LCrimA 7669/15

 

 

Applicant:                               Ra’ed Salah Mahajna

 

v.

 

 Respondent:                          State of Israel

 

 

Attorneys for the Applicant:  Avigdor Feldman, Adv., Omar Khamaisi, Adv., Khaled Azbarga, Adv., Ariel Piechotka, Adv.

Attorneys for the Respondent: Dafna Finkelstein, Adv., Shlomi Abramson, Adv.

 

 

                                                              

 

 

 

The Supreme Court

 

 

Application for leave to appeal the judgment of the Jerusalem District Court of November 10, 2015, in CrimA 30980-04-14 delivered by Judges A. Romanoff, D. Mintz and E. Nachlieli-Khayat

 

16  Shvat 5776 (January 26, 2016)

 

Before Deputy President E. Rubenstein, Justice S. Joubran, and Justice A. Baron

 

 

J U D G M E N T

 

Deputy President E. Rubinstein:

 

1.         This case concerns the interpretation of the offenses of inciting racism and inciting violence. It is an application for leave to appeal the judgment of the Jerusalem District Court (Judges Romanoff, Mintz and Nachlieli- Khayat) in CrimA 30980-04-14 and CrimA 31172-04-14, delivered on November 10, 2014, which granted the Respondent's appeal of the judgment of the Jerusalem Magistrates Court (Judge Lomp) in CrimC 5425/08, delivered on March 4, 2014. The application for leave to appeal is also directed at the judgment of the Jerusalem District Court (Judges Carmel, Mossek and Renner) in Criminal Sentencing Appeal 15799-05-15 and in Criminal Sentencing Appeal 16604-05-15, delivered on October 27, 2015, which denied the Respondent's appeal and the Applicant's appeal as to the leniency of the sentence and the severity of the sentence, respectively, in the judgment of the Jerusalem Magistrates Court (Judge Lomp) issued on March 26, 2015, which sentenced the Applicant to 11 months imprisonment and an eight-month suspended sentence. The application for leave to appeal focuses on the conviction of the Applicant, born in 1958, who is the leader of the Northern Faction of the Islamic Movement in Israel, of the offense of inciting racism, pursuant to sec. 144B(a) of the Penal Law, 5737-1977 (hereinafter: the offense of inciting racism), and of the offense of inciting violence or terror, pursuant to sec. 144D2(a) of the Penal Law (hereinafter: the offense of inciting violence).

 

Background

 

2.         In February 2007, Israeli authorities carried out archeological work in the area of the Mughrabi Ascent, at the entrance to the Temple Mount (the Mughrabi Ascent is a dirt berm that leads to the Mughrabi Gate, a gate to the Temple Mount complex, which is located on the south side of the Western Wall), prior to construction work on the berm. These actions were met by riots among the Arab public that falsely claimed that the Israeli authorities were attempting to sabotage the holy sites.

 

3.         As alleged in the indictment, on Friday, February 16, 2007, at around 10:00 AM, the Applicant arrived in Jerusalem, along with hundreds of supporters from the Northern region. Due to police instructions which restricted the worshipers' entrance to the Temple Mount, and in light of a restraining order issued in the framework of MApp 2181/07, which barred the Applicant from entering or approaching within 150 meters of the Old City for 60 days, the Applicant and his supporters congregated in the Wadi al-Joz neighborhood to hear a sermon delivered by the Applicant, and for Friday prayers. A makeshift stage was set up from which the Applicant, using loudspeakers, spoke to approximately one thousand people who had congregated, and to a number of media outlets. It is undisputed that among other things, the Applicant said the following:

 

Now we are in this blessed, pure place, a place of blessing and purity, if not for the disturbances and obstructions that have befallen us by the Israeli occupation, which will be removed, please God, just as other like it were removed in the past.

 

Following the Rafah camp crime, you are being told that the Israeli establishment wants to build a temple that shall serve as a house of worship to God. How impertinent and dishonest, it is inconceivable that one who wants to build a house for God would build a house for God while our blood is still on its clothes, our blood is still on its doors and our blood is in its food, and our blood is in its drink, and our blood moves from one terrorist general to another terrorist general.

 

Thus we continue on our path and fear none but God, praised his name. We fear none but God. This is why I say that those who think that they have a bleeding history, they have generals of killing and of massacres. They who think that by inciting against us on Channel One, and on Channel Two, those who thought that they were inciting against us on Channel Ten or on the Army Radio, we  fear none but God. The most beautiful moments in our destiny are when we will meet God as martyrs [shahids] in the area of the Al Aqsa mosque.

 

This is why I say this clearly and without hesitation: You who incite against us, do not be lured by the ranks on your shoulders. Those ranks and stars placed on your shoulders were made of the skulls of our martyrs. These are ranks of shame and not ranks of splendor. These are ranks of disgrace and not ranks of honor. You surprise me. Those of you who kill more of us, get promoted to higher ranks.

 

While we are here, preparing for prayer in the area of the blessed Al Aqsa mosque. Here is where all of the clouds of deprivation shall be removed from the skies of holy Jerusalem. On that day, all of the streets of holy Jerusalem will be cleansed of the blood of the innocents whose blood and souls were taken by the soldiers of the Israeli occupation, who are occupying the blessed Al Aqsa mosque. Indeed, that is when the Jerusalem almond trees will renew their blossom and the leaves of the olive trees will be green again, and dignity shall be returned to the Church of the Holy Sepulchre, and dignity shall be returned to all of the mosques and churches. Furthermore, we are not malicious and we shall not be malicious, and we shall also preserve the dignity of the synagogues of the Jews. We are not a nation that is based on values of jealousy. We are not a nation that is based on values of revenge. We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God, is that religion? Is that what God wants? God will yet deal with you for what you do…"

 

We are not alone in this struggle. It is possible that they will come to me and tell me you are inciting. They want to destroy our Al Aqsa, and they are coming and telling me you are inciting. So, my brothers, I am telling you, and I am saying that we are not alone in this struggle. I want to tell every sane person. I want to say this to every sane person, that the battle that the forces of the Israeli occupation started against holy Jerusalem and against the blessed Al Aqsa mosque, is not over yet. Indeed, the sights of this campaign officially started in 1948 CE. Since that year, the Israeli establishment continues in its war against holy Jerusalem and in the blessed Al Aqsa mosque. During the years that have passed there was a bloody scene there, in 1967 CE. There was a battle that the Israeli occupation establishment, which is occupying holy Jerusalem and the blessed Al Aqsa mosque, is still continuing. It is still continuing the battle. The battle is still continuing... but we are emphasizing that, God willing, we are not alone in this battle. We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now (sic.– E.R.), it is now their duty to assist the Palestinian nation. It is now their duty to instigate an Islamic Arab Intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa' mosque (emphasis added; the parts that were emphasized are those on which the charges focused, the first in the matter of racism and the second in the matter of vinolence).

 

As alleged, the Applicant's sermon was interrupted from time to time by the audience, that called out "God is great" and "In blood and fire we shall redeem you, Al Aqsa". As alleged, at the end of the sermon and the prayers, the audience present began to riot and hurl rocks at the police forces that were nearby. During the riots, three Border Policemen were injured.

 

4.         Following the above, the Applicant, as noted, was charged with the offense of inciting racism and the offense of inciting violence.

 

The Magistrates Court's Judgment

 

5.         The Respondent sought to establish the Applicant's conviction of the offense of inciting racism on the Applicant's following words, alleging that these words referred to the famous blood libels that led to antisemitism throughout history: "We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God. Is that religion? Is that what God wants? God will yet deal with you for what you do…". The Magistrates Court did not accept the State's position, ruling that the Applicant's words regarding the blood libels are not sufficiently clear, and that there is confusion between two different terms, and between different religions – and this is what happened when the Applicant stated that children's blood is mixed with holy bread, and not with Passover matzah. It was noted that the Applicant's explanations and the lack of clarity of his words left doubt whether he was aware of the nature of the act and of the possibility that his words would lead to inciting racism. The Applicant was acquitted of committing this offense.

 

6.         However, the Magistrates Court did convict the Applicant of the offense of inciting violence. It ruled that his words: "It is now your duty to instigate an Islamic Arab intifada from ocean to ocean", constituted a call for a violent uprising. It was noted that given the general context of the Applicant's sermon, the repeated use of the word "blood" and the words "we will meet God as martyrs [shahids] in the area of the Al Aqsa mosque", the call for an Intifada cannot be understood other than as a violent civil uprising. The "circumstances of time and place" were emphasized in this context: these were tense times, the streets of Jerusalem were roiled and stormy, the Applicant is a well-known, influential figure in the Arab public and he spoke before an angry, frustrated crowd that had, under the circumstances, been prevented from entering the Temple Mount for Friday prayers. It was finally explained that in order to fulfill the elements of the offense it is not necessary that the incitement actually lead to violence, and it is sufficient that there be a real possibility that the publication will lead to an act of violence being committed. However, the court examined the causal connection between the incitement and the actual violence as an aggravating circumstance, and after reviewing the testimony of the policemen who were on the scene and the defense testimony, it ruled that there was no causal connection between the Applicant's sermon and the riot that occurred shortly thereafter.

 

The Original Sentence (original – since a more severe sentence was subsequently imposed on appeal)

 

7.         The court discussed the social value embedded in the offense of inciting violence – maintaining public safety and protecting against its potential endangerment – as well as the prevailing punitive policy. The court further expressed its opinion regarding the circumstances related to committing the offense and the extent of the Applicant's guilt. It was noted that the Applicant is a respected public figure, that his speech was delivered to a large audience and was broadcasted by the media. It was also emphasized that the Applicant spoke in the framework of Friday prayers before a "charged" audience that had come from afar, and that had been prevented from entering the Al Aqsa mosque to pray. The court added that this case is at the more severe end of the scale compared to other incitement cases decided by the Israeli courts, in light of the speaker's prominent status, his audience, the circumstances in which the speech was delivered, the severity of the expressions and the infinite potential damage  they posed. On the other hand, the court took into consideration the fact that no direct damage was caused by the Applicant's speech.

 

8.         In light of the above, the range of punishment was set at 3-18 months of imprisonment. In determining the punishment from within that range, the court considered the Applicant's criminal record, which includes security offenses, considerations of deterrence, and the fact that the Applicant did not take responsibility for his actions, while also considering the fact that – at the time – he had not committed additional offenses since perpetrating the offenses that are the subject of the Application. It was also noted that the conduct of the trial and the Applicant's multiple absences led to a prolonging of the proceedings, and that the Applicant's personal circumstances, other than his age and status, had not been presented to the court. The Applicant was thus sentenced to eight months of custodial imprisonment and an eight-month suspended sentence for a period of three years.

 

The District Court's Judgment

 

9.         Both the Respondent and the Applicant filed appeals on the judgment. The District Court (Judges Romanoff, Mintz and Nachlieli-Khayat) granted the Respondent's appeal, ruling that the Applicant should also be convicted of the offense of inciting racism. It was noted that the Applicant's speech was not delivered in a void, but rather in the clear context of the protest that arose among parts of the Muslim public following works that were performed by Israeli authorities in the area of the Mughrabi Ascent. The court noted that this protest did not arise in a vacuum but rather was an outgrowth of the conflict that has existed in our region for many years, and that "this is not a detached, intellectual, theological discussion, but rather a statement in which the ‘blood motif’ is repeatedly emphasized, in a clear context concerning an identifiable entity…". The court added that "resurrecting a blood libel accusing Jews of murdering children in order to use their blood to bake special food for their holidays is not legitimate, even where there are deep disputes, profound differences, anger and hatred… it is intended to intensify hate, deepen the chasm, increase the gaps and trigger conflicts.". In response to the defense’s argument that the Applicant's use of the expression "holy bread", which in Christianity is known as "sacramental bread", and not the expression "Passover matzah", testifies that he did not direct his words at the Jewish public, the court explained that what emerges from the Applicant's words is that he wanted to state that the bread referred to is special bread that is eaten on a holiday, and that the sermon he delivered did not address the relationship between Islam and Christianity, but rather the relationship between Muslims and Jews. The court thus ruled that given what was said, its context, the Applicant's status, and the identity of his audience, there can be no doubt that what was said was intended to incite racism.

 

10.       The court was divided as to convicting the Applicant of the offense of inciting violence. Judge Romanoff was of the opinion that the Applicant should be acquitted of this offense. In his opinion, one could not dismiss the Applicant's explanation that his words did not incite to violent action or acts of terror, but rather constituted a call for a general, not necessarily violent, recruitment to protect against what appeared to him to be a violation of a holy site. It was emphasized that, in his sermon, the Applicant transcended the limits of time and place, and therefore one cannot dismiss his explanation that he was asking all Muslims to do their part, to the best of their abilities and expertise, to protect the Al Aqsa mosque. Judges Mintz and Nachlieli-Khayat, on the other hand, were of the opinion that the Applicant's words could not be understood in any manner other than as a call for violence. This was particularly the case when, a number of sentences earlier, in the context of protecting the Al Aqsa mosque, the Applicant praised martyrs. It was further noted that even if the call for an intifada was directed to the entire Muslim world, this does not mitigate the severity of what was said, since it is clear that to the extent the Applicant's words were directed to an audience in Israel, they constituted a call for violence, nor does it dismiss a similar call to those who are elsewhere. It was explained that the circumstances – primarily the Applicant's identity, the atmosphere among the Arab public at the time, the scope of the publication and the group that was exposed thereto, the location of the sermon, and the fact that it was a Friday sermon -- also support the conclusion that this was an act of encouraging, supporting and identifying with acts of violence. It was further noted with respect to the literal meaning of the term "intifada", that the Applicant's explanations that all he wanted was to call for an awakening and protest, but not for violence, cannot be reconciled with the content of the sermon, the repeated use of the word "blood" and the context.

 

The Magistrate Court's Supplemental Sentence

 

11.       Following the Applicant’s conviction of the offense of inciting racism, the case was remanded to the Magistrates Court for sentencing. The court noted that in addition to the protected values regarding maintaining public safety and protecting against its potential violation, the offense of inciting racism also comprises an additional objective of protecting human dignity. The court again emphasized that the Applicant is a respected, well-known public figure, and that his words were spoken at a time when the atmosphere on the streets of Jerusalem was tense. The court also elaborated on the severity of the expressions, while also taking note of the fact that no direct damage was actually caused by the Applicant's actions. The updated range of punishment was set at 5-20 months of imprisonment "in order to express society's revulsion at racist statements and calls for violence, and due to the need to condemn those who employ such rhetoric…". The mitigating and aggravating considerations listed by the court in the original sentencing – as well as a conviction, after the original sentencing, of assaulting a policemen in order to prevent him from performing his duty while he was conducting a security check of the Applicant's wife, which did not receive significant consideration since it had a "personal background" – led the Magistrates Court to sentence the Applicant to eleven months imprisonment, as well as an eight-month suspended sentence for three years.

 

The Appeal on the Supplemental Sentence

 

12.       The Respondent filed an appeal with the District Court on the leniency of the sentence, and the Applicant filed an appeal on its severity. The appeals were denied. The court explained that the Applicant did not take responsibility for his actions, did not admit to them, and did not express remorse. The court (Judges Carmel, Mossek and Renner) emphasized the severity of the offenses and the aggravating circumstances of their commission. It noted that the Applicant, under a pretense of a lesson on religion, abused his status, knowing that it grants him influence among his audience, in order to deliver his messages, and that it was not a short, spontaneous statement, but rather a planned and organized sermon in the presence of a large public that had not been allowed to enter the Temple Mount. The argument that both of the offenses of which the Applicant was convicted stem from one event, are overlapping, if not identical, was also rejected. The court explained that each offense relates to a different, significant and separate part of the sermon. Finally, with respect to the argument that this was the first time that a custodial sentence was imposed for offenses that are merely expressions, the court noted that "there is no comparison between the status, influence, prestige, public weight and significance attributed to the words of the Appellant before a large audience, and those defendants who, although they said severe words of incitement, did not have influential public significance or weight, and certainly not such a broad and significant influence as that of the Appellant" (emphases removed – E.R.). The court also considered the Applicant's criminal record, as well as the fact that from the time the offenses were committed and until the date of sentencing, approximately eight years had passed during which he had not been involved in criminal activity (other than the said conviction of assaulting a policeman after the original sentence had been issued). The court noted that the severe offenses and the circumstances in which they were committed require substantial punishment that realizes the deterrence interest. The court concluded that, in light of the above, it would be inappropriate to intervene in the severity of the punishment. The Respondent's appeal as to the leniency of the sentence was also denied. The court also took notice of the many delays in the proceedings, which were attributable to the Applicant, as well as the fact that the Applicant did not repeat his actions.

 

Application for Leave to Appeal

 

13.       According to the Applicant, the application raises serious questions, among them the questions of where to draw the the line between freedom of expression and incitement, and what is the appropriate range of punishment for such offenses. As to the offense of inciting racism, the Applicant argues that his statements were not explicit, and in light of his impressive rhetorical ability, had he intended to incite racism, it is doubtful whether he would have crafted his words in such a manner. It was emphasized that there was no mention of the Jewish people or the State of Israel in his words. As to the offense of inciting violence, it was argued that in offenses of expression, the importance of examining the version of the accused party is acknowledged, yet, in the case at hand, little weight was attributed to his explanations. It was noted that the term "intifada" means awakening, and that the Applicant's intention was that of a global awakening of awareness and protest, but not of violent action. The universal aspect of the call was also emphasized. It was further argued that the use of the word "martyrs" [shahids] was not made in the context to which the majority judges referred, and that it referred to innocent people who were victims and lost their lives due to the conflict. It was explained that the use of the blood motif was merely metaphoric, and that neither it nor the other expressions used can  imbue the Applicant's words with the power to incite. As for the sentence imposed, it was argued that the penalty imposed on the Applicant set new precedent  in its severity, and that this will be the first time in Israel that a person will serve an extended prison term for offenses that entirely consist of expression. The Applicant cited a number of cases that support his argument, in which the accused were convicted of offenses of incitement, and emphasized that such cases also involved known, influential figures, as in the case at hand (for example, LCrimA 9066/08 Ben Gvir v. State of Israel (2008) (hereinafter: the Ben Gvir case); CrimA (Jerusalem) 4856/09  State of Israel v. Federman (2010) (hereinafter: the Federman case)). It was further argued that the offenses of which the Applicant was convicted overlap.

 

14.       Justice Joubran referred the application for leave to appeal for hearing by a three-judge panel, and the Applicant’s sentence was ordered in abeyance until the rendering of a decision upon the application for leave to appeal (decision of Nov. 29, 2015).

 

The Respondent's Arguments

 

15.       The Respondent argues that leave to appeal should not be granted since the application concerns the way that current case-law rules were applied in the matter of a specific applicant. Furthermore, the Applicant's primary arguments are directed at findings of fact of the lower courts, and the interpretation of the information filed against the Applicant, and for this reason, as well, the application raises no issue that justifies granting leave. On the merits, it was argued with respect to the offense of inciting racism, that the Applicant's words fulfill the criteria of the near-certainty test of causing a risk. The Applicant's conscious choice to intentionally mention one of the most blatant symbols of hatred of Jews in such a charged situation, and intentionally tie it to a call to protect the Al Aqsa mosque, leads to the conclusion that the purpose of his words was to incite racism. As to the offense of inciting violence, it was argued that one cannot accept the Applicant's argument that his call for an intifada was a call for a global, non-violent, awakening, and that the assumption that the audience understood the speech in an abstract manner, and not literally, stretches the imagination. Furthermore, the context, taken together with statements relating to terrorism and murder committed by the Israeli government, while highlighting the "Al Aqsa", creates, under the circumstances, incitement to violence. It was further noted that the combination of the content along with the circumstances fulfill the offense's probability element that there be a real possibility that the words will lead to violence or terrorism. This is, inter alia, in light of the speaker's prominent status, the audience, the scope of the publicity, the public atmosphere, and the location and subject of the sermon.

 

16.       As to the sentence, it was argued that the Applicant's punishment directly derives from the extraordinary combination of aggravating circumstances in which his actions were committed, and from the blatant violation of the protected values for which the incitement offenses were enacted. It was further argued that the claim of selective enforcement is unbefitting, since the Applicant's matter was treated severely due to his status and the other circumstances of the matter. It was further noted that this is not a precedent-setting punishment, and even if it were, it would not constitute grounds for granting leave to appeal. The Applicant's sentence is measured and precise given the circumstances, and the punishment imposed is very far from the maximum punishment prescribed for each of the offenses of which he was convicted.

 

As to the argument that the offenses, in their essence, overlap and justify one penalty, it was noted that each offense relates to a different part of the sermon and violates a different protected value.

 

The Hearing before the Court

 

17.       In the hearing on January 26, 2016, the Applicant's attorney referred to HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General (2015) (hereinafter:  the Torat Hamelech case), and emphasized that in that matter it was ruled that in order to  maintain a conviction for inciting racism, the  racist statements must be clear, unequivocal and easily understood by those hearing them, which is not so in the case at bar. It was emphasized that the blood-libel narrative is not known to everyone, and that we must ask ourselves whether we are dealing only with a racist opinion or with inciting racism. It is to be noted that, as argued, the law does not prohibit maintaining a racist opinion, but rather prohibits racist practices. As to the offense of inciting violence, it was argued that, in the matter at hand, there was no real possibility of violence. Furthermore, the meaning of the term "intifada" – as noted – is the transfer from a state of passiveness to a state of awakening. Additionally, it was argued that the Applicant's call was addressed to the entire Arab nation and to a non-specific public, and therefore, it is certainly not a call that could lead to a real possibility of violence. As to the matter of punishment, it was noted that the Applicant was judged more severely than a Jewish person accused of committing similar offenses.

 

18.       The attorneys for the Respondent replied that the test in the offenses of inciting racism and inciting violence is always an integrated  test of content and circumstances. They explained that we are concerned with a respected leader who, just the day before, was prohibited from entering the Temple Mount, who stood before a frustrated audience that was not permitted, under the circumstances, to enter the Al Aqsa mosque for Friday prayers, and who delivered a carefully planned sermon. His words fired the unrest and included motifs of blood, war, and battles. He called for praising martyrs, and at the end of the sermon, he made a clear call for an intifada. If that were not enough, the Applicant himself stated, in real time, that he knows that he is inciting. As for the Torat Hamelech case, it was argued that that case addressed a religious text as opposed to a political one, and that in the case at hand there is no value that the text wishes to protect, and that understanding the text and drawing proper conclusions do not demand extraordinary sophistication from the reader. As to the punishment, it was argued that it is not unduly severe and that we are currently witnessing the devastating force of incitement more than ever. Therefore, the court's clear voice should be heard not only on a punitive level, but also as a deterrent, both for the masses and for individuals.

 

Discussion and Decision

 

19.       In light of the  questions of interpretation raised by the case, and especially the broad implications of the matter, we have decided to grant leave to appeal and to hear the application as though an appeal was filed pursuant to the leave granted. I shall recommend to my colleagues that we not grant the appeal on the decision, and that we grant the appeal, in part, in regard to the sentence, as shall be explained.

 

The Offense of Inciting Racism

 

20.       The offense of inciting racism is to be found in sec. 144B of the Penal Law:

 

(a) If a person publishes anything in order to incite racism, he is liable to five years imprisonment.

(b) For the purposes of this section, it does not matter whether the publication did cause racism, and whether or not it is true.

 

Racism is defined in Section 144A of the law:

 

In this Article, “racism" – persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin.

 

An extensive discussion of the elements of the offense of inciting racism was presented in CrimA 2831/95 Rabbi Ido Elba v. State of Israel, IsrSC 50 (5), 221 (1996) (hereinafter: the Elba case). The case was heard by a bench of seven justices, and the majority was divided on a number of matters (see Y. Nehushtan "Finding the Ratio Decidendi in Cases of Plurality Decision," 50 (2) HaPraklit 631, 638(5770)). In the Torat Hamelech case, it was explained that in the Elba case the Court was required to first address the question whether the "anything" published pursuant to the language of Section 144B must be inherently racist in order for the offense to materialize. Second, there was a disagreement regarding the need for a near certainty of actual incitement in order for the offense to materialize. According to President Barak's opinion, near certainty is necessary; according to Justice  Mazza, it is not necessary. A third disagreement that arose in the Elba case related to the “foreseeability rule” [dolus indirectus] under sec. 20(b) of the Penal Law – whether the rule applies only to result crimes, or also to conduct crimes that comprise an element of purpose. In the Torat Hamelech case, we did not find those questions relevant to the matter (it should be noted that Justice Joubran, dissenting, discussed the matter of the “foreseeability rule” at length, due to the importance he attributed to applying the rule in offenses of inciting racism), and it appears that these questions are not germane to this application either, since the racist nature of the words or the degree of certainty that the Applicant's words would indeed incite are not at issue, but rather proving the element of a purpose of inciting. There is also no need to rule on the matter of the “foreseeability rule”, in light of the Applicant's clear intention, which emerges from his words, as shall be explained below.

 

21.       I will first briefly address the historical aspect of the "blood libel" narrative. Unfortunately, since the dawn of history, since the days of Haman in the Book of Esther (3:8), Jews have been, and continue to be, the subject of racial persecution all over the world, culminating in the Holocaust of our people in Europe (see my articles: "The State of Israel, the Memory of the Holocaust and the Battle against Antisemitism," in my book Paths of Government and Law: Issues in Israeli Public Law  (5736) 463 (Hebrew); and "Remember what Amalek did unto Thee," ibid., 471 (Hebrew); "On Antisemitism, and the Place and Role of the State of Israel in the War against Antisemitism," 31 Mesua 55-65  (5763) (Hebrew); as well as the pamphlet On Antisemitism (Israel Information Center, 5748) (Hebrew)). The various stories regarding Jews that were disseminated around the world and throughout history are too numerous to count. The best known and prominent is the story of using the blood of Christian children in order to bake Passover matzah. This led to all of the libelous stories about Jews being named "blood libels", an expression that, even today, is used when a person wishes to express strong offense at an accusation. The essence of the matter, obviously without a pretense of exhausting or presenting it as historical research, is presented below.

 

22.       The libel began in England. In 1144, the Jews were accused of killing a Christian child who was thereafter acclaimed as St. William of Norwich. A converted Jew named Theobald of Cambridge testified before the monk Thomas of Monmouth, who had examined the case, that the Jews of Europe conspired to draw a lot each year to determine where a Christian boy would be sacrificed for Passover. Not even one Jew was tried for the accusation, and no one was punished for the murder, but the convert's testimony was perceived as convincing by the masses, and it became the basis for libels in other cities in the decades that followed, which were used to transform those "murdered by the Jews" into saints, to increase the number of churchgoers, and to increase the churches' revenues. The libels moved from England to Germany, to France, and so on, and from the seventeenth century, also to Eastern Europe – Poland and Lithuania -- to Russia, to Muslim countries, and of course, to Nazi propaganda, and was a tool in the hands of antisemites; also see Prof. I. Gutman, “Antisemitism,” The Holocaust Encyclopedia, vol. 1, 98, 104-105 (5750) (Hebrew).  As Prof. Gutman writes, even when a blood libeler such as August Rolling in Prague withdraws "as happens in the cases of libel, the sensational rumor is stronger than the truth that denies it"; see , “Blood Libel,” HaEncyclopea HaIvrit, vol. 26 (5734), 857 (Hebrew) written in part by Prof. Y. Slutsky. Prof. Slutsky also contributed the article on the "Blood Libel" in Encyclopedia Judaica, vol. 4, 1120 (1972); Prof. S. Simonson, "Blood Libel," 17 (2) Etmol 100 (1991) (Matach Technological Educational Center website). This may have been the beginning, but it was not the end, and blood libels spread across Europe and eventually also to Muslim countries. A blood libel that occurred in Damascus in 1840, following the disappearance of a Christian priest and his Muslim servant, achieved special notoriety. Central figures in the Jewish community in Damascus were accused of abducting and murdering the two in order to use their blood to bake matzah. In an investigation that was conducted by the Governor of Syria, and that was exacerbated by the French Consul, the persons investigated were jailed and tortured, and one of them admitted to the act. Bloody riots broke out in Damascus, which only eventually ended thanks to the intervention of politicians and Jewish public figures from Western Europe. Indeed, blood libels did not cease even in modern times. Even in the last century, Jewish communities were horrified by blood libels in various countries – the Tisza-Eslar blood libel in Hungary and the Mendel Beilis trial in Russia (see in this regard, Dr. M. Kutik, The Beilis Trial: A Blood Libel in the Twentieth Century (5739) (Hebrew)); the Beilis trial was so shocking to Russian Jewry that in a greeting sent by a yeshiva student (N.Z Getzel) to his friend Y.E. Botschko, in honor of the latter's wedding, the writer dates the letter as in the "year of the Menachem Beilis Trial", which, in Hebrew gematriya (numerology), adds up to 5674 (the end of 1913); a letter dated 10^th of Cheshvan 5764, in H. Shalem, From Novardok Through Montreux to Jerusalem, about the life of Rabbi Y.E. Botschko, page 33 (5776) (Hebrew)). The blood libel in Nazi Nuremberg also merits mention, and in the early 1950's the Jewish world was shaken by information from the former Soviet Union regarding the dissemination of blood libels.

 

23.       Renowned author Ahad Ha'am (Asher Zvi Ginsberg) (19^th-20^th centuries), addressed the blood libels in his article "Some Consolation," HaMelitz 14 Tishrei 5653 (1892), reproduced in Complete Writings of Ahad Ha’am (5719) (Hebrew), writing that it "is the solitary case among all cases in which the acceptance [the general acceptance with respect to the characteristics of the Jewish people – E.R] does not make us also doubt… it is completely based on an absolute lie… Every Jew who has been brought up among Jews knows unambiguously that throughout the entire Jewish people there is not even a single individual who eats human blood for heavenly purposes" (p. 71, emphasis original). According to him there is “some consolation” in the lesson that the renewal of the blood libel allows the Jews not to surrender to the allegations and to the "general consensus" regarding the characteristics of Judaism "…and the blood libel shall prove. Here, you see, the Jews are right and perfectly innocent. A Jew and blood – could there be two things more completely opposite? ..."

 

24.       My former teacher General (res.) Prof. Yehoshafat Harkabi, in his important book The Arab Position in the Israeli-Arab Conflict (5728) (Hebrew), addressed the matter of the blood libel and describes (p. 250) – among seven reviewed books – a book published under official Egyptian auspices in 1962, titled Talmudic Human Sacrifices, a reprint of a book from 1890, which speaks of "… an indictment … relying on clear-cut evidence … that this nation allows bloodshed and makes this a religious obligation which was prescribed by the Talmud …". That same book addressed the Damascus Libel of 1890 (preceded by the more famous libel of 1840), regarding a young man "who was slaughtered by the Jews in Damascus and whose blood was sucked to be mixed in the Passover matzah dough". Harkabi presents additional books that were published in Egypt during the 1950's and 1960's, and one of which states (1964 – official publication): "The God of the Jews does not suffice with animal sacrifices, but rather it is necessary to appease him with human sacrifices. Thus the Jewish custom of slaughtering children and sucking their blood to mix it in the Passover matzah" (ibid., p. 252). Harkabi ends on an optimistic note (254): "The blood libel as presented in these seven books is terrifying, but the blood libel is not common in the literature regarding the conflict, and it should not be assumed that it was assimilated by the Arab public. It is also possible that it is foreign to the Arabs’ basic attitude towards the Jews, since in the Muslim countries the Jews were not accused of atrocities such as blood libels, poisoning wells and dispersing plagues, as in Christian Europe, and therefore, perhaps one can hope that these ideas will not be accepted. The value of this story is as a symptom, as to what lengths hatred towards Israel can go"; see also note 31 on p. 455 on the historical dimension; and additionally, in another place the Jews are described in Arab literature regarding the conflict, inter alia, as "blood suckers" (p. 315).

 

25.       Some researchers have theorized that the blood libels developed in light of the Christians' erroneous understanding of Jewish customs. Thus, contrary to the customary approach, it has been suggested that the blood libels flourished during the period of the Crusades, based on the Jews' choice to commit suicide and kill their children and their loved ones "for the sake of sanctifying God" so that they would not be forced to convert to Christianity. An event in which dozens of Jews died "for the sake of sanctifying God" occurred in York, England, on March 16, 1190 (I. Yuval "Vengeance and Damnation, Blood and Defamation: From Jewish Martyrdom to Blood Libel Accusation," 58 Zion 33 (5753) (Hebrew)). According to Prof. Yuval, the Christians interpreted the parents' sacrifice of their children for the sake of sanctifying God as lust for murder that was also directed towards Christian children. There were also writings about the connection between the customs of the Purim holiday, and particularly the hanging or burning of Haman and the drawing of lots, and the stories of blood libels (these led to serious controversy; see E. Fleischer's incisive critique "Christian-Jewish Relations in the Middle Ages – Distorted," 59 Zion 267 (5754) (Hebrew), and Yuval's response ibid., and in Yuval's book Two Nations in Your Womb: Jews and Christians – Mutual Perceptions (5760); G. Mentgen "The Creation of the Fiction of the Blood Libel," 59 Zion 343  (5754) (Hebrew); Cecil Roth "The Feast of Purim and the Origins of the Blood Accusation: 8.04 Speculum 520-526 (1933).)

 

26.       In this context, it is difficult not to mention a later incarnation of blood libels – the Protocols of the Elders of Zion. This publication included alleged discussions from confidential meetings held by the elders of the Jewish people during the First Zionist Congress in 1897 conspiring to constitute a world Jewish kingdom that would control the gentiles. The version that was common around the world was written by a Russian priest, Sergei Nilus, and first appeared in 1905 in his book "The Great within the Small". After the Russian revolution and Germany's defeat in the First World War, this essay was distributed widely and translated into many languages (see the article by S. Laskov, "Who Wrote the Protocols of the Elders of Zion," in 18 (6) Et Mol: Iton Letoldot Eretz Yisrael Ve'am Yisrael  110 (1993) (Hebrew)). See also N. Cohn, Warrant for Genocide, The History of the "Protocols of the Elders of Zion" (1971) (Hebrew); see also Judge H. Ben-Itto's important book The Lie that Wouldn't Die: The Protocols of the Elders of Zion (5758) (Hebrew) (English edition: 2005); my essay "'The Protocols of the Elders of Zion' in the Arab-Israeli Conflict in the Land of Israel in the 1920's," 25 Hamizrach Hachadash 37-42 (5737) (Hebrew), reprinted in 3 Biruach Mizrachit 54-58 (Israel Oriental Society, 2006); and Harkabi, ibid., 212-219).

 

27.       Returning to the case at hand: There is little doubt as to the  racist views of the Applicant himself, and upon reading the entire sermon that is the subject of the case, it cannot be viewed as other than racist. However, as was noted in the Torat Hamelech case (para. 32), and as the Applicant's attorney repeatedly emphasized, the question is not the racism of the speaker, but whether the elements of the offense were fulfilled. Before us is a text that the Applicant tried to paint in subdued colors, and that the Respondent tried to paint in vibrant colors, and we must examine its contents and circumstances as a whole. In the case before us, I am of the opinion, like the District Court, that an examination of the statement, and particularly the part upon which the Respondent grounds its arguments, indicates that it is directed at the State of Israel and the Jewish public per se, and that it is extremely difficult to perceive it as directed at another public – Crusaders, Bosnians, Chechens – as the Applicant argues. It appears to me that the matters are as clear as the noon-day sun, and the Applicant's intention comes through loud and clear. A straightforward reading of the part to which the Respondent referred, along with the Applicant's other statements in the sermon, does not leave room for doubt that the intention was not criticism or aspirations regarding the "Israeli occupation" in Jerusalem. In one breath, the sermon includes statements regarding the Israeli establishment, according to which "our blood is in its food, our blood is in its drink, and our blood moves from one terrorist general to another terrorist general". This was the preface, and then it continues with a description of the blood of children mixing in the dough of the holy bread, stated as an antithesis to the behavior of the Muslim public which will preserve the "honor of the synagogues of the Jews". The reference to the kneading of the dough of the holy bread was mentioned in the same breath, as stated by the District Court, with the "children of Europe", in a sermon that in its entirety referred to the relationship between Muslims and Jews. To this one must add the circumstances of the sermon, and not ignore common sense. "We (the Muslims whom the Applicant leads – E.R.) have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children (we don't – but who does? Here is the answer – E.R.) "and those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough (meaning – there are European children whose blood was used to knead the holy bread – E.R.). And now come the rhetorical questions, "Good God. Is that religion? Is that what God wants?" The Applicant is a well-known figure in the Arab world and in Israel. He is one of the religious leaders of the Muslims in Israel. He was tried for security offenses and harming security forces, and was imprisoned therefor. His speech was delivered before a large, angry, emotional crowd near the Temple Mount. It is clear that the sermon was organized and planned, and that the public atmosphere was explosive in light of a claim of harming the Al Aqsa mosque. There is no need for sophistry to understand the essence of the matter. Furthermore, it is clear that one cannot view what was said in a manner that is detached from the broad context – the Israeli-Palestinian conflict, in general, and the Temple Mount conflict, in particular. As the Respondent well stated, the Applicant's choice to mention one of the most blatant symbols of hatred of Jews, in that charged situation, and to tie it to the call to protect the Al Aqsa mosque, leads to the inevitable conclusion that the purpose of his words was to incite racism. I listened carefully to the words of the learned defense counsel, who in his interpretation attempted to present the story differently. Unfortunately, however, a proper look at what was said, in the entire context, does not support that attempt.

 

28.       As to the argument that the Applicant did not intend to refer to the famous blood libels, and that this is evidenced by the fact that he referred to the "holy bread" which is attributed to Christianity, and not to Passover matzah – we should clarify that the holy bread is part of the Christian Eucharistic ceremony called the "liturgy" (the meaning of the word "liturgy" in Greek" is "public worship"). In this ceremony, the priest breaks the bread and pours the wine, symbolizing the body and blood of Jesus, and according to Christian tradition, while their appearance does not change, their substance changes in a process referred to as transubstantiation. The ceremony mentions the last supper of Jesus and his disciples, those who spread his Gospel. In Arabic, the holy bread of the Christian ceremony is called خبز القربان or القربان (Khubz al-Qurban or Al-Qurban) – the bread of the sacrifice, while the Applicant employed the term الخبز المقدس (Al Khubz al-Muqaddas) – the holy bread. This distinction reinforces, but does not in and of itself determine, the position that the Applicant did not refer to the Christian holy bread, but rather to special bread eaten on a Jewish holiday. As mentioned, the Applicant stated, while contrasting to Jews, that "We have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children". We learn from these words, as well, that his intention was to compare the Ramadan holiday to another holiday (the Passover holiday), and not to a routinely occurring ceremony (the Liturgy ceremony). Ultimately, there is nothing else left to be said, and it is clear to me that anyone who showers a riled up audience with strong words to the effect that the Jews knead dough with children's blood – and this doesn't require much sophistication – is simply inciting racism.

 

29.       As noted, the Applicant relies on the Torat Hamelech case, which addressed a petition against the Attorney General's decision not to lay charges, inter alia, for inciting racism and inciting violence against the authors of the Torat Hamelech book due to insufficient evidence;. It would not be superfluous to note that the Torat Hamelech case concerned administrative review of the Attorney General's decision. The Court's role in such a case, and the scope of its intervention, are materially different than those in criminal law, after an information was filed and evidentiary proceedings were held.

 

30.       Moreover, in the Torat Hamelech case the reader of the essay which was the subject of that case must apply punctilious Talmudic logic to a religious-halachic text in order to understand its intention. It is not clear whether the book specifically incites against the Arab public; whether the violent norms described therein apply exclusively to the State and the security forces, or to private people as well; or whether or not it constitutes a "halachic examination" that is relevant primarily to times of war. In the case at hand, there is no need to be an especially "learned scholar" to understand what the Applicant meant. The issues were placed "on the table", and do not require discussion. It should be added that in the Torat Hamelech case, my colleague Justice Joubran was of the minority opinion that in light of the reality of our times and the social climate upon which he elaborated, it is necessary to lower the bar for filing charges in regard to the offense of inciting racism, which, in his opinion, was too high. In his view, the excessively high bar that the Attorney General set was expressed in a number of points in his decision in that case, including narrowly interpreting the element of the purpose element in the offense of inciting racism, and the lack of reference to the “foreseeability rule”; analyzing content in a manner that was lenient with the authors; and a faulty comparison to the Elba case. Examining the Applicant's words in accordance with the criteria upon which my colleague Justice Joubran elaborated in the Torat Hamelech case would, a fortiori, indicate that the Applicant's words, which, as mentioned, do not require deep interpretation as was necessary in regard to the "Torat Hamelech" halakhic text, amount to incitement.

 

31.       In summary, we do not grant the appeal on the conviction of the offense of inciting racism.

 

The Offense of Inciting Violence

 

32.       I am of the opinion that it is also inappropriate to grant the appeal with respect to the conviction for inciting violence. This offense is grounded in Section 144D2 of the Penal Law:

 

(a) If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence or terror (in this section: an inciting publication) and if – because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror, he is liable to five years imprisonment.

(b) In this section, "act of violence or terror" – an offense that causes a person bodily injury or places a person in danger of death or of severe injury.

(c) The publication of a true and fair report about the publication prohibited under subsections (a) and (b) does not constitute an offense under this section.

 

As noted, the Respondent wished to ground the Applicant's conviction of this offense on his words: "It is now your duty to instigate an Islamic Arab intifada from ocean to ocean".

 

According to the Applicant, the term "intifada" means awakening, and his entire intention was a global awakening of awareness and protest, but not of violent acts. It is very difficult to accept this argument. This term, which has become as customary and common as if it has been here forever, referred, in day-to-day discourse at the relevant time, to two periods of uprisings that were characterized by acts of terror – 1987-1991 and 2000-2005. The first period was particularly, but not only, characterized by rock throwing; the second period was particularly, but not only, characterized by suicide bombers and numerous casualties. This term became a "generic name" for a violent Palestinian uprising. To clarify, see the definition of the term "Intifada" in the Even Shoshan Dictionary (Updated and Revised for the Millennium) (2007)): "The name of the uprising of the Arab population in the areas of Judea, Samaria and the Gaza Strip, against the Israeli control thereof". It is easy to understand that this is how the term is perceived by all, and perhaps a fortiori, by those listening to the words of the well-known Applicant from whom there is no reason to understand them other than literally. It is inappropriate to be disingenuous and to use "classical dictionary" terminology, i.e., intifada in the basic dictionary sense of "awakening". Furthermore, the argument that the sermon was aimed at a universal and not a particular audience does not change the state of affairs. Nor does it transform the Applicant's words into a theoretical, abstract approach, lacking any practical content in Israel or abroad.

 

33.       Indeed the Applicant's learned counsel claimed that mentioning a "judge or a scientist" as the audience of the call indicates that it was not violent by its nature. This argument is captivating, but given the meaning of the term that has already been established and is deemed a matter of judicial notice, it is difficult to accept.

 

34.       In LCrimA 2533/10 State of Israel et. al. v. Michael Ben Horin (2011) (hereinafter: the Ben Horin case), upon which the parties and the lower courts elaborated, it was ruled that the offense of inciting violence is conditioned upon the fact that the publication, by its contents and circumstances, shall, with a probability of a real possibility, cause an act of violence to be committed. It was explained that it is necessary for there to be a linkage between the publication and the actual outcome in accordance with the real possibility criterion "not more than that but not less than that" (para. 6, per Hendel J.), and that the Court must examine the case in its entirety, without determining primary criteria in advance. It was ruled that, inter alia, consideration shall be given to the identity of the publisher and to the public atmosphere, to the type of violence at hand, to the scope of the group exposed to such violence, to the scope of the publication and its target audience, to the context, the location and the media of the publication: "One must ask, inter alia, who said, what was said, where it was said, in what manner it was said, to whom it was said and in what framework it was said" (para. 7). The Combating Terrorism Bill, 5775-2015 (Government Bills 5775, 1067), is interesting in this context, as it draws a distinction between "calling to commit an act of terror", for which it is not necessary that the call result in an act of terror being committed in order for the elements of the offense to be fulfilled, as opposed to the alternative of "publishing words of praise, identification, support, approval or encouragement, with respect to an act of terror", which includes a probability criterion, which is different than the existing one ("reasonable possibility… of committing an act of terror or committing an offense of violence") (sec. 27). It was noted in the Explanatory Notes of the bill that the "proposed probability criterion strikes a proper balance between the need to prevent an infringement of the values protected by the prohibition, and the protection of the principle of freedom of expression, as opposed to the real possibility criterion, which is difficult to assess and prove, and therefore, does not allow sufficient protection of the values that are protected by the prohibition, considering the anticipated damage from the mere inciting publication" (p. 1096); regarding the matter of the legislative chain of events that led to the current draft of the law, see also the Torat Hamelech case, paras 75-77.

 

35.       As noted, the Applicant is a well-known, influential figure among the Arab public, who delivered a speech to an angry crowd, near the Temple Mount at Friday prayers, the Muslim's holy prayers, during a period in which the streets of Jerusalem, and particularly in the areas populated by Arabs, were roiled. As was also explained by the lower courts, the general context of the sermon delivered by the Applicant, the repeated use of the word "blood" and his words "we will meet God as martyrs in the area of the Al Aqsa mosque", make it difficult to err as to the meaning of his words. It appears to me that it is evident to any reasonable person that we are not dealing with a theoretical discussion, but rather with a practical call. And in order to remove any doubt, the Applicant's words in real time testify as to his intentions: "It is possible that they will come to me and tell me you are inciting. They want to destroy our Al Aqsa and they are coming and telling me you are inciting. So, my brothers, I am telling you, and I am saying that we are not alone in this struggle." The combination of the content of the words and the circumstances indeed fulfills the requirement of a real possibility that the Applicant's words would lead to violence, sufficient to ground the elements of the offense. The conviction of the offense of inciting violence is upheld.

 

36.       Last, but not of least importance, I would note that we are cognizant of the status of freedom of expression in our system, the importance of its reinforcement, and the restraint required in applying criminal law in such contexts. However, as has also been emphasized on more than one occasion, freedom of expression does not stand alone (LCA 10520/03 Ben Gvir v. Dankner (2006); and see my dissenting opinion in CFH 2121/12 Anonymous v. Dr. Ilana Dayan, (2014), paras. 27-40), and there are exceptions that are worthy of criminal investigation. In the Torat Hamelech case, I referred (para. 58) to the caution of the Attorney Generals in exercising their authority to approve an information in the matter of inciting racism and inciting violence. I shall stress that in making such a decision there is even some room for consideration of the possibility that filing an information actually affords exposure and publicity to deviant, hateful expressions, and thus somewhat rewards the person wishing to incite. I am of the opinion that the case at bar clearly crossed the limits of legitimate, even if harsh and outrageous, freedom of expression. The Applicant's words went far too far.

 

37.       Having said that, it is important to emphasize loudly and clearly, one cannot but be outraged by expressions of hatred that are directed towards any person or public whose only sin is their religious affiliation, their national origin, race or color, and we must all, and certainly the courts, take a stand against such expressions of hate, and must unequivocally denounce them. This is the long and short of the matter. Our ruling does not derogate in any manner from the obligation to act for equality for Arabs in Israel (and see my article "On Equality for Arabs in Israel," in my book Paths of Government and Law: Issues in Israeli Public Law, 276 (5763) (Hebrew)), since "I have had the opportunity on more than one occasion to repeat such words regarding equality for Arabs… out of deep conviction – that it can be different – in a state that not only by its definition is Jewish and democratic, and  whose the Declaration of Independence speaks of equality, but which has a historical ethos of the persecution of our people throughout its history as victims of racism, we are commanded to treat minorities equally" (the Torat Hamelech case, para. 37), and nothing more need be said.

 

38.       In conclusion:  the appeal of the decision is denied.

 

The Sentence

 

39.       As to the punishment, both parties addressed the forces pulling in each direction – the extraordinary severity of the words that were spoken by the Applicant, on the one hand, and the fact that he was not convicted of other offenses, as well as the prevailing punitive policy, on the other hand. The normative issue in the case at hand concerns the severity of the act, and it is here that I agree with the position of the Respondent, in principle. I am of the opinion that the range of punishment that the Magistrates Court proposed is appropriate, considering the interests and values concerned. As for the punishment itself, the case law varies; see the Ben Gvir case, which imposed community service and a suspended sentence for offenses of inciting racism and supporting a terrorist organization, and the Federman case, which imposed community service and a suspended sentence for offenses of inciting racism, inciting violence and criminal attempt; as opposed to CrimC (Jerusalem) 44725-12-14 State of Israel v. Shalabi (2015) which imposed a nine-month custodial sentence, as well as a suspended sentence for offenses of inciting violence and supporting a terrorist organization, and CrimC (Jerusalem) 44930-21-14 State of Israel v. Aabdin (2015), which, inter alia, imposed a ten-month custodial sentence and a suspended sentence for offenses of inciting violence and supporting a terrorist organization. However, no single case is similar to another. Indeed, in the Federman and Ben Gvir cases, in 2008 and 2010, respectively, actual imprisonment was not imposed, as it was in other cases (see for example CrimA 71624/04 Paniri v. The State of Israel (2007), in which the defendants were convicted of offenses of defacing real estate and inciting racism), but given the increasingly widespread expressions of ideologically-based violence and hatred, the case-law trend has been increasingly strict, both to deter and as an expression of deep contempt for and revulsion at such statements and actions (see the recent decision in CrimA 5794/15 State of Israel v. Tuito (January 31, 2016), in which the punishment of the perpetrators of the arson of the Bilingual School in Jerusalem was increased). Additionally, the Applicant's attorney argued that the cases he cited, like the case at hand, concerned influential personages, and as noted, custodial sentences were not imposed. However, the cases would not appear comparable. In the case at bar we are faced with a person who is a very influential religious and spiritual leader, as opposed to the figures the Applicant's attorney mentioned who are not clergymen, and whose influence extends only to limited publics.

 

40.       Lastly, I am not persuaded by the argument that since we are addressing two offenses that relate to the same act, and in light of their nature, it was inappropriate to increase the Applicant's punishment following his conviction for the offense of inciting racism. Section 186 of the Criminal Procedure (Consolidated Version) Law, 5742-1982, prescribes: "The court may convict a defendant for each of the offenses for which his guilt is supported by the facts proven before it, but it will not punish him more than once for the same act." In CrimA 9826/05 Jamal Mahajna v. State of Israel (2008), this Court addressed the interpretation of the phrase "the same act" and the criteria therefor, stating that "the factual-typological test analyzes the entire set of facts composing the criminal event, and examines whether the defendant's criminal conduct constitutes a single, indivisible physical act, or a series of acts that can be divided and distinguished. The substantive-moral test examines the nature of the harm the specific offense caused, the nature of the interests protected by the offense, the importance of the value that was infringed, and the nature of the moral considerations that underlie the protection of the victim of the offense. In the said framework, considerations of deterrence are also taken into consideration, which concern granting due weight to the severity of the offense in the framework of punishing the offender, in order to send a deterrent message to potential criminals" (para. 18, per Beinisch P.). It is only natural that there is a partial overlap of the protected values that underlie each of the offenses that are the subject of the application, such as protecting public safety – and this is true with respect to many other offenses that are not related to expression and incitement – however each of them comprises additional protected values. Moreover, and of no less importance, as has already been noted, we are addressing different and separate parts of the Applicant's sermon, each of which, in and of itself, fulfills the elements of the relevant offense.

 

41.       Nevertheless, and not without some hesitation, I am of the opinion that a degree of leniency would be in order. The lower courts gave appropriate thought to the various considerations and concrete circumstances, however in light of the fact that in the nine years that have passed since the event, the Applicant has not committed additional, similar offenses, and in light of the punitive policy that prevailed at the time, it would appear just to show some leniency. The Applicant's sentence shall, thus, be set at nine months of imprisonment, and the suspended sentence shall remain unchanged.

 

42.       Conclusion and summary: I propose that we deny the appeal of the District Court judgment, and uphold that decision. As for the sentence, I propose that the Applicant's sentence be reduced as stated in paragraph 41. The Applicant shall report to the Nitsan Detention Center on May 8, 2016 by 10:00, to begin serving his sentence. The terms of release shall remain unchanged until that time.

 

Deputy President

 

Justice S. Joubran:

 

I have read the opinion of my colleague Deputy President E. Rubinstein, and while I concur with the conclusion that the Applicant's conviction of the offense of inciting racism should be upheld, I am not of the opinion that it was appropriate to convict him of the offense of inciting violence. Were my opinion heard, I would recommend acquitting the Applicant of that offense, and accordingly reducing his punishment such that he would serve his sentence by way of community service.

 

The District Court unanimously convicted the Applicant of the offense of inciting racism, and convicted him of the offense of inciting violence by a majority opinion of Judges D. Mintz and E. Nachlieli-Khayat, with Judge A. Romanoff dissenting. My opinion is as that of the dissenting Judge Romanoff, as I shall explain below.

 

As noted in my colleague's opinion, the Applicant’s conviction on the offense of inciting violence is based on the following words in the sermon he delivered in Jerusalem:

 

We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now, it is now their duty to assist the Palestinian nation. It is now their duty instigate an Islamic Arab intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa mosque.

 

As opposed to the offense of inciting racism, in order to convict of the offense of inciting violence it is not sufficient to say things of an inciting content. Rather, one must examine whether the content and the circumstances of the publication present a real possibility of resulting in terror or a violent act (HCJ 2684/12 The 12^th of Cheshvan, The Movement for the Strengthening of Tolerance in Religious Education v. Attorney General, para. 9 of my opinion (December 9, 2015); LCrimA 2533/10 State of Israel v. Ben Horin (December 26, 2011)).

 

The Applicant argues that he did not mean to arouse a violent intifada, and during his interrogation by the police, he explained his intentions as follows:

 

I said that we covet all of the elements of the Arab and Islamic heritage – its leaders, clergymen, media, parties and family and non-family institutions and nations to instigate an intifada that supports holy Jerusalem and the blessed Al Aqsa mosque. And the meaning is completely clear – it is an invitation to devote our best efforts in order to preserve their duty to protect holy Jerusalem and the blessed Al Aqsa mosque. And this is the leaders' role, which is expressed in a political role, and this is also the same role of clergymen to make people fond of the Al Aqsa mosque. And this also relates to the media that need to emphasize the problem in Jerusalem and at the blessed Al Aqsa mosque. This is also expressed in the parties and the family institutions and the nations that need to emphasize and apply pressure on their leaders to take a political initiative to support holy Jerusalem and the blessed Al Aqsa mosque (ibid., lines 86-95; emphasis added – S.J.).

 

In his testimony before the Magistrates Court, the Applicant testified as follows:

 

I am not exaggerating that the specific word intifada is an international word, and the Jews also use this word. Shulamit Aloni also used this word, and it is also in all languages.

[…]

Its origin is awakening. Intifada means that a person was sleeping and suddenly awoke, and its meaning is that I want to do something, meaning that I am giving all I have to this thing, and therefore now they say an economic or political or educational intifada, today the whole world uses this word. While I say we are calling the governor, the scientist, the parties, the media or the nation to do an intifada, before that I say to them, before I spoke about intifada, I say they should help. After that I say that there will be an intifada. I am calling on them to help the Palestinian people as much as they can, certainly, while I am speaking these words, I certainly, I am not waiting for the governor to do an intifada or how the media will do an intifada, I certainly mean a cultural, political and media intifada" (protocol of the hearing, pp. 26-17; emphasis added – S.J.).

 

I reread both the Applicant's words and the opinion of my colleague the Deputy President over and over again, and I still have doubt whether the content and circumstances of the words amount to a real possibility of leading to an act of violence.

 

My colleague is of the opinion that the combination of the words' content and circumstances fulfills the requirement of a real possibility that the Applicant's words would lead to violence (see para. 35 of his opinion). However, my opinion is different. Indeed the term "intifada" (انتفاضة) generally refers to violent action, but I am of the opinion that in the context in which the words were spoken – upon which I shall immediately elaborate – we cannot dismiss the Applicant's explanation that it was not incitement to violent action, but rather a call for a general, not necessarily violent, recruitment to protect what appeared to the Applicant as a violation of a holy site.

 

We should bear in mind that the sermon that was delivered by the Applicant was made against the background of a claim raised among some of the Muslim public regarding the Israeli authorities' intention to harm one of the holy sites of the Muslim religion – the Al Aqsa mosque. This is evident from the Applicant's repeated emphasis in his sermon that the matter at hand is not a local matter that relates only to local residents, but rather a matter that concerns  all the members of the Islamic faith per se.

 

This background must be considered in the framework of examining the circumstances of the publication, in order to reach a conclusion regarding the real possibility of matters leading to violence. In my opinion, there is signal importance to the universality of the audience addressed in the sermon in understanding the meaning of all of the words stated above. It is my opinion that the fact that the Applicant was not speaking to a specific, energized, political audience, but rather to a general audience all around the world, reduces the specificity of the call, and consequently reduces the possibility that such a call would, as a real possibility, lead to committing an act of violence. By a gross analogy – just as the universality of the common calls for "world peace" reduce the probable  influence of the call on bringing peace, I am also of the opinion that general calls for a "world intifada" do not have a real potential of resulting in violence.

 

Under these circumstances, I doubt whether the Applicant's sermon could create such "real possibility" of the commission of a violent act, as required by the law,  and therefore, it is my view, as noted at the outset, that the Applicant should be acquitted of the offense of inciting violence.

 

As for the punishment, since I believe that the Applicant should be acquitted of the offense of inciting violence, and since a considerable period of time has elapsed since the event which is the subject of this case, during which time he did not commit additional, similar offenses, I recommend to my colleagues that the Applicant's punishment be set at six months of imprisonment to be served by community service.

 

                                                                                                JUSTICE

 

Justice A. Baron:

 

1.The principle of freedom of expression is one of the cornerstones of a democratic regime. Infringing freedom of expression "is like harming the soul of democracy" (CrimA 255/68 State of Israel v. Moshe IsrSC 22 (2) 427, 435 (1968)). In the words of Justice N. Hendel, "The test of freedom of expression is not when its content is on the straight and narrow, but rather when it is on the margins of its margins. As has been held: Freedom of expression is not only the freedom to express or to hear things that are acceptable by all. Freedom of expression is also the freedom to express dangerous, infuriating and deviant opinions that disgust the public and that it hates' (HCJ 399/85 Kahane v. Managing Board of the Israeli Broadcasting Authority, IsrSC 41(3) 255) " (LCrimA 2533/10 State of Israel v. Ben Horin, para. 5 (December 26, 2011); hereinafter: the Ben Horin case). However, as any other constitutional right in Israeli law, the right to freedom of expression is not absolute, and it may retreat before other important interests and principles. The criminal prohibitions of inciting racism and violence were meant to protect the existence of the State of Israel as a Jewish and democratic state, human dignity and equality among people, social order and public safety (see: the opinion of President A. Barak in CrimA 2831/95 Elba v. State of Israel IsrSC 50 (5) 221, 285-286 (1996); hereinafter: the Elba case). Indeed, these offenses naturally infringe freedom of expression to a certain degree. However, there is no doubt that such infringement serves a proper purpose. The proportionality of the infringement depends upon the interpretation given to the offenses of inciting racism and violence.

 

In all that regards Ra’ed Salah's sermon, the essentials of which were cited by my colleague Deputy President E. Rubinstein, I am of the opinion that there is no difficulty drawing the line between words that are protected by the principle of freedom of expression and statements that amount to a call for racism, violence and even terror, and which constitute a real danger to public safety and are therefore prohibited. The speaker's words shout. The speech was charged and provocative, it was delivered during tense times and in a tempestuous atmosphere as a result of the prohibition of prayers at the Al Aqsa mosque, and the speaker explicitly calls for violent action against the State of Israel and the Jewish people. Therefore, I concur in the opinion of my colleague the Deputy President that the appeal on the ruling should be denied and that the District Court's judgment should be upheld.

 

2.The Applicant, Sheikh Ra’ed Salah, is a public and religious leader, a person of standing among Muslim Israeli Arabs. He served in the past as the mayor of Umm-Al-Fahm (1989-2001), and since his retirement from that position, has served as the head of the Northern Faction of the Islamic Movement in Israel – the same faction that was recently designated by the Government as an "unlawful association" (Decision of the Political-Security Cabinet of November 17, 2015). The event being addressed occurred in 2007, and the background was archeological digs that the State was conducting near the Temple Mount, in preparation for restoring the bridge at the Mughrabi Gate in the Old City of Jerusalem. Severe accusations against the State of Israel began to be heard on the Arab street – that it is intentionally destroying archeological findings from various Islamic periods that were found in the area of the dig. Concurrently, prayers at the Al Aqsa mosque were also prohibited. At that point in time, the relationship between Israeli Arabs and the Israeli establishment were particularly charged, and even explosive. This is the setting of the event that is the subject of the appeal, in which Ra’ed Salah was a main actor.

 

On Friday, February 16, 2007, Ra’ed Salah stood on a stage that was set up in the Wadi al-Joz neighborhood in Jerusalem, and delivered a speech. In front of him was a large audience of approximately 1,000 people, including hundreds of Ra’ed Salah's supporters who had arrived from the Northern region, as well as many media outlets. As mentioned, the crowds gathered there after they were prohibited entry to the Al Aqsa Mosque for the purpose of Friday prayers and a sermon by Ra’ed Salah. The sermon that he delivered was tempestuous, full of expressions of hatred towards Israel and the Jewish people, and its clear message was that they should be expelled from Jerusalem and from the Al Aqsa mosque. In his speech, Ra’ed Salah repeatedly presented the State of Israel as conducting a bloody battle against the Palestinian people over holy Jerusalem and the Al Aqsa mosque. The speech repeatedly used the words "blood" and "martyrs", and inter alia, Ra’ed Salah accused the Israeli establishment of wanting to build the Temple in Jerusalem "while our blood (the blood of the Palestinian people - A.B.) is still on its clothes, our blood is still on its doors and our blood is in its food, and our blood in its drink and our blood moves from one terrorist general to another terrorist general". It was also stated that the ranks of such Israeli "generals" "were made of the skulls of our martyrs". Ra’ed Salah repeatedly emphasized that the battle for Jerusalem is a bloody battle that is still continuing, and that "We (the Palestinian people – A.B) do not fear other than God. The most beautiful moments in our destiny are when we will meet God as martyrs  in the area of the Al Aqsa mosque". Ra’ed Salah was charged with the offenses of inciting racism and violence for these two specific expressions in the sermon, which I shall now address.

 

3.While describing the day after Jerusalem shall be freed from the yoke of the Jewish occupation, Ra’ed Salah explains to his listeners that the Palestinian people will not take revenge on the Jews, since Palestinians are not child murderers like the Jews, as is told in the famous blood libel:

 

We are not malicious and we shall not be malicious, and we shall also preserve the dignity of the synagogues of the Jews. We are not a nation that is based on values of revenge. We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God, is that religion? Is that what God wants? God will yet deal with you for what you do…

 

For these words, Ra’ed Salah was charged and convicted of inciting racism. Further on in his sermon, Ra’ed Salah called upon his listeners to instigate an intifada to free Jerusalem and the Al Aqsa mosque.

 

We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now, it is now their duty to assist the Palestinian nation. It is now their duty to instigate an Islamic Arab Intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa' mosque.

 

For this call for an intifada, Ra’ed Salah was charged and convicted of inciting violence.

 

4.Section 144B(a) of the Penal Law, which addresses the prohibition of inciting racism, instructs that "If a person publishes anything in order to incite racism, he is liable to five years imprisonment". This is a conduct crime: the "publication" is the actus reus; the "anything" is the circumstance; and "in order to incite" is the mens rea. A number of questions have arisen in case law regarding the manner of proving these elements, and inter alia, there is a view that the "anything" that is published must comprise a racist message which could, with near certainty, harm public safety (see: the Elba case, pp. 290-291, per Barak P.; and HCJ 2684/12 The 12^th of Cheshvan the Movement for the Strengthening of Tolerance in Religious Education v. Attorney General, para. 9, per S. Joubran J. (December 9, 2015); hereinafter: the Torat Hamelech case). In the Torat Hamelech case, my colleagues Justice E. Rubinstein and Justice S. Joubran disagreed on the question whether one can use the “foreseeability rule” to prove the "purpose" in the offense of inciting racism. However, the case at hand does require that we rule on these weighty questions, since the fulfillment of the actus reus, mens rea ("purpose") and even the probability test ("near certainty") is entirely clear from the sermon itself and the circumstances in which it was delivered.

 

Section 144D2(a) of the Penal Law, which addresses the prohibition of inciting violence or terror, provides that "If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence (in this section: an inciting publication) and if – because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror, he is liable to five years imprisonment." The level of proof prescribed for this offense, which is also a conduct crime, is lower than the level of proof for the offense of inciting racism. While the offense of inciting racism requires a special mental element of "purpose", the mental element required for the offense of inciting violence is only awareness. The bar of the probability element in the offense of inciting violence ("real possibility") was also explicitly set lower than the probability criterion set by case law for the offense of inciting racism ("near certainty") (see: the Torat Hamelech case, paras. 75-76, per Rubinstein J. (December 9, 2015)). The elements of the offense of inciting violence are also entirely met by Ra’ed Salah's sermon, as I shall explain:

 

The incitement offenses are based on expressions –  on words. As such, the fulfillment of the elements of the offenses – including the meaning of the words, the extent of the attendant damage, and the intention of the speaker – are deduced from the content of the inciting publication and the entirety of the circumstances:

 

Of course, the identity of the publication, the publisher and the public atmosphere are important facts, as noted, but they do not stand alone. Additional considerations should also be considered, such as the type of violence concerned, the scope of the group exposed to such violence, the scope of the publication and its target audience, the context, the location and the media used for the publication. One must ask, inter alia – who said, what was said, where it was said, in what manner it was said, to whom it was said and in what framework it was said" (the Ben Horin case, para. 7).

 

It should be noted that this was stated in the context of the offense of inciting violence, however it applies, mutatis mutandis, to the offense of inciting racism (see: the Torat Hamelech case, para. 77).

 

5.Ra’ed Salah argued before us that his words should not be interpreted literally – but rather the sermon should be "read sensitively", and his calls should be heard through a "constitutional ear". In brief, according to Ra’ed Salah, when he called for an intifada he meant the literal meaning of the word – i.e., an awakening, and the message he wished to deliver was a call for a global awakening in the Arab world, for awareness, for protest, and by no means for violent action. With respect to the mentioning of the blood libel in his sermon – Ra’ed Salah denies that his intention was the libel that Jews use the blood of Christian children to prepare Passover matzah. According to him, it was a general reference to crimes committed in the name of religion all over the world, including Crusades in the past, and crimes in Bosnia and Kosovo, for example, in the present. Given the above, according to Ra’ed Salah, the sermon that he delivered is protected by the constitutional protection that is granted to political expression, as part of freedom of expression, even if only by the benefit of doubt.

 

As has already been stated, the words of incitement in Raed Salah's sermon shout out from the page. They cannot be misunderstood. He is indeed attempting now to present the words he spoke as being ambiguous, as such that can be interpreted in a softer manner than that which is attributed to the sermon. However this is nothing more than impossible sophistry and retrospective justification. The meaning of the text is examined as it is heard in real time, by the inflamed audience – and not in "laboratory conditions" and while turning to dictionary definitions. I would reiterate that the same sermon with which we are dealing was heard against the background of a tempestuous, impassioned public atmosphere, which was created when the Al Aqsa mosque was closed to worshipers. Ra’ed Salah, who has a reputation of denying the legitimacy of the State of Israel, added fuel to the fire with his speech. He delivered a sermon full of expressions of hatred and violence against the Jewish people, woven with repeated motifs of "blood" and "martyrs". The well-known blood libel, which is mentioned in Ra’ed Salah's sermon, is a symbol of hatred of Jews. Tying it with the call for an intifada clarifies that the speaker is not calling for an "awakening" as he retroactively claimed – but rather for a violent uprising. It is not superfluous to state in this context that Ra’ed Salah's sermon was delivered by him after he had already been warned by the Orr Commission (Commission of Inquiry into the Clashes Between Security Forces and Israeli Citizens in October 2000), due to his responsibility for the riots that broke out. The Commission, inter alia, found as follows:

 

As the head of the Northern branch of the Islamic Movement, the Mayor of Umm al-Fahm and a public personage, he was responsible during the period preceding the events of October 2000, including the years 1998-2000, for transmitting repeated messages encouraging the use of violence and threatening violence as a means of achieving objectives of the Arab sector in the State of Israel. These messages referred also to the purpose that was defined as freeing the Al Aqsa mosque. Additionally, he held mass meetings and employed tempestuous propaganda methods to arouse an inflamed public atmosphere around this sensitive issue. By all that is stated above, he made a substantial contribution to inflaming the atmosphere and to the violent, widespread outbreak that occurred in the Arab sector at the beginning of October 2000.

 

Moreover, at the time Ra’ed Salah delivered the sermon, there was a restraining order prohibiting him from being in the Old City of Jerusalem or within 150 meters therefrom – after having led an unlawful gathering of approximately 30 people at Dung Gate in Jerusalem, also related to the performance of works at the Mughrabi Gate. Ra’ed Salah was charged with having assaulted one of the policemen that had been stationed there to block the rioters from moving towards the area of the works, having spat at his face, and having muttered to him "you are racists and murderers, you have no honor". For these actions, he was convicted of offenses of participating in a riot and assaulting a police officer in order to prevent him from performing his duty, and was sentenced to imprisonment and monetary damages to the policeman.

 

6.Hence, the contents of the sermon and the entirety of the circumstances surrounding the situation in which it was delivered, clearly testify to the existence of the actus reus and the mens rea required for the offenses of inciting racism and inciting violence. Using words carries great, and even, at times, destructive, power; therefore it has been said: "Death and life are in the power of the tongue" {Proverbs 18:21]. Leaders and public figures have a heightened duty in this regard, and particularly in the charged climate of the Israeli-Palestinian conflict. The words of my colleague Justice S. Joubran are particularly apt:

 

Ill winds of racism and hatred of the other which are blowing in our country are leading to more frequent, racist and religious-based violent outbursts. Racist expressions are expressed not only on street corners, or by speakers who represent "extreme margins", but also by public figures and politicians who are considered part of the mainstream of Israeli society (Yuval Karniel ”Racism, Media and Defamation – Can a Racist be Called is a 'Nazi'?" 11 Hamishpat 409, 434 (5767) (hereinafter: Karniel) (Hebrew)). In the current climate – in which inciting racism and violence has become a common sight – there is a clear need for the authorities responsible for the enforcement and implementation of the law to stand strong and assist in eradicating the phenomenon.

…

I am of the opinion that in this reality in which words of incitement written with a sharp pen lead, on more than one occasion, to lethal use of a sharp knife, we are obligated to consider cases such as the one before us with greater diligence, including charging and convicting in appropriate cases. (the Torat Hamelech case, paras. 12-13).

 

7.Now to the sentence. As is well known, it is not customary for an appeal instance to intervene in sentencing, except in extraordinary cases of significant deviation from proper punitive policy or a material error in the sentence. This is all the more relevant when we are concerned with a third incarnation of proceedings. I would not have intervened in the sentence imposed upon Ra’ed Salah for the offenses of which he was convicted – even though it was at the high end in comparison to other cases addressed in the case law. However, in the disagreement between my colleagues, I find it appropriate to join the position of the Deputy President that the custodial sentence be reduced from 11 to 9 months.

 

                                                                                                JUSTICE

 

Decided by a majority of opinions as stated in the judgment of Deputy President, E. Rubinstein.

 

Given today, the 10^th of Nissan 5776 (April 18, 2016).

 

 

Deputy President                                Justice                                     Justice

 

 

 

 

 

IN THE

SUPREME COURT OF THE STATE OF ISRAEL SITTING AS THE

HIGH COURT OF JUSTICE

 

 

HCJ 1/49

 

Before: The Hon. Justice Cheshin

The Hon. Justice Assaf The Hon. Justice Zilberg

 

Petitioners:        1. Solomon Shlomo Bejerano,

2. 2 others

v.

 

 

Respondents:    1. Police Minister,

2. 4 others

 

 

Argued:                3 Av 5708 (August 8, 1948)

29 Tevet 5709 (January 30, 1949)

Decided:              11 Shevat 5709 (February 10, 1949)

 

 

On behalf of the Petitioners:      Adv. Zakheim

 

On behalf of the Respondents: Adv. H.H. Cohen

 

ORDER

 

Justice Cheshin

 

1.            This is a challenge to a conditional order given on August 8, 1948 requiring the Respondents to provide a reason why they are prohibiting the Petitioners from appearing and acting on behalf of their clients before the Transportation Department of the Tel Aviv District.

2.            The Petitioners are certified drafters of official requests. Not only do they fill out official applications on behalf of their clients, automobile owners, but they also fulfill a considerable number of the Road Transportation Regulations’ requirements [on behalf of their clients] like, for example, filling out applications to the relevant agencies, bringing cars in for inspection, paying the required taxes and other formal actions associated with receiving a driver’s license from the Department of Transportation. [The Petitioners] have worked in this industry for a long period of time: Petitioner 1 has done it for over twenty years and the other Petitioners for at least ten years, and they have done so with the knowledge and consent of the relevant authorities. At the beginning of May 1948, the Petitioners were barred from entering the offices of the Department of Transportation of the Tel Aviv District. The clerk in charge informed them that they were henceforth prohibited from engaging in their business. Some time thereafter, the Petitioners turned to higher authorities several times, including Respondents 1, 2 (Police

 

Superintendent) and 3 (Police Superintendent of Tel Aviv) requesting that the decision against them be overturned. However, their efforts did not yield the desired results, and they were told, “There is no… need for ‘middlemen’ for the purpose of obtaining license plates or a driver’s license” (See Exhibit 8, dated July 21, 1948, written on behalf of Respondent 1). Because of this, the Petitioners turned to the District Court of Tel Aviv, which (at the time) sat as the High Court of Justice, and a Conditional Order was given.

3.            One of Mr. Zakheim’s claims on behalf of the Petitioners is that the Petitioners’ service benefits many car owners who, because of their work, cannot waste their time waiting in line to pay their fees or traveling to the offices of the Department of Transportation to have their cars tested. Mr. Zakheim claims that stopping the Petitioners from doing business is a severe blow to car owners and, consequently, argues that [this Court] should heed the Petitioners’ request In support of this claim, several letters written on behalf of car owners to the relevant agencies were presented to [this Court]. Among them was a memo drafted by Adv. Alex on behalf of Pim Ltd., a company dedicated to safeguarding the interests of car owners in Tel Aviv that counts hundreds of car owners among its members. [The memo] asked Respondent 3 to overturn the decision barring the Petitioners [from  conducting  business]  because  of  the  great  benefit  provided  by  [the Petitioners] to car owners. [However], we doubt whether this fact alone is enough for this Court to accede to the request [of the Petitioners]. If the car owners really are harmed by the Respondents’ actions, why don’t they complain about the harm they have suffered? It seems that the Respondents want the car owners to personally appear at the offices of the Department of Transportation [to file the necessary paperwork], and if a car owner believes that he is entitled to have an agent do the necessary work, there is no reason for the agent to appear on his own behalf for the benefit of the principal. The principal himself should come and complain about how his rights are being infringed. It seems to us, therefore, that this Court cannot heed this request unless we are convinced that the Petitioners have a right that has been infringed by the Respondents’ prohibitive [policy]. The question is do the Petitioners themselves have a right that justice requires that this Court safeguard from infringement at the hands of the Respondents?

 

4.            Mr. Cohen, on behalf of the Respondents, claims that there is no law that grants the Petitioners the right to conduct business in the offices of the Department of Transportation as “professional agents,” nor does any law place a public obligation upon the Respondents towards the Petitioners. Therefore, this Court has no authority to heed the Petitioners’ request. This Court’s authority is covered by section 7 of the Courts Ordinance. Subsection (b) states that “[t]he High Court of

Justice shall have exclusive jurisdiction over issues regarding… orders directed towards public employees or public bodies regarding the fulfillment of their public obligations and what is required of them to perform or refrain from doing certain actions.” This Court (during the time of the Mandate) has repeatedly determined (see, e.g., HCJ 92/43 Joseph Weisserberg v. District Food Controller, Haifa District [1943] P.L.R. 10, 513, A.L.R. 2, 697; HCJ 110/43 Salim Muhammad El- Abyad v. Food Controller, Jerusalem [1943] P.L.R. 10, 644, A.L.R. 2, 791) that anyone turning to this Court to seek relief must first prove that a public official has an obligation towards the petitioner and, second, that in refusing to act, the official did not properly exercise his discretion or acted willfully or maliciously. However, this only applies when someone requests that the Court order the public official in question to perform a particular act. In such a case, the petitioner must demonstrate that a law exists that requires the public official in question to do what is requested of him. This does not apply, in our opinion, when someone requests not that a particular action be taken, but rather that a particular action that harms the petitioner not be taken – in other words, a request for an order to cease and desist. In such a case, the petitioner must show that he has a right to do what he wants to do, and the public official in question must prove that his actions, intended to prohibit the exercise of the stated right, are legal. In other words, when a petitioner complains that a public official is inhibiting his right to perform a specific act, the petitioner need not prove the existence of a law stating that the public official in

 

question has an obligation to permit him to perform the act in question; rather, just the opposite, the public official must prove that he is justified in prohibiting that which he seeks to prevent (See HCJ 69/25 Hayim Federman v. Sir Ronald Storrs, District  Commissioner,  Jerusalem,  Southern  District  [1920-33]  P.L.R.  1,  57, C.O.J. 3, 1190 (Rotenberg)). We will therefore examine this case pursuant to this rule.

5.            The natural right of everyone to pursue any business or occupation he desires, so long as it is not prohibited by law, is a principle of the utmost importance. Regarding a profession or trade that the legislature has restricted or for which it has set preconditions for those wishing to pursue such an occupation, a person may not pursue such an occupation unless he meets the required criteria. For example, a person may not work as an attorney unless he has the required license as stated by the Lawyers Ordinance, and such a license is not granted unless one obtains the required legal knowledge. Likewise, a person may not deal in goods held by customs officials unless he has the required license under the Customs Agents Ordinance. Also, a person wishing to practice medicine, pharmacy, land appraisal, drafting requests or work as a real estate agent must also acquire the necessary license pursuant to the respective ordinances. One who engages in one of these occupations without first obtaining the necessary license may be held legally accountable. However, there is no license required of someone wishing to work as a paid agent. We do not agree with Mr. Cohen’s argument that, so long as the law does not explicitly allow the Petitioners to engage in their business, they have no right to do so; rather, to the contrary, so long as the law does not prohibit a particular trade the Petitioners have chosen for themselves, and so long as the law has not placed upon them and those like them a precondition for engaging in such a trade, they have the right to do so, and they cannot be stopped from doing so unless such limitation is sanctioned by law. The Petitioners’ right to work as agents in exchange for payment does not stem, in our opinion, from their license to draft requests We presume that such a license is not enough to grant them the right to appear in the offices of the Department of Transportation, but even Mr. Cohen did not claim that a special license is necessary to appear in the offices of the Department of Transportation. Their right is not one that is in the books, but rather one that stems from the natural right of each person to seek a livelihood that will serve as a source of income.

 

 

The Department of Transportation is not a private institution whose owners get to decide who may enter and who may not. This is a public agency whose doors must be open to all those who want to enter. We would not find any fault with the Respondents’ decision if the law required car owners to personally appear [at the offices of the Department of Transportation]. In such a case there would be no need for agents or middlemen. However, this is not the case. The Road Transportation Regulations (section 3, chapter 128 of the Official Gazette) does include several rules from which it seems that a car owner must personally appear for certain matters. For example, Regulation 83 states that the agency in charge of granting driver’s licenses may require an applicant to undergo a medical examination and pass a driving test assessing [the prospective licensee’s] knowledge and fitness as a driver. Obviously, in order to fulfill the regulation’s directives, the applicant must appear in person. However, with regards to the regulations dealing with examining the car, filling out and presenting specific forms, payment of taxes and other similar formal actions, which require nothing more than standing in line and wasting time, there is no reason for the car owner himself to appear, and in such cases one’s agent is no different than the principal. Furthermore, some of these actions can be done by mail without anyone having to make an appearance (see Regulation 75(3) and 76(4) of the Road Transportation Regulations).

 

7.            Mr. Cohen also argues that the Petitioners were banned as part of an effort on the agency’s part to clean the Department of Transportation of corruption. In a sworn affidavit, Mr. Emanuel Feldman, Respondent 4, stated that “many years of experience… have shown us that these intermediaries cause corruption and a lack of effectiveness at work.” The corruption, Mr. Feldman explains, comes from the fact that the transportation officers grant the intermediaries (the Petitioners in this case) who appear at the Department of Transportation extra services in exchange for money, and the ineffectiveness results from the fact that [the system] “provides unequal treatment between car owners who have the Petitioners working on their behalf and other car owners who do not have connections to the transportation officers.” However, despite this, we see no justification in the prohibitive [policy] that has been applied to the Petitioners. There are three reasons for this. First, Mr. Feldman’s conclusions are based on mere rumors, and not only does he provide no source, he also does not offer even one specific case in his sworn affidavit or in his cross-examination that would raise suspicion against the Petitioners. We cannot involve ourselves in an individual’s personal life and revoke his livelihood on the basis of mere rumors alone. Mr. Feldman states in his testimony that he himself gave [money] to one of the Petitioners to quickly “resolve” an issue he had at the Department of Transportation, but he did not mention the name of the individual, and he could not even state that the issue was “resolved” outside of the regular

 

procedure. Second, if there is corruption in the [Department’s] bureaucracy, logic dictates that fixing the [problem] should be done within the existing framework, and offenders, whether operating within the system or outside of it, should be brought to justice. So why has the fury [caused by the alleged corruption] been directed specifically at the agents of the public? Clearly, if the transportation officers were to be separated and not have any contact with the public, there would be no corruption, but in such a case they would also be unable to fulfill their purpose. Third, and most importantly, we have not found that the Respondents are authorized to administratively prevent the Petitioners from working, especially without conducting any sort of investigation. HCJ 9/38 Joseph Weinberg v. The District Commissioner, Jerusalem District [1938] P.L.R. 5, 126, S.C.J. 1, 116, Ct. L.R. 3, 111 116 (Applebaum), established that a district governor may not revoke the license of [one licensed] to draft applications [on behalf of another] and bar them from working because of improper behavior unless the licensed drafter has first been given the opportunity to present his defense. This leads to a fortiori argument: if a drafter – whose license to do business is a privilege and whose license the district governor is authorized by law to revoke – cannot be prevented from doing business without an investigation, the Petitioners – who have a right, not a privilege, [to conduct business] and concerning whom [the Respondents] have no statute permitting them to prevent [the Petitioners] from doing their work– should certainly have the right to a hearing.

 

8.            Therefore, our conclusion is that the policy the Respondents have enforced against the Petitioners is not a normal use of police power, but rather an infringement of one of the basic rights of a citizen, and without explicit or implicit authority rooted in law there is no justification for the prohibitive [policy]. If, however, there is no other way to fix the situation except to [enforce such a policy], the matter must be addressed by the legislature.

 

In  light  of  the  aforementioned,  we  have  decided  to  make  the  order permanent, and we award the Petitioners a general amount of 10 Liras.

 

 

Decided today, 11 Shevat 5709 (February 10, 1949).

 

 

The Supreme Court sitting as the High Court of Justice

 

HCJ 6706/14

 

 

Before: The Honorable President M. Naor

The Honorable Deputy President E. Rubinstein The Honorable Justice S. Joubran

The Honorable Justice E. Hayut The Honorable Justice H. Melcer

 

The Petitioners:                1.            MK Hanin Zoabi

2.            Adalah – The Legal Center for Arab Minority Rights in Israel

3.            The Association of Civil Rights in Israel

 

v e r s u s

 

The Respondents:           1.            The Knesset's Ethics Committee

                2.            The Chairperson of the Knesset

                3.            The Knesset

 

Petition to Grant an Order Nisi

 

Date of Session:               17th of Kislev, 5775 (December 9, 2014)

 

On behalf of the Petitioners:      Adv. Hassan Jabarin; Adv. Dan Yakir;

Adv. Maisana Morani

 

On behalf of the Respondents: Adv. Eyal Yinnon; Adv. Dr. Gur Bligh

 

 

J U D G M E N T (R E A S O N S)

 

 

President M. Naor:

 

1.            On December 10, 2014, we issued  a judgment without reasons in which the Petition was denied by a majority opinion (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer, against the dissenting opinion of Justice S. Joubran). In the judgement we ruled that:

 

"1. The Petition before us addresses the decision of Respondent 1, the Knesset's Ethics Committee, which determines that Petitioner 1 violated Rule 1A of the Rules of Ethics for Members of Knesset, and instructs that she be removed from sittings of the Knesset's plenum and committees, other than participating in votes, for a period of six months, commencing on July 30, 2014, and ending on January  29,  2015.  Approximately  half  of  the  period  of

 

 

 

removal was during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014.

 

2.            In the Petition, the Court was requested to intervene in and cancel the  Ethics Committee's decision  regarding the Petitioner. Alternatively, the Court was requested to intervene in the removal sanction that was imposed upon the Petitioner.

 

3.            On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

4.            On December 9, 2014, we heard the Parties' oral arguments.

 

5.            The six month period is meant to end on January 29, 2015. Therefore we have found it to be appropriate to give our ruling now, without reasons. The reasons shall be given separately.

 

6.            By a majority of opinions (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer) and against the dissenting opinion of Justice S. Joubran, we rule as follows: There is no place to intervene in the Ethics Committee's decision that the Petitioner violated Rule 1A of the Rules of Ethics for Members of Knesset. As for the sanction: the sanction that was imposed is indeed unusual in its severity compared to sanctions imposed in the past. However, in the circumstances at hand and in light of the Petitioner's harsh words and the timing in which they were spoken, and considering that a significant part of the period of the sanction was during times of recess, we have not found it appropriate to intervene in the broad discretion that is granted to the Ethics Committee. Inter alia, we have taken into consideration the fact that two days ago the Dispersal of the 19th Knesset Law, 5775-2014 was legislated. In light of this law, the practical significance of intervening in the sanction is miniscule, if at all existent.

 

7.            Therefore, the Petition is denied. There shall be no order for expenses".

 

We shall now elaborate on our reasons.

 

 

 

Background

 

The Complaints Against the Petitioner and Her Responses Thereto

 

2.            The Petitioner is a member of the 19th Knesset on behalf of the Balad party. On June 17, 2014, the Petitioner interviewed on a morning program on Radio Tel Aviv (hereinafter: the "Interview"). The Interview primarily addressed the abduction of the three teenagers: the late Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, which occurred on June 12, 2014, in the area of Gush  Etzion.  The Interview was held approximately five days after the abduction, at a time when the teenagers' fate was not yet known. During the Interview the Petitioner said the following:

 

"Look, look… I, let's ask a question like this, ah, naively, is it strange that people who are under occupation, who live lives that are not normal, and who live in a reality in which Israel abducts detainees every day, is it strange to you that they abduct? […] They are not terrorists […] Even if I do not agree with them, they are people who do not see any opening […] They are people who do not see any opening to change their reality, and they are forced to use these means, until Israel shall sober up a little, until the citizens of Israel, the Israeli society shall sober up a little and shall see the suffering, feel the other's suffering"

 

3.            On July 13, 2014, in the midst of operation "Protective Edge", the  www.felesteen.ps website published an article that the Petitioner wrote, and which had been previously published on the www.arab48.co.il website (hereinafter: the "Article"). Inter alia, the following, was written in the Article:

 

"In order for Israel to be convinced that it is not possible to maintain and deepen the occupation, and for it to declare the end of the achievements of the detestable trinity: the fence, the siege and coordination, which it believed turned the occupation into a no-cost occupation absent from the Israeli reality – the Palestinians must declare the end of their own lethal trinity: coordination, negotiations and the internal dispute. We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith, and unity instead of the internal dispute" (a copy of the Article in Arabic and its translation to Hebrew were attached as Exhibit P/5 of the Petition).

 

4.            Following these  remarks, a number of complaints were filed with the  Ethics Committee against the Petitioner. The main complaint was filed on July 22, 2014, by the Chairperson of the Knesset. In this complaint the Chairperson  of  the Knesset stated that while he is aware of the Ethics Committee's position that the members of Knesset's freedom of political expression must be protected, he is of the opinion that the Petitioner "has long since crossed any line with respect to the

 

 

 

conduct that is expected of the MKs" and that the many approaches that are directed to him from the public in this matter "indicate that this is not an 'ordinary' case of a harsh or outrageous remark […], but rather continuous provocative conduct, which could materially erode the status of the Knesset in the eyes of the public." The Chairperson of the Knesset's complaint also mentioned a video clip that documents a confrontation between the Petitioner and policemen during a protest. The Ethics Committee decided not to refer to this video clip in its decision, and therefore I shall not address it.

 

5.            The Petitioner filed a response to the complaint. In her response the Petitioner stated that she "completely rejects the vexatious complaint that is indicative of a dominating culture of racism and a need to rule others and oppress their political opinions". The Petitioner added that the complaints against her were filed on political grounds and that "one must not surrender to those who disagree with me and want to silence me and punish me and even retaliate against me." With regard to the things she said in relation to the abduction of the teenagers, the Petitioner stated laconically that "I referred to the context of the sentence in a series of media interviews and I shall not reiterate it again, and I shall ask that the Ethics Committee review them to receive a complete picture". It is not superfluous to note that the Petitioner did not attach the said interviews to her response. Based on her said statement, the Petitioner asked that the Ethics Committee reject the complaint.

 

The Decision which is the Subject of the Petition

 

6.            On July 29, 2014, the Ethics Committee convened to discuss the said complaints against the Petitioner. The committee decided by a majority of opinions that the two remarks specified above constitute a violation of Rule 1A of the Rules of Ethics (Decision 16/19 of the Knesset's Ethics Committee "In the matter of Complaints against Knesset Member Zoabi" (July 29, 2014)). The  committee indeed emphasized that its consistent position is that to the extent possible, the limitation of freedom of political expression of members of Knesset should be avoided; that the members of Knesset's right to express public criticism of the government is maintained also during times of war; and that the mere voicing of harsh criticism on military moves or on government policy during times of war, should not be viewed as a violation of the Rules of Ethics. However, the committee ruled that one must distinguish between legitimate protest – harsh as it may be – and encouraging the enemies of the State and legitimizing acts of terror against its citizens. The committee added that the public in Israel, like in any state, "expects that members of Parliament, who declare allegiance to the State, shall not encourage those who act against it and those who wish to kill its soldiers and citizens and shall not support them […]" (paragraphs 8-9 of the decision).

 

7.            As for the Interview, the Ethics Committee ruled that even though the Petitioner clarified that she does not agree with the abductors, her statement that they are not terrorists and her justification of their actions – especially when the abducted teenagers' fate was yet unknown – constitutes "identifying with enemies of the State" (paragraph 9 of the decision). Regarding the Article, the committee ruled that it is not possible to interpret its content as anything other than "statements which intend to harm  the State  of Israel,  its security and its basic  interests" (paragraph 10 of the decision).

 

 

 

 

8.            The Ethics Committee ruled that the Petitioner's words do not coincide with the State's best interest and prejudice the public's trust in the Knesset and the Knesset's image. Therefore, it was ruled that the Petitioner violated Rule 1A of the Rules of Ethics and imposed a sanction of her removal from the sessions of the Knesset plenum and its committees, other than participating in votes, for a period of six months, beginning from July 30, 2014, and ending on January 29, 2015. Approximately three months of the removal period were during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014. On December 9, 2014, the Dispersal of the 19th Knesset Law, 5775-2014, was published in the Official Gazette (Reshumot). This law provides that the 19th Knesset shall disperse before the end of its term and that the elections for the 20th Knesset shall take place on March 17, 2015. Consequently, the Knesset Committee decided that an elections recess shall begin on December 11, 2014, lasting until the 20th Knesset convenes (see: Knesset Committee Decision "In the Matter of the Dates of the Elections  Recess and the Knesset's Activity During the Recess" (December 10, 2014)). Therefore, the remaining part of the period of removal – over a month and a half – also falls during recess.

 

9.            To complete the picture, it shall be noted that on August 3, 2014, the Petitioner's attorneys requested, "in order to file a petition to the High Court of Justice" against the decision, to review the minutes of the Petitioner's matter and the materials presented to the committee in the process of reaching its decision. On August 7, 2014, the Knesset's legal counsel replied to the request and informed the Petitioner that pursuant to Rule 21 of the Rules of Ethics, the ethics proceedings, including the documents and the minutes in the matter thereof, are privileged. The Knesset's legal counsel explained in his response that the committee recognizes that there are exceptional situations in which public interest requires disclosure of material from its sessions, such as a situation in which the use of the material is required for the purpose of legal proceedings. However, he stated, the exception relates to the circumstances in which the material from the committee's sessions is required for other legal proceedings and not for the purpose of challenging the decision of the Ethics Committee itself. It was elucidated that the committee is concerned about creating a precedent which will adversely affect the ability of committee members to properly fulfill their duties. Therefore, he informed that the committee unanimously rejected the petition to lift the privilege from the minutes of the session, but decided that if indeed a petition shall be filed, it shall provide the minutes of the session in the Petitioner's matter, for the Court's eyes only.

 

The Petitioner's Appeal of the Decision

 

10.          On August 13, 2014, the Petitioner appealed the Ethics Committee's decision before the plenum of the Knesset. The Petitioner's appeal was filed pursuant to Section 43 of the Knesset's By-Laws, which provides that a member of Knesset may appeal a decision of the Ethics Committee before the plenum, if it decided, inter alia, to remove him from Knesset sessions for the duration of four days of sessions, or more.

 

11.          In her appeal, the Petitioner argued that the Ethics Committee acted ultra vires and in a manner that is contrary to the principle of freedom of political expression. She

 

 

 

further argued that it emerges from the reasoning of the decision that it is not based on a proper evidentiary foundation, and that the sanction imposed is "as far as is known, the most severe sanction that was ever imposed upon a member of Knesset", due to irrelevant considerations and is disproportionate. The Petitioner requested that the Chairperson of the Knesset schedule an urgent session before the plenum of the Knesset to hear the appeal, and on August 20, 2014, she also sent a reminder letter regarding this matter. On August 25, 2014, the Knesset's legal counsel replied to the Petitioner's letter claiming that the Chairperson of  the Knesset does not have authority to convene the plenum of the Knesset during the recess (other than pursuant to Section 9(b) of the Knesset Law, 5754-1994, which empowers him to convene the plenum of the Knesset during recess, in accordance with the demand of 25 members of Knesset or of the Government). Therefore, he informed that it will not be possible to hear the appeal before the beginning of the winter session.

 

12.          The Knesset plenum held a discussion regarding the Petitioner's appeal on October 29, 2014. The Petitioner argued before the plenum, inter alia, that the Ethics Committee's decision is unprecedented in its nature and severity and that this is a vindictive and disproportionate decision. The chairperson of the Ethics Committee, Knesset Member Yitzchak Cohen, responded to the Petitioner's statements. In his response, the chairperson of the Ethics Committee reiterated the committee's main reasons, as were expressed in its decision. In the vote that took place thereafter, 16 members of Knesset voted in favor of accepting the Petitioner's appeal, 68 members of Knesset objected and one member of Knesset abstained. Thus, the petition was denied.

 

The Petition before Us

 

13.          The Petition before us was filed on October 7, 2014, approximately two and half months after the Ethics Committee's decision in the Petitioner's matter and before her appeal had been heard by the Knesset plenum. Therefore, and in light of the Respondents' notice dated October 20, 2014, that the appeal will be heard on October 28, 2014, the Court ruled that it is inappropriate to address the Petition before the Knesset rules on the Petitioner's appeal (Justice Y. Danziger, decision dated October 22, 2014). After the Knesset plenum denied the Petitioner's appeal, the discussion regarding the Petition was renewed. On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

On December 9, 2014, we heard the Parties' oral arguments.

 

The Petitioners' Arguments

 

14.          According to the Petitioners, the Ethics Committee acted ultra vires deciding as it did. The Petitioners claimed that the Petitioner's remarks are political remarks, which are protected by the material immunity granted to a member of Knesset under Section 1(a) of the Knesset Members Immunity, Rights and Duties Law,

 

 

 

5711-1951 (hereinafter: the "Immunity Law"). The Petitioners claimed that, following the Interview, the Petitioner explained in the media that she objects to causing harm to civilians, and to abduction of civilians in particular. The Petitioners further argued that the Attorney General examined complaints that were filed against the Petitioner following the Interview and deemed it inappropriate to open a criminal investigation into her remarks. To this regard, the Petitioners filed the State's response to the petition in HCJ 5716/14 which was directed against the Attorney General's decision in this matter (the hearing in said petition is scheduled to take place on June 10, 2015). In the aforementioned response it was noted that even though the Petitioner identified with the actions of the abductors, her statements did not amount to incitement to violence. Therefore, the Petitioners argued that the Petitioner's remarks which are the subject of the Petition are part of her freedom of political expression, and as such the Ethics Committee did not have any authority to intervene therein.

 

15.          The Petitioners further argued that while this Court has reiterated in its rulings that the material immunity of members of Knesset does not serve as a defense against sanctions at the ethical level, that case law applies only to inappropriate conduct within the house, or to slanderous remarks against another member of Knesset, an individual or a certain public. Such remarks, so it is argued, relate to managing the internal affairs of the Knesset and the relationship between its members and therefore fall within the authority of the Ethics Committee. The Petitioners draw this argument, inter alia, from a principle decision of the Ethics Committee (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013) (hereinafter: "Decision 2/19")), which states that, as a rule, complaints regarding political remarks by members of Knesset should not be discussed.

 

16.          The Petitioners argued that the Ethics Committee acted ultra vires also by basing its decision on Rule 1A of the Rules of Ethics, which "prescribes general values and principles and is not an operative provision" (paragraph 37 of the Petition). This rule, they claimed, has only a declaratory status and thus it is impossible to impose a sanction due to a violation thereof. The Petitioners claimed that the Ethics Committee is only authorized to impose sanctions in consequence of a violation of Rules of Ethics that anchor specific norms relating to  morality, conflict of interest, proper activity of the Knesset and proper conduct in the house. The Petitioners further argued that this is also customary in England. Finally, it was argued that the Ethics Committee is not authorized to determine which remarks are for the benefit of, or contrary to, the State's best interest. In light of all of the reasons specified above, the Petitioners argued that the committee's decision was ultra vires.

 

17.          Alternatively the Petitioners argued that the sanction imposed upon the Petitioner is "discriminatory and exceedingly severe" (paragraph 51 of the Petition). The Ethics Committee imposed its most severe sanction and for the longest possible period of time  and  therefore the  Petitioners  argued that its decision is disproportionate. According to the Petitioners this can also be deduced from a comparison to the committee's previous decisions which were quoted in the Petition itself, and namely the principle decision in the matter of remarks by members  of  Knesset  (Decision  2/19).  It  shall  be  noted  that  the  Petitioners

 

 

 

complained inter alia, about the Ethics Committee's refusal to provide them with the minutes of the Committee's session regarding the Petitioner's matter and requested that we instruct that they be delivered thereto. However, in the oral hearing, and due to the need for a quick ruling, the Petitioners' attorney did not insist on this, while reserving all of his arguments.

 

The Respondents' Arguments

 

18.          The Respondents argued that according to case law, the material immunity does not preclude the Ethics Committee from taking disciplinary actions against a member of Knesset. According to them, particularly in light of the existence of the material immunity, which does not allow for criminal or civil action to be taken against a member of Knesset due to his remarks, it is important to allow the Knesset to deal with such remarks at the ethical level. It was argued that the case law took a principle approach and did not support the argument that the imposition of sanctions for remarks that are covered by material immunity should only be possible in cases where the remarks are harming to collegial relationships between members of Knesset or disrupt the Knesset's proper conduct. The Respondents further argued that the fact that in a long list of decisions, the Ethics Committee recognized the importance of the freedom of political expression granted to members of Knesset, and that it is necessary, to the extent possible, to refrain from limiting it, does not mean that the Committee does not have the authority to impose sanctions for political remarks. This is not a matter of authority, so it is argued, but rather a matter of discretion.

 

19.          The Respondents further claimed that Rule 1A of the Rules of Ethics is not a declaratory rule but rather an operative provision, the violation of which can carry the imposition of sanctions. According to them, the Rules of Ethics include a variety of norms, part of which are designed as rules and part of which are designed as principles (standards) – but all of which are operative. To illustrate their argument, the Respondents stated that Rule 1A was used in the past as a basis for imposing sanctions at an ethical level in a series of cases, both as a single normative source and alongside other rules of ethics.

 

20.          As to the exercise of discretion, the Respondents argued there was no flaw in the conclusion that the Petitioner violated the Rules of Ethics. Especially taking into consideration the broad discretion that is granted to the Ethics Committee in such matters. According to the Respondents, the sanction that was imposed upon the Petitioner is proportionate. The main reason indicated by the Respondents was that the severity of the sanction is commensurate with the severity of the violation for which it was imposed – a severity that stems from the content of the Petitioner's statements and the timing thereof, and which justifies deviating from the lenient policy which the Ethics Committee has exercised with respect to political remarks. The Respondents further argued that the Petitioner's remarks during the Interview "can be perceived as legitimization of and identification with the State's enemies who are carrying out acts of terror against the citizens of the State" (paragraph 70 of the Respondents' response), at a sensitive time – approximately five days after the abduction of the teenagers and at a time when their fate was unknown. The statement that the Petitioner does not agree with the abductors does not diminish the severity of her remarks. It is further argued that the Petitioner's remarks in the

 

 

 

Article can be deemed as a call to harm the State of Israel, in the midst of the fighting in the Gaza strip during the "Protective Edge" operation. The Respondents also claimed that the time the sanction came into effect, which was at the beginning of the Knesset's summer recess, should also be considered. According to the Respondents, practically speaking this was a removal that, when decided, was for approximately three months, since during the recess the Knesset plenum only assembles in rare cases and the majority of the Knesset committees convene relatively infrequently.

 

Discussion and Ruling

 

21.          The main questions that are presented in this case are whether the Ethics Committee is authorized to impose sanctions against the Petitioner because of her remarks, which in and of themselves are protected by material immunity and which are not among those remarks that are defined as remarks that disrupt the Knesset's work or the internal relationships between its members; and whether there are provisions in the Rules of Ethics that authorize the Ethics Committee to impose sanctions in consequence of such remarks. If such authority exists, this shall lead to an additional question – whether such authority, in the circumstances at hand, was exercised lawfully. I shall discuss the questions in the order of their appearance.

 

Was the Ethics Committee Authorized to Make the Decision?

 

22.          Section 17 of the Basic Law: The Knesset prescribes that "The  members  of Knesset shall have immunity; details shall be determined in the law". The details of the immunity were determined in the Immunity Law. Sections 1(a) – 1(A1) of the Immunity Law, provide:

 

 

Immunity in the Framework of Fulfilling a Position

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal actions, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

[…]

 

(a1) To avoid doubt, an act, including, a remark, that are not random, by a member of Knesset, which constitutes any of the following, for the purpose of this section is not deemed an expression of an opinion or an act that are made in the framework of fulfilling his position or for the sake of fulfilling his position as a member of Knesset:

 

 

 

(1)          Denial of the existence of the State of Israel as the state of the Jewish people;

(2)          Denial of the democratic character of the State;

(3)          Incitement to racism due to color or racial belonging or ethnical-national original.

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad.

 

Section 1(a) of the Immunity Law grants a member of Knesset protection against criminal or civil liability and against any other legal action which could be taken, inter alia, due to expression of opinion in the framework of fulfilling his position. Section 1(a1) sets limits to this immunity.

 

23.          Alongside the material immunity, Section 13E(a) of the Immunity Law authorizes the Knesset Committee to promulgate Rules of Ethics for Members of Knesset. Additionally, Section 13D of the Immunity Law grants the Ethics Committee of the Members of Knesset the authority to judge a member of Knesset, inter alia, in matters involving the violation of the Rules of Ethics. These authorities derive from the Knesset's constitutional authority to determine its working procedures (Section 19 of the Basic Law: The Knesset). In the matter at hand, the Committee ruled that the Petitioner violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. These rules provide as follows:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

24.          The sanctions that the Ethics Committee may impose upon a member of Knesset are set in Section 13D:

 

The Ethics            13D. (a) The member of Knesset who committed

 

 

 

Committee    one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated a rule of the Rules of Ethics. […]

(d)          If the Ethics Committee ruled, by a majority of the votes of all of its members, that the member of Knesset violated the provisions of sub-section (a)(1), (1A) or (2), it may impose one of the following thereon:

(1)          A comment;

(2)          A warning;

(3)          A reprimand;

(3A) A severe reprimand;

(3B) Denial of the right to receipt the right to speak in all or some of the Knesset committees of the plenum, for a period that shall not exceed ten days of sessions;

(3C) Limitations of his activity as a member of Knesset, including prohibiting filing bills, agenda proposals, parliamentary questions, etc. except limitations regarding the right to vote, all as the committee shall decide and for a period that it shall decide and provided that the said period shall not exceed the period that remains until the end of such Knesset's session;

(4)          Removal from the sessions of the Knesset plenum and its committees for a period that shall not exceed six months, provided that the member of Knesset shall be entitled to enter the session solely for the purpose of voting;

(5)          Denial of salary and Other Payments for the period of the absence as stated in Section 2(a) or denial of salary and Other Payments for a period which shall not exceed one year due to any violation of any other provision of Section 13A.

For this purpose, "Other Payments" – payment pursuant to Chapter 9 of the Knesset Law, 5754-1994, and payments by virtue of the Retirement of Office Holders in Government Authorities Law, 5729-1969.

 

(d1) If the Ethics Committee has ruled by a majority of votes of all of its members that a

 

 

 

member of Knesset violated the provisions of sub-section (a)(3), it may exercise its authority pursuant to the provisions of sub-section (d), other than the authority under sub-section d(5).

 

25.          From the above citations, one can conclude that the Ethics Committee may impose any sanction provided in Section 13D(d) of the Immunity Law, other than the sanction provided in Section 13D(d)(5), which addresses the denial of salary or Other Payments, upon a member of Knesset who violated any of the Rules of Ethics. In the case at hand, the Ethics Committee imposed a sanction upon the Petitioner pursuant to Section 13D(d)(4) of the Immunity Law, i.e., a sanction of removal from the sessions of the Knesset plenum and its committee for six months. Prima facie, it is the maximum sanction that could be imposed due to violation of any of the Rules of Ethics. It shall be noted that the option of imposing such a sanction was added in the amendment to the Immunity Law from 2002 (Knesset Members Immunity, Rights and Duties Law (Amendment no. 28), 5762-2002). I shall return to the matter of the sanction further on.

 

26.          The parties to the Petition before us assumed that the above-quoted remarks by the Petitioner are covered by the material immunity that is granted to her as a member of Knesset, under Section 1(a) of the Immunity Law. This leads to the question whether or not said immunity prevents the Ethics Committee from addressing these remarks. In my opinion, the answer should be negative. In HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) (hereinafter: the "Makhoul Case"), this Court (President A. Barak, with the consent of Justices A. Procaccia and S. Joubran) ruled that the material immunity of a member of Knesset does not extend to the actions of the Ethics Committee against any of the members of Knesset. There it was ruled as follows:

 

"It has been found that the Immunity Law, in that part that relates to the immunity of a member of Knesset, was primarily meant to allow the member of Knesset to perform his work as required and to protect him against being harassed by the executive authority. The Immunity Law was not meant to prevent the Knesset from dealing with conduct occurring within itself that violate its own Rules of Ethics. Indeed, actions and remarks that fall within the framework of material immunity benefit from broad protection. As such, a member of Knesset's immunity cannot be lifted in consequence thereof. The member of Knesset is not exposed to criminal proceedings or civil actions in consequence thereof. However, such rule does not mean that such actions cannot be the subject of other internal proceedings of the Knesset, in general, and of the proceeding pursuant to Section 13D of the Immunity Law [a proceeding before the Ethics Committee – M.N], in particular. This does not mean that the Ethics Committee is prevented from handling them […]. Indeed, the material immunity protects the member of Knesset against legal actions being taken against him. However, such legal action

 

 

 

does not include actions which the Knesset takes vis-à-vis itself, when at hand are internal Knesset matters […]" (on page 388; emphases added – M.N).

 

Similarly, in the Miari Case, the justices were of the opinion that the material immunity does not apply to sanctions which the Knesset imposes upon its members, pursuant to its By-Laws, which also incorporate the Rules of Ethics (HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 218-219, 234 (1987) (hereinafter: the "Miari Case")). Therefore, according to case law, material immunity does not shield members of Knesset from the authority of the Ethics Committee (compare: Bar Association Appeal 8/79 Sufrin v. The Tel Aviv District Committee of the Bar Association, PD 34(4) 185, 188 (1980) (hereinafter: the "Sufrin Case")). The Petitioners are not asking that we deviate from this case law, but rather that we interpret it narrowly. According to them the Makhoul rule applies only to circumstances relating to remarks that were made within the Knesset building or to slanderous remarks which can disrupt the Knesset's proper work or can harm the internal relationships between its members. Whereas in the case at hand, we are dealing with, what the Petitioners refer to as "pure" political remarks made in the media. I do not accept this distinction proposed by the Petitioners. Indeed the circumstances of the Makhoul Case were different from those at hand, since that case regarded a sanction that the Ethics Committee imposed due to prejudicial remarks against the government, which were made during a speech in the Knesset plenum. Notwithstanding, the main question that was raised and discussed in the Makhoul Case was a question of principle, and it addressed the relation between the Rules of Ethics and  the material immunity granted to members of Knesset. The Court ruled on this question, and  determined  that imposing sanctions  due  to  unethical  actions or remarks does not constitute a circumvention of the material immunity:

 

"Section 13D, which anchors the authorities of the Ethics Committee, does not prejudice the material immunity that is prescribed in Section 1 [of the Immunity Law – M.N.]. In fact, this section, which provides for an internal judgment mechanism, an ethical-disciplinary judgment, is meant to complement and realize the Immunity Law's underlying objectives. Actions taken at an ethical level do not circumvent the protection that is granted to the member of Knesset in the Immunity Law. It is not for no reason that the Ethics Committee's authorities are anchored in the Immunity Law which determines the members of Knesset's immunity. Section 13D complements that which is stated in Section 1. Thus, while Section 1 exempts the member of Knesset from civil or criminal liability due to unethical remarks said in the framework of fulfilling his position (or for the sake of fulfilling his position), Section 13D, which is of the same normative standing, clarifies that the member of Knesset is not absolutely exempt. Indeed, Section 13D of the Immunity Law reflects the 'interest of the Knesset itself to denunciate negative conduct among its member, and the public importance this must be granted'[…]"

 

 

 

(on page 339; emphases added – M.N).

 

These statements are also relevant to the remarks which are the subject of our discussion, even though they were made outside of the house and not in connection with a specific organization or person. The material immunity was meant to ensure that a member of Knesset would have freedom of expression and opinion, without being concerned that this could cost him in a criminal conviction or a personal monetary charge in a civil proceeding (see: HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 300 (2006) (hereinafter: the "Bishara Case");

HCJ 1843/93 Pinchasi v. The Israel Knesset, PD 49(1) 661, 682 (1995); Criminal Appeal 255/68 The State of Israel v. Ben Moshe PD 22(2) 427, 439 (1968)). Additionally, the material immunity was meant to promote parliamentary supervision of the executive authority, without being concerned of being harassed thereby. However, the material immunity was not meant to protect a member of Knesset against internal criticism applied by the Ethics Committee. As has been ruled "The purpose of the Immunity Law was not to grant the legislative authority a mechanism that would prevent it from critiquing the actions of its members, while frustrating its constitutional authority to determine its own procedures […]" (the Makhoul Case, on page 337; emphasis added – M.N). The objective of the Immunity Law is not to prevent the Knesset from taking actions at the internal-ethical level, pursuant to the Rules of Ethics that were determined. Such conclusion is also supported by the material differences between these arrangements: a ruling that a certain act by a member of Knesset is not covered by the material immunity or that immunity should be lifted also has implications towards entities outside of the Knesset. In contrast, the ethics proceedings are internal proceedings (see and compare: the Miari Case, on page 196; compare: HCJ 306/81 Flatto Sharon v. The Knesset Committee, PD 35(4) 118, 126 (1981) (hereinafter: the "Flatto Sharon Case")). Determining that a member of Knesset's remark is not covered by the material immunity could result in criminal charges, with all that that entails. In contrast, the ruling that a member of Knesset violated one of the Rules of Ethics could at most result in a partial interruption of his parliamentary activity, for a limited period of time (see and compare: Permission for Civil Appeal  7504/95  Yassin  v. The Registrar of  Parties,  PD 50(2)  45 (1996); the Bishara Case, on pages 313-314, 318; compare: Permission for Civil Appeal 2316/96 Isaacson v. The Registrar of Parties, PD 50(2) 529 (1996); see also in  the  judgment of the  European Court  of Human Rights, in  which the majority opinion addressed the distinction between immunity that is granted to a member of parliament and internal parliamentary critique of his conduct; A. v. United Kingdom, 2002-X Eur. Ct. H. R. 917, para 86). The harm caused by determining that a member of Knesset violated one of the Rules of Ethics is less intense than in the case of determining that material immunity does not apply to his actions. The applicability of the material immunity and its objectives can be a consideration in the framework of the Ethics Committee's decisions, but they do not undermine its authority. In light of that stated, even assuming that the Petitioner's remarks are covered by the material immunity, there was nothing preventing the Ethics Committee from addressing them pursuant to the existing Rules of Ethics.

 

27.          As mentioned, the Petitioners further argued in a general and sweeping manner that  the  Ethics  Committee  has  no  authority  to  address  political  remarks  by

 

 

 

members of Knesset and that its authority is limited to inappropriate conduct of members of Knesset within the house or to the internal relationships between the members. I do not accept these arguments. Indeed, freedom of political expression is of special importance for a member of Knesset, since it is by such means that the member of Knesset expresses the positions of the public that elected him. This is particularly true when a member of Knesset who represents a minority group is concerned (see also, in a context similar to the matter at hand, the position of the European Court of Human Rights in this matter: Szel v. Hungary, App. no. 44357/13 (Sep. 16, 2014) (hereinafter: the "Szel Case"); Karacsony v. Hungary, App. no. 42461/13 (Sep. 16, 2014) (hereinafter: the "Karacsony Case")), "The political expression – the speech, the article, the interview – are the primary workings tools of the member of Knesset" (the Bishara Case, on page 325; see also, ibid, on page 317). The freedom of expression also affects the disciplinary rules that apply to members of Knesset (compare: Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel (January 1, 2002) (hereinafter: the "Sheftel Case"); Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227, 237 (1986)). Due to freedom of expression, the ethical review of remarks by a member of Knesset must be as limited as possible. Indeed, the Ethics Committee instructed itself – and justifiably so – to refrain, to the extent possible, from limiting the members of Knesset's freedom of political expression. In Decision 2/19, the committee decided as follows:

 

"[…] If, in all that relates to political remarks, the committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing,  slandering, mudslinging and humiliating of individuals and publics, the committee's position is materially different. The committee is of the opinion that such remarks materially harm the status of the Knesset and its dignity […]" (emphasis omitted – M.N).

 

28.          The Ethics Committee expressed a similar position in additional principle decisions (see: Decision 83/18 of the Knesset's Ethics Committee "In the Matter of Complaints regarding Remarks by Members of Knesset Against Persons and Organizations" (December 31, 2012); Decision 7/18 of the Knesset's Ethics Committee "In the Matter of Ethics and Freedom of Expression – the Committee's Decisions regarding Remarks by Members of Knesset" (October 12, 2009)). However, this does not mean that the committee is not authorized to address extreme expressions that amount to supporting acts of terror against the citizens of the State or identifying with such actions. The purpose of the Rules of Ethics for Members of Knesset is to maintain proper conduct by members of Knesset in order to foster the public's trust in the Knesset, preserve the dignity of the Knesset and its integrity (see and compare: the Sheftel Case, paragraph 22 of my judgment, Bar Association Appeal 2579/90 Bar Association District  Committee  v. Anonymous, PD 45(4) 729, 733 (1991); see also: the Report of the Committee for Preparing the Rules of Ethics for Members of Knesset, December 2006, on pages 43-45 (hereinafter: the "Rules of Ethics Preparation Committee Report")). The public's trust in the Knesset may also be prejudiced by remarks made by a member

 

 

 

of Knesset outside of the Knesset, which are not necessarily related to inappropriate conduct within the Knesset or to the internal relationships between its members. This is the case, for example, when an act or remark that is interpreted as supporting violence against citizens is concerned. A member of Knesset carries the Rules of Ethics with him wherever he goes (compare: the Sheftel Case, paragraphs 13-16 of my judgment). Their applicability is not limited to his relationship with other members of Knesset or internal parliamentary conduct. It is possible that the applicability of the Rules of Ethics on remarks outside of the Knesset is narrower. However, the circumstances of the case at hand are extreme. It is worth noting that the code of ethics for members of Parliament in Britain, to which the Petitioners referred, provides that the Rules of Ethics are not intended to regulate a member of Parliament's conduct in his personal life, outside the walls of the parliament. However, conduct by a member of Parliament that significantly damages the reputation or the integrity of the parliament or its members is excluded from that rule (U.K Code of Conduct for Members of Parliament (passed pursuant to the Resolution of the House of Jul. 19, 1995) § 2-3 (hereinafter: "U.K. Code of Conduct for Members of Parliament").

 

29.          The Petitioners further argued that the Ethics Committee's decision in the case at hand does not coincide with its above-mentioned principle decisions which reject intervening in the members of Knesset's freedom of political expression. However, these decisions do not constitute a precedent that denies the committee of its authority to address extraordinary remarks which in its opinion constitute a violation of the Rules of Ethics. The Ethics Committee elaborated on this matter in its decision that addressed harsh remarks by a member of Knesset during the "Pillar of Defense" operation, against those he referred to as "leftists":

 

"The majority of the complaints that have been filed to the Ethics Committee in the 18th Knesset were related to remarks by members of Knesset. The Ethics Committee, despite repeatedly being of the opinion that harsh and outrageous remarks were at issue, decided, in the majority of cases, not to exercise its  authorities, based on an orientation  of not narrowing the members of Knesset's freedom of expression […] however the fundamental principle of freedom of expression cannot protect anything a member of  Knesset says, and the committee is of the opinion that this is one of the cases in which it must intervene and express its opinion that a line has been crossed between a legitimate, albeit harsh and outrageous, statement and words of incitement. Statements in the form of 'Leftists Out', 'Leftist to Gaza' and 'Leftist Traitors' are not statements in the framework of the broad freedom of political expression which is granted to members of Knesset and do not coincide with the proper and expected conduct of a member of Knesset […]" (Decision 85/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Michael Ben Ari regarding Remarks" (December 31, 2012)) (emphasis added – M.N.)

 

 

 

30.          The Ethics Committee also found it to be justified in other cases to exercise its authority with regard to remarks by members of Knesset which encouraged acts of terror or violence. For example, the committee decided to apply sanctions for statements praising Shahids (martyrs) (Decision 73/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Ahmad Tibi due to a Speech on Martyrs Day'" (March 5, 2012) (hereinafter: the "Decision regarding the "Martyrs Day"")); for public support of the Intifada (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Uri Yehuda Ariel against Knesset Member Ahmad Tibi" (June 24, 2003) (hereinafter: the "Decision regarding Supporting the Intifada")); and for the statement "Whoever removed sovereign land from the State of Israel – is to be sentenced to death" (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Colette Avital against Knesset Member Arie Eldad" (June 24, 2008) (hereinafter: the "Decision in the Matter of Knesset Member Eldad"). Therefore, the Ethics Committee's principle decisions do not prevent its intervention in the current case and exercising the committee's authority with respect to remarks of the kind addressed in the Petition is not unprecedented.

 

31.          An additional argument by the Petitioners regarding the Committee's authority is that there is no explicit provision in the Knesset's By-Laws or in the Rules of Ethics that authorizes the Ethics Committee to impose sanctions against the Petitioner's remarks. The Petitioners argued that Rule 1A of the Rules of Ethics – upon which the Ethics Committee's decision in the Petitioner's matter relied – is a "declaratory section that includes abstract principles and values and therefore has only an interpretational declaratory status" (paragraph 39 of the Petition), and does not have operative status. This argument, too, is to be denied. The provision of Rule 1A of the Rules of Ethics for Member of Knesset, as was presented above, prescribes fundamental values which bind the member of Knesset, such as promoting society and the best interest of the State and preserving the dignity of the Knesset and its members. Other Rules of Ethics regulate a series of specific matters, such as additional occupation of a member of Knesset (Chapter E of the Rules of Ethics) or provisions that relate to a declaration of capital (Chapter F of the Rules of Ethics).

 

32.          The fundamental values that were prescribed in Rule 1A of the Rules of Ethics outline general criteria for the members of Knesset's conduct (compare: Bar Association Appeal 7892/04 The Tel Aviv District Committee of the Bar Association v. Boteach, paragraph 14 of Deputy President M. Cheshin's judgment (May 10, 2005) (hereinafter: the "Boteach Case")), and express the need to preserve the public's trust in the Knesset. I am of the opinion that they should be considered as having an independent status, which allows imposing ethical sanctions in consequence of the violation thereof. This is necessary since naturally, specific rules of ethics do not cover all the issues that could arise at an ethical level. In the absence of a specific rule that regulates a specific situation, the member of Knesset can  find guidance in  advance in the  general values; and retroactively, the Ethics Committee can decide that a member of Knesset violated the Rules of Ethics, by violating one of the general values (see also: the Rules of Ethics Preparation Committee Report on pages 45-46; Proposal for Code of Ethics that was Submitted by the Knesset Committee's Rules of Ethics Preparation Sub-Committee,  2011;  Assaf  Shapira  "Ethics  in  the  Knesset"  Parliament  70

 

 

 

(2011). This illustrates the advantage of normative arrangements that are formatted as principles, which allow them to be applied in dynamic circumstances (for the distinction between rules and principles see, for example: Aharon Barak Purposive Interpretation in Law 248-249 (2003)).

 

33.          My conclusion also coincides with this Court's judgment in the Makhoul Case, where the Court did not find cause to intervene in the ethical sanctions that were imposed upon a member of Knesset in consequence of violating Rule 1A of the Rules of Ethics. It shall be noted that Rule 1A, as well as Rule 2 of the Rules of Ethics, which also outlines general criteria for the conduct of the members of Knesset, has served in various cases as the basis for imposing ethical sanctions on members of Knesset (see, for example: Decision 30/17 of the Knesset's Ethics Committee "In the Matter of Mutual Complaints of Knesset Member Effi Eitam and Knesset Member Ahmad Tibi" (May 27, 2008); Decision 2/17 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Ruhama Avraham against Knesset Member Sofa Landver" (July 11, 2006)). Furthermore, general principles exist in various systems of disciplinary rules. The violation of these principles could justify imposing a disciplinary sanction upon the violating party. For example, the Rules of Ethics for Lawyers include general principles, the violation of which could raise cause for being found guilty of a disciplinary offense (see: Rules 2, 23, 32-33 of the Bar Association (Professional Ethics) Rules, 5746-1986); the Boteach Case, paragraph 14 of Deputy President M. Cheshin's judgment; Bar Association Appeal 736/04 District Committee of the Bar Association v. Mizrachi PD 58(6) 200 (2004); Bar Association Appeal 2379/07 Tel Aviv – Jaffa District Committee of the Bar Association v. Rosenzweig (February 12, 2008); also see and compare: Section 61(3) of the Bar Association Law, 5721-1961, which prescribes that any act or omission that do not befit the legal profession are, inter alia, a disciplinary offense; Bar Association Appeal 15/88 Anonymous v. The  State's Attorney, PD 43(1) 584. 588 (1989); Bar Association Appeal 17/79 Tel Aviv Jaffa District Committee of the Bar Association v. Anonymous, PD 34(3) 756, 660-661 (1980); also see: Gabriel Kling Ethics For Lawyers 489-494 (2001)).

 

34.          Similarly, the Rules of Ethics for judges include general principles, the violation of which has operative implications (see: Rules 1-7, and particularly Rule 2(b) of the Rules of Ethics for Judges, 5767-2007; see also: Gabriel Kling Ethics for Judges 15-16 (2014)). Accordingly, the judges' ethics committee has refrained from approving certain actions in advance, based on general principles, such as the principle that a judge must refrain from actions which do not befit his status (see: Decision A/13/17 (February 25, 2013), which did not permit judges to participate in a personal mentoring venture of the Executives Program in the School of Public Policy; Decision A/11/53 (July 27, 2011), that it would not be appropriate to allow charging the parties to a legal proceeding a judge's travel expenses; see also Section 18(a) of the Courts [Consolidated Version] Law, 5744-1984, which prescribes that the Minister of Justice may file a complaint to the disciplinary court against a judge who behaved in a manner that does not befit the status of a judge in Israel). Thus, applying such a rule with respect to the Rules of Ethics for Members of Knesset is not unusual compared to other systems of disciplinary rules. In any event, the Ethics Committee has broad authority to address matters that relate to the ethics of the members of Knesset, including a matter that does not have a

 

 

 

provision in the Rules of Ethics (Rule 24 of the Rules of Ethics). It follows, a fortiori, that the committee is authorized to address the violation of the general values which are anchored in the rules themselves.

 

35.          Among the general principles that are set in Rule 1A are the member of Knesset's obligations to act to advance the best interest of the State and preserve the dignity of the Knesset. The decision at hand is based on these obligations. Once I have reached the conclusion that the committee is authorized to address the violation of the general principles, it follows that it is, inter alia, authorized to address the duty to act for the benefit of the best interest of the State. As such, the Petitioners' argument that the Ethics Committee cannot decide who is acting for the benefit of the State, since such a decision is reserved for the voting public or that such a decision opens "a dangerous opening for political persecution" (paragraph 34 of the Petition), is in fact directed against the Rules of Ethics themselves and not towards the decision which is the subject of the Petition. In comparison, the Rules of Ethics in Britain include similar principles, including the duty of the members of Parliament to act in the interests of the nation as a whole (U.K. Code of Conduct for Members of Parliament § 4-7).

 

36.          In light of that stated above, the decision of the Ethics Committee was given within its authority. The question that remains is whether it is appropriate to intervene on the merits of the decision. On this level, the question that arises is whether the Petitioner's remarks constitute a violation of the Rules of Ethics, and if so – whether the sanction that was imposed due to such violation befits the severity of the offense. It shall already be clarified here that the Petitioners' arguments focused on the question of the Ethics Committee's authority to address the Petitioner's remarks, and not on the question of whether the committee was correct in its conclusion that ethical obligations were violated (compare: the Sheftel Case, paragraph 11 of my judgment). As mentioned, the Petitioners also argued that it is appropriate to intervene in the sanction that was imposed upon the Petitioner. However, in order to present a complete picture, I shall address the question of whether or not the Rules of Ethics were violated.

 

The Discretionary Level: Was the Ethics Committee's Decision that is the subject of the Petition Adopted Lawfully?

 

37.          The examination of the Ethics Committee's decision in the case at hand derives from the scope of the judicial review of the Ethics Committee's decisions (see: the Makhoul Case, on page 340). The scope of the judicial review of the Knesset's decisions changes in accordance with the essence of the decision under review: Legislative acts that were completed, internal parliamentary proceedings and quasi-judicial decisions (see: HCJ 652/81 Sarid v. The Chairperson of the Knesset, PD 36(2) 197 (1982); the Flatto Sharon Case, on pages 124-126)). When the Ethics Committee addresses complaints against members of Knesset, it is fulfilling a quasi-judicial duty (the Makhoul Case, on page 340; HCJ 7993/07 Legal Forum for Israel v. The Knesset's Ethics Committee, paragraph 6 of my judgment (April 30, 2009) (hereinafter: the "Legal Forum A Case"); HCJ 6280/07 Legal Forum for Israel v. The President of the State, paragraph 22 of Justice A. Procaccia's judgment (December 14, 2009) (hereinafter: the "Legal Forum B Case")).

 

 

 

 

In principle, the judicial review that is applied to the Knesset's quasi-judicial decisions is the same as the judicial review that is directed towards quasi-judicial authorities (see: ibid). However, in contrast to other quasi-judicial authorities, the Ethics Committee of the Members of Knesset, mainly addresses internal Knesset matters that relate to discipline and the ethics of its members. "[…] the essence of the activity of the Ethics Committee, in contrast, for example, from the removal of immunity which is performed by the Knesset Committee, is directed internally towards the Knesset, and in fact, in general its actions do not have any implications outside of the house of legislators" (the Makhoul Case, on page 343). Therefore, it was ruled that this Court's intervention in the decisions of the Ethics Committee should be in a more limited scope than the scope of intervention in the activity of other quasi-judicial entities in the Knesset (see: ibid). This reflects the Ethics Committee's broad scope of discretion, when handling matters of ethics and discipline of members of Knesset. The Court may intervene when the Ethics Committee's decision was reached in violation of law, or when at hand are material matters such as a violation of basic constitutional rights, the right to due process or violation of the  principles of natural  justice (see: the Legal Forum A Case, paragraph 6 of my judgment; the Legal Forum B Case, paragraph 22 of Justice A. Procaccia's judgment). In general, "[…] the more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the  actions deviates from the proper extent, this more this Court will be willing to intervene" (the Makhoul Case, on page 344).

 

38.          As mentioned above, the Ethics Committee ruled that the Petitioner's remarks, in light of their content and sensitive timing, do not coincide with the best interest of the State and severely prejudice the public's trust in the Knesset and its image. Hence, the Ethics Committee ruled that the Petitioner's remarks violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. For the sake of clarity, I shall requote these Rules verbatim:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4)          Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

The language of Rules 1A(2) and 1A(4) is broad and leaves room for the Ethics

 

 

 

Committee's discretion regarding the manner of their application in specific cases. Such application must be in accordance with the objectives underlying these Rules. The Rules of Ethics reflect the principle that a member of Knesset, as an elected official, is also a trustee of the public. As such, he must make the public interest a higher priority compared to his personal matters. This also leads to the need to preserve the public's trust in the Knesset, and the Rules of Ethics are a means to realize this trust (On the importance of public trust in governmental authorities in general, see HCJ 6163/92 Eisenberg v. The Minister of Construction and Housing, PD 47(2), 229 (1993); and also see: HCJ 4921/13 OMETZ – Citizens for Good Governance and Social Justice v. The Mayor of Ramat Hasharon (October 14, 2013)).

 

39.          It is, therefore, my opinion that the committee's conclusions did not deviate from the broad range of discretion granted to it. The Petitioner's statements in the Interview and the Article were interpreted as a support of terror and the killing of civilians. In the case at hand it is not criticism of the government's policy during wartimes that is at issue and not even criticism of legislation in the Knesset or of other political maneuvers of the majority. The severity of the matter is enhanced considering the timing of the Petitioner's remarks, just a few days after the abduction of the teenagers, at a time when their fate was unknown, and in the midst of the "Protective Edge" operation. Additionally, the cumulative effect of the Petitioner's remarks, which were published in proximity to each other, must also be taken into consideration. Considering all of the circumstances of the current case – the Petitioner has gone too far. The Ethics Committee ruled that the Petitioner's statements amount to "legitimizing acts of terror against the citizens of the State", and that this is a violation of the Rules of Ethics. Indeed, words of support of terror of any kind, from either side, could severely prejudice the public's trust in the Knesset and its image. Therefore, and taking into consideration the nature of the Petitioner's remarks and their timing, it is inappropriate to intervene in the committee's conclusions that the Petitioner's statements severely harm the public's trust in the Knesset and its image, and violate Rule 1A(4) of the Rules of Ethics. The committee further ruled that the Petitioner's remarks violate rule 1A(2) of the Rules of Ethics that, inter alia, provides that a member of Knesset shall act to advance the State's best interest. It appears that the main objective of this rule is to guarantee that members of Knesset will act for the sake of the public interest, and shall not take advantage of their status and authorities for the sake of personal matters. In the case at hand, prima facie, the Petitioner's remarks were not intended to promote her personal affairs. Notwithstanding, it appears that both extreme remarks and actions which legitimize acts of terror against the citizens of the State do not coincide with the State's best interest (compare: the Miari Case, on pages 226-227). The Petitioners themselves agreed that statements that encourage and support violence are not legitimate. In support thereof, both in the Petition and in the hearing before us, the Petitioners provided a series of "explanations" of the Petitioner's remarks, and asked that we not perceive them as supporting terror. With respect to the Petitioner's statements regarding the abductors of the teenagers

– "they are not terrorists" – it was explained that the Petitioner's principle position is not to use the term "terror" in Israeli media. Since, according to her, the term "terror" is used in Israeli media only to describe Palestinian violence and not to describe Israeli violence against the Palestinian population. As to the Petitioner's Article, the Petitioner's intention when calling upon the Palestinians to turn to

 

 

 

"popular resistance" and to impose a "siege" on Israel, which was interpreted by the Ethics Committee as supporting a violent uprising against the State of Israel, was not explained in the Petition. In his oral arguments before us, the Petitioner's attorney explained that the Petitioner's intention in her Article was to encourage non-violent civil Palestinian resistance, and to express support for a "political siege" on Israel. In response to our questions, the Petitioner's attorney even stated that if the Petitioner's intention was to support a military siege, this would be problematic. However, these explanations were given retroactively, by the Petitioner's attorney, and not by the Petitioner herself. The Petitioner did not provide them to the Ethics Committee in her filed response and not even to the Knesset plenum in her appeal. It would have been appropriate for the Petitioner's explanations to be given in the framework of her response to the complaint that was filed to the Ethics Committee, and at least in the framework of her appeal of the committee's decision (compare: the Makhoul Case, on page 344). In any event, these explanations – which as mentioned were only given retroactively – are not sufficient to justify our intervention in the Ethics Committee's decision. The Petitioner's remarks were not published in the media with explanatory notes. The spirit of the statements, despite the Petitioner's later reservations, is that of identification with acts of terror and support of violence, as a means of attaining political objectives. In my opinion, in these circumstances it is inappropriate to rule that the Ethics Committee's decision that the Petitioner violated the Rules of Ethics was flawed in a manner that justifies our intervention. I shall clarify that this judgment only addresses the violation of the Rules of Ethics by the Petitioner, and no other matter.

 

40.          The Petitioners requested that we intervene in the sanction that was imposed upon the Petitioner, due to it being, according to them, discriminatory and disproportionate. We have ruled, by a majority of opinions, that such intervention is inappropriate in the circumstances at hand. I elaborated above on the fact that the Ethics Committee has broad discretion, and this is true also with regard to prescribing the sanction. However, the committee's broad authority is not to be interpreted as a permit to impose arbitrary sanctions. When imposing a sanction due to the violation of the Rules of Ethics, the Ethics Committee must take a variety of considerations into consideration. In general, the sanction imposed must be proportionate to the severity of the ethical offense committed by the member of Knesset (see: the Makhoul Case, on page 344). Subsequently, the committee must take the severity of the offense and the circumstances in which it was committed into consideration. As to remarks by members of Knesset, their content, subject matter and timing must, inter alia, be taken into consideration. A remark that slanders or humiliates individuals and publics does not carry  the  same consequence as another extraordinary and extreme remark (see also in this matter: the Ethics Committee's Decision "In the Matter of the Amendment of the Knesset Members Immunity, Rights and Duties Law, 5711-1951" (June 24, 2002)). Among all of its considerations, the Ethics Committee must also include the circumstances of the concrete member of Knesset who is being judged thereby, including the question whether he expressed remorse for his actions and his entire disciplinary past (for Ethics Committee decisions in which such considerations were considered, see, for example: The Knesset's Ethics Committee's Decision "In the Matter of Ziv Price, Eliezer Dvir and Pinchas Wolf against Knesset Members Ahmad Tibi, Taleb el-Sana and Jamal Zahalka" (June 22, 2004) (hereinafter: the

 

 

 

"Decision in the Matter of Knesset Members Tibi, el-Sana and Zahalka"); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Limor Livnat, Minister of Education, Culture and Sport against Knesset Member Issam Makhoul" (December 21, 2004); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 19, 2005); the Knesset's Ethics Committee's Decision "In the Matter of the Complaints of Knesset Member Arie Eldad and Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 26, 2005); the Makhoul Case, on page 344; and compare to Decision 64/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Danny Danon against Knesset Member Hanin Zoabi" (January 3, 2012) (hereinafter: "Decision 64/18")). It must also take the punishing standard in similar cases into consideration.

 

And From These General Principles – To the Case at Hand.

 

41.          In the circumstances at hand, we have not found it appropriate to intervene in the sanction that was imposed upon the Petitioner. The Ethics Committee has a broad range of proportionality and the Petitioner's remarks are especially severe, particularly – considering their timing. The severity of the statements is also reflected in the Attorney General's decision in the Petitioner's matter. While the Attorney General did not find justification to open a criminal investigation in this case, he did find it appropriate to state that his decision does not prevent taking actions against the Petitioner at an administrative or ethical level (also compare with: the Sufrin Case, on page 188). The Ethics Committee also took the impact of the decision and its accompanying sanction on the Petitioner's freedom of expression into consideration among the entire considerations, and emphasized the importance of the right to publicly criticize the government during times of war. The Ethics Committee indeed weighed relevant considerations from every direction, which were reflected in the reasoned decision. The Petitioner was given the right to be heard both before the committee and before the Knesset plenum, in the framework of her appeal. In addition, according to the data on the Knesset's website, the decision to reject the Petitioner's appeal was adopted by a significant majority, which also included members of Knesset from the opposition, and on the other hand, one of the members of Knesset from the coalition voted in favor of accepting the Petitioner's appeal. The proceeding in the case at hand was conducted while maintaining the Petitioner's procedural rights. The Petitioner's conduct during the procedure created the impression that she did not take it seriously. As mentioned, some of her explanations were first presented during oral arguments before us, by her attorney and not by her.

 

42.          Indeed the sanction that was imposed upon the Petitioner – being removed from sessions of the Knesset's plenum and its committees for the maximum possible period of time – is the most severe sanction in the existing scale of penalties. There was no dispute that this sanction had never in the past been imposed for the maximum period of time prescribed in the Immunity Law. However, in the circumstances of the case, the Petitioners' argument of discrimination and lack of proportionality, cannot be accepted. This is not the first time that the committee attributes significant severity to such remarks, remarks that encourage acts of terror or violence (see: the Decision regarding the "Martyrs Day", the Decision

 

 

 

regarding Supporting the Intifada). At the ethical level – which is meant, inter alia, to preserve the public's trust in the Knesset – remarks that express support of terror or violence against citizens, are no less serious than threats or slander that are directed at a specific sector or person. In this context it shall be noted that the majority of the decisions that were quoted in the Petition do not address remarks of this kind, and in any event not remarks during times of war or terror events. I have not ignored the judgments in the above-mentioned Szel Case and Karacsony Case, in which the European Court of Human Rights addressed fines that were imposed on opposition members of Parliament in Hungary, due to unethical conduct during sessions in parliament. At issue there, were acts of protest against a controversial bill (in the Szel Case) and acts of protest against the conduct of the majority party (in the Karacsony Case). These acts of protest included, inter alia, waving signs. The European Court ruled that indeed the fines that were imposed infringed the members of Parliament's right to freedom of expression in a disproportionate manner and ordered that they be cancelled; however the remarks in these cases are less severe than in the case before us. The Ethics Committee indeed has never before imposed a penalty of removal for the duration of six months, but penalties of this kind had been imposed for shorter periods of time – both for remarks and for actions (see, for example: Decision 7/19 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Meir Porush" (November 13, 2013) (removal from Knesset plenum sessions for two weeks); Decision 66/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Anastasia Michaeli" (January 10, 2012) (removal from sessions of the Knesset plenum and its committees for a month); The Decision in the Matter of Knesset Member Eldad (removal from sessions of the Knesset plenum and its committees for one day); The Decision in the Matter of Knesset Member Tibi, el-Sana and Zahalka (removal from sessions of the Knesset plenum and its committees for two days)). An examination of the Petitioner's entire disciplinary past indicates that her remarks have been discussed by the Ethics Committee many times. In some of the cases it was found that she did not violate the Rules of Ethics or that it is inappropriate to impose a sanction for her remarks, and in some of the cases various penalties were imposed upon her (see, for example: Decision 64/18; Decision 55/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Hanin Zoabi due to her Participation in the Flotilla to Gaza in May, 2010" (July 18, 2011); Decision 52/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Legal Forum for Israel against Knesset Members Hanin Zoabi and Jamal Zahalka" (July 5, 2011)). I shall at this point note that in my opinion no weight should be attributed to the mere filing of complaints against a member of Knesset, as in the case at hand. According to the law, any person may file a complaint against a member of Knesset (Section 1of the Knesset Members Ethics Procedure (Complaints)). Many complaints are not accepted and many are dismissed in limine. Granting weight to complaints that were filed – even if they were not found to have any substance – could lead to abuse of this tool and to unjustified harm to members of Knesset. However, this consideration did not receive significant weight in the decision which is the subject of our discussion.

 

43.          I shall not deny that I was concerned by the "quantum leap" in the sanction that was imposed in this case. As may be recalled, the sanction of removal was added

 

 

 

to the Immunity Law in 2002, and as such, in general, should be imposed gradually (see and compare: Criminal Appeal 1042/03 Meretzplas Limited Partnership Ltd. (1974) v. The State of Israel PD 58(1) 721, 731-732 (2003); Criminal Appeal 7936/13 Levy v. The State of Israel, paragraph 46 of Justice N. Solberg's judgment, paragraph 2 of my judgment (December 16, 2014)). However, from a practical perspective, we are not dealing in this case with the Petitioner's complete removal from the Knesset's activity for six months. The summer recess, during which the Knesset operates in a limited format, took place during the first half of the removal. During the recess the Knesset plenum convenes only in extraordinary cases and Knesset committees also convene less frequently. As such, during the recess the two committees in which the Petitioner is a member convened only five times (but it shall be noted that meetings of other committees were also held), while according to the Knesset's website, during the month of November, these committees held more than twenty meetings. Furthermore, there was an elections recess during the seven weeks that remained of the period of removal, from the time of the hearing before us that was held on December 9, 2014, and the judgment that was given the following day. Therefore, the practical significance of intervening in the sanction in these circumstances is miniscule, if at all existent. I shall emphasize that in any event, the Petitioner's right to vote was not denied, and furthermore, that the sanction does not prevent the Petitioner from using parliamentary tools, such as filing bills, proposals or questions. At issue also is not a suspension from the Knesset (compare: the Flatto Sharon Case, on page 126). Considering all of the reasons mentioned above, I have not found justification for our intervention in the broad discretion granted to the Ethics Committee.

 

44.          Epilogue: The Petition is denied without an order for expenses, as stated in our judgment dated December 10, 2014.

 

The President

 

Justice E. Hayut

 

1.            I concur with the opinion of my colleague the President, both with regard to the question of the Ethics Committee's authority to impose sanctions against the Petitioner for the remarks which are the subject of the Petition and with regard to the conclusion that the authority in the circumstances at hand was exercised lawfully. I also share my colleague's remarks (paragraph 43 of her opinion) regarding the excessive severity of the sanction that was exercised in the case at hand. However, like my colleague, I am of the opinion that it is inappropriate to intervene since in the case at hand the severity of the sanction has de facto been mitigated to a considerable degree, given the fact that the majority thereof occurred during the summer recess – and this was taken into consideration by the committee – and during the election recess – even though this was not known at the time the sanction was imposed.

 

Due to the matters that emerged in this Petition, the importance of which cannot be overstated, I have found it appropriate to add two short comments: one – relates to not exposing the minutes of the Ethics Committee and the material presented thereto to be reviewed by the Petitioner despite her request in this

 

 

 

matter, and the second – relates to limiting the freedom of political expression of an elected official who represents a minority group in society.

 

The  Refusal  to  Deliver  the  Minutes  of  the  Committee  and  the  Material Presented thereto to the Petitioner's Review

 

2.            My colleague elaborated in her opinion on the fact that the Petitioner approached the Ethics Committee and requested, "in order to file a petition to the High Court of Justice", to review the minutes of its meetings and the material presented thereto in preparation for it reaching a decision, but was refused. The Knesset's legal counsel reasoned the refusal by referring to Rule 21 of the Rules of Ethics for Members of Knesset, which provides that the ethics proceedings, including the documents and the minutes, are privileged, and are not to be published except with the committee's written permission, and subject to the terms it shall prescribe. The legal counsel further stated in his response to the Petitioner that while the use of material and minutes of the committee's meetings for the purpose of legal proceedings is one of the exceptions the committee recognizes in this context, it is his position that this should not include a legal proceeding that is meant to challenge the decision of the Ethics Committee itself, due to the concern that this could adversely affect the committee members' ability to properly fulfill their duties. Finally, the legal counsel stated in his response to the Petitioner that if the Petition shall be filed, the minutes of the committee's session shall be delivered for the Court's review only. And indeed, immediately following the filing of the Petition, the Respondents delivered the minutes of the committee's session, in a sealed envelope to be reviewed only by the members of the bench.

 

During the hearing that was held before us on December 9, 2014, the Petitioners' attorney informed us that in order to make the hearing more efficient and to move it forward, he does not insist on the arguments he raised in the Petition regarding the refusal to provide him with the minutes of the committee's session and the material that had been presented thereto, while reserving his arguments in this matter. As such, my colleague did not find it necessary to refer to this matter in her opinion. Without setting rules in the matter, I find it appropriate to note that in my opinion the Knesset legal counsel's  reasons for refusing to make the minutes of the committee's session and the material that had been presented thereto available to the Petitioner, create non-negligible difficulties, in light of the distinction he made between general legal proceedings and legal proceedings that are intended to challenge the disciplinary decision that was adopted by the committee. It appears to me that not making the minutes and the material available to the Petitioner in these circumstances significantly impairs her ability to effectively challenge the decision and therefore it appears to me that the position presented by the Knesset's legal counsel in this context should be reexamined. This Court has elaborated in the past on the intensity of an individual's interest to receive detailed information  regarding a proceeding – disciplinary or other – in which a decision regarding him has been reached, especially in the context of a judicial proceeding against which he wishes to take action, so as to allow him to exercise his right to due process. In HCJ 844/06 Haifa University v. Oz (May 14, 2008) it was ruled in this context as follows:

 

"Whatever the extent of concern that the functioning of the

 

 

 

university examination committees will be impaired, that concern is subordinated to the need to allow the employees who were harmed by the conclusions of these committees to defend themselves against that which was attributed to them and to prove their argument that the decision regarding them was not lawfully adopted… The underlying rationale of this approach is that there is a significant social interest in giving the employees the possibility of exhausting their rights, and the interest of the efficient functionality and existence of such examination committees, however important it may be, does not in and of itself justify recognizing the material as privileged. This is certainly relevant when, as in the case at hand, there was a proceeding before a judicial instance which is addressing a question of the legal validity of the petitioner's decisions regarding changing the terms of employment of respondent 1 and terminating the employment of respondents 2 and 3. In this context, the interest that exists that the said examination committees be efficiently functional is subordinated to the respondents' right to due legal process, in the framework of which they shall be granted the possibility of reviewing all of the material relevant to establishing the arguments against terminating their employment in the School of Theatre" (the Oz Case, paragraph 18, see also: Permission for Civil Appeal 7568/00 The State of Israel – Civil Aviation Administration v. Aharoni, PD 55(5) 561, 565

(2001)).

 

It is my position that the intensity of this interest is certainly not weakened when at hand is a disciplinary proceeding that is being taken against a member of Knesset, and in this context it is not superfluous to add that the proper balance between the need to preserve the proper functionality of the Ethics Committee – the importance of which was elaborated upon in the Knesset's legal counsel's response – and the Petitioner's right to due process, can be obtained by way of stipulating terms and preventing the exposure of certain details, for example with regard to the identity of the speakers in appropriate cases, as per the committee's authority pursuant to the end of Rule 21 (see and compare: HCJ 7793/05 Bar- Ilan University v. The National Labor Court in Jerusalem, paragraph 20 (January 31, 2011); Administrative Petition Appeal 6013/04 The State of Israel

– Ministry of Transportation v. The Israel News Company Ltd. PD 60(4) 60, 96 (2006)). In any event, once the Petitioners did not insist on their argument in this matter, then, as my colleague chose, the ruling on this matter can be left for another time.

 

 

 

Limiting  the  Freedom  of  Political  Expression  of  an  Elected  Official  who Represents a Minority Group in Society

 

3.            In her opinion, my colleague elaborated on the distinguished and special status of the freedom of political expression in the order of constitutional rights, particularly when at hand is a member of Knesset who represents a minority group. This position is grounded in the past rulings of this Court, in HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 336-338 (2006), and in the ruling of the European Court of Human Rights (Szel v. Hungary, 44357/13 (2014) at para 69; Karacsony v. Hungary, 42461/13 (2014) at para 72) to which my colleague referred. See also Tarlach Eoghan McGonagle, Minority Rights and Freedom of Expression: A Dynamic Interface (PhD Thesis, University of Amsterdam, 2008) for the special importance of protecting the freedom of expression of minority groups, in general, and the duty imposed on the state to restrain the infringement of this freedom of expression and to take measures to allow it to be realized.

 

However, the attempt to define what a "minority group" is, is not always an easy task (see and compare for example: Michael M. Karayanni, Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel 1, 42 (January 12, 2015). Available at SSRN:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2548548; Civil Appeal 466/83 Shahe Ajemian, Archbishop in the Armenian Church in Jerusalem v. Archbishop Yeghishe Derderian, PD 39(4) 737, 747 (1986)), and it should also be noted that at times there can be situations in which it appears that it is actually the freedom of expression or other freedoms of the majority that are at risk and need steadfast protection against being infringed upon by certain minority groups. In any event, the freedom of political expression of an elected official, as well as an elected official who represents a minority group, is not absolute, but rather, as any other constitutional right, is relative, and it is not a freedom that is free of any limitations whatsoever. Like my colleague, I am of the opinion that in the case at hand, the Petitioner's remarks crossed the line and exited the zone worthy of protection in the name of freedom of political expression, even considering the fact that she represents a minority group in Israeli society. The Petitioner's statements in the Interview, regarding the abduction of the teenagers, reflect understanding and legitimization of the atrocious act of abduction, and identify with those who committed the act, whom, according to her, should not be referred to as "terrorists". The words the Petitioner wrote in the Article that was published on various websites are no less severe from the perspective of the Rules of Ethics that apply to someone who serves as a member of the Israeli Knesset. In that same Article, the Petitioner went so far as to hand out advice as to the effective ways in which it is possible to fight the State and to harm it. Inter alia, it was written in said Article: "We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith". These words, when voiced by a person who is a member of the Israeli Knesset, justify the steps taken by the Ethics Committee, because they illustrate that what the Petitioner had in mind when writing that Article was neither "the advancement of society and the best interest of the State" nor "fostering public trust in the Knesset". The Petitioner advocates to cease the coordination and the

 

 

 

negotiations between Israel and the Palestinians, which according to her are nothing but part of what she refers to as the "lethal trinity" and instead of negotiations and coordination she calls for popular resistance and imposing a siege on Israel. The Petitioner's attorney's attempt to retroactively argue that this is not a call for violence, is perplexing, inter alia, given the manner the term "popular resistance" is de facto implemented in the reality of our lives.

 

It is important to emphasize that remarks, and particularly remarks by elected officials, which constitute criticism and even extremely harsh criticism, of government policy are completely legitimate, and this is true with respect to remarks that emphasize the suffering of the other party to a conflict and which exhibit empathy towards and understanding of such suffering. This Court elaborated on this in the early days of the State, when stating that the difference between an autocratic regime and a democratic regime is marked by the possibility that is granted to the representatives chosen by the people to scrutinize the acts of government at any time "Whether to cause such acts to be rectified and create new arrangements in the State, or to bring about the immediate termination of those 'governing' or their replacement by others when comes the elections" (HCJ 73/53 'Kol Ha'am' Company Ltd. v. The Minister of Interior PD 7(1) 871, 876 (1953)). However, as mentioned, the Petitioner's remarks, for which the Ethics Committee deemed it appropriate to apply sanctions against her, completely deviated from this legitimate category, even if one takes into consideration the special caution that must be  applied  when dealing with the freedom of political expression of an elected official who represents a minority group.

 

4.            My colleagues emphasized the excessive severity that accompanies  the Petitioner's remarks given that they were made during times of war and crisis. I am of the opinion that it is inappropriate to set different criteria for the protection of the freedom of expression during times of crisis compared to those that should be applied during times of calm. However, it is clear that the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis. President A. Barak elaborated on this in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), when he stated that:

 

"Indeed, Israeli constitutional law has a uniform approach to human rights during times of relative calm and during times of enhanced war. We do not recognize a sharp distinction between the two. We do not have special balancing laws for times of war. Of course, human rights are not absolute. They can be limited during times of calm and times of war… During times of war the likelihood that damage to a public interest shall occur is greater, and the harm to the public interest is more intense, and as such it is possible to limit rights in the framework of the existing criteria… Indeed we do not maintain two systems of rules or balances, one for times of calm and other for times of terror. There is a uniform set of laws and balances, which applied both during times of calm and times of terror (the Adalah Case, paragraph 20; see

 

 

 

also: Abrams v. United States 250 U.S. 616, 627-628 (1919)).

 

Based on the grounds listed by my colleague the President, to which I added a few comments, I am of the opinion that the Petition is to be denied.

 

Justice

 

Deputy President E. Rubinstein

 

A.            I concur with the comprehensive reasons written by my colleague, the President.

 

B.            I shall add some brief remarks: Section 1(A1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 is somewhat of a mirror image of Section 7A of the Basic Law: The Knesset which was adopted a short while earlier and defines when a list or a candidate shall be prevented from participating in the elections to the Knesset.

 

C.            Section 7A of the Basic Law: The Knesset, which was adopted on the 4th of Iyar, 5762 (May 15, 2002) (Sefer Hachukim 5762, 410) prevents a party or a candidate from participating if their goals or actions "explicitly or implicitly include one of the following: (1) denial of the existence of the State of Israel as a Jewish and democratic state; (2) incitement to racism; (3) support of an armed struggle by an enemy state or of a terrorist organization against the State of Israel".

 

D.            Section 1(A1) of the Immunity Law which was adopted on the 13th of Av, 5762 (July 22, 2002) (Sefer Hachukim 5762, 504) excludes that which is listed below from the material immunity of Section 1(A1) of the law which addresses a vote, an expression of opinion or an act while fulfilling the position or for the sake thereof – and we shall already take note of the similarity to Section 7A of the Basic Law:

"(1) Denial of the existence of the State of Israel as the state of the Jewish people.

(2)          Denial of the democratic nature of the State;

(3)          Incitement to racism due to color or belonging to a race or ethnic national origin;

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs due to their being Jewish or Arab, in Israel or abroad."

 

E.            It is not necessary to conduct a meticulous comparison between Sections 1(A1) of the Immunity Law and 7A of the Basic Law in order to receive the impression that we are dealing with provisions that are comparable and correspond to each other. The legislators of Section 1(A1) had the model of the Basic Law before them; see the bill that was filed by Knesset Members Eliezer Cohen, Zvi Hendel, Michael Nudelman and Nissim Ze'ev, Hatzaot Chok 5762, 210, which explicitly addresses this. I shall note that I reviewed the discussions in the plenum in the first reading on January 29, 2002 (in the second and third readings on May 27, 2002, no real discussion was held) and the matters discussed were split between left and right; there was also a reservation to the bill by Minister Dan Meridor. In

 

 

 

any event, the amendment was legislated.

 

F.            In light of the above, it is clear that we are dealing with the core of the Israeli parliamentary duty to which the members of Knesset pledge allegiance pursuant to Section 15(a) of the Basic Law, as follows: "I pledge myself to bear allegiance to the State of Israel and faithfully to fulfill my mandate in the Knesset"; Knesset Member Zoabi also pledged this when declaring "I Pledge" (Section 1(c) of the Knesset Law, 5754-1994). We are not dealing with a marginal matter, but rather one which is undoubtedly at the root of being a member of Knesset; the legislators of Section 1(A1) of the Immunity Law – as mentioned – viewed the matters therein as drawing sustenance from Section 1A of the Basic Law. This Court applied a very restrained approach in the context of Knesset Member Zoabi's candidacy to the Knesset with regard to her compliance with the terms of Section 7A of the Basic Law: The Knesset. Until now an extremely lenient approach was preferred with respect to her, and I shall only mention Election Approval 9255/12 The Central Election Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment dated December 12, 2012, reasons dated August 30, 2013); where President Grunis spoke (in paragraph 34) of Knesset Member Zoabi's activity which "comes very close to the grey area of which Section 7A warns and which it is meant to prevent", and of evidence that came close "to that 'critical mass' of evidence that justifies disqualification" – but the line was not crossed. Additional justices on the bench in that judgment expressed a similar spirit, but the judicial policy of narrowly and stringently interpreting the causes in Section 7A of the Basic Law as being designated for "most extreme cases which cannot possibly be dealt with using ordinary democratic tools" (paragraph 35), was upheld. In the context of the elections, a non-excluding approach was preferred, and subsequently the judicial and democratic tolerance was flexed to its limits. I mention this because ultimately the legal significance is that once Knesset Member Zoabi was elected to the Knesset and pledged allegiance to the State, she is in her position by right and not by grace; see Nathan Alterman's unforgettable poem "The Rebuke to Tawfik Toubi" (The Seventh Column A 276) of the 1950's (also quoted in my article "On Equality for Arabs in Israel" in my Netivei Mimshal UMishpat book (5763- 2003), 278), in which, inter alia, it was said "Such is the nature of democracy: Her servants owe gratitude to no person; In part it may not be easy, but if it shall not go without saying, it shall not be understood by us at all". Often the things that Knesset Member Zoabi says and does are not easy for many Israelis, but they are to be considered "the choosing of the lesser of two evils" (as the words of the Mecelle), and her parliamentary right is in place.

 

G.           We now approach the Rules of Ethics, which are an internal parliamentary layer, and in my opinion should be interpreted both based on their content and taking into consideration the general background of a member of Knesset's obligations, on the one hand, and his or her immunity and the exceptions thereto, on the other hand. Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, "a pressure release valve" to maintain a framework of parliamentary norms. My colleague listed the general values underlying the Rules of Ethics (in paragraph 23), and in the matter at hand, we are dealing with Rule 1A(2) which designates the member of Knesset as "a trustee of the public and it is his duty to represent the public that voted for

 

 

 

him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;" and with Rule 1A(4) pursuant to which the member of Knesset shall "preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset". Indeed, these rules address  fundamental values, but, similarly to my colleague (paragraph 32), I do not accept the argument that they do not have an independent standing; in my opinion they are the soul of the Rules of Ethics, they are what gives them their real essence and their proper application.

 

H.            As my colleague mentioned (paragraph 26), the parties to this Petition assumed that the Petitioner's remarks which are the subject of the complaints are covered by the material immunity by virtue of Section 1(a) of the Immunity Law, which – as mentioned – grants immunity "due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset". I shall take the liberty to doubt whether Knesset Member Zoabi's words which we are addressing meet the criteria of Section 1(A1)(4) which excludes "support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad." However, even with the lenient assumption that my colleague described, it is clear that there is nothing preventing discussing Knesset Member Zoabi's remarks at an ethical level.

 

I.             We shall briefly review the actual remarks.

 

J.             First of all, the interview on June 17, 2014, five days after the abduction of the three teenagers Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may G-d avenge their deaths. According to Knesset Member Zoabi, the abductors, the abductors of innocent teenagers, "are not terrorists… even if I do not agree with them, they are people who do not see any opening…, and they are forced to use these means". It is known that throughout the world and in international law there are disputes as to the definition of terror, and it has already been said that a freedom fighter for one is a terrorist for the other. But is there a humane human in their right mind who would not deem the abduction of the teenagers and their cold blooded killing anything other than terror? Must the national liberation for the Palestinians, for which Knesset Member Zoabi is wishing, pass through despicable crimes of terror? And the stretched explanation that was voiced, that her statements were said because terror is only attributed to Arabs and not to Jews cannot hold water, inter alia, because acts of terror by Jews are on more than one occasion referred to as "Jewish Terror", and an simple surfing on the internet with such headline will prove this. Terror is terror is terror, regardless of who performs it, Jews, Arabs or others. Hence, can it be said, in this case, that the value of a member of Knesset's duty to serve human dignity, as appears in Rule 1A(2), was not violated? – There is no greater human dignity than the sanctity of life itself; "There shall be no violation of the life, body or dignity of any person as such." (Section 2 of the Basic Law: Human Dignity and Liberty, and see also Section 4 of the Basic Law).

 

 

 

 

K.            Secondly, the call in the article dated July 13, 2014, to the Palestinians "… to impose a siege on Israel instead of negotiating therewith". These words should not be read as a sacred text with multiple interpretations, but given the context of the matters which is "(Israel's – E.R.) detestable trinity: the fence, the siege and the coordination", it is extremely difficult to interpret the call to "impose a siege on Israel" as only a "political siege" (not that such a call in and of itself would be permitted and legitimate), but rather as an armed siege. If we shall read these statements in light of the "State's best interest" chapter in Rule 1A(2) of the Rules of Ethics, we shall ask ourselves whether a call to impose a siege on the State can be in the "State's best interest" – and this is not a political slogan of "saving Israel from itself", which some of Israel's "friends" raised in the past, but, as my colleague stated, rather an unexplained statement – which simply means joining forces with the State's enemies. The answer cannot be positive; and the forced interpretation that was given, even though it was not from the member of Knesset but rather from those supporting her, is not convincing. In light of all of that stated above, one cannot cast a doubt regarding the violation of the Rule of Ethics.

 

L.             Indeed, Knesset Member Zoabi is from a minority in Israel – and it is appropriate to apply interpretation that takes this into consideration and expands the limits of patience and tolerance; but in the case at hand, as my colleague also stated (paragraph 39) it simply went too far. Of course, this is enhanced by the timing, during the search for the teenagers, while the sounds of the cries of the mothers and fathers were heard, and during severe combat – the member of Knesset was undermining any common ground that exists and should exist among the entire Israeli public, without any explanation which could, even at a stretch, be acceptable.

 

M.          One must not criticize the members of the Central Ethics Committee, who, when dealing with the ethical level, did not take the approach of those three monkeys who do not hear, do not see and do not speak, since at hand are the core and essence of principle, central ethical obligations. Therefore, I agree with  the rulings of my colleague, the Deputy President, for example in paragraphs 31-32, 35, 39, in the principle questions that were addressed here. At issue is not the matter of the limits of the freedom of expression, which the State of Israel maintains on a very high level, as emerges from the rulings of this Court – and I personally doubt whether the type of statements that underlie this case would even be acceptable in a country that maintains ultimate freedom of expression such as the United States, pursuant to the First Amendment of its constitution. The matter at hand is the ideological base that is – or should be – shared by all members of Knesset, and which in the absence thereof – there is no survivability. I shall re-emphasize that in my opinion one of the more burdening parts of the story, as also emerges from the words of my colleague, in addition to the statements themselves, is the explanations – or the lack thereof – with respect to the remarks; it is clear that Knesset Member Zoabi's explanations are extremely stretched, and her attorney had to, skillfully, try to fill voids, at times in an impossible manner, as is stated in the Bible: "Wilt thou put out the eyes of these men?" (Numbers, 16, 14).

 

 

 

N.           Finally, as to the sanction, which ultimately ended up being more in the symbolic dimension than one of essence or substance, since, as my colleague described, it was eroded between a recess and elections, and therefore it clearly had a weak impact.

 

O.           Upon reading the opinion of my colleague, Justice Hayut, in paragraph 2, regarding the delivery of the minutes of the Ethics Committee's session to the Petitioner, I shall request only to state that we are dealing with a very delicate balance, which is intended to protect the committee members' freedom to express themselves freely on the one hand, and fairness towards the injured member of Knesset, on the other hand. As my colleague mentioned, this matter has emerged in other contexts as well. The difficulty is that even when the exposure of certain details, such as the identity of the speakers, is prevented, it is easy to comprehend that the matter still remains complex, since in a small committee (as opposed, for example, to the other Knesset committees which are large), anyone who is able to figure things out will not have difficulty identifying the speakers. Since the matter remains to be further addressed, it does not have to be ruled upon now.

 

P.            Further to the remarks of my colleague, Justice Melcer, I shall concur with his statements regarding the relationship between law and ethics. It is known that ethical duties also apply to us as judges. The Jewish Law also addresses the distinction between ethics and the letter of the law, and as we – Judge Eran Shilo and myself – wrote in an article that is scheduled to be published in the Zvi Tal Book, "Judicial Ethics in Jewish Law", "The rules of ethics are rules that professionals took upon themselves, as opposed to the law – which is externally imposed upon them, as upon the entire public"; Furthermore – "The distinction between ethics and law is what allows the judge, in circumstances that justify it – to exercise discretion with respect to the norms that are prescribed, knowing that the letter of the law that guarantees a just trial shall not be prejudiced". In the case at hand, we are dealing with the legislator itself, who also prescribes the law and not only the rules of ethics, and therefore we can adjust that which is stated and say that the Rules of Ethics are directed internally, towards the sphere of parliamentary conduct, while the law that is legislated by the Knesset is directed externally, towards everyone. However the ethical matters in the Knesset are obviously uniquely public due to the institution's status and importance, and they are meant to draw behavioral lines so that the legislator shall know its own limits, not only through constitutional review but also within the boundaries of conduct that befits those who represent the entire Israeli public.

 

Q.           My colleague, Justice Melcer, addressed the pledge of allegiance, similarly to my words in paragraph F above. It is known that the wording of this declaration is defined and a member of Knesset is not permitted to add anything thereto (HCJ 400/87 Kahane v. The Chairperson of the Knesset PD 41(2) 729); The declaration (Section 15(a) of the Basic Law: The Knesset) addresses "Bearing allegiance to the State of Israel and faithfully fulfilling my mandate in the Knesset"; similarly, the President of the State is also required to "bear allegiance" (Section 9 of the Basic Law: The President), as are the Prime Minister and ministers (Section 14 of the Basic Law: The Government), judges (Section 6 of the Basic Law: The Judiciary – which was applied as early as in 5708 (my book The Judges of the Land (5741-1980), 79); religious judges (Section 10 of the

 

 

 

Religious Judges law, 5715-1955); Qadis (Section 7 of the Qadis Law, 5721- 1961), and Madhhab Qadis (Section 13 of the Druze Religious Courts Law, 5722-1963), as well as the State Comptroller, pursuant to Section 9 of the Basic Law: State Comptroller. In my opinion, by pledging this allegiance those filling these positions express the expectation of an extra degree of loyalty by any personality filling a governmental position, beyond the basic loyalty imposed by citizenship (see Section 5(c) of the Citizenship Law, 5712-1952, in which a person being naturalized pledges to be a "loyal citizen". The pledge of allegiance is a deep moral instrument, and as stated, is at the root of being a member of Knesset, and is a common thread that connects all holders of senior positions in the government system, in the framework of their mandate. One must either be a great believer or greatly naïve, to be of the opinion that Knesset Member Zoabi's statements which we are addressing here, constitute bearing allegiance.

 

R.            As to the position of my colleague, Justice Joubran: There is no dispute regarding the centrality of freedom of political expression  and the significance of the material parliamentary immunity, even what at issue is the expression of outrageous opinions. This is true for all and especially in the case of minorities from various sectors. This stems from us being a Jewish and democratic state, and from the legacy of the prophets of Israel, and as prophet Isaiah said (58, 1) "Cry aloud, spare not, lift up thy voice like a horn, and declare unto my people their transgression, and to the house of Jacob their sins."; see also the principle paragraph in the Declaration of Independence which establishes the State of Israel on "the foundations of freedom, justice and peace as envisaged by the prophets of Israel"; and Section 1 of The Foundations of Law Law, 5740-1980. My colleague is of the opinion (paragraph 17) that also when dealing with ethics it is necessary to apply restraint, and I especially agree when dealing with "politicians who are judging politicians", in the Knesset's Ethics Committee, when – without heaven forbid insulting anyone – there is an inherent concern regarding political considerations being involved in the material considerations. However, we are dealing with ethics in which severity of sanctions do not get to the root of the matter (and in the matter at hand has been wondrously eroded), and with a message which has already been described in the various opinions here.

 

S.            Where do I disagree with my close colleague Justice Joubran? In laying down the line. For example, my colleague (paragraph 19) distinguishes between one who "acted not for the advancement of the best interest of the State" and one who "did not act to advance the best interest of the State", and he is of the opinion that "neutral actions by members of Knesset which on the one hand do not advance the best interest of the State and on the other hand do not harm it, shall not be included in the prohibition". Even if such distinction is appropriate, and I shall not address this (but see the words of our colleague Justice Melcer, in paragraph 7), this is not what is at issue, since the words of Knesset Member Zoabi which we are addressing are blatantly not in the best interest of the State. According to Justice Joubran (paragraph 20), Section 1A(2) of the Rules of Ethics, which imposes upon a member of Knesset to act "in a manner that shall serve human dignity, the advancement of society and the best interest of the State", should be interpreted in a liberal manner, and its sanctions shall be limited to extreme cases. In my opinion, even in the most far reaching liberal interpretation, calling for the

 

 

 

imposition of a siege on your own state and supporting terror cannot – with all due respect – be interpreted with common sense and in the eyes of an ordinary person – as neutral, certainly not as an act "in the State's best interest". I am sorry, but this is nothing other than a blatant an act against the State's best interest. There are ethical boundaries and I shall not address the question of the boundaries of freedom of expression, and the manner of dealing with expressions that are not only provocative but tap existential roots.

 

T.            In summation: The (Middle) Eastern culture to which all of us, each sector, person and style, belong, attaches great importance to honor. Ethics is part of the values and manners between people. In the Jewish world this shall be referred to in various contexts as the theory of values (ethics). I shall quote statements that I had the opportunity to write in my article "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (5773-2013), 140. It is said there (on page 142) that "Mutual respect between Jews and Arabs in Israel is necessary. This is emphasized due to the importance that the culture surrounding us, the culture of the (Middle) East, attributes to the matter of honor, a culture that is expressed in words such as 'Sharaf (honor) and 'Kilmat Sharaf' (word of honor)" and hereinbelow (pages 143-144) "I myself perceive honoring my fellow-person, first and foremost as something natural that stems from within oneself, … this is also the case, mutatis mutandis, of course, with respect to matters related to the relations with Israeli Arabs within" and further on (page 145) "the principle prescription for relationships between the majority and minority in the State of Israel is complex – it is a matter of awareness and insights, which call for reciprocity. It includes Jewish insight as to the need for respect towards the Arabs and an ongoing, relentless, effort, to amend the gaps in equality in all spheres – as mentioned, I see myself as one of the first who was willing to stand up for the task of amending and bridging the gaps. However, awareness and insights are also necessary from the other side, among some of the Arab leadership  in Israel… it must recognize and understand that the objective of the struggle must be equality, and the Jewish population cannot be concerned that at hand is a struggle against the essence of the State of Israel as a Jewish and democratic state". Indeed, this was said in the context of the state being Jewish and democratic, but they  are  relevant also  when referring to terror.  When  three families and an entire country were worried about the fate of teenagers who had been abducted (and murdered) by evils, according to Knesset Member Zoabi, they are not terrorists, an ordinary person shall then ponder whether to accept her stretched explanations, and in my opinion the answer is crystal clear. This is also true with respect to the "siege sophistry", and no more words are needed.

 

Deputy President

 

Justice H. Melcer

 

1.            I concur with the exhaustive and measured judgment by my colleague, President

M. Naor.

 

However, due to the importance of the matters, I take the liberty to add a few words regarding the distinction between the prohibition of law and the prohibitions of ethics, since in the case before us the matter that emerged was

 

 

 

whether Knesset Member Hanin Zoabi violated the Rules of Ethics for Members of Knesset (hereinafter, also: the "Rules of Ethics") and whether judicial intervention in the sanctions that were imposed thereupon by the Knesset's Ethics Committee, is appropriate. I shall briefly address below the said distinction, and its derivatives and implications.

 

2.            Prof. Asa Kasher, in his article Professional Ethics (published in Ethical Issues for Professionals in Counseling and Psychotherapy, ed. Gaby Shefler, Yehudit Achmon, Gabriel Weil, pages 15-29 (Y"L Magnes – 5763-1993)) distinguishes between ethics and law using the terms of shelf and threshold, and clarifies that along the range of possible courses of actions:

 

"There appear to be two lines, one at the top of the ladder… even if not at its very top, and one at the bottom of the ladder… even if not at its very bottom. The top line shall be called the 'shelf'. In this picture it represents ethics. The bottom line shall be called the 'threshold'. In the current picture it represents the law.

These lines, the 'shelf' and the 'threshold' divide the entire range into three natural parts: the segment from the 'shelf' and upwards, the segment between the 'shelf' and the 'threshold' and the segment below the 'threshold'. It is important to understand the essence of each of these three segments, in order to properly understand the relationship between the world of ethics… and the world of law…

The 'shelf' represents the professional ethics, the practical ideal of professional conduct. It is the 'shelf' of proper conduct… an action at the height of the 'shelf' or above it is proper conduct, as it is conduct that is in accordance with the practical ideal of professional conduct. The segment from the 'shelf' upwards, within the range of possible courses of actions, is the proper sphere of conduct…

The 'threshold' represents the law…, the binding approach of legal conduct, the 'threshold' of permitted conduct pursuant to the law, from a legal perspective. An action at the height of the 'threshold' or beneath it constitutes… conduct that is contrary to the binding approach of legal conduct…

For the sake of accuracy, we shall mention a simple aspect of the relationship between the 'shelf' and the 'threshold', in this picture, which is not at all obvious in any context. In the picture proposed here, the 'shelf' is always higher than the 'threshold'. In reality, the relationship between a certain 'shelf' and a certain 'threshold' could, at times, be more complex… Between the 'shelf and the 'threshold' is the interim sphere. An action in this sphere constitutes improper conduct, from an ethical perspective, since it is under the said 'shelf', but it is  concurrently  deemed  a  permitted  action,  from  a  legal perspective, since it is above the said 'threshold'…"

(Ibid, on pages 23-24, original emphases – H.M)

 

 

 

Justice Yitzhak Zamir, who also dealt extensively with the distinction between law and ethics – added as follows in HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel PD 51(3) 46, on page 61 (1997):

 

"It is the law that determines the limit between law  and ethics. Furthermore, the law nibbles away at ethics. Rules of ethics can become rules of law. From time to time the legislator will prescribe this, and from time to time the courts will rule this, when it turns out that the power of ethics, in and of itself, does not prevent wrong behavior or severe consequences. In such an event, the law, on more than one occasion, will step in and help the ethics. See: Y. Zamir "Ethics in Politics" Mishpatim 14 (5747-5748) 250".

 

See also the opinion by Justice M. Cheshin in HCJ 1993/03 The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon, PD 57(6) 817, on pages 917-918 (2003).

 

3.            In the Petition before us – we are not dealing with the legal sphere which, for example, prescribes in Section 7A of the Basic Law: The Knesset terms and conditions that allow preventing a list of candidates from participating in, or a person from being a candidate for, elections to the Knesset. This is the threshold and as such, its interpretation and application are exercised narrowly and its judicial review is meticulous.

 

See: Election Approval 9255/12 The Central Elections Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment from December 30, 2012; reasons from August 30, 2013, and review the references mentioned therein).

 

4.            The Petition here addresses a different matter, since it focusses on the rules of conduct that apply to a person who was elected to serve as a member of Knesset. These bind the member of Knesset by virtue of Sections 13D and E of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Knesset Members Immunity Law"). These Rules of Ethics demand that a member of Knesset behave as expected of an elected official presiding in the Knesset, which is the "State's House of Representatives" (Section 1 of the Basic Law: The Knesset). This is the threshold. The said threshold leans on two supporting beams:

 

(a)          The pledge of allegiance, which the member of Knesset declares by virtue of Sections 15 of the Basic Law: The Knesset and Section 1(c) of the Knesset Law, 5754-1994, and on this matter I concur with the position of my colleague, the Deputy President, Justice E. Rubinstein.

 

(b) The Rules of Ethics of the "House of Representatives"

 

I shall address each of the two said sources separately below:

 

 

 

 

Pledge of Allegiance

 

5.            Since the dawn of political thought and democratic history the pledge of allegiance has had more than just ceremonial meaning, but also deep substantial relevance. Indeed, as early as in ancient Greece, the governors in the Police were required to swear their allegiance to the unification of the state, and Plato, the reputed jurist of such time, in his book: Laws (Volumes III 685 and XII 960) wrote that the pledge of allegiance has both legal significance and political importance. Aristotle, in his book: Politics (Volume III, 1285) analyzed the meaning of the pledge of allegiance as a means of securing the rule of law. See: Matthew A. Paully, I Do Solemnly Swear: The President's Constitutional Oath: Its Meaning and Importance in the History of Oaths (1999) ibid, on pages 45-52. See also: Suzie Navot "The Knesset Chapter on the Constitution Draft: Three Remarks" Mishpat U'mimshal 10 593, 624-633 (the chapter on the status of the pledge of allegiance) (5767) (hereinafter: "Navot on the Status of Pledge of Allegiance"); Yigal Marzel "On a Judge's Pledge of Allegiance" Orr Book 647 (5773-2013; hereinafter: "Marzel on the Pledge of Allegiance").

 

Therefore, anyone who crossed the threshold and his/her candidacy was approved and he/she was elected to the Knesset, must still declare allegiance in order to actually take the position, This is the significance of the pledge of allegiance, in the framework of which the member of Knesset undertakes:

 

"To bear allegiance to the State of Israel and to faithfully fulfill his mandate in the Knesset".

 

It indeed turns out that while candidates to the Knesset must first cross the threshold and after they are elected they must represent their voters – those who sent them and their party – still the common denominator for all members of Knesset is the pledge of allegiance from which the shelf is derived. If the pledge, which has a uniform wording for all members of Knesset, and which cannot be deviated from in any way – is not made, the members of Knesset cannot function in the Knesset (see: Section 16 of the Basic Law: The Knesset; HCJ 400/87 Kahane v. The Chairperson of the Knesset, PD 41(2) 929 (1987); see also: Marzel on the Pledge of Allegiance page 651 and 664-665).

 

Comparative law further demonstrates that not only is a person who is not willing to pledge allegiance not entitled to benefit from his rights in parliament, but that the "house" may deny, or de facto limit the rights and actions in parliament of a person who violates his said pledge. Compare: McGuinness v. The United Kingdom, case no. 39511/98 ECHR (1999); Spanish Constitutional Court decisions: number 101 dated November 18, 1983; number 122 dated December

16, 1983, number 8 dated January 25, 1985; number 119 dated June 21, 1990, and number 74 dated April 8, 1991. See: Navot on the Status of the Pledge of Allegiance, on pages 628-631 and see Prof. Aparicio Perez' article that is mentioned in Prof. Suzie Navot's said article, in the framework of which the following was written (free translation from Spanish by Prof. Navot):

 

"The member of parliament benefits from a dual status: the

 

 

 

one which derives from his status as an elected person and a representative, since his status stems from the fact that he was elected by the public in the framework of his party: and that of a member in a representative organ. The fact that a member of parliament is "elected" does not automatically grant him the rights in the representative organ, meaning, the parliament… This duality is possible. In certain cases, the parliament may, by virtue of its internal arrangements, even take away the mandate a member of parliament received and remove him. The fact that a person was elected as a member of parliament is a condition for him to participate in the common organ referred to as the parliament. However, in order to be included in this organ, the elected person must fulfill the material conditions to be included in this organ. Only after the member of Parliament has fulfilled these terms, can he be considered a 'parliamentarian'…"

 

It is appropriate to add here that both the European Court of Human Rights and the Spanish Constitutional Court denied judicial intervention in decisions that limited parliamentary participation from those who refused to pledge allegiance, and ruled that even the right to vote in parliament (which was not denied from Knesset Member Zoabi in this case) may be limited, provided that the prevention is meant to attain a proper goal and is proportionate. See: Navot on the Status of the Pledge of Allegiance, on page 630. With respect to the applicability of the proportionality criteria in the context of immunity and the denial thereof – also compare with that stated in the judgment in Cordova v. Italy (No. 1 and No. 2), Application no. 40877/98 and Application no. 45649/99, which was given by the European Court of Human Rights (dated April 30, 2003).

 

Rules of Ethics for Members of Knesset

 

6.            These are relevant to the matter at hand, since in the framework of Section 1A thereof they further anchored general values that apply to the member of Knesset. In the framework of these rules – the member of Knesset must (inter alia):

 

(1)          Fulfill his position out of loyalty to the basic values of the State of Israel as a Jewish and democratic State;

(2)          Act as a trustee of the public, and fulfill his duty to represent the public that voted for him in a manner that will serve human dignity, the advancement of society and the best interest of the State;

(3)          Diligently uphold the laws of the State of Israel and act to advance the principle of the rule of law;

(4)          Preserve the dignity of the Knesset and the dignity of its members, be devoted to fulfilling his duties in the Knesset, conduct himself in a manner that befits his status as a member of Knesset, and act to foster public trust in the Knesset;

(5)          Fulfill his mandate in the Knesset responsibly, honestly and fairly, out of dedication to his status as a leader in society, and strive to serve as a personal example for proper behavior;

 

 

 

(My emphases – H.M.)

 

As to the "dignity of the Knesset", Section 2 of the Rules of Ethics provides that: "The member of Knesset shall uphold the dignity of the Knesset and the dignity of its members, shall act in a manner befitting his status and duties as a member of Knesset, and shall avoid using his immunities and rights as a member of Knesset in an improper manner" (My emphases – H.M.)

 

7.            In light of Knesset Member Zoabi's conduct which was the subject of the complaints that were filed against her – it can certainly be said, as was ruled in the decisions which are the subject of the Petition, that she violated Section 1A of the Rules of Ethics for Members of Knesset, and particularly the provisions of the above sub-sections (2) and (4) of the said Rules, since, according to my position, she was not diligent about maintaining allegiance to the State (see: Yaffa Zilbershats, Loyalty to the State, Zamir Book, 491 (2005); Marzel on the Pledge of Allegiance 669-673). These violations were reflected in the "understanding" Knesset Member Zoabi exhibited towards the acts of the abductors of the teenagers: Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may their memories be blessed, and in her calls to impose a siege upon Israel. In doing so she not only ethically violated her fiduciary duty towards the State of Israel, but also prejudiced her status as a trustee of the public, who is meant to act in a manner that shall serve the advancement of the best interest of the State (sub-section 1A(2) above). She also deviated from her obligation as one who is required to uphold the dignity of the Knesset and act in a manner that befits her status as a member of Knesset, and to act to foster the public's trust in the Knesset (above sub-section 1A(4)). See: Suzie Navot "The Member of Knesset as a 'Trustee of the Public'" Mishpatim 31(2) 433 (particularly ibid, on pages 518-

520) (5761). In this context my colleague, Justice S. Joubran states that in his opinion an ethics violation is possible "when a member of Knesset acts not for the advancement of the best interest of the State, as opposed to a situation in which he did not act to advance its best interest" (original emphases – H.M.) I am willing to accept this interpretation, however, even according thereto – Knesset Member Zoabi's conviction of an ethical offense is not to be cancelled. Calling for a siege on the State of Israel is explicitly an act not for the advancement of the best interest of the State and here we must clarify that for this purpose it makes no difference whether at hand is a "military siege" or a "political siege", as Knesset Member Zoabi's attorney retroactively argued before us.

 

8.            Here one should note that it is possible that MK Zoabi also violated additional Rules of Ethics however since this was not reflected in the decisions which are the subject of the Petition – I shall refrain from addressing this, just as I shall also presume (although this presumption could be disputed, in light of the provision of Section 1(A1)(4) of the Knesset Members Immunity Law) that the material immunity applies with respect to her actions, which are the subject of the complaints, in all that relates to criminal, or civil, liability (as opposed to ethical liability – see: HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) and see Barak Medina and Ilan Saban, "Expanding the Gap?" on the Scope of a Member of Knesset's Right to Support Resistance to the Occupation, Following HCJ 11225/03 Bishara v. The Attorney General, Mishpatim 37 219, on page

 

 

 

236, footnote 42 (5767)).

 

9.            Before ending I shall add and emphasize that I concur with the words of my colleague, Justice E. Hayut, with respect to the right to review the minutes of the Ethics Committee when at issue is a disciplinary proceeding that is being held against the member of Knesset. This is warranted by the principle of "proper process".

 

10.          In summary: All that is stated above leads to the conclusion that in the circumstances of the matter (including the actual duration of the sanctions that were imposed upon the Petitioner) – it is inappropriate to intervene in the ethical decisions that were issued in the matter of the Knesset Member Zoabi, which are the subject of the Petition.

 

I shall end with a note, as I also remarked in the hearing, that it is not for no reason that the Petitioners and their educated attorneys did not find even one case in comparative law in which a member of parliament called for a siege against his state, and was absolved.

 

Justice

 

Justice S. Joubran

 

1.            Is the Knesset's Ethics Committee (hereinafter: the "Ethics Committee" or the "Committee") authorized to apply sanctions of one kind or another due to political remarks that one of its members said or wrote outside of the Knesset, when such remarks are covered by the material immunity granted to a member of Knesset? If so, did the Ethics Committee exercise its authority lawfully? These are the two questions we are to rule on in this Petition.

 

2.            After hearing the Petition, this Court, by a majority of opinions, decided to deny it. My opinion was different, and had it been heard, we would have ruled that the Ethics Committee exercised its authority unlawfully, and we would have cancelled its decision. At the end of our judgment, we ruled that our reasons would be given separately, and now the time for the reasons has come.

 

3.            As mentioned, the Petitioner argued that the Ethics Committee lacks the authority to impose a sanction upon her for remarks that are covered by the material immunity that is granted to a member of Knesset. She also argued that the things that she said and wrote do not constitute a violation of the Rules of Ethics. My colleague, President M. Naor, is of the opinion that the Ethics Committee was authorized to address the Petitioner's remarks and that in the current case it exercised its authority lawfully. I agree with my colleague the President on the matter of the authority. I am also of the opinion that the Committee is authorized to address the Petitioner's remarks. The scope of disagreement between me and my colleague relates to the discretionary level. I am of the opinion that the Petitioner did not violate the Rules of Ethics, and therefore, the Committee's authority was exercised unlawfully. I shall add a few words on the authority level, and thereafter shall discuss the discretionary level.

 

 

 

 

The Authority Level

 

4.            The Ethics Committee operates by virtue of Section 19 of the Basic Law: The Knesset, which constitutes authorization for regulating the Knesset's work proceedings in By-Laws, and by virtue of the Knesset Members  Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Immunity Law"). The two main provisions which are relevant to the case at hand are:

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal action, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

 

13D. (a) The member of Knesset who committed one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated any of the Rules of Ethics.

 

5.            The Rules of Ethics appear in the Knesset's By-Laws and their power is vested by virtue of Section 13E(1) of the Immunity Law. In the matter at hand, the Ethics Committee ruled that the Petitioner violated Section 1A of the Rules of Ethics which prescribes, in the relevant parts, that:

 

1A. The member of Knesset –

…

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

…

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

6.            The Petitioner's approach is that there is no place for the Ethics Committee to act if the member of Knesset's action is protected by material immunity. According to this approach, Section 1(a) of the Immunity Law requested to exclude  these matters from the Committee's authority. This approach was denied in HCJ 12002/04 Makhoul v. The Knesset PD 60(2) 325 (2005) (hereinafter: the "Makhoul" Case). In that matter, it was ruled that the Ethics Committee's decision is not a "legal action" which is included in Section 1(a) of the Immunity Law, and therefore a member of Knesset is not immune from facing it. This ruling coincides with the purpose of Section 13D of the Immunity Law, which anchors the Ethics

 

 

 

Committee's authority to address the violation of the Rules of Ethics and to apply sanctions on members of Knesset for such violations. This ruling also coincides with the interpretive proceeding which should be applied to Sections 1 and 13D of the Immunity Law. Thus, it was ruled in the Makhoul Case that normative harmony requires the interpretation that at hand are two provisions which complement each other, rather than there being a contradiction between two provisions that are mutually exclusive (ibid, on pages 334-335). Therefore, I am of the opinion that that stated in Section 13D complements that stated in Section 1 and does not contradict it.

 

7.            The Petitioner raised an additional argument on the authority level, that the Ethics Committee is not authorized to discuss political remarks by members of Knesset and that its authority is limited to remarks that substantially disturb the work of the Knesset and relate to the social relationship within the Knesset. Indeed, the position of the Ethics Committee in its decisions is that "in all that relates to political remarks, the Committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks". However, I am of the opinion, as is my colleague, the President, that this does not mean that the Ethics Committee lacks authority to discuss these remarks (see paragraphs 27-28 of her opinion). Indeed, my opinion is that one must distinguish between remarks that are only political, and remarks that constitute bad-mouthing and slandering of individuals and publics. However, I am of the opinion that the distinction does not have to be made at the authority level, but rather at the discretionary level. Meaning, in the scope of judicial review which should be applied on decisions that discuss these remarks and the scope of protection that should be given to remarks of such nature, as I shall elaborate below.

 

The Discretionary Level

Limiting the Freedom of Political Expression of an Elected Official

 

8.            At the discretionary level, the Court examines the merits of the Ethics Committee's decision. In the case at hand, whether the Petitioner, through her remarks, violated the Rules of Ethics by virtue of which she was convicted. This matter is directly related to the question of members of Knesset's freedom of political expression and the question of the limitation thereof. I am of the opinion that the point  of reference in this matter lies in the recognition of the importance of guaranteeing the existence of elected official's freedom of political expression and of striving to promote it.

 

9.            "The political expression – the speech, the article, the interview – are the member of Knesset's primary working tools" – so wrote President A. Barak in HCJ 11225/03 Knesset Member Dr. Azmi Bishara v. The Attorney General PD 60(4) 287, 326 (hereinafter: the "Bishara" Case). Political expression is the core of parliamentary activity and constitutes a primary tool for the member of Knesset to perform his main duty – expressing his position and the positions of the public that voted for him on public matters.

 

10.          In order to guarantee that the member of Knesset shall be able to faithfully fulfill his position and represent the public that voted for him while giving free and full expression of his opinions and perspectives, without fear or concern, the legislator

 

 

 

chose to grant the members of Knesset material immunity against being criminally charged or against a civil law obligation, for remarks that were expressed in the framework or for the sake of fulfilling their position. This immunity is essential to guarantee the democratic character of the ruling government. In the Bishara Case it was ruled as follows:

 

"The purposes underlying the material immunity are varied. They are meant to protect the fundamental political freedoms. They are meant to allow proper activity of the legislative authority. They reflect a desire to guarantee the member of Knesset's independence and freedom of action. They are meant to strengthen the democratic rule. On the other hand, one must not ignore the other (general) purposes of the Immunity Law" (ibid, on page 323)

 

One can learn of the importance of protecting the members of Knesset's freedom of political expression, which is reflected in the material immunity granted to them, and of the tight linkage between it and the proper activity of the democratic process, from the spirit of the words of President S. Agranat in Criminal Appeal 255/68 The State of Israel v. Avraham Ben Moshe, PD 22(2) 427, 435 (1968), when he examined the actions of a person who was harassing a member of Knesset due to words spoken by such elected official:

 

"The right of a member of a house of representatives, in this forum or elsewhere, to voice his views on the "cutting-edge" political questions, without fear and concern that he will be harmed by anyone who does not support such perspectives or who is convinced that they are dangerous for the nation – such right is but only a tangible reflection of the tight linkage that exists between the principle of freedom of expression and dispute and the proper activity of the democratic process. Moreover, due to the significant importance we attribute to the later aspect of the discussed principle, the legislator deemed it fit to grant the members of Knesset an  entire system of privileges, which are meant to guarantee that each of them shall be able to express their opinion and formulate their positions, regarding the political issues that require solution and decision, in an open and free manner and without them having to be accountable for them to any person or authority. I mean the various immunity rights… one of which is that which is prescribed in Section 1(a)…"

 

11.          The Israeli legislator even adopted a rather broad model of material immunity in Section 1(a) of the Immunity Law. This immunity applies also to actions and not only to voting or expressing an opinion and spans over the activity of the member of Knesset within the walls of the Knesset and outside thereof, and applies also after he ceased being a member of Knesset (see: HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 204 (1987) (hereinafter: the "Miari" Case); the Bishara Case, on page 301). The broad scope of the material immunity indicates the great importance the legislator attributes to protecting the

 

 

 

members of Knesset's freedom of expression. This protection is not meant to serve the member of Knesset's personal well-being, but rather is meant to guarantee the right of all of the citizens to full and effective political representation – that their opinions be heard, through their elected representatives, in the public discourse, in general, and in the house of legislators, in particular.

 

12.          It shall be noted that guaranteeing the existence of freedom of political expression is also important when at hand are aggravating and outrageous remarks and ideas, and it is especially important for members of Knesset who express ideas that are perceived as such by the majority of the public. Indeed "Freedom of expression is also the freedom to express dangerous, aggravating and deviant opinions, which disgust the public and which it hates (HCJ 399/85 Kahane v. The Executive Committee of the Broadcast Authority, PD 41(3) 255, 279 (1987)). The essence of the importance of this right is granting protection to words that are not popular and not in consensus and which can even grate on the ears.

 

13.          There is no denying that guaranteeing the existence of freedom of free political expression and minimizing the limitation thereof is especially critical for members of Knesset who belong to minority groups in the population. My colleague, Justice E. Hayut, elaborated in her opinion on the special importance of protecting the freedom of expression of minority groups in general. I am of the opinion that when members of Knesset are at issue, this is all the more relevant. There is great significance to protecting the freedom of expression of minority groups in the parliament and restraining the infringement thereof. So as to guarantee effective and egalitarian representation of the minority groups in the parliament, in a manner in which their voice shall be heard and not excluded. This approach is grounded in the rulings of this Court. For example, in the Bishara Case, President A. Barak stated, in the context of the members of Knesset's material immunity, that protecting freedom of expression is "vital particularly for citizens who are members of minority groups in the population. In this sense the material immunity also advances civil equality by also protecting the right of the members of the minority groups in the population to full and effective political representation, and protects them by protecting the member of Knesset who is representing their affairs and their  perspectives against the power of the majority" (ibid, on page 323).

 

14.          This approach was also recognized in the judgment of the European Court of Human Rights (Szel v. Hungary, 44357/13 (sep. 16, 2014) at para 69; Karacsony

v. Hungary 42461/13 (sep. 16, 2014) at para 72), to which my colleagues also referenced. As mentioned, the European Court cancelled the conviction of an ethical offense of four opposition members of Parliament in Hungary, due to their remarks in the framework of acts of protest. In that matter, it was ruled that in a democratic society, freedom of expression is a tool of supreme importance for members of Parliament. It was also ruled that this freedom of expression is particularly necessary for members of Parliament who belong to minority groups, in order to guarantee their right to express their positions and the right of the public to hear these positions.

 

 

 

 

One can also learn of the importance of protecting freedom of expression of minority groups from the spirit of the judgment of the European Court of Human Rights in Jerusalem v. Austria ECHR 26958/95. In that case it was ruled that interfering with an opposition member of parliament's freedom of expression calls for broader scrutiny by the Court:

 

"Interference with the freedom of expression of an opposition member of parliament, like the applicant, calls for closest scrutiny on the part of the Court" (at para 36)."

 

The Ethics Rules

 

15.          As to the ethics rules. As mentioned, the point of reference in any legal examination of the matter being discussed – including the examination of the ethics rules - is the recognition of the supreme status of freedom of expression in our legal system and the importance of minimizing interference therewith. I agree with my colleague, the President, that freedom of expression also projects onto the laws of ethics that apply to members of Knesset (see paragraph 27 of her opinion). This Court has ruled in the past that "Freedom of expression projects onto and has implications for all the other branches in our legal system, including disciplinary rules" (Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel, paragraph 25 of the judgment of (then) Justice M. Naor (January 1, 2002)). This Court applied a similar approach with respect to the disciplinary rules that apply to civil servants (Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227 (1986) (hereinafter: the "Sapiro" Case)). In that case it was ruled that:

 

"We must be diligent about the promotion and existence of freedom of expression, even in light of the reasonable assumption that there is a difference, in terms of the range of permitted actions, between an ordinary citizen and a civil servant, and consequently there are certain limitations on the public remarks by a civil servant […], the qualifications that are imposed upon civil servants, should, to the extent possible, be minimized. Additionally, general and unspecified reservations should not be imposed upon the civil servants, but rather their classification should be limited to those circumstances in which there is near certainty of damage or harm to the public service or to the interests it serves (ibid, on pages 236-237)

 

I am of the opinion that this is all the more relevant when at issue is the limitation of members of Knesset's freedom of political expression, since their political expression is the main tool for them to perform their duty. Therefore,  the question is what are the criteria for ruling that a member of Knesset violated the ethics rules? I am of the opinion that one can learn of the proper criteria from looking at the laws of the members of Knesset's material immunity. As mentioned, the broad scope of material immunity that is granted to the members of  Knesset  embodies  the  supreme  importance  the  legislator  attributed  to

 

 

 

protecting their freedom of expression. I have listed the reasons for this in the paragraphs above, and, as I have demonstrated, previous rulings of this Court have also done this well. It appears that these reasons are relevant also when at issue are the ethics rules. My colleague, Deputy President E. Rubinstein is of the opinion that "Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, 'a pressure release valve', to maintain a framework of parliamentary norms" (paragraph G of his opinion). Indeed, a conviction of an ethical offense is generally considered less severe than a civil or criminal conviction against which the material immunity protects, and generally the sanctions accompanying it are less severe. It appears that this also justifies distinguishing between the extent of the democratic tolerance which applies in each set of rules. Thus, there can be remarks that do not cross the red lines that are defined by the material immunity and are covered thereby, while they do constitute ethical violations. However, a conviction of an ethical offense is also not a trivial matter, and the sanctions accompanying it can be especially severe, as in the current case – removal from the sessions of the Knesset's plenum and its committees for a period of six months. This can create a chilling effect for members of Knesset. In my opinion, this approach requires the Ethics Committee to apply restraint when limiting members of Knesset's freedom of expression and convicting them under the laws of ethics, for political remarks.

 

16.          It is important to note in this context that that which is stated above is relevant when at issue is the violation of an ethical provision in the matter of a member of Knesset's purely political remark - as in the case at hand – and not when dealing with remarks that constitute slander or bad-mouthing. The reason for this is the degree of importance that should be attributed to political expression, since it promotes a free market of opinions and reflects the perspectives of the voting public. This is in contrast with the second type of expressions which do not promote these values, but rather harm the status and dignity of the Knesset and deteriorate the public discourse in Israel. This also coincides with the approach of the Ethics Committee itself, as it emerges from its decisions:

 

"To the extent possible, the limitation of the members of Knesset's freedom of political and ideological expression should be avoided, even when the words they say are harsh and outrageous. The right of freedom of expression constitutes a tool of supreme importance for members of Knesset, within the Knesset and outside thereof, the essence of the importance of this right is granting protection to words that are not popular and which can even grate on many ears. However, if, in all that relates to political remarks the position of the committee is that that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing, slandering, mudslinging and humiliating individuals and publics, the committee's position is materially different. (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013)).

 

 

 

17.          In the case before us the Ethics Committee decided that the Petitioner violated both of the values prescribed in Sections 1A(2) and 1A(4) of the Rules of the Ethics, which read as follows:

 

1A. The member of Knesset –

…

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

…

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

The Ethics Committee ruled that "The Member of Knesset's words that were written and spoken in sensitives times do not coincide with the best interest of the State, even if we grant this term an expansive interpretation, and they constitute a violation of the duty of allegiance that applies to members of Knesset". It was further ruled that "The words severely prejudice the public's trust in the Knesset and its image, which is also reflected in the large number of complaints that were filed with the Committee".

 

18.          The above-mentioned Section 1A prescribes basic values which outline general criteria for the conduct of members of Knesset. As my colleagues, I am of the opinion that even though at hand are basic values that do not delineate a sanction alongside them, they benefit from an independent status and members of Knesset who act in contradiction to that stated therein, can be convicted by virtue thereof. Thus, a conviction of an ethical offense based on Section 1A(4) would be appropriate when a member of Knesset prejudices the harms the Knesset or the members thereof (the Makhoul Case; Rules of Ethics Preparation Committee Report, December 2006, on page 46), or when a member of Knesset acts in a manner that prejudices the public trust. In my opinion, it appears that a conviction of an ethical offense based on Section 1A(2) would be appropriate when a member of Knesset acted not for the advancement of the best interest of the State as opposed to a situation in which he did not act to advance its best interest. Such interpretation takes into account that neutral actions by members of Knesset which on the one hand do not advance the best interest of the State, and on the other hand do not harm it, shall not be included in the prohibition.

 

19.          According to my position, an interpretation that expands the limits of patience and tolerance is appropriate in this matter as well. In my opinion, one must act with a strict and stringent criterion when determining that a member of Knesset violated the values of "advancing the best interest of the State" and "fostering the public's trust". General and unspecified limitations should not be imposed upon a member of Knesset, but rather the classification should be limited to those extreme cases. Consequently, the member of Knesset should be granted broad freedom of action and his actions and words should be interpreted liberally,

 

 

 

such that only the extreme and clear substance of the contents of his words can be the basis for his conviction (compare: the Miari Case, on page 212). There are a number of reasons for my said position. Firstly, the specific provision deals with political remarks, which by their nature are intertwined with the member of Knesset's duties. As such, members of Knesset who engage in political expression as a main part of their position, are at a high risk of committing this ethical prohibition (compare: the Bishara Case, on page 326); Secondly, in light of the broad language in which the values of "advancing the best interest of the State" and "fostering the public's trust" are drafted, there is a concern that if members of Knesset shall be exposed to severe sanctions, which can reach six months of being removed from the sessions of the Knesset's plenum and its committees (Section 13D(d)(4) of the Immunity Law), this could chill their ability to express themselves without fear also in cases in which what they are saying does not constitute an ethical offense. Thirdly, members of Knesset often express themselves in controversial matters in a manner which could appear to be callous and outrageous to part of society. This is especially true in the divided Israeli society (see: E. Benvenisti "Regulating Freedom of Expression in a Divided Society" Mishpatim 30 29 (1999)). Hence, it is natural that in light of the Petitioner's perspectives and the platform of her party, she will find herself expressing positions regarding the Israeli-Arab conflict, and the risk that her statements shall be interpreted by a large part of society, as statements that harm the State's best interest, is great. (Compare: the Bishara Case, on page 327).

 

20.          Given the above, one must examine whether the Petitioner, through her remarks, violated the Rules of Ethics. Meaning, is the Ethics Committee's decision which is the subject of the Petition, lawful. Examining the merits of the Committee's decision raises a question of the scope of judicial review of the Ethics Committee's decisions. I shall now address the examination of this scope and thereafter examine, in the form of applying the general rule to the specific case, whether the current case justifies our intervention.

 

The Scope of Judicial Review of the Ethics Committee's Decisions

 

21.          Case law prescribes that the scope of judicial review is impacted by the type of decision which is the subject of the review (see: HCJ 652/81 Knesset Member Yossi Sarid v. The Chairperson of the Knesset PD 36(2) 197 (1982)). As my colleague, the President, elaborated, it was ruled in the Makhoul Case that in general the Ethics Committee has broad room for maneuver and consequently the room for judicial review is relatively narrow (ibid, on page 343). I agree with this position, however, each case is examined on its own merits and the scope of the judicial review is determined in accordance with the circumstances of each case. In the Makhoul Case, the main reasons for determining the relatively narrow scope of judicial review were that the Ethics Committee's decisions are closer to the sphere of the Knesset's internal matters; that its decisions harm the member of Knesset in a relatively mitigated manner; and that at issue are matters which generally have a small impact outside of the Knesset. Therefore, it was ruled that the extent of this Court's intervention shall be less than that which is exercised with respect to other quasi-judicial decisions that are in the framework of the Knesset's authority. However, these reasons are not relevant in the current case. Since at hand are political remarks that were said outside of the Knesset and

 

 

 

which do not relate to its internal affairs or its conduct or to the conduct of any of its members. The Ethics Committee's decision in the current case harms the core of the freedom of political expression, and as such its impact outside of the Knesset is not small. In my opinion in such cases, when the Committee examines purely political remarks, there is no justification for the judicial review to be narrower that the judicial review of other quasi-judicial decisions.

 

22.          This ruling coincides with the ruling in the Makhoul Case, that when examining the Ethics Committee's decision, the Court shall take into consideration those consideration that relate to the severity of the infringement of the basic rights and the proportionality of the sanction that is imposed by the Ethics Committee. Indeed, ethics rules are not a cover for infringing basic rights that are granted to a member of  Knesset. When the Knesset wishes to exercise its authority  and qualify the rights granted to a member of Knesset by law, it must comply with the legal criteria that are required for exercising this authority (see: the Miari Case, on page 196). The more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the act deviates from the proper extent, the more this Court will be willing to intervene (see: the Makhoul Case, on page 344). In the case before us the member of Knesset's freedom of expression was infringed. The fact that at hand is a member of Knesset from a minority group exacerbates the infringement and justifies broader judicial review. In this matter, the words of Justice E. Rivlin in the Bishara Case, are relevant:

 

"In any event the special significance of judicial review in those cases in which basic human rights are at issue, should be recognized. It is here that it is important that the judicial review exhaust its full power and ability. This ability shall serve it if it shall succeed in refraining from scattering its legal and social resources which are nurtured by the public's trust, when the scope of deference expands. This is true in general, and particularly when immunity relating to freedom of expression is at issue, and in the case at hand – not just expression, but political expression, and not just political expression, but political expression of a member of Knesset, and not just a member of Knesset, but a representative of a minority group" (ibid, on page 337) [emphases added – S.J.]

 

From the General Rule to the Specific Case

 

23.          I shall now examine the Petitioner's remarks in light of that stated. I shall state at the outset that in my opinion the Petitioner did not violate the Rules of Ethics. I did not reach this conclusion easily, and it is not obvious. Indeed, in my opinion this is quite a borderline case. The Petitioner's statements, at the timing in which they were said, are harsh and in my opinion near the line beyond which it could not be said that they comply with the Rules of Ethics. However, in my opinion, given the circumstances of the matter, and considering the entire considerations, the proper conclusion is that ultimately the Petitioner did not violate the Rules of Ethics. The main reason for this is that one cannot extract any clear and unequivocal content, that amount to a violation of the ethical values, from her

 

 

 

remarks, but rather her remarks were vague, some had reservations attached and some had explanations that were later attached, as I shall immediately describe in detail.

 

24.          As for the call in the article dated July 13, 2014, to impose a siege on the State of Israel, the Petitioner did not state what type of siege she is calling for – whether a political siege or a military siege. The Petitioner's attorney claimed in the hearing before us that the Petitioner meant the imposition of a political siege and not the imposition of a military siege. I agree with my colleague the President that the words of the Petitioner's attorney were stated retroactively and that the Petitioner should have presented this explanation to the Ethics Committee. However, I am of the opinion that this interpretation that was suggested by the Petitioner's attorney – that the call is for a political and not a military siege – is at least possible, and could be implied from the words the Petitioner wrote. In this context, I do not agree with my colleague, the Deputy President, that it is very difficult to interpret the call "to impose a siege on the State of Israel" as only a political siege, but rather as a military siege.

 

25.          As to the Petitioner's statements in the interview dated June 17, 2014, that the abductors of the teenagers "Are not terrorists", these statements were accompanied at the time they were said, by a reservation from the act of abduction, as it was said "even if I do not agree with them". Following the said interview, the Petitioner explained in the media that she objects to the abduction, that she does not agree with this act and that she objects in principle to harming civilian population, Israeli and Palestinian. As to her remark "They are not terrorists", she explained that it is her principle position not to use the term "terror" in the Hebrew press. I am of the opinion that in the circumstances of the matter, these words by the Petitioner somewhat soften her remarks in the interview. There are two reasons for this. Firstly, the statement "They are not terrorists" was made orally, in an interview, as a response to the interviewer's question. Meaning, the Petitioner did not have time to redraft or refine her statements, or retract them before they were made public. A similar position was expressed in the European Court of Human Rights in Mondragon v. Spain 2034/07, where it was ruled that the Court must take into account the fact that the statements were made orally during a press conference so that it was not possible to redraft or retract the statements before they were made public:

 

"The Court further takes account of the fact that the remarks were made orally during press conference' so that the applicant had no possibility of reformulating' refining or retracting them before they were made public (at para 45)".

 

Secondly, the Petitioner provided explanations in the media to the meaning of her remarks with regard to the teenagers' abductors, in order to convince the public that she objects to the act of abduction and to harming civilian population. The Petitioner explained that the statement "They are not terrorists" stems from her principle position against using the term "terror" in Israeli media, and not from her identifying with the act of abduction. Even if these explanations which the Petitioner provided to the media, do not reflect her inner feelings, the fact that they are possible explanations, is sufficient to somewhat soften her remarks. I

 

 

 

agree with the position of my colleague, the President, that extreme acts or expressions which legitimize acts of terror and which encourage and support violence against civilian population, cannot overcome the ethical prohibitions. However, as I explained above, this is not exclusively and unequivocally implied from the Petitioner's statements, in light of her reservations when they were said and in light of her later explanations. One must also add that the Attorney General ruled on July 24, 2014, that a criminal investigation shall not be opened against the Petitioner for her remarks regarding the teenagers' abductors. The explanation given to this by the deputy Attorney General is that the Petitioner's reservation from the act of abduction "creates difficulty in perceiving the statements as inciting abduction". It appears, from all of that stated above, that one cannot extract clear and unequivocal content from the Petitioner's remarks that amount to a violation of the ethical prohibitions.

 

26.          As for the timing in which the statements were said, I concur with the remark by my colleague, Justice E. Hayut, that one must set uniform criteria for the protection of freedom of expression during times of war and times of calm (see paragraph 4 of her opinion). In my opinion, the supreme status of the freedom of expression is also reserved during times of war. The Ethics Committee also ruled in its decision which is the subject of the Petition that "The right of members of Knesset to express positions that are not in consensus and to express public criticism on the government, is reserved also during times of war". It shall also be noted that the distinction between times of calm and times of crisis is not always sharp and clear, particularly in the Israeli reality. In this context the words of President A. Barak in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), to which my colleague referred, are relevant:

 

"Furthermore, it is not possible to make a sharp distinction between the status of human rights during times of war and their status during times of peace. The line between terror and calm is thin. This is true everywhere and certainly in Israel. It is not possible to sustain this over time. We must treat human rights seriously both during times of war and times of calm" (ibid, in paragraphs 20-21).

 

However, as my colleague, Justice E. Hayut, stated "the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis."

 

27.          In summary, in light of the great value of granting members of Knesset free political expression and minimizing the limitation thereof as much as possible, particularly when at issue are members of Knesset who belong to  minority groups, and in light of the broad language of the ethical provisions by virtue of which the Petitioner was convicted, the conviction of members of Knesset by virtue of these provisions should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the case before us, I am of the opinion  that one  cannot extract clear and unequivocal content from the Petitioner's statements, both in light of her reservations from the act of abduction while making the remarks and in light of her later explanations in the media.

 

 

 

Therefore,  it is my position that  the  decision of the  Ethics  Committee  was reached unlawfully.

 

28.          In light of all that stated, if my opinion were to have been heard, we would have accepted the Petition and cancelled the Ethics Committee's decision in the Petitioner's matter.

Justice

 

It was decided by a majority of opinions as stated in the judgment of President M. Naor.

 

Given today, the 21st of Shvat, 5775 (February 10, 2015).

 

President            Deputy President            Justice

Justice  Justice 

 

 

In the Supreme Court sitting as High Court of Justice

 

HCJ 3091/99

 

Before:                                    President (Emerita) D. Beinisch

                                    Justice E. Arbel

                                    Justice E. Rubinstein

           

 

Petitioner:                    Association for Civil Rights in Israel

 

                                                            v.

 

Respondents:                          1.         The Knesset

2.         Government of Israel

 

Attorney for the Petitioner:    Adv. Dan Yakir

Attorney for the Respondents: Adv. Osnat Mendel

                                   

 

 

Judgment

 

Justice E. Rubinstein:

 

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

 

General Background

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

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

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

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

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

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

 

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

 

The Petition and the Proceedings

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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

 

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

 

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

 

Discussion and Decision

 

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

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

 

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

 

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

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

                                                                                               

Justice E. Arbel:

 

I concur.

 

 

                                                                                               

 

President (Emerita) D. Beinisch:

 

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

 

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

 

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

 

 

 

 

 

 

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

 

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