrangement that is contrary to the Equal Employment Opportunities Law (as amended in 1992). The remedy given to the respondent as a result of this discrimination is not to nullify the contractual arrangement — a remedy that he did not request at all — but to make a (judicial) order based on the provisions of the law to correct the discrimination. The respondent will therefore be entitled to the benefit for his companion by combining the discriminatory contractual provision with the corrective statutory provision. This construction is not interpretative. It is extrinsic to the actual text. Its existence derives from the combination of (A’s) contractual right and the statutory mandate to prevent discrimination (against B). The resulting right of the employee arises on the day that the statutory prohibition against discrimination on grounds of sexual orientation came into force (i.e., on 2 January 1992). It may be called a statutory (or extrinsic) construction. The National Labour Court accepted this construction, and this is what El-Al is attacking before us. Analyzing this legal model must be done in two stages: first, whether the contractual arrangement (the product of the interpretive construction) is (improperly) discriminatory because of sexual orientation; second, what remedy should be given to an employee who has been the victim of (improper) discrimination on the basis of sexual orientation?

9.    The respondent did not reargue the interpretive construction before us. Indeed, this construction — which, as stated, was rejected by the National Labour Court — is complex (cf., with regard to the term ‘spouse’, FH 13/84 Levy v. Chairman of the Knesset Finance Committee [1]; see also C. A. Bowman, B. Cornish, ‘A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances,’ 92 Colum. L. Rev. (1992) 1164; R. Elbin, ‘Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others),’ 51 Ohio St. L. J. (1990) 1067). We would have been compelled to decide this, had the respondent insisted on his (contractual) right to receive a benefit from the date when these (contractual) rights were created. As we have seen, the respondent accepts the decision of the National Labour Court that his right is based on the argument of discrimination on the basis of sexual orientation, relying on the amendment (of 2 January 1992) to the Equal Employment Opportunities Law. As a result, we do not need to consider the interpretive construction. I therefore presume — without deciding the issue — that the respondent does not have a (contractual) right under the collective agreement and the collective arrangement to receive the benefit for his companion. On this basis, I will now examine the statutory construction, with its two questions (is discrimination present; what is the proper remedy). I shall begin with the first question.

The right to equality and its violation

10. Equality is a fundamental value in Israeli law. ‘It is the heart and soul of our whole constitutional regime’ (Justice Landau in HCJ 98/69 Bergman v. Finance Minister [2], at p. 698 {18}) and ‘it is part of the essence and character of the State of Israel’ (Vice-President Justice Elon in EA 2/88 Ben-Shalom v. Central Election Committee for the Twelfth Knesset [3], at p. 272). ‘…The rule that one may not discriminate against persons on the basis of race, sex, nationality, ethnicity, country of origin, religion, beliefs or social status is a fundamental constitutional principle which is counted among our fundamental jurisprudential perspectives and constitutes an integral part of these’ (Justice Shamgar in HCJ 114/78, Motion 451, 510/78 Burkan v. Minister of Finance [4], at p. 806). Considerations of justice and fairness underlie the principle of equality. ‘The principle of equality… has long been recognized in our law as one of the principles of justice and fairness…’ (Justice Mazza in HCJ 453/94 Israel Women’s Network v. Government of Israel [5], at p. 521 {150}). Equality is a central element of the social contract upon which society is based (see HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa; Labour Party in Tel-Aviv-Jaffa Municipality v. Tel-Aviv-Jaffa Municipal Council [6], at p. 332). Indeed —

‘Discrimination is a plague that fosters a feeling of unfairness and frustration. It harms the sense of belonging and constructive motivation to participate in, and contribute to, social life. A society that practices discrimination is not a healthy society, nor can a state in which discrimination is practised be called a civilized state’ (Justice Bach in HCJ 104/87 Nevo v. National Labour Court [7], at p. 760 {150}).

11. The principle of equality is entrenched in Israel in a number of normative structures. First, it is a principle of case-law — the product of  ‘Israeli common law’ — that has been recognized and developed by the courts in Israel. This principle reflects on the (objective) intention of every piece of legislation and acts as a criterion for its interpretation. ‘The fundamental principle, which constitutes a legislative goal for all the acts of the legislature, is the principle that everyone is equal before the law… legislation should therefore be presumed and interpreted as intending to achieve this purpose, not to undermine it.’ (HCJ 507/81 Abu Hatzira MK v. Attorney-General [8], at p. 585. See also HCJ 301/63 Streit v. Chief Rabbi [9], at p. 612). The case-law principle of equality reflects on the law’s ‘fundamental concepts’ (such as reasonableness, justice, equality and public policy) and constitutes a normative element in establishing the scope of their application (see HCJ 693/91 Efrat v. Director of Population Register at Interior Ministry [10]). A discriminatory collective agreement may therefore be contrary to public policy and be disqualified as a result (see Nevo v. National Labour Court [7] and L.C.J. 3-25/33 Flight Attendants’ Committee v. Hazin [24]). The case-law principle of equality is a normative basis for recognizing the right of equality as a human right in Israel. It leads to the formulation of case-law rules based on it — such as the rule of spouses’ joint property ownership (see HCJ 1000/92 Bavli v. Great Rabbinical Court [11]).

12. Second, the principle of equality is incorporated in Israeli legislation. This began with Israel’s Declaration of Independence, which provides that the State of Israel shall treat its citizens equally ‘irrespective of religion, race or sex’. It continued in legislation that creates equality in specific relationships. Thus, for instance, the Women’s Equal Rights Law, 1951, provides that ‘women and men shall be subject to the same law for every legal act...’ (s. 1). The Employment Service Law, 1959, prohibits discrimination by the Employment Service when referring a person for employment (s. 42). The Equal Remuneration for Female and Male Employees Law, 5724-1964, aims to ensure equality in employees’ salaries. Special legislation is intended to allow corrective preferential treatment for women (see section 18A of the Government Corporations Law, 1975). Another law — which is the relevant one in this case and which we will discuss separately — is the Equal Employment Opportunities Law. This development culminated in the enactment of the Basic Law: Human Dignity and Liberty, which entrenched equality as a super-legislative constitutional right, within the framework of human dignity:

‘Today the principle of equality can be entrenched in the Basic Law: Human Dignity and Liberty. Such entrenchment implies the elevation of the principle of equality to a constitutional, super-legislative normative status’ (per Justice Or in HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 362).

13. Needless to say, equality does not confer an absolute right. The human right of equality — like every other human right — is a relative right. The principle of ‘equality is not an absolute but a relative principle’ (per Justice Or in Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 361); the limits of extending the principle of equality are determined by an (internal) balance between the whole spectrum of human rights and by the public interest (see A. Rubinstein, The Constitutional Law of the State of Israel, Shoken, 4th edition, 1991, at pp. 199, 299). The right to equality may be restricted by virtue of other appropriate values (see HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [13], at p. 13 {32}, and cf. s. 8 of the Basic Law: Human Dignity and Liberty). Indeed, sometimes equality is not completely protected. Equality may be lawfully restricted if this is consistent with the values of the State of Israel, is for a proper purpose and if equality is not restricted more than necessary.

14. The factual premise is that people are different from one another. ‘...No person is completely identical to another’ (Justice S. Levin in HCJ 141/82 Rubinstein v. Knesset Speaker [14], at p. 148 {67}). Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences. Moreover, the presumption behind the Basic Law: Human Dignity and Liberty is that every person is free to develop physically and spiritually as he sees fit (see HCJ 5688/92 Wechselbaum v. Minister of Defence [15]). This underlying freedom is the basis for the principle of equality. It means equality before the law and the law being impartial to the differences between people. It means equality in applying freedom. It means equality in opportunities. This equality presumes a normative arrangement that is applied uniformly to all individuals, irrespective of the factual difference between them. However, the principle of equality does not presume only one rule for everyone. Indeed, the principle of equality does not rule out different rules for different people. The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination — which is the opposite of equality — exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society. In Justice Or’s words, discrimination is ‘different treatment without an objective justification’ (Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 360). President Agranat discussed this and pointed out:

‘The principle of equality, which is merely the opposite of discrimination and which, for reasons of justice and fairness, the law of every democratic country aspires to achieve, means that people must be treated equally for a particular purpose, when no real differences that are relevant to this purpose exist between them. If they are not treated equally, we have a case of discrimination. However, if the difference or differences between different people are relevant for the purpose under discussion, it is a permitted distinction to treat them differently for that purpose, provided that those differences justify this. In this context, the concept of “equality” therefore means  “relevant equality”, and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in this state. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [16], at p. 35).

Therefore a particular law will create discrimination when two individuals, who are different from one another (factual inequality), are treated differently by the law, even though the factual difference between them does not justify different treatment in the circumstances. Discrimination is therefore based on the factors of arbitrariness, injustice and unreasonableness. Justice Witkon discussed this and pointed out:

‘What is discrimination? Not every distinction between different groups of people is called “discrimination”; the concept of discrimination includes the idea of unfairness in treating equals unequally’ (HCJ 30/55 Committee for Protection of Expropriated Nazareth Lands v. Minister of Finance [17], at p. 1265).

Discrimination — which, as stated, is the opposite of equality — means unfair, unjust and arbitrary treatment (see CrimA 112/50 Yosipof v. Attorney-General [18], at p. 490 {183}).

15. As we have seen, the contractual regime at El-Al gives a male or female employee a right to receive a benefit (a free or discounted aeroplane ticket) for a wife or husband or recognized companion (male or female), provided that they are of the other sex. Does this constitute discrimination against a companion of the same sex? As we have seen, the test for equal and discriminatory treatment is the question whether the difference in sex is relevant to the issue. This relevance is examined on the criteria of arbitrariness, fairness and justice. The basis for giving a benefit to an employee for a spouse or a recognized companion lies in the attitude that there are reasons for giving a benefit — such as an aeroplane ticket — to an employee for the person with whom he lives and shares a common household, from whom he is separated when he leaves on his flights and to whom he returns when he finishes his work. This is the criterion that both a spouse and a recognized companion have in common. The purpose of the benefit is not to strengthen the institution of marriage. Indeed, El-Al gives the benefit to an employee living with a recognized companion, even when that recognized companion is lawfully married to someone else. The idea underlying the giving of the benefits is therefore cohabitation for a certain period (specified in the collective arrangement), which is evidence of a firm social unit based on a life of sharing. In this context, it seems clear to me that denying a same-sex companion this benefit amounts to discrimination and a violation of equality. Indeed, the only reason for denying the benefit to a same-sex companion is sexual orientation. There is no other reason. This difference is not at all relevant to the issue before us (supporting a firm social unit, based on a life of sharing). In the case before us, we are dealing with a distinction that is arbitrary and unfair: is parting from a same-sex companion easier than parting from a companion of the opposite sex? Is living together for persons of the same sex different, with regard to the relationship of sharing and harmony and running the social unit, from this life of sharing for heterosexual couples?

16. One might argue that a life of sharing and harmony between persons of opposite sexes (whether as husband and wife or as recognized companions) is so different in its character from a life of sharing and harmony between persons of the same sex that any legal regime giving a benefit to the former relationship does not discriminate against the latter relationship. Although this argument seems to me problematic, I am prepared to reserve judgment, since the question that we must ask is not whether one relationship (a life of sharing and harmony between persons of opposite sexes) is different on any criteria from the other relationship (a life of sharing and harmony between persons of the same sex). As stated, I am prepared to assume that in various social contexts this difference does indeed exist. The question that we must ask is whether the difference in the relationship is relevant to the issue before us. The ‘issue before us’ is the social unit, the life of sharing and harmony that justify, in El-Al’s opinion, giving a benefit to a (permanent) employee in the form of an aeroplane ticket which will enable him to take with him the person with whom he cohabits. In this respect, the difference between a life of sharing between persons of different sexes and a life of sharing between persons of the same sex is clear and blatant discrimination.

Discrimination on the basis of sexual orientation

17. We have seen, therefore, that giving a benefit to a (permanent) employee for a spouse or recognized companion of the opposite sex and not giving the same benefit for a same-sex companion amounts to a violation of equality. What is the nature of this discrimination? Indeed, all discrimination is prohibited, but among the different kinds of discrimination there are varying degrees. The severity of the discrimination is determined by the severity of the violation of the principle of equality. Thus, for example, we consider discrimination on the basis of race, religion, nationality, language, ethnic group and age to be particularly serious. In this framework, the Israeli legal system attaches great importance to the need to guarantee equality between the sexes and to prevent discrimination on the basis of sex (see HCJ 153/87 Shakdiel v. Minister of Religious Affairs [19]; Poraz v. Mayor of Tel-Aviv-Jaffa [6]). It may be said that the discrimination in the appeal before us is based on improper considerations of sex. Conversely, it may be argued that discrimination on the basis of sex does not exist, since the same benefit is conferred on (permanent) male and female employees. This argument, in itself, does not strike me as convincing. However I do not need to decide the issue, since there can, I think, be no doubt that the discrimination in this case is based on the ‘sexual orientation’ of the (permanent) employee. This discrimination — against homosexuals and lesbians — is improper. It is contrary to equality. This emerges clearly from the provisions of the Equal Employment Opportunities Law. This law, as amended in the Equal Employment Opportunities Law (Amendment), states (in s. 2):

‘(a) An employer shall not discriminate between his employees, or between candidates for employment on the basis of their sex, sexual orientation, personal status or their being parents with respect to any of the following:

(1)  giving employment;

(2)  conditions of employment;

(3)  promotion in employment;

(4)  training or professional studies;

(5)  dismissal or severance pay.

(b) For the purposes of subsection (a), making irrelevant conditions shall also be regarded as discrimination.

(c) Discrimination shall not exist under this section when it is required by the character or nature of the job or position.’

In explaining the provision about the prohibition of discrimination on the basis of sexual orientation, the chairwoman of the Labour and Welfare Committee, Mrs O. Namir, pointed out:

‘I hope that adopting the proposed law will contribute towards treating men and women equally, regardless of their sexual orientation, allowing them to live according to their sexual orientation as equal citizens in every respect, and affording them the legal protection enjoyed by every other group.’

This provision does not deny the differences between human beings. These differences are natural. This provision states that the different sexual orientation of persons shall not be relevant in employment, unless this is required by the nature of the job. Indeed, with regard to conditions of employment, the employer must be impartial to his employees’ sexual orientations. He must determine the conditions of employment only in view of the criteria required by the nature of the job. Therefore if a benefit is conferred on an employee having a long-term and permanent relationship with a woman, that benefit should be conferred on an employee who has a long-term and permanent relationship with another man. Thereby the employer implements the principle of equality. Thereby he is prevented from invading the privacy of the employee (cf. s. 7 of the Basic Law: Human Dignity and Liberty). Conferring a benefit on a permanent employee for his recognized companion and not conferring it on a permanent employee for a same-sex companion (who complies with all the requirements of a recognized companion apart from the requirement of sex) amounts to discrimination in conditions of employment because of sexual orientation. This discrimination is prohibited. Consider A, a permanent employee of El-Al, who shares his life for several years with a woman B. They cohabit and run a common household (as required by El-Al for complying with the conditions of a recognized companion). A is entitled to an aeroplane ticket for B. Now consider A who lives in the same way with a man C. They too cohabit and run a common household. A is not entitled to an aeroplane ticket for C. How can this difference be explained? Does the one carry out his job as an employee differently from the other? The only explanation lies in A’s sexual orientation. This amounts to discrimination in conditions of employment because of sexual orientation. No explanation has been given that might justify this discriminatory treatment. There is nothing characterizing the nature of the job or the position that justifies this unequal treatment (see s. 2(c) of the Equal Employment Opportunities Law). To be sure, it is possible that El-Al thinks that a (permanent) employee who lives with a (same-sex) companion behaves ‘improperly’. It is possible that someone at El-Al thinks that this joint lifestyle should not be encouraged. We need not examine this argument on an ethical level. Whether or not we agree with it, it does not amount to a justification that negates the existence of the discrimination. Indeed, the discrimination is not determined merely by the will and intention of the person creating the discriminatory norm. It is determined by the effect that it has in practice (see Nevo v. National Labour Court [7], at p. 759; Bavli v. Great Rabbinical Court [11]). Occasionally we can justify a violation of equality — which, as we have seen, is not an absolute but a relative right — on the basis of a proper purpose. Such grounds must be very substantial and relevant. A very great weight rests on someone who tries to discharge this burden. In the case before us, the burden has not been discharged. No attempt has even been made to discharge it. All that we have heard is that same-sex companions who cohabit are not like companions of different sexes who cohabit. Thereby they indicated to us the difference that exists between the different situations. In doing so they did not negate the discrimination, and they certainly did not point to a proper purpose that might justify it (see M. N. Cameli, ‘Extending Family Benefits to Gay Men and Lesbian Women,’ 68 Chi-Kent L. Rev. (1992-93) 447.

The remedy for a violation of the right to equality

18. I have therefore reached the conclusion that the legal regime created by the collective agreement and the collective arrangement, with regard to the benefit conferred on an employee to receive a (free or discounted) aeroplane ticker for a spouse or recognized companion (of the opposite sex), discriminates against an employee living with a same-sex companion. Now we must turn to the second question requiring a decision, namely the remedy to which an employee who has suffered discrimination is entitled. Case-law has established that a discriminatory contractual regime may support a claim that the provision in the contract is contrary to public policy and is therefore invalid (see Flight Attendants Association v. Hazin [24]). This invalidity may cause the whole contract to be invalid. In most cases, there is no reason to invalidate the whole contract, and it is sufficient to invalidate the illegal part by severing it from the lawful part (see ss. 14 and 31 of the Contracts (General Part) Law, 1973). Thus, for instance, in Nevo v. National Labour Court [7] the contractual regime provided that the ‘retirement age for a pension is 65 for men and 60 for women’ (ibid. at p. 753). The Supreme Court held that this amounts to discrimination against women. It was held that the proper remedy — which the petitioner sought in that case — is striking out the invalid part. The result is that the part of the employment agreement providing that ‘the retirement age for a pension is 65’ remained valid. The Court thereby used a technique of severance. This technique is not possible in the case before us. Indeed, had the collective agreement and collective arrangement provided that a permanent employee is entitled to a benefit for whoever is his companion, except a companion of the same sex, it would have been possible to strike down the limiting provision, and so re-establish equality. But the contractual text in our case is different. It does not allow operating on the body of the text and severing the healthy part from the unhealthy part. What, then, is the remedy to which the petitioner is entitled?

19. As we have seen, a possible remedy is voidance of the contractual arrangement regarding the benefit. The result, from the respondent’s perspective, will be a case of ‘Let me die with the Philistines’ (Judges 16, 30): the respondent will not receive a benefit, but neither will recognized companions of the opposite sex. This outcome is not reasonable in the circumstances. Why should recognized companions of opposite sexes suffer a material loss? What wrong have they done? The National Labour Court rightly pointed out that the petitioner himself did not seek this remedy.

20. The appropriate remedy in this situation is to confer the benefit also on same-sex cohabitees. This remedy is recognized in the comparative literature. It was developed mainly in the case of laws that are contrary to the principle of equality laid down in a constitution. In American constitutional literature it is called the  ‘extension’ of the existing text. In Canadian constitutional literature it is called ‘reading into an arrangement’ or ‘reconstruction’ of the text. These terms are not accurate ones. The judge does not change the existing text, nor does he reconstruct it nor add to it. The judge does not do anything to the existing text. What the court does is different. It determines that as long as the existing text remains as it is — and as stated the judge does not do anything to it — similar benefits must be given to an additional group that is not mentioned in the text. Conferring this benefit derives directly from the principle of equality, which is a normative principle to which the text is subservient and to which it must conform. It can be seen then that the court does not implant an additional organ into the body of the text infected by improper discrimination. The court determines, however, that by virtue of the principle of equality — as long as the discriminatory contractual arrangement remains unchanged — a relief of conferring a benefit also on the victims of discrimination is required in order to remove the discrimination.

21. As we have seen, this relief is recognized by American constitutional law. In the case of Welsh v. United States (1970) [26] a statute exempted a person from military service because he was opposed to war for reasons of religion or faith. The petitioner asked for an exemption for reasons of conscience. A number of judges held that the exemption for reasons of religion or faith extends also to an exemption for reasons of conscience. Justice Harlan, however, disagreed. In his view, an exemption for reasons of conscience was not included in the statute. In this the statute violated the provisions of the Constitution. The proper remedy, in the judge’s opinion, was not nullifying the exemption for reasons of religion or faith but granting an exemption, based on the Constitution itself, for reasons of conscience. Justice Harlan writes, on page 361:

‘Where a statute is defective because of underinclusion there exist two remedial alternatives; a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion…’

He continues at p. 364:

‘While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered by the legislative pronouncement on severability.’

Since that case, American courts tend to grant this remedy (see R. Bader-Ginsburg, ‘Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation’ 28 Clev. St. L. Rev. (1979) 301; B. K. Miller, ‘Constitutional Remedies for Underinclusive Statutes: A Critical Appraisal of Heckler v. Mathens,’ 20 Harv. C.R.-C.L.L. Rev. (1985) 79. This remedy appears to the court natural and appropriate and preferable to nullification. One of the cases involved a statute that gave assistance to needy families. The statute provided, inter alia, that the support would be given to a family where the mother did not work and the father had worked previously but was now unemployed. A family where the father did not work and the mother had worked previously but was now unemployed was not included among the recipients of the support. The court held that the statute unlawfully discriminated against families where the father did not work whereas the mother had worked but was now unemployed. Against this background arose the problem of the remedy: whether to nullify the support for the family that was entitled (because of the discrimination inherent in the arrangement) or to extend the application of the statute to a family that was not included in it. It was held that the family which was the victim of discrimination should be added (Califano v. Westcott (1979) [27]).

22. The Supreme Court of Canada has a similar approach. It often tends to ‘read in’ to the statute provisions that will negate the unconstitutional nature of the statute. Justice Lamer wrote in Schachter v. Canada (1992) [37], at p. 12:

‘…extension by way of reading in is closely akin to the practice of severance. The difference is the manner in which the extent of the inconsistency is defined. In the usual case of severance, the inconsistency is defined as something improperly included in the statute which can be severed and struck down. In the case of reading in, the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes. Where the inconsistency is defined as what the statute excludes, the logical result of declaring inoperative that inconsistency may be to include the excluded group within the statutory scheme. This has the effect of extending the reach of the statute by way of reading in rather than reading down.’

23. These remedies are appropriate in the constitutional sphere. They promote the purpose underlying the constitutional arrangement. They make it unnecessary to nullify legislation. The use of this remedy is not mechanical. We must consider in each case whether extension is possible. We must examine whether it is simple to implement, and whether it does not involve excessive intervention in the legislative fabric. We must consider the budgetary ramifications. Indeed, a benefit conferred by law to a marginal group does not justify granting a constitutional remedy by extending the remedy to a large and significant group. Neither should we adopt this technique to impose obligations on sectors of the population in whose favour the law has discriminated by not imposing these obligations on them.

24. These remedies — which were developed in the constitutional sphere — can be applied in the field of collective agreements and collective arrangements. They create a contractual regime that is subject to a supreme normative principle of equality. This principle derives its supremacy (with respect to collective agreements and arrangements) from the Equal Employment Opportunities Law. This principle of equality applies — by virtue of the express provisions of the Equal Employment Opportunities Law — also in private law. It is not merely a principle of public law. It obliges every employer not to discriminate against any of his employees in the fields of private law. Indeed, with regard to the prohibition of discrimination because of sexual orientation — just as with regard to other kinds of discrimination — the law establishes a mandate that obliges the employer. By virtue of this normative mandate — which is of supreme status with regard to collective agreements and arrangements — the employer is forbidden to discriminate against any of his employees with regard to conditions of employment. When a contractual arrangement drawn up by him involves prohibited discrimination, the contract is tainted with illegality. It may be voided by virtue of the provisions relating to invalid contracts. To prevent it being voided, we may demand — as an alternative remedy — that the employer refrains from the prohibited discrimination. This is achieved by compelling the employer to confer the benefit on the employee who is the victim of the discrimination. This does not change the agreement between the parties. We do not thereby read into the contract what is not there. We thereby merely remove the discrimination and comply with the normative mandate not to discriminate. Indeed, the basic fact is the discriminatory contractual arrangement. The contents of this are determined by the parties to the contract, and they control it and can change it. As long as the discriminatory contractual arrangement remains unchanged, the supreme normative mandate — which derives from cogent law — exists alongside it and compels the employer to act with equality. Indeed, just as by virtue of the normative supremacy of the constitution (or the entrenched Basic Law) the scope of applicability of a provision of a law may be extended, so too can the normative power of the law extend the scope of applicability of provisions in a collective agreement or a collective arrangement. By virtue of this normative supremacy, the contractual regime must modify itself to comply with the principle of equality (in our case, the prohibition against discrimination in conditions of employment because of sexual orientation). This modification does not require cancelling the existing contractual arrangement. This modification is achieved by conferring a benefit — which originates not in the contractual arrangement but in the principle of equality that extends the contractual arrangement to equivalent situations — on the class that is the victim of discrimination. This extension is suitable for the contractual model. It adds a small group of beneficiaries and does not therefore impose a significant budgetary burden. Justice is done, and justice is seen to be done.

The petition is denied. The case is remanded to the District Labour Court, as stated in the judgment of the National Labour Court. The petitioner shall pay the costs of the first respondent in a total amount of 10,000 NIS.

 

 

Justice Y. Kedmi

The question we must decide in this case is: does the concept ‘spouse’ used in the employment agreements include same-sex companions or not? My esteemed colleague, the Vice-President, answered this in the affirmative. Unfortunately, I cannot agree with that conclusion. The following are my main reasons:

1.    ‘Spouse’: the conceptual significance in the social sphere

(a) The linguistic concept of spouses, who together form a ‘family’, expresses, in the social sphere, an union of two individuals of opposite sexes to form a ‘couple’; a ‘couple’, in this context, has since the origin of man until the present represented a joining of two individuals of opposite sexes. This is the case here and throughout the world, and the Book of Books gives decisive proof of this: ‘And God created man in His image, in the image of God He created him; male and female He created them’ (Genesis 1, 27 [44]).

This is the case with man and it is the case with the animals, and the story of Noah’s ark leaves no doubt about this: ‘You shall bring two of each into the ark to preserve with you; they shall be male and female’ (Genesis 6, 19 [44]).

There is of course nothing to prevent the term ‘couple’ expressing a ‘quantity’ of two individuals; but we are not dealing here with the quantitative meaning of the concept but with its substantive meaning in the social sphere.

To give the concept ‘couple’, in the context discussed here, a different meaning from the linguistic meaning that it has always had is impossible. ‘A different meaning’ of this concept would deprive it of its essence; once again we are not speaking of a ‘couple’ that builds a family, incorporating a ‘husband’ and a ‘wife’, but a ‘couple’ that expresses a ‘quantity’ of two individuals who have come together, whatever their sex is.

In Hebrew the concepts of ‘husband’ and ‘wife’ are inseparably associated with the concept of ‘family’; you cannot have a ‘family’ unless two companions of different sexes are its basis (‘a heterosexual couple’).

(b) The relationship that turns two individuals — of opposite sexes — into a ‘couple’, in its linguistic-social meaning, is characterized by the decision of the two to have a joint lifestyle; ‘joint’, in this context, inter alia and especially, expresses family life whose primary purpose — and from a conceptual viewpoint it is impossible otherwise — is to bring children into the world: ‘And God blessed them, and God said to them: be fruitful and multiply and fill the earth…’ (Genesis 1, 28 [44]).

Thus it is no coincidence that the concept ‘couple’ is, in Hebrew, derived from the root meaning ‘intercourse’; the ‘couple’ and ‘intercourse’ are one, and only where these exist can we speak of a ‘family’.

Admittedly not every couple is ‘capable’ — or wishes — to bring children into the world, and not every ‘couple’ becomes such in order to bring children into the world. But these ‘exceptions’ in this context cannot undermine the fundamental conceptual meaning of the concept ‘couple’; therefore a precondition for two people being a ‘couple’ is that they are of different sexes.

(c) The heterosexual ‘couple’ is what creates the basic family unit; and, as stated, there is no ‘family’ in the social meaning of the word, unless a heterosexual couple forms the basis of it.

It is indeed possible to change the meaning of basic concepts such as ‘couple’ and ‘family’. However the change must primarily be a conceptual change of basic epistemological meanings; the language that has existed from ancient times does not recognize a ‘couple’ and a ‘family’ that are not heterosexual, except as an exceptional phenomenon that requires a descriptive supplement alongside the use of these concepts, which lose their original meaning where we do not refer to a joining of the two sexes.

(d) It is indeed possible for ‘two persons’ of the same sex to adopt for themselves external characteristics that describe a ‘couple’ and a ‘family’ as stated, and to imitate — in so far as they can — the behaviour pattern of ‘spouses’ and even to establish in practice a ‘family’. But they do not become a ‘couple’ and a ‘family’ in the fundamental meaning of these terms in our language; and language is, in the end, the mirror that reflects our society.

In order for two people to become a ‘couple’ that establishes a ‘family’, in the conceptual-epistemological meaning of our language — and it is a common language that forms the basis of our existence as a society — it is an essential and necessary condition that the two individuals who comprise a ‘couple’ come from opposite sexes.

In this regard, it is irrelevant that two individuals of the same sex, who join into a ‘couple’, do so because their natural sexual orientation does not allow them to be ‘spouses’ in the conceptual sense accepted in our language, namely that of persons of the opposite sex. It is not the ‘capacity’ to be a spouse, in the said basic epistemological meaning, that matters, but the sex of the partner. The criterion for two persons to be a ‘couple’ — according to the epistemological meaning of the concept — does not lie in the lifestyle led by the two persons but, primarily, in their being of different sexes.

(e) The aforesaid should not be regarded as a position deriving from a conservative religious outlook: religion did not dictate the meaning of the concept ‘couple’ in the epistemological sphere, but life itself dictated it; and the reality that reflects life is what lies at the basis of the expression ‘couple’ and this is what gave it the aforesaid meaning in the social sphere.

(f) It should be emphasized:

(1) The concept ‘couple’ — whose components are a ‘husband’ and ‘wife’ — is not necessarily connected with the institution of marriage. Use can be made of the concept ‘couple’ both with regard to a ‘married couple’ and an ‘unmarried couple’, so long as the joining of the spouses makes them a ‘couple’ within the meaning set out above.

(2) There is nothing to prevent adjectives being added to the concept ‘couple’ in its basic social meaning, such as married and unmarried; the adjective ‘married’ does not affect the basic meaning of the concept ‘spouse’ which expresses, in the context under discussion, two individuals of opposite sexes forming a social unit, based on sexual collaboration, whose nature is determined by its original purpose.

(3) In consequence — and more will be said about this below — there is no reason why ‘recognized companions’ should not be regarded as ‘spouses’, since they comply with the basic condition of an union of two persons of different sexes into a family unit, within the basic meaning of this expression as aforesaid. Recognized companions are not a ‘married’ couple but they do constitute a ‘couple’ and a ‘family’; as such, there is no fundamental conceptual difficulty in applying to them legal arrangements prescribed for a ‘married’ couple, and treating them, socially and linguistically, as a ‘couple’ in every respect.

(4) In these circumstances, in the language of human beings — all human beings — the word ‘couple’, in a social context, expresses an union of two individuals of opposite sexes, for a ‘joint life’ in the primary meaning of the word as aforesaid; and if we wish to change the meaning of the concept, we must do so, first and foremost, in the sphere of the basic linguistic concepts of our language and determining this change, expressly, in legislation relating to this issue. Without an express determination, the law gives expression to the linguistic meaning of the concepts to which it refers, unless it states the contrary.

The law speaks in human language, since it is intended for human beings; wherever we wish to deviate from human language and speak in the ‘language of the law’ — this should be done in accordance with an express, clear and unambiguous provision of the legislator. In the present context, this must be a provision that deliberately changes the linguistic significance of the term ‘couple’ in the social context and gives this concept, for the purpose under discussion, another meaning, materially different from its meaning in current usage.

2.    Marriage and the institution of recognized spouses

(a) As a rule, wherever we speak of a ‘couple’ — in the social sphere — the initial impression created in the conscience of the listener or the reader is one of a ‘married’ couple; for ‘marriage’ is what grants legal — and social — recognition to the joint life of the ‘spouses’ as a family unit, in the aforesaid primary meaning.

(b) However, as stated, it is not the external, formal framework of marriage that gives a ‘couple’ its traditional, literal meaning as aforesaid: a ‘couple’ in the sense discussed here, may be ‘married’ or ‘unmarried’, but it must always be a ‘couple’; and you do not have a ‘couple’ in the meaning discussed here unless the two individuals who form it are of opposite sexes. Linguistically, there is no ‘other’ couple in the social sphere; and language is what underlies human communication, and it is the means whereby people express their thoughts.

So marriage, as a legal institution, does not give the linguistic term ‘couple’ its content and conceptual meaning; it merely adds to it social recognition as a family unit in the community, and grants the two individuals forming it — the man and the woman — rights and duties in the legal sphere.

(c) For this reason — and this too has already been said — wherever a ‘couple’ complies with the basic definition of the concept — namely, wherever we are speaking about an union of two individuals of different sexes for a joint lifestyle as a family unit within the meaning set out above — there is no logical difficulty in regarding them as a ‘married couple’ for the purpose of duties and rights that the law prescribes for a ‘married’ couple; regarding the two as a ‘couple’ forms the basis whereby the law confers rights and imposes duties on a married couple.

By contrast, wherever we are speaking of two persons who have joined together for a joint lifestyle as a ‘pair’ that is not a ‘couple’ within the aforesaid basic linguistic sense, logic does not allow us to regard them from a legal viewpoint as if they were a ‘couple’, because they constitute something ‘else’. The ‘married’ couple and ‘recognized companions’ are a ‘couple’, whereas two persons who have joined for a joint lifestyle and are of the same sex are not a ‘couple’ but a ‘pair of friends’.

3.    The collective agreement and the collective arrangement

(a) Now let us turn from the general to the particular. The collective agreement, whose provision we are interpreting, speaks of a ‘spouse (husband/wife)’ (emphasis added); the term ‘spouse’ should be given the traditional linguistic meaning, whereby it refers to individuals of different sexes forming a ‘couple’ as set out above.

The addition ‘husband/wife’ is not intended to tell us that we are referring to spouses of different sexes, since for this we do not need any addition, and use of the term ‘spouse’ is sufficient. The addition is intended to clarify that this agreement refers to spouses who are married to one another, for they alone are called ‘husband’ and ‘wife’; the supplementary addition in the collective arrangement referring to a ‘companion recognized as a husband/wife’ proves that this is indeed the case. Had it not been for this supplement, the words ‘husband/wife’ in the collective agreement could have been interpreted as restricting ‘spouse’ to a ‘married’ couple only, and it would have been necessary to clarify that they are referring also to a ‘couple’ that is not married but which is merely recognized publicly as such.

(b) The addition of ‘recognized companion’ in the collective arrangement does not break away from the framework provided in the collective agreement: both refer to a ‘couple’ and ‘spouses’ in the basic social meaning of the concept ‘couple’, as aforesaid; distinguishing between ‘couples’ on the basis of marriage has more than a hint of discrimination. A married couple and an unmarried couple are fundamentally ‘equal’, in so far as the meaning of the concept ‘couple’ is concerned; distinguishing between them on the basis of ‘marriage’, which merely constitutes a formal, external mark of the framework of their joint lifestyle as a ‘couple’, amounts to improper ‘discrimination’ and not a permitted ‘distinction’. This is sufficient to justify the supplement in the collective arrangement, which intends to prevent improper and forbidden discrimination between ‘couples’.

(c) By contrast, introducing a pair made up of two individuals of the same sex (‘a same-sex couple’) into the said provisions of the agreement and the arrangement amounts to planting a foreign type of plant — something that is not a ‘couple’ — in a field that contains only couples, whether married or unmarried.

A same-sex ‘couple’ is not a ‘couple’ within its basic linguistic meaning, and it should, in my opinion, be referred to, linguistically, as a ‘pair’; the argument that it is a victim of discrimination in comparison with other ‘couples’ is unfounded: the married and unmarried couples are couples, and distinguishing between them constitutes discrimination, whereas the ‘pair’ is not a ‘couple’, and distinguishing between it and a ‘couple’ (married or merely publicly recognized) is not discrimination. So long as the linguistic and social meaning of the concept ‘couple’ is unchanged, a ‘pair’ will not become a ‘couple’: the latter ‘combine into one’ (‘Wherefore a man shall leave his father and mother, and shall cleave to his wife, and they shall become one flesh,’ Genesis 2, 24 [44]), whereas the former will always remain two.

4.    The interpretive aspect

(a) The means of communication between human beings is language, and a precondition for understanding between persons having a discussion is that the words, expressions and concepts that form the language have a stable linguistic meaning.

(b) As stated, the law speaks to human beings in human language: and the word is, first and foremost, the basis for interpretation of its provisions. The concepts ‘couple’ and ‘spouses’ and the linguistic relationship between them and ‘family’ are primarily linguistic concepts, whose meaning — in so far as the social sphere is concerned — is, as stated above, an union of two individuals of opposite sexes to share their lives in a family unit, when this sharing is characterized, inter alia, by intimacy designed, conceptually, to ensure the continuation of life.

(c) The same is true of interpretation of the law, and likewise with regard to interpretation of a legal document: a ‘couple’ requires the union of two individuals of opposite sexes; this is true even when the two are incapable in practice or unwilling — for whatever reason — to be intimate for the purpose of ensuring the continuation of life.

(d) Indeed, one of the fundamental rules of statutory interpretation is that the law is interpreted in order to achieve the purpose for which it was legislated; mutatis mutandis, a legal document is interpreted so as to achieve the intention of the parties to it.

Where the language is clear, we would fail in our duty if we were to deviate from the agreed linguistic meaning by which people plan their lives, and give the concepts used by the law or the agreement a different meaning from the one that they have in the world of language.

5.    The Equal Employment Opportunities Law – discrimination

(a) I wholeheartedly agree with the illuminating remarks of my esteemed colleague — the Vice-President — with regard to the significance of the principle of equality and the duty to realize and apply it.

However, as my esteemed colleague noted — when citing Boronovski v. Chief Rabbis [16] and Committee for Protection of Expropriated Nazareth Lands v. Minister of Finance [17] — you cannot violate the principle of equality unless you have ‘equals’; where you have persons who are not equal, treating them differently compared with others who are different from them should not be regarded as improper discrimination, but merely as a permissible distinction.

(b) My esteemed colleague found that same-sex couples are ‘equal’ to heterosexual couples; from here, it was naturally easy to reach a conclusion of ‘discrimination’ between the two types of ‘couples’, where one is entitled to a benefit and the other is not.

I do not accept this position. In my opinion — following what I have said until now — we are dealing with two ‘couples’ that are completely different in nature; the one — the heterosexual (whether married or unmarried) — is a ‘couple’, whereas the other — the homosexual — is merely a ‘pair’; therefore conferring a benefit on the one does not constitute discrimination when not conferring the benefit on the other.

(c) The common denominator that makes the two ‘couples’ — the homosexual and the heterosexual — ‘equals’ for the purpose of the principle of equality, lies, according to my esteemed colleague, in the fact that the characteristic marks of the joint lifestyle of the two are equal; both run a common household, both form a family unit, and both live within a social framework based on a life of sharing and harmony; prima facie, they only differ from one another in one external-formal factor, which is merely that the homosexual couple cannot marry.

My esteemed colleague adds: ‘the inability to marry’ is a factor that also distinguishes married spouses from ‘publicly recognized’ companions; and this distinguishing factor did not prevent a total comparison between the latter and the married spouses.

(d) According to my thinking, a sharing and harmonious relationship — as pointed out by my esteemed colleague — is insufficient to make a homosexual couple a ‘couple’ within the meaning that this concept has in our language in the context discussed here, because it lacks an element essential to ‘being a couple’, namely that the spouses must be of opposite sexes. The formal ‘inability’ to marry — by a formal marriage — does not put the homosexual couple in the same category as the heterosexual ‘publicly recognized’ unmarried couple; the latter is a ‘couple’ within the linguistic meaning of this concept, whereas the former is not.

The distinction between the heterosexual couple — including ‘publicly recognized companions’ — and the homosexual couple is based on the fundamental nature of the concept ‘couple’; the first is a ‘couple’ because it is comprised, as stated, of two individuals of opposite sexes, whereas the second is otherwise; the fact that the homosexual spouses maintain a social framework ‘similar’ in its external characteristics to that of the heterosexual couple — the natural family unit — does not make them a heterosexual couple.

As stated, an essential factor — which is an indispensable condition in this context — for converting two individuals enjoying a life of sharing and harmony into a ‘couple’, within the meaning of the term in the Hebrew language, lies in them being ‘of one flesh’ and their being able — conceptually — to fulfil the precept of ‘being fruitful and multiplying’. The ‘married’ couple and the ‘publicly recognized’ couple meet this basic requirement, and they are therefore ‘equal’ for the purpose of examining an allegation of discrimination; whereas the homosexual couple, which does not meet the said basic requirement, is different from them in the said respect.

(e) My esteemed colleague is aware of a substantive difference that distinguishes, conceptually, between the two ‘couples’ as stated, but according to his approach this difference has no implication for the case before us; this is because in his opinion El-Al decided to confer a benefit on its employees ‘in the form of an aeroplane ticket enabling the employee to take with him the person with whom he shares his life’ (emphasis added), and for this purpose there is no difference between the two couples.

Even this narrow and restrictive approach to the problem before us does not, unfortunately, enable me to agree with my colleague. Admittedly we are concerned with the interpretation of El-Al’s decision. However, this decision does not speak of granting an aeroplane ticket to a person who ‘lives together with the employee’ (emphasis added) but to ‘the employee’s spouse’ (emphasis added); the linguistic difference between the two speaks for itself. As I have already stated, in my opinion the concept ‘couple’ in our language — in the social sphere considered here — expresses the union of two individuals who share their lives, which makes them physically into ‘one flesh’ in the primary sense of the expression; ‘He created them male and female… and He called their name man…’ (Genesis 5, 2 [44]); whereas the union of two individuals that ab initio cannot, physically, become ‘one flesh’ as stated, and who conceptually cannot achieve the said purpose, creates a couple quantitatively (since there are two), but not qualitatively (since the two cannot become one, within the framework of the commandment of being fruitful and multiplying).

(f) In my opinion, all we have before us is the language of the collective agreement — and in the supplement found in the collective arrangement — namely: ‘spouse (husband/wife)’ in the agreement, and ‘the person publicly recognized as husband/wife of the company’s employee’ in the arrangement; I do not think that we may read instead of these: ‘whoever lives together with the employee’ and even not ‘whoever forms a family unit with the employee’.

We are not dealing with a ‘life of sharing’ or a ‘family unit’, but with spouses within the basic conceptual meaning that this concept has in our language; these are always heterosexual, as long as language does not change its meaning.

5.    With regard to the allegation of discrimination between a ‘homosexual couple’ and a ‘heterosexual’ couple, there is no place in my opinion for considerations of social justice; the distinction between these two does not lie in the employees’ sexual orientation, but in the distinction between a ‘couple’ and a ‘family’ and those who do not constitute either a ‘couple’ or a ‘family’, within the meaning given to these terms in our language. Even single employees — whether ‘heterosexual’ or ‘homosexual’ — have close friends with whom they would like to spend their vacation abroad; yet no-one claims that they are discriminated against in that they are refused the benefit merely because they do not commit themselves to a formal framework of ‘a joint lifestyle’ with those friends.

El-Al saw fit to confer a benefit on ‘spouses’ that constitute a ‘family’ within the meaning thereof in the language which we use to communicate with one another; this does not constitute discrimination on the basis of ‘sexual orientation’, since we do not regard the homosexual spouses as included in the linguistic concepts ‘couple’ and ‘family’. We have here a distinction between a ‘spouse’ and someone ‘who is not a spouse’, and it may be argued that from a sociological and social viewpoint there is discrimination between ‘couples’ and those who are not ‘couples’; however, discrimination on a basis of ‘sexual orientation’ is not present here.

6.    More regarding the distinction between ‘couples’

(a) Heterosexual couples share a complete mutual commitment to sharing and stability, each to the other and both to the framework of the couple, in all spheres of life. The law gives validity to this commitment, since society, as such, has a profound interest in preserving the framework of the couple — which forms the basis of the organizational structure of human society — and ensuring its stability.

Society has adopted in this respect the approach that regards spouses becoming ‘one flesh’ — that is capable, conceptually, of achieving the mission of ‘being fruitful and multiplying’ — as a condition for making two people who unite for a life of sharing into a ‘couple’; language expresses this with the meaning it attaches to ‘couple’ and ‘family’. At the same time, society created rules to give a seal of social recognition to the framework of the ‘couple’, and it protects it and intervenes when a couple wishes to dissolve the framework, and it even seeks to prevent the dissolution whenever possible.

The said protection and intervention are achieved with legal tools; and the law — following language, which reflects social consensus — attaches the said meaning to ‘couple’ and ‘family’, but not to the homosexual couple.

(b) The recognition of the heterosexual couple that is ‘publicly recognized’ as a ‘couple’, even though it does not have all the legal guarantees of mutual commitment and stability, derives from the existence of the basic social requirements for the existence of a ‘couple’ — namely, an union of two individuals of opposite sexes as ‘one flesh’, who are able, conceptually, to ensure reproduction — and when these exist, there is no social justification for ignoring the de facto existence of the family unit and the spouses comprising it; on the contrary, it must ensure that the mutual commitment and stability of the unit are protected, even without the formal status of marriage.

The rules granting ‘mutual benefits’ to publicly-recognized heterosexual couples just like to married couples — in the circumstances provided by law — are based on a desire to give expression to the mutual commitment and ensure the stability of the family unit created by the publicly recognized ‘couple’, not necessarily by formally entering into the institution of marriage.

(c) This case of the homosexual couple is different: on the one hand, the substantive condition of different sexes is not met, and without this, one cannot speak physically of ‘one flesh’ and conceptually of reproduction and continuation of life, and therefore it does not constitute the same fundamental unit that lies at the basis of the organizational structure of human society; on the other, the partners do not have the same mutual commitment to the stability and continuity of the partnership that might induce society to recognize them as a ‘special’ couple and fit them in alongside the ‘typical’ couple at the basis of the social structure.

When society reaches the conclusion that a homosexual unit should also serve as a basic ‘unit’ of the social structure alongside the heterosexual couple, and when it determines rules for its creation, formal recognition of its existence and the guarantee of the mutual commitment between its constituents to partnership and stability, then the linguistic-conceptual meaning of the term ‘couple’ and ‘family’ in this context will change, and the homosexual couple will be included in the new linguistic framework alongside the heterosexual couple.

But as long as there is no such social consensus, the homosexual couple is not included within the framework of a ‘couple’ in our language, and it is not recognized as one of our society’s nuclear units; consequently its formation, the mutual commitment of its constituents to the partnership and its stability, and the rights and duties of those involved in it are naturally not regulated by our law.

(d) The change required here is therefore a basic conceptual change in our social outlook regarding the substance of the basic social unit, counted among the elements of our society’s organizational basis. The expression of what appears to be ‘tolerance’ towards exceptional cases and an attempt to prevent apparent social discrimination against those exceptional cases on the basis of what is exceptional about them cannot replace the fundamental conceptual change necessary for equating the homosexual couple with the heterosexual couple.

7.    Different conceptual attitudes in different cases

(a) According to my approach, there is no reason to attach an ‘independent’ and different meaning to the concepts ‘couple’ and ‘spouse’ in different contexts of sharing lives in society. I do not accept the approach that says that these concepts should be examined separately in the field of labour relations, in the field of social legislation, in the field of residency and citizenship, in the field of property law and obligations, in the field of taxation, etc..

In my opinion, as stated, in current circumstances, from the linguistic-social viewpoint, the words ‘couple’ and ‘spouse’ have only one conceptual meaning, namely two individuals of opposite sexes who have united into a framework of a joint life, which is based on the physical ability to become ‘one flesh’ and the conceptual ability to fulfil the commandment of being fruitful and multiplying; the removal of this two-fold characteristic from the framework of the definition of the concept ‘couple’ amounts to a nullification of the meaning that this concept has in the language of consensus that we use as an organized society.

(b) Destroying the linguistic-conceptual meaning in one sphere naturally leads to departing from it in other spheres, and the social framework built on an existing agreed meaning is undermined. The term ‘couple’, in this context, will lose its conceptual meaning in our language, and the focus of this meaning, which today derives from the heterosexuality of the spouses, will become a personal decision to have a life of quasi-family sharing at a particular time, where the sex of the spouses will be left to one side. There is nothing to prevent this result being reached, if it is deemed correct to go in this direction. However, this must be done by giving a ‘different’ meaning to the linguistic concept ‘couple’; this is not for us to do, but for whoever is authorized to change the Hebrew language, even if only in the legal sphere.

(c) Let me not be misunderstood: my approach does not seek to challenge the increasingly prevalent social recognition of the sexual orientation of individuals who wish to build their lives with persons of the same sex, nor do I wish to place obstacles in the path of those individuals to prevent their self-fulfilment in accordance with their orientations. All that I want is to refrain from the destruction of a conceptual ‘barrier’, linguistic chaos and communication that suffers from ‘misunderstandings’, by deviating so sharply from the meaning of basic concepts, which are the foundation of society and facilitate its operation in the way that we currently live.

For generations the concept ‘couple’ has been used in the social context to express a heterosexual couple. It was used in this way both orally and in writing, and it was used in this way in determining social arrangements and legal norms. If we try to introduce a change in this matter, this ought to be done in a straightforward way and not in a roundabout fashion; for we are dealing with human language, and we are obliged to respect it and protect the stability of its contents.

8.    Summary

(a) A ‘heterosexual’ couple — whether married or unmarried — is a ‘couple’ within the conceptual meaning of the word, whereas a ‘homosexual’ couple is not.

(b) For this reason, we are not dealing conceptually with ‘equal’ couples, and therefore the distinction made between the heterosexual couple and the homosexual couple is merely a ‘distinction’, and not ‘discrimination’.

(c) There is no basis for partial and limited recognition of the institution of the ‘homosexual’ couple; yes — with regard to labour agreements; no — in other areas, such as taxation, personal status, citizenship, giving testimony, etc..

A change in the meaning of the concept of ‘spouse’ must be general and all-encompassing, and it ought to be done in a way that everyone is aware of the new meaning given to it and its ramifications.

(d) An employer may offer a ‘benefit’ only to heterosexual couples without being guilty of discrimination, because the homosexual couple is not a ‘couple’, and the distinction between employees who are ‘spouses’, in the said basic linguistic sense, and employees who are not, is a ‘distinction’ and not ‘discrimination’.

(e) The discrimination that the respondent alleges in this case, is merely an ‘appearance of discrimination’, and it derives from what clearly appears to be ‘social injustice’. However, every distinction in distributing benefits to employees involves ‘social injustice’; the principle of equality as a defence against discrimination was not intended to address this.

Were my opinion accepted, the petition would be granted and the judgment of the National Labour Court’s decision would be reversed.

 

 

Justice D. Dorner

1.    The French philosopher, Michel Foucault, discussed the influence of social norms — reflecting what is accepted, ‘normal’, and what changes from time to time and from society to society — on the application of transcendental and formal laws (legal norms).

‘…le pouvoir de la Norme… est venu s’ajouter à d’autres pouvoirs en les obligeant à de nouvelles délimitations; celui de la Loi… et du Texte…

…le pouvoir de la norme fonctionne facilement a l’intérieur d’un système de l’égalité formelle, puisque a l’intérieur… la règle, il introduit… des différences individuelles’ (M. Foucault, Surveiller et Punir (1975) 186).

In translation:

‘… the power of social norms joins with other forces — the law and the text — and imposes on them new limitations…

… the power of social norms acts well within a system of formal equality, since it introduces… individual differences into… the rules.’

It seems to me that we cannot decide the petition before us without referring to the changes that have taken place with regard to social norms in Israel respecting homosexuality.

2. The respondent demanded that the petitioner recognize the man with whom he shares his life as a ‘spouse’ for whom he is entitled to receive an aeroplane ticket as of 1989, by virtue of the collective agreement. The Labour Court accepted the claim on the basis of the Equal Employment Opportunities Law (Amendment). The law, which came into effect on 2 January 1992, added to s. 2(a) of the Equal Employment Opportunities Law (hereafter — ‘the Equal Opportunities Law’) a prohibition against discrimination against employees because of their sexual orientation. The Labour Court held that the law changed the existing law and gave the respondent a right that he did not have before it was enacted, and that therefore he is entitled to receive the aeroplane tickets from the date that the amendment came into effect.

My colleague, Vice-President Barak, presumed — in the absence of any contrary argument by the respondent — that the respondent’s right does not derive from the collective arrangement itself. In Justice Barak’s opinion, the respondent’s right derives from the amendment, which reflects the principle of equality and the prohibition of discrimination against employees on the grounds of their sexual orientation.

My colleague, Justice Kedmi, is of the opinion that the expression ‘spouse’ cannot be given a different meaning in different laws. In his view, this expression has only one meaning: a man and a woman who unite for a joint life. This definition is accepted both from a linguistic viewpoint and a social viewpoint. It follows that without an express provision in the law that a same-sex life-partner is a ‘spouse’, a life-partner of the same-sex should not be given the benefits to which a ‘spouses’ is entitled on the basis of a provision prohibiting discrimination against the employee himself because of his sexual orientation.

3.    I agree with the result reached by the Vice-President. However, in my opinion, the respondent’s right does not derive only from the Equal Opportunities Law, but also derives from the general principle of equality that has, for some time, been a part of our labour law.

In my view, the original version of the Equal Opportunities Law reflected the principle of equality but did not establish it. Thus, for instance, in Nevo v. National Labour Court [7], a provision that provided a different retirement age for men and women was disqualified on the basis of the principle of equality. This disqualification was based on the legal position prior to the Equal Retirement Age for Female and Male Employees Law, 5747-1987, which made the retirement age the same for women and men, while preserving the right of women employees to early retirement. Cf. also the remarks of Justice Mazza in Israel Women’s Network v. Government of Israel [5], at pp. 521-522 {150}.

Similarly, the amendment also did not change the existing law about equal rights for homosexuals, but merely gave expression to them. Consequently, had the respondent insisted on his original claim to receive the benefits for his spouse since May 1989, which was before the enactment of the amendment, I would have granted his request. Conversely, if not for the development of social norms in Israel which no longer totally oppose homosexual relations, it is possible that the Equal Opportunities Law would have been interpreted narrowly, similarly to the interpretation of my colleague, Justice Kedmi, which would not give the respondent the benefits that he claimed.

4.    The principle of equality does not operate in a social vacuum. The question whether a certain case involves discrimination between equals, or whether it merely involves different treatment of different people, is decided on the basis of the accepted social outlooks. Justice Wilson discussed this in the Canadian case of R. v. Turpin (1989) [38], at p. 1331:

‘In determining whether there is discrimination on grounds relating to personal characteristics of the individual or group, it is important to look… to the larger social, political, and legal context…

Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality.’

See also the remarks of Lord Denning in Dyson Holdings Ltd v. Fox (1975) [34], at p. 1033.

5.    In the past, intimate relations between members of the same sex — relations that are considered a sin by all the monotheistic religions — constituted a criminal offence. Legitimacy was also given outside the criminal law to a distinction based on sexual orientation. Homosexuals (including lesbians) were fired from their jobs, were not accepted for positions requiring a security clearance, and were forbidden to raise their children. In the United States they were classified as psychopaths and were not allowed to immigrate into that country (The Editors of the Harvard Law Review, Sexual Orientation and the Law, 1990, at pp. 44, 65, 119, 132, 139, 150, 153).

This treatment has changed gradually. Legal literature criticized the definition of homosexual relations as a criminal offence, as well as discrimination against homosexuals in all areas of life, including areas of employment (R.A. Posner, Sex and Reason, Cambridge, 1992, at p. 308). Movements advocating the equality of rights for homosexuals were established. The trend today — which began in the seventies — is a liberal treatment of the sexual orientation of an individual, which is considered to be his private matter.

These changes in social outlook were given expression in law in the Western world, and homosexual couples have achieved equality, in accordance with the social norms in each country.

6.    In European countries, there is no longer a criminal prohibition of homosexual relations. Legislation in the field of public law and labour relations in France, Denmark, Sweden and Norway prohibits discrimination because of sexual orientation. Laws in Sweden, Holland and Norway equate the rights and duties of homosexual couples with the rights and duties of heterosexual couples, including tax benefits and property division arrangements upon separation. The law in Sweden also recognizes the right of inheritance of a homosexual spouse (see L.R. Helfer, ‘Lesbian and Gay Rights as Human Rights: Strategies for a United Europe’ 32 Va. J. of Int’l L., 1991-92, 157, 168). Homosexuals have achieved the most recognition in Denmark. The law in that country allows ‘marriage’ between two persons of the same sex by registering their life-partnership relationship. This registration entitles homosexual spouses to social rights granted to married couples (M.H. Pedersen, ‘Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce’ 30 Jour. of Family L., 1991-92, 289).

Article 8 of the European Convention for the Protection of Human Rights also provides protection for homosexual relationships as part of the protection given to the right to privacy (see decisions of the European Court of Human Rights in the Norris Case (1988) [35]; and Modinos v. Cyprus (1993) [36]). Recently, a proposal was made to amend the Convention to expressly prohibits discrimination of any kind because of sexual orientation (Draft Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms).

7.    Article 15(1) of the Canadian Charter of Rights and Freedoms, which is a part of the Constitution Act, provides protection for the right of every person to equality. In case-law this section has been interpreted as prohibiting discrimination on the basis of sexual orientation (Vriend v. Alberta (1994) [39]; Egan v. Canada (1993) [40]; Haig v. Canada (1992) [41]). By contrast, claims of homosexual couples for rights conferred on married couples were rejected. It was held that, since the purpose of marriage is raising children, the different treatment of the homosexual couple is not a breach of the charter (Haig [41], at p. 340; Layland v. Ontario (Consumer & Commercial Relations) (1993) [42], at p. 231).

8.    In the United States the change has been more moderate. In some States there is still a criminal prohibition — which is not enforced — against having homosexual relations. As recently as 1967, the United States Supreme Court held that, since the homosexual has a psychopathic personality, as defined in the Immigration and Naturalization Act, his immigration into the United States was prohibited, and he was liable to immediate deportation (Boutilier v. Immigration Service (1967) [28]). Six years later, however, in 1973, the American Psychiatric Association rejected the definition of homosexuality as a psychiatric disorder, and, in 1981, the rule in Boutilier [28] was reversed. It was held that because homosexuality is not a psychiatric disorder, it does not indicate bad character, and therefore it does not constitute grounds for rejecting a naturalization request (Nemetz v. Immigration & Naturalization Service (1981) [29]).

During the 1980s, 139 judicial districts (States and local authorities) enacted laws prohibiting discrimination on the basis of sexual orientation in employment, housing and education (Note: ‘Constitutional Limits on Anti-Gay Rights Initiatives’ 106 Harv. L. Rev. (1992-93) 1905, 1923-25). The municipal laws of 12 municipalities allowed homosexual couples to register at the municipality as domestic partners, for the purpose of receiving social rights given to families (Bowman and Cornish, supra, at p. 1168).

At the same time, the courts in several States have recognized the rights of a same-sex spouse on the basis of the ‘functional test’. According to this standard, recognition of the homosexual couple depends on the purpose of the law conferring rights on a ‘family’ or ‘spouse’. The homosexual spouse will enjoy the rights conferred by law, if this is consistent with the law’s purpose.

Thus, for instance, the New York State Court of Appeals recognized the life-companion of a deceased tenant as a protected tenant by virtue of his being the spouse of the deceased. It was held that, in view of the purpose of the tenant protection law, the difference between a heterosexual couple and a homosexual couple is irrelevant. If the life-companion were not recognized as the spouse, the purpose of the law would be frustrated, in that a remote relation would be entitled to the accommodation, whereas the person who shared his life with the deceased would be expelled from the apartment where he had lived for years (Braschi v. Stahl Associates Co. (1989) [30], at pp. 788-789; see also Yorkshire Towers Co. v. Harpster (1986) [31]; Two Associates v. Brown (1986) [32]; E. 10th St. Assoc. v. Estate of Goldstein (1990) [33]).

The accepted outlook in the United States was summarized in the article of Bowman and Cornish, supra, at pp. 1175-77, as follows:

‘… there is a general tendency to look at the characteristics of the particular relationship to determine whether it qualifies as a family for the purposes of the particular statutory scheme, especially when a statute uses a term such as “family”, “spouse”, or “parent” without defining it.

…

… Courts have identified certain elements as indicia of a “family-like” relationship, including financial commitment, exclusivity of the relationship, the reliance members place on each other, the length of the relationship, and the presentation of the relationship to the outside.’

9.    The law in Israel regarding homosexuals reflects the social changes that have occurred over the years.

Male homosexual relations were, in the past, included in the offence of deviations from nature, an offence punishable by 10 years’ imprisonment (section 351(3) of the Penal Law, 5737-1977, which was a new version of section 152(2) of the Criminal Law Ordinance, 1936, enacted by the Mandate). This prohibition was never enforced. As early as the year 1963, in CrimA 224/63 Ben-Ami v. Attorney-General [20], at p. 238, the court held that this offence has no basis in our present reality. Speaking for the court, Justice H. Cohn said:

‘Unnatural sexual relations, and homosexual relations, when done in private between consenting adults, are not acts involving moral turpitude, nor do they indicate that the persons who do them are criminals deserving of punishment. These are offences that we inherited from ancient systems and past generations and they have no place in the criminal law of a modern state… ‘Nature’, as such, no longer needs the protection of the criminal law. What needs, and is therefore entitled to, their protection are the human body and human dignity and liberty… one of the basic rights of the citizen is that the State will not interfere in the private life and his behaviour behind closed doors…’

Nonetheless, for many years the offence remained the law and was not repealed. Even in 1980, when the draft Penal Law (Amendment no. 14), 5740-1980 — which, according to its explanatory notes, was intended to replace the provisions of the Mandatory law with legislation suitable to the reality of our times — was tabled in the Knesset, it was suggested that the prohibition against homosexuality remain. Notwithstanding, it was proposed that the punishment for this offence be reduced to one year’s imprisonment. The explanatory notes said: ‘The question whether in our time there is a justification for the interference of the criminal law in sexual acts done between consenting adults in private is a controversial one’ (ibid., at p. 392).

This proposal did not reach the Knesset, and the criminal prohibition was repealed eight years later in the Penal Law (Amendment no. 22), 5748-1988.

This formal repeal reflects the current position of Israeli society that the law (as opposed to religion) should be indifferent to the sexual orientation of a person, so long as he does not harm anyone. There is widespread consensus that homosexuals should not be restricted or subject to discrimination (Rubinstein, The Constitutional Law of the State of Israel, supra, at p. 334). The amendment to the Equal Opportunities Law reflects this approach. M. Virshowski MK referred to this during the debate proposing the law at first reading:

‘… with this we are in fact establishing the rules accepted today in the enlightened world and allowing people to live in accordance with their sexual orientations, and not to suffer for them or be oppressed because of them’ (Knesset Proceedings 119, 1991, at p. 1034).

10. In our case, it is clear that there is a difference between a homosexual couple and a heterosexual couple. However, a ‘difference’ justifying different treatment must be relevant (Boronovski v. Chief Rabbis [16], at p. 35; HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [21], at p. 21; HCJ 4169/93 [22]).

The proper test is therefore to consider the relevance of the sexual orientation to the benefit conferred on the spouse. The functional test meets this requirement. According to this test, no distinction should be made between homosexual couples and heterosexual couples, if the spousal relationship between the spouses of the same sex meets the criteria that realize the purpose for which the right or benefit is conferred. By contrast, when the sexual orientation is relevant to realizing the purpose of the benefit, for instance if the purpose is to encourage having children, withholding the benefit from a same-sex spouse will not constitute discrimination. Justice L’Heureux-Dubé discussed this distinction in the judgment of the Canadian Supreme Court in Canada (A.G.) v. Mossop (1993) [43], at p. 560:

‘… “family status” may have varied meanings depending on the context or purpose for which the definition is desired… the Tribunal concluded that the potential scope of the term “family status” is broad enough that it does not prima facie exclude same-sex couples. In making this finding, the Tribunal used the proper interpretational approach, considered the purpose of the Act and the values at the base of the protection of families.’

Cf. also NLC 54/85-0 [25]. In that case it was held that a recognized partner is exempt from paying insurance premiums under s. 8 of the National Insurance Law [Consolidated Version], 5728-1968, exempting ‘a married woman whose husband is insured’ from making insurance premiums. Justice Goldberg, who wrote the judgment, explained that in view of the purpose of the law to place a recognized partner on an equal footing with the ‘lawful wife’, and in view of the definition in the law of the expression ‘his wife’ including a ‘recognized partner’, the recognized partner must also be regarded as a ‘married woman’.

11. Public authorities are first and foremost subject to the principle of equality, but this principle also applies in the field of labour relations in general (see, for instance, S. Almog, ‘A Guide to Labour Law’ The Employee’s Guide, 1994, 35-36). The employer’s contractual freedom retreats when faced with the employee’s right to equality (Flight Attendants Association v. Hazin [24]; HCJ 410/76 Herut v. National Labour Court in Jerusalem [23]; Nevo v. National Labour Court [7], ibid.). The legislation prohibiting discrimination in labour relations reflects this principle, but did not create it. See also F. Raday, ‘The “Privatization of Human Rights” and the Misuse of Power’ 23 Mishpatim, 1994, at pp. 21, 41.

12. In our case, the aeroplane ticket was not meant for a spouse who is married to the employee, and in any event the purpose of the benefit was not to encourage a lifestyle within a traditional family framework. The benefit is given to the employee for the spouse with whom he shares his life de facto. Indeed, although the petitioner did not intend the arrangement to apply to same-sex spouses, the sex of the spouse is not relevant to the purpose of giving the benefit.

Benefits for a spouse are a significant part of employees’ salaries. Professor Elbin’s calculations found that in the United States 27% of employees’ salary is made up of benefits (in his article, supra, at pp. 1068-1069).

In Israel, benefits (including ‘related conditions’) may lead even to the doubling of the salary (see the monthly periodical Calculation, M. Katzin, ed., October 1994, 50). A significant part of these benefits — such as pension plans and life insurance — are given for the spouse, including the recognized partner, and to deny benefits to a spouse with whom a homosexual lives is tantamount to reducing his salary. Consequently, denying these benefits is discrimination against the employee himself. Professor Elbin said of this:

‘Unable to marry, gay couples are generally excluded from the benefits afforded married couples in our society, including benefits commonly accorded spouses in employee and public benefit programs. For gay employees, the result is total compensation lower than that of other married co-workers performing the same job.

Domestic partner provisions lessen the economic discrimination that results from the ban on same-sex marriage.

…

… An employer who does not offer domestic partner benefits is, in fact, paying less in total compensation than he should be because employees with domestic partners are not being compensated equitably’ (supra, at 1068-69, 1082).

In the case before us, denying the benefit to the respondent would lead to a reduction of his salary in the amount of the price of the ticket, and there is no justification for this.

For these reasons, I agree that the petition should be denied.

 

 

Petition denied, by majority opinion (Vice-President A. Barak and Justice D. Dorner), Justice Y. Kedmi dissenting.

30 November 1994.

 

 

 

[*]                 NLC 3-160/53 El-Al Airlines v. Danielowitz IsrLC 26 339.

*                 Ibid., p. 349.

Crim.A. 126/62

 

           

ARYEH DISSENCHICK AND SHAUL HON

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal  Appeal

[February 20, 1963]

Before Sussman J., Landau J. and Berinson J.

 

 

Courts - Contempt of court - newspaper report on pending criminal trial - Courts Law, 1957, sec. 41(a)

 

The trial of one Rafael Blitz for murder stretched over a number of days. On the second day. a newspaper (of which the first appellant was the editor and the second appellant the responsible journalist) published a report which indicated that in answer to the charge defence counsel had pleaded not guilty before the accused could say anything. In the body of the article it was reported that before trial the accused had in fact admitted his guilt to a journalist, although it was noted that such admission not having been made in court was not binding. The appellants were charged with contempt of court and were convicted and fined. The appeal was against both conviction and sentence.

 

Held. Although the jury system does not exist in Israel, no one may try to prejudice the court, composed of professional judges, in a matter being heard by it. It was not necessary that the court should in fact have been influenced by a publication but enough that it or witnesses in the case might be. Freedom of expression is not absolute. It may not offend against the right to a fair trial and certainly not introduce matter not actually before the court. During the trial itself, only the bona fide publication of what was said or transpired in open court is permitted.

 

Israel cases referred to:

 

1.         H.C. 14/51 : Attorney-General v Z. Rotam and others (1951) 5 P.D. 1017.

2.     H.C. 73/53 : "Kol Ha'am" Co. Ltd. v Minister of the Interior (1953) 7 P.D. 871; S.J., vol I, 90.

3.     H.C. 243/62 : Israel Film Studios Ltd. v Levi Geri and others (1962) 16 P.D. 2407: S.J. vol IV, 208.

4.         Cr.A. 24/50 : Avraham Gorali v Attorney-General (1951) 5 P.D. 1145.

5.         C.A. 36/62 : Israel Ozri v Y. Galed and others (1962) 16 P.D. 1553; S.J., vol IV, 347.

 

English cases referred to:

 

6.         Hunt v Clarke (1889) 61 L.T. 343.

7.         R. v Duffy (1960) 2 Q.B. 188; (1960) 2 All.E.R. 891.

8.         Delbert-Evans v Davies & Watson (1945) 2 All.E.R. 167.

9.         R. v Clarke (1910) 103 L.T. 636.

10.       Re D.O. Dyce Sombre (1849) 41 E.R. 1207.

11.       R. v Gray (1900) 2 Q.B. 36.

12.       R. v Davies (1945) 1 K.B. 435.

 

Australian case referred tb:

 

13.       Ex parte Senkovitch (1910) S.R.N.S.W. 738.

 

Canadian case referred to:

 

14.       R. v Willis & Pople (1913) 23 W.L.R. 702.

 

American cases referred to:

 

15.       Pennekamp and others v State of Florida 328 U.S. 331 (1946).

16.       Bridges v State of California 159 A.L.R. 1346 (1941).

17.       Patterson v State of Colorado 205 U.S. 454 (1907).

18.       Schenk v U.S. 249 U.S. 47 (1919).

19.       Cantwell and others v State of Connecticut 310 U.S. 296 (1940).

20.       Abrams and others v U.S. 250 U.S. 616 (1919).

21.       Schaefer v U.S. 251 U.S. 466 (1920).

 

S. Levin for the appellants.

G. Bach, Deputy State Attorney, for the respondent.

 

SUSSMAN J.             The trial of Rafael Blitz, charged with murder under sec. 214(d) of the Criminal Code Ordinance, 1936, opened in the District Court on 5 November 1958. The hearing was adjourned to the following day but was not then concluded. The case continued to be heard on 9 November, 1 December and 3 December 1958. Judgment was given on 12 January 1959. When on 5 November 1958 Blitz was asked whether he admitted or denied the charge, he replied (according to the judge's notes) "I deny the charge."

 

2. On 6 November, 1958, the second day of the trial, the newspaper Ma'ariv carried a report by the second appellant, together with a picture of Blitz. The report bore the following caption: "BLITZ (TOMMY) ASKED - DEFENCE COUNSEL REPLIES" and beneath it "I DON'T ADMIT IT." The report began

 

"Rafael ("Tommy") Blitz had only to say three words yesterday when asked by the judges whether he admitted murdering Engineer Fiatelli near to the Zafon Cinema. Blitz stood tensely upright, open-mouthed - but before he could reply to the question, his counsel answered for him 'I don't admit it'."

 

This passage was emphasised by being printed in bold type. The report went on to say (in ordinary type)

 

"Blitz's gaze quickly turned from the judge to counsel. For a moment heavy silence reigned. Apart from Blitz himself, no one could know whether the negative answer was the one he had prepared to utter. Earlier, before the case began, he had given another answer to a question from a journalist. But that answer was not binding because it had not been given to the judges who judge a person on the evidence put to them. Since counsel's answer was decisive, the trial of Blitz therefore began."

 

3. The two appellants were charged under sec. 41 of the Courts Law, 1957, for writing and publishing this report, the second appellant as the writer and the first appellant as editor of the newspaper. They were convicted and fined IL. 200 each. They now appeal by leave of the District Court against judgment and sentence.

 

4. Sec. 41(a) of the Courts Law provides:

 

"A person shall not publish anything concerning a matter pending in any court if the publication is calculated to influence the course or outcome of the trial; however, this prohibition shall not apply to the bona fide publication of a report of anything that has been said, or has occurred, in an open session of the court."

 

            The District Court (per Judge Harpazi) found that the description of Blitz's behaviour in court along with the wonder of the writer as to what Blitz would have replied had counsel not intervened and said "I don't admit it", were protected by the end of see. 41(b), being a bona fide description of what occurred in an open session of the court. But the District Court found the two appellants guilty of an offence under see. 41 for that part of the report which stated that before trial Blitz had given a journalist an answer other than "I don't admit it." The court held that this information was calculated to influence the outcome of the trial both because of its effect on the judges who sat and heard the case against Blitz, and more seriously because of its effect on witnesses who had been summoned in the trial.

           

5. Mr. Levin for the appellants argued before us that the different answer of which the report spoke need not necessarily have been "I admit it". There was a variety of possible answers by a person standing criminal trial when asked whether he denies or admits the offence, such as "I admit the facts but not the offence".

 

            In my view this argument is groundless. The words in the report "Blitz had only to say three words yesterday," against the background of the headline of four words "I don't admit it", by themselves indicate that the three word answer Blitz "should" have given was "I admit it". Even if that is not so, the writer goes on to say that the trial began as a result of the fact that counsel's reply is decisive ("the trial ... therefore began") and "that answer (of Blitz himself to a journalist) was not binding." The emphasis on the causal connection between counsel's reply and commencement of the trial, in contrast to Blitz's own answer which would have made the trial superfluous had it been binding, shows clearly to the reader that the non-binding answer was "I admit it."

           

6. The second argument of appellants' counsel was that nothing in the report was calculated to affect the outcome of the trial. Mr. Levin directed us to the leading judgment of Witkon J. in Attorney-General v Rotam, (1) particularly to the observation in paragraph 16, and he

 emphasised the fact on which Witkon J. (in paragraph 13) and Agranat J. (at p. 1052) dwelt, that in this country where trial is before professional judges, the possible influence of newspaper publication is far less than it is in other countries where the facts are determined by a jury. Since I have reached the conclusion that the District Court was right in its decision that the report was likely to influence the witnesses, and thus also the outcome of the trial, 1 shall only derate brief words to this argument.

 

            I also think that our mode of trial which generally does not involve lay participation - I am not concerned with exceptional procedures such as in the municipal courts or rent tribunals - warrants a more liberal approach to publications touching pending court cases. The professional judge is accustomed to sift the grain in accordance with the law of evidence and to set out his reasons in writing. He is not likely to be affected by a publication to the same extent as a juryman who returns to the court room with the general answer of "guilty" or "not guilty", the reasons for which remain locked within his breast. Although the public may properly presume that a professional judge can largely rid himself of the influence of what he reads in the newspapers, it is not free, even as regards the judge, from the obligation not to try and create prejudice about a matter pending in court. There is no justification for the illusion that the judiciary is a precision machine which will produce the right factual conclusion in exchange for and required by the admissible evidence supplied to it. It is important to recall here what Justice Frankfurter said in Pennekamp v Florida (15) at p. 1042:

           

"Judges are also human, and we know better than did our forebears how powerful is the pull of the unconscious and how treacherous the rational process."

 

To weigh the evidence, to determine the credibility of witnesses, their powers of observation and their memory are among the most difficult of judicial tasks. They are more difficult than deciding the law, with our law faculties and teachers to instruct a person in the wisdom of the law before he becomes a judge. No one can teach the work of elucidating and establishing the facts. Each one of us learns that from his experience during his lifetime.

 

7. I shall therefore assume that the appellants are right in saying that the report was unlikely to influence the judges who sat in the case, that reading it the judges could avert their minds from it as they normally do from inadmissible evidence. Before I pass to the matter of the possible influence on witnesses, I must deal with a preliminary argument put by appellants' counsel. The hearing of Blitz's case began, as I have said, on 5 November 1958 and continued on the morning of 6 November, before the newspaper came out. Blitz had already admitted to the police ... that he had been at the scene of the crime and had even fired shots. At the trial, however, his counsel urged that also the police had fired shots when pursuing Blitz; it is possible therefore that Fiatelli was killed not by Blitz's shots but by one fired by the police. The question was, whose shot caused Fiatelli's death. In this regard, Mr. Levin argues the evidence of the prosecution was completely in by the time the paper came out at noon on 6 November.

 

            I cannot accept this argument. Blitz's trial did not end until 12 January 1959. Even after 6 November 1958 evidence was being taken. Whether or not the publication amounts to an offence does not depend whether it in fact influenced the outcome of the trial. Under see. 41 it is sufficient that it "is calculated to influence", that it could influence. That is the law not only in England: Hunt v Clarke (6), but also in the U.S.A. where the courts, in consequence of the First and Fourteenth Amendments (free speech and due process), tend to construe restrictively the rules of contempt of court: see Frankfurter J. in Bridges v California (16) at p. 1371.

           

            Generally it cannot even be said whether a publication has really influenced matters, and for this reason alone the guilt of the publisher is not to be made dependent on the outcome of the trial. The possibility of such influence is enough to cause injury to the integrity of judicial hearings and render doubtful whether justice has been done. The decision in a trial must rest on the foundation of the evidence adduced and taken openly. A trial influenced by invalid "external" hidden factors is not a judicial trial.

           

            In Patterson v Colorado (17) Justice Holmes dealt with the question of whether a newspaper publication proclaiming a witness a liar should be treated as contempt of court. I will return to the observations of the Justice in another connection. Here I am content to quote one sentence of his which explains the idea of the prohibition embodied in our see. 41:

           

            "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court; and not by any outside influence, whether by public talk or public print."

 

            Furthermore, even after the appearance of the newspaper evidence was taken to prove that it was Blitz's bullet which caused Fiatelli's death, after Counsel had previously suggested the possibility of Fiatelli having been shot by a policeman. Inspector Zelinger who happened to be at the scene of the murder testified at the trial that he heard "about six shots" ... He was cross-examined by counsel for the defence and asked whether he was armed. He answered, no. He also denied that on leaving the cinema he fired warning shots. On 9 November 1958 the prosecution called three witnesses ... to controvert the argument of the defence, as above. Blitz admitted in the box to firing five shots. According to Zelinger's evidence there was only one other shot that might have killed. Defence counsel based his argument in summation on this fact: "Is there another possibility that one of the policemen who was on the spot wanted to harm Blitz." Hence the danger of adverse influence had not yet passed when the newspaper came out on 6 November.

           

8. As regards the question whether publication of the report was "calculated to influence the outcome of the trial" as provided in see. 41, Mr. Levin suggested putting the matter to the "clear and present danger" test, first adopted by this court in the "Kol Ha'am" case (2). His argument was that it is not enough that publication is likely to influence the outcome of the trial but that what is required is the probability that immediate damage will be caused.

 

            I find no foundation in the argument. In "Kol Ha'am" the question before the Court was in what circumstances the Minister of the Interior may exercise his powers under sec. 19(2)(a) of the Press Ordinance to suspend the publication of a newspaper. Sec. 19(2)(a) conditions that power on the publication of matter "likely to endanger the public peace." Agranat J. speaking for the Court, set a number of different grounds. One of them was the term "likely" used by the legislator, which is synonymous with "probable" or "that may reasonably be expected" (at p. 188). Another was the need to balance freedom of speech - and freedom of the press which is only a projection of that - as a fundamental right in a democratic regime against the duty of the government to safeguard public security, in face of which the right of the citizen may retreat only in exceptional cases; such exceptional cases are those in which "a clear and present danger" of a breach of the peace is manifested, according to Justice Holmes in the well-known case of Schenck v U.S. (18). Employing the same test, this Court recently decided whether the Film Censorship Board had lawfully used its power to forbid the exhibition of a film (Israel Film Studios Ltd. v Geri (3)).

 

9. I would think that this test is not appropriate in the case before us. There what was involved was the restriction of a right in the interest of public necessity, here it is the reconciliation of an interest which the public is concerned in preserving with another with which it is equally concerned. The invasion of freedom of speech because of the danger of a breach of public order, which is a sore evil only to be effected to the extent that it is essential, is unlike delimiting that freedom in order to do justice. The public interest in justice being done is no less a value than its interest in maintaining freedom of speech. In balancing the two, it is no less wrong to repress the one than it is to repress the other. In the one case future publication is prevented because of a "faulty" report published in the past, when future publication may well be faultless. In the other case, punishment is imposed for an offence committed by a past publication. In Attorney-General v Rotam (1) Agranat J. (at p. 1054) and Witkon J.(at p. 1029) drew attention to the fact that the U.S. Supreme Court applies the said test also to contempt of court, and in view of such authority the question calls for more basic examination.

 

10. The leading case in which the Court laid down "the clear and present danger" principle as a guide in determining whether a publication amounts to contempt of court was Bridges v California (16). Justice Black at the beginning of his judgment (speaking for the majority of five justices) stressed that the offence charged against the appellant was undefined by enacted law and that he was found guilty on the basis of a common law rule which in view of the trial court remained over from the time of British rule. Justice Black continued (at p. 1355):

 

"It is to be noted at once that we have no direction by the legislature of California that publications outside the court room which comment upon a pending case in a specified manner should be punishable. As we said in Cantwell v Connecticut (19), such 'declaration of the State's policy would weigh heavily in any challenge of the law as infringing constitutional limitations.' But as we also said there, the problem is different where 'the judgment is based on a common law concept of the most general and undefined nature'."

 

            I am not stating anything new in observing that freedom of expression is not an absolute right but is likely to come into conflict with other rights, and in such a conflict, there are occasions when the latter will prevail. As was said in Gorali v Attorney-General (4): "Everyone has the right of freedom of speech and freedom of expression, but exercise of the right is subject to restriction by law."

           

            Freedom of expression is not freedom to ridicule or licence to defame a person and commit an offence under sec. 202 of the Criminal Code Ordinance, 1936, or to do the injurious acts mentioned in see. 16 of the Civil Wrongs Ordinance, 1944: Ozri v Galed (5), neither can it justify the commission of any other wrong. In the present case, we are dealing with the charge of an offence against a Law recently enacted by the Knesset, that is, the matter has come before us, as Justice Black put it in Bridges (16) "encased in the armor wrought by prior legislative deliberation."

           

            The first question which presents itself when treating of a contemporary enactment is what is the situation involved. I cannot attach decisive importance to the fact that the offence of contempt of court emerged under absolute monarchy under which contempt of court is considered to be equivalent to contempt of the monarch himself. (See Nelles & King, "Contempt by Publication in the United States", (1928) 28 Col.L.R. 401, 525). We are not concerned here with a charge of offending the honour of the judges who heard the case and for this reason I shall not dwell on the question in what circumstances a publication of such a kind should be punishable. We are concerned with the publication of the admission of a crime uttered in the presence of a journalist, concealed by a denial in court of the charge. That constitutes interference with a case pending in court, an equivalent to passing the hearing of the charge from the court properly dealing with it to the public at large, invited to adjudicate on it according to information presented in a newspaper. A free democratic regime is also entitled to safeguard the integrity of judicial hearings, otherwise freedom and anarchy become synonymous. By literally prohibiting publication which "is calculated to influence the course or outcome of the trial", the Knesset has said that no one shall publish anything capable of influencing the course of a pending case. The term "calculated to " means only that the publication becomes "a special publication", as stated in the marginal title of see. 41, if it is of sufficiency to influence the case.

 

11. The course normally taken to establish the significance of some legal prohibition is to ask what is the mischief which it is sought to suppress. That is the key to correct interpretation. In the present case the answer is that the Law is intended to avoid, inter alia, the presentation of matters touching upon a case then being conducted which were not raised before the court dealing with it.

 

            Justice Holmes who coined the phrase "clear and present danger" in Schenck (18) died in 1935 and was not a member of the court that sat in Bridges (16) in 1941. But what he himself said in Patterson v Colorado (17) in 1907 can here be cited in support:

           

"A publication likely to reach the eyes of the jury, declaring a witness in a pending case a perjurer, would be none the less a contempt that it was true. It would tend to obstruct the administration of justice, because even a correct conclusion is not to be reached or helped in that way, if our system of trials is to be maintained ... What is true with reference to a jury is true also with reference to a court."

 

12.       The notion of freedom of expression or "free trade in ideas" as was said in Abrams v U.S. (20) is based on the consideration that in the course of expressing views without limit or restriction "the power of the thought" will eventually succeed "to get itself accepted in the competition of the market." Hence, to circumscribe competition is only justified in exceptional instances.

 

            Yet the doing of justice is no less important than freedom of expression and, as has already been explained, a fair judicial hearing necessitates that one should disregard the thoughts that have currency in the street. The facts are determined in court not by the competition in the market of views but by the evidence adduced in court in accordance with the law. Where the notion of "free trade in ideas" itself does not obtain with reference to a matter being judicially heard, why should the right of freedom of expression be honoured to the extent of it becoming a clear and present danger as it trespasses on to an area not its own and concerns itself with matters in which silence is best? (See Frankfurter). in Bridges (16) at p. 1367).

 

            Publicly to mention things concerning a case is restricted neither before the case opens nor after it is closed. Only during the hearing itself is a kind of moratorium placed upon public debate. The public may know what was said and what occurred in the court room, again without restriction under see. 41. But what public interest is served by publication of information that some defendant admitted a crime to a journalist? That is only liable to increase tension and satisfy sensation-seeking. Freedom of the press does not exist for this purpose. I have said that freedom of expression is not freedom to ridicule a person. I now add that neither is it freedom to trespass on the courts and deal with a person's guilt.

           

13. It is not superfluous to note that Agranat J. raised the question of the American test in Attorney-General v Rocam (1) in the special context of sec. 4 of the Contempt of Court Ordinance, and he emphasised the fact that notwithstanding the criminal nature of the act, the court did not deal with it under normal criminal procedure. The hearing was "summary". Being required "to show cause" the accused did not have the traditional right to remain silent and the court itself, and not only the Attorney-General, could commence proceedings. The said sec. 4 has been repealed and replaced by sec. 41 of the Courts Law, 1957, under which the proceedings follow the normal pattern; the accused is not required to show cause and the court does not act of its own motion. Even the term "contempt of Court" has been entirely abandoned.

 

14. Mr. Levin for the appellants relied on R. v Duffy (7) where Lord Parker posed the question whether a real risk had been created and not only a remote possibility of prejudicing a fair trial. I also agree that "a remote possibility" is not enough, since if the possibility of prejudice is too remote, then the publication is not "calculated to influence", it does not possess a sufficiency of influence on the trial. In Duffy a newspaper published an article about a man who was sentenced to five years' imprisonment on a charge of assault. Notwithstanding conviction, the case was still pending on account of an appeal having been lodged. Apart from the fact that the appearance of the defendant did not please the writer, the article itself only mentioned one thing, that a year before a detective had pointed a finger at him in a public house and had said that he would end up in the dock. What influence could that have had on the judgment of the Court of Appeal?

 

            Appellants' counsel here stressed the reservations of the court in Duffy as to the observations in Delbert-Evans v Davies (8) about the need to avoid publications which embarrassed the judge. I see no need to enter into the dispute between the judges in these cases, since I have already said that I shall deal with the matter before us on the basis that the judges were not influenced here but I take liberty to point out that Delbert-Evans was approved by Justice Frankfurter in Pennekamp. (15).

           

15. What difference is there between "clear and present danger" and "sufficiency" of influence as to the outcome of a trial? To clarify the difference, only some points of difference need be noted. The test of "clear and present danger", it was said in "Kol Ha'am" (2), is that of "probability". In Abrams (20) Justice Holmes spoke of "imminent threat", and in Schaefer (21) Justice Brandeis said (at 266) that "the test to be applied ... is not the remote or possible effect." For sec. 41 as well "remote effect" is not enough but "possible effect" is, since it is one whether the publication operated to influence the trial or only could so influence. The influence on the outcome of the trial need only be a reasonable possibility and not "probable" or "imminent."

 

16. Was the article which was published calculated to influence the outcome of the trial? I agree with the District Court that it involved a reasonable possibility of influencing witnesses. The central question in Blitz's trial, as will be recalled, was whether some person in addition to Blitz had fired a shot, and if so, whose shot killed Fiatelli? All are agreed that the. identification of a person is an inexhaustible source of error, error which has led to tragic instances of perversion of justice: see Wigmore, The Principles of Judicial Proof, (2nd ed.) paragraph 206, and the examples at paragraph 209. The appellants added to the difficulty. For a witness who was not certain whether Blitz had hit the victim, the latter's admission was likely to strengthen his belief that Blitz had done so. A witness who thought otherwise might be deterred from giving evidence in favour of Blitz, after reading that the latter was ready to confess the crime. I said that the appellants added to the difficulty of giving evidence since a person appearing as a witness can only testify to what he believed he saw or heard and the process of impressions which create in a man's mind the belief that he saw or heard something is at times very complex. In this regard, Wigmore says at paragraph 206

 

"Belief is purely mental ... thence the approximation of our belief to a correct representation of the actual fact will depend upon how fully the data for that fact have entered into the mental formation of our belief."

 

And a little later, in paragraph 207:

 

"Suppose that a man has lost a valuable scarf pin. His wife suggests that a particular servant, whose reputation does not stand too high, has stolen it. When he afterwards recalls the loss, the chances are that he will confuse the fact with the conjecture attached to it, and say that he remembers that this particular servant did steal the pin."

 

            In R. v Clarke (9) the court decided that publication of the confession of a murderer in prison before trial was a contempt of court. A fortiori is it so in the case before us. Blitz had denied the charge and the publication only served to add unnecessary tension to the trial and to show that his denial was not true. It is the right of an accused person to deny the charge. He is presumed to be innocent until his guilt is proved. The publication by the appellants tended to prejudice that right and it was only made to reduce the force of the denial of the charge, thereby affecting the defence adversely.

           

            In conclusion, I would like to add one thing. I am astonished why the police in this as in other instances allowed a journalist to interview the defendant. When a case is pending, nothing that may influence it is to be published. What reason is there for the police to enable the defendant at this stage to have contact with someone whose job is to gather and publish news? A journalist has no interest in news that may not be published. Conversation with a person charged with a serious crime can arouse a feeling of sensation, but there is no benefit to the public in such an interview and it is better that it should not take place.

           

            I have found no basis for the appeal against sentence. I would dismiss the appeal.

           

BERINSON J.            I concur with everything said in the judgment of my learned colleague. I only wish to add something to the brief remarks about the possible influence upon judges of the newspaper publication of matters affecting a trial being heard by them.

 

I agree entirely with the District Court judges that what the appellants published was calculated to influence the course of the trial going on at the time against the defendant Blitz, not only as regards the witnesses but also as regards the judges who sat.           

 

Every defendant has a right to an unimputably fair trial. unaffected whilst it is pending in court by anything not lawfully part of the trial, It is vital that the trial of a person should be conducted and decided on the foundation solely of evidence and argument presented in court in the manner laid down by the law and not influenced by matter from without which has not passed through the crucible of the tests current in the courts and directed to ensuring a fair trial of the defendant, including full capacity to defend himself. In Patterson v Colorado Justice Holmes said:

           

"...if our system of trial is to be maintained. The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. What is true with reference to a jury is true also with reference to a court."

 

            As my learned friend explained, the information published by the appellants cannot be understood otherwise than that the defendant here admitted his guilt to the journalist before standing trial. It is difficult to imagine anything more serious than the publication in the course of a trial that a person has confessed his guilt outside court. I accept the view of the District Court judges that publication of such information, even if only by clear hint, is always calculated to influence the course or outcome of the trial. Even if done without evil intent to influence the judges or witnesses, the character of the publication and its possible harm of the defendant's interests is unchanged. What is decisive is not the intent but the act and its possible consequence.

           

            Sec. 41(a) of the Courts Law defines the limit of publication with regard to a matter pending in court. It is formulated as a general prohibition of any publication which "is calculated to influence the course or outcome of the trial" and it only excludes "the bona fide publication of a report of anything that has been said, or has occurred, in an open session of the court." Accordingly, anything said or occurring outside court, calculated to influence the trial, is prohibited from publication. Journalists and newspaper proprietors who presume to publish such things cannot plead that it was done in the public interest. The Law lays down what is prohibited and what is allowed in publication from the viewpoint of the public interest, and once the legislature has spoken every plea that the public interest requires otherwise is debarred.

           

            Should a person penetrate the private domain of a judge in order to whisper to him things affecting the guilt or innocence of a person standing criminal trial before him, is that person free of wrong doing? Will he not be punished for an attempt to influence unproperly the judge and the outcome of the trial? I would think-so, as emerges clearly from the remarks of Lord Cottenham over a century ago in Dyne Sombre (10):

           

"Every private communication to a judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a cause calculated, if tolerated, to diverb the course of justice, and is considered, and ought more frequently than it is to be treated as, what it really is, a high contempt of court."

 

            In this respect, the right of a newspaper is no greater than that of any other person in the country (R. v Gray (11)). On the contrary. A newspaper fulfils a public task and information published in it is normally entitled to the trust of the public which usually attaches importance to newspaper publications. A newspaper which publishes a report that a person has in it more conferred is a crime outside court inculcates belief in that person's guilt in the mind of every reader, including a judge. Willingly or not, he can be influenced consciously or subconsciously. The words of Humphreys J. in R. v Davies (12) at p. 443, that "It is a fallacy to say or to assume that the ... judge is a person who cannot be affected by outside information", express a simple and well-known truth. A judge is but a human being and we cannot penetrate the recesses of his soul and affirm that he has indeed succeeded in freeing himself entirely from things he has come across which have penetrated his mind even unknowingly. The judge's task of conducting a just trial is a difficult and delicate matter even when everything is as it should be. Be the judge as cautious and as strong as he can, things should not be made even more difficult for him by irresponsible publication of matters which it is not his concern to know.  In this regard, the observations of the District Court Judges, themselves judges of long standing, capacity and experience, are worthy to be recalled:

 

"An effort is required of a judge, even when he is used and trained to do so, to rid his mind of outside information which reaches him not in the course of the regular trial, and that is likely to be felt at least when the judge has to decide his stand regarding the credibility of witnesses."

 

Further on in their judgment they go on to say:

 

"And if it be asked, what about those instances in which a judge reads (as often occurs...) of the confession of the accused which is subsequently disqualified as evidence, or in which, after admitting the charge in open court, the accused applies for and obtains leave to withdraw his admission - indeed such instances are not to be welcomed: they are liable to exert an undesirable influence but there is no possibility of avoiding them since these possibilities exist only to prevent new serious dangers.

 

            Freedom of expression does not embrace the right to set at naught the usual assurances for the conduct of an unimputably fair trial. The press is free to deal generally with everything touching the judges and the courts, even to level criticism at them so as to enlighten the public about the problems involved in judicial matters in this country. Judges as human beings, said Justice Frankfurter, or courts as institutions are not entitled to great immunity from criticism than are other persons or institutions: Bridges (16) at p. 259. That refers to criticism of a general nature that does not impinge upon a particular case as long as it is going on in court. This limitation was repeatedly emphasised by Justice Frankfurter in his judgment. Interference in the course of a trial by publication of matter which may impress its mark on those who take part in the trial as judges, witnesses, experts and the like is liable to destroy the character of our legal system, requiring as it does that a defendant's fate shall be decided solely upon the evidence properly adduced in court in the manner fixed by the law and not by any outside influence.

 

            Justice Frankfurter in Bridges (16), after referring to the notion advanced by Justice Holmes in Abrams (20) that a trial is not "free trade in ideas" and that the best test to adopt in court is not "the power of the thought to get itself accepted in the competition of the market", goes on to explain it at greater length (at 203):

           

"A court is a forum with strictly defined limits for discussion. It is circumscribed in the range of its inquiry and in its methods by the Constitution, by laws, and by age-old traditions. Its judges are restrained in their freedom of expression by historic compulsions resting on no other officials of government. They are so circumscribed precisely because judges have in their keeping the enforcement of rights and the protection of liberties which, according to the wisdom of the ages, can only be enforced and protected by observing such methods and traditions."

 

            The problem here is how to achieve a proper balance between protection of freedom of expression on the one side and the maintenance of a just trial on the other. In other words, what is the right place of each in the hierarchy of primary social and public values vital for the existence of true and free democracy. The District Court Judges put their mind to the problem and I think we can be satisfied by citing the incisive observations of Judge Harpazi with which the other two judges who sat agreed and which also reflect my own view of the matter:

           

"The problem with which we are dealing here is not a new problem nor peculiar to this century. It occurs wherever there are courts, wherever people seek to ensure fair and just trial on the one hand and newspapers exist on the other. The problem arises and has at times been considered by the courts of the two great countries where a democratic political regime exists and where the legal system is similar to our own: Great Britain and the United States of America. I see no need to cite here precedents from these two countries but it is common knowledge that in Britain jealous watch is kept against publications concerning matters sub judice, whilst in America the press is far freer in publishing such matters. Were it for me to decide which is desirable, I would choose the British approach and avoid loosening the rein, the end of which is "trial by the press" before a person is adjudged by the court.

 

            Our approach, however, has been laid down by the Israeli legislature, having regard to the fact that severity was prescribed (in Britain) at a time when most cases were decided by a jury. Thus I think that in sec. 41 of the Courts Law the Israeli legislature followed the British approach.

           

            I do not overlook the fact that freedom of the press is affected, which is not only the right of individuals and public groups to free expression but also embraces a vital concern of the public generally. But I think that no one in this country, including pressmen themselves, would urge the right of the press to influence the course and outcome of a trial. When a person stands trial, his fate must be decreed by the court in the courtroom closed to any voice or influence from outside. The right and the task of the press is to inform the public what has occurred in court and it may thereafter also criticize what the Court has done, but it may not interfere in the course of the trial."

           

            The case of R. v Clarke (9) is similar to the one before us. There also information was published in a newspaper of the confession of a person suspected of murder, after being detained in Canada under a warrant of arrest issued in England. The editor of the London "Daily Chronicle", in which the information was published, was charged with contempt of court and convicted. Darling J. speaking for Court had the following to say (at p. 637):

           

"It is most important that the administration of justice in this country should not be hampered as it is hampered in some other countries, and it is not enlarging the jurisdiction of this court - it is refusing to narrow the jurisdiction of this court - when we say that we are determined while we are here to do nothing to substitute in this country trial by newspaper for trial by jury; and those who attempt to introduce that system in this country, even in its first beginnings, must be prepared to suffer for it."

 

See also the like judgments in Canada, R. v Willis and Pople (14) and in Australia, Ex parte Senkovitch (13) set out in the English and Empire Digest, vol. 16, p. 20, nos. 169 p. & q.

 

            To the credit of Israeli newspapers it may be said that in general they proceed with restraint and moderation with regard to anything concerning pending cases and with respect and esteem for the judge. But precisely for this reason it is proper that in the present case, the first of its kind to come before this Court under sec. 41 of the Courts Law, 1957, we should make patent our views and say clearly that the courts of this country will not tolerate the interference of newspapers in pending cases, which may stultify the doing of justice. So that newspapers should know what to expect when an attempt is made to reproduce among us trial by newspaper; the courts must repress any tendency in that direction in its infancy, before it acquires any place or hold in our judicial and social life.

           

LANDAU J.               I concur in the judgment of my friend Sussman J., as well as in the additional observations of Berinson J. as to the dangers which lurk in trial by newspaper. I take liberty to repeat what I said in the same spirit in Ozri v Galed (5):

 

"The advice to be given to newspapers is to abstain from running after sensations in the preliminary publication of court proceedings which are to be conducted in the future and to be satisfied with exact and "dry" reports of these proceedings themselves when taken, without adding details not mentioned in court. Newspapers will thereby safeguard themselves from mishap in this connection as well as take an important step towards raising their professional standard and clear the atmosphere darkened by a multiplicity of publications which tend to injure the good repute of the individual" (at p. 1560).

 

These observations apply even more cogently to anything published about a pending trial which is calculated to prejudice its fair conduct.

 

            Appeal dismissed.

            Judgment given on February 20, 1963.