Discretion

 

HCJ 212/03

Herut – The National Jewish Movement

v.

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

 

 

The Supreme Court Sitting as the High Court of Justice

[January 8, 2003]

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

 

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

 

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

 

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

 

Legislation Cited:

Flag and Emblem Law-1949, § 5

Knesset Elections Law (Consolidated Version)-1969 § 137

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

Basic Law: The Judiciary § 15

Administrative Courts Law-2000

Foundations of Law Act-1980, § 1

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

Penal Law-1977, § 1

Basic Law: The Knesset, § 7

 

Israeli Supreme Court Cases Cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Petition denied.

 

For the petitioners— Shai Zuckerman

For the respondent— Shai Nitzan; Dani Hurin

 

JUDGMENT

President A. Barak

 

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

 

Original

                 

Biladi Biladi
Phalastin

Arafat Salah-A-Din

Mabruk Yah Shahid

Al-Hamdu Li’llah

Fatah Ashaf Hizballah

Yaffo Aco Ramleh V’Lod

Ya Habibi Imshi al-Yehud

Allah Hu Akbar Allah Al-Karim

Phalastin Al-Quds Yerushalayim

 

Translation

 

My State My State

Palestine

Arafat, Salah-A-Din

Congratulations, O Martyr

Praise to God

Fatah, PLO, Hizballah

Jaffa, Aco, Ramleh, and Lod

My Friend, Jews Out

Allah is Great, Allah is Generous

Palestine Al-Quds Jerusalem

 

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

 

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

 
The Authority of the High Court of Justice

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Authority of the Chairman of the Elections Committee

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Authority of the Chairman of the Elections Committee

 

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

 

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

 

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

 

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

 

The Discretion of the Chairman of the Elections Committee

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Scope of Judicial Review

 

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

 

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

 

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

 

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

 

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

 

Justice E. Mazza

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Justice T. Strasberg-Cohen

 

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

 

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

 

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

 

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

 

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

 

Petition Denied.

January 16, 2003

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

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

 

 

 

 

 

HCJ 4293/01

 

1. New Family

2.         Dr. Ruth Zimmerman-Shahar

3.         Dr. Ron Shahar

4.         A Minor

5.         David Ben Nahum

 

v.

 

Minister of Labor and Welfare

 

 

The Supreme Court sitting as the High Court of Justice

[24 March 2009]

 

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

Justice A. Procaccia

 

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

 

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

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

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

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

 

Legislation cited:

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

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

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

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

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

National Health (IVF) Regulations, 5747-1987

Youth (Care and Supervision) Law, 5720-1960

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

For the respondent – E. Golomb.

 

 

JUDGMENT

 

Justice A. Procaccia

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

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

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

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

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

The parties

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

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

The arguments of the petitioners

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

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

The arguments of the respondent

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

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

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

Intercountry adoption – general background

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

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

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

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

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

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

Article 1: The objects of the present Convention are -

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

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

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

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

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

. . .

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

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

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

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

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

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

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

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

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

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

Decision

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

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

Let us begin with the constitutional examination.

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

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

The right to family and parenthood

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

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

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

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

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

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

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

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

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

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

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

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

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

The right to adopt

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

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

Professor Shifman relates to the issue as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And further on it stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The administrative level

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

The background to the formulation of the maximum age difference rule

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

Reasonableness

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

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

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

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

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

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

From the general to the specific

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The claim of discrimination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comparative law

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

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

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

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

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

A final word

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

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

 

President D. Beinisch

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

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

The constitutional plane

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The administrative level

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

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

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

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

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

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

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

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

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

Appeals Tribunal

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

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

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

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

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

 

Vice President E. Rivlin

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

The parameters of the constitutional right to parenthood

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

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

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

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

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

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

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

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

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

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

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

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

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

The administrative plane

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

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

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

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

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

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

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

 

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

 

No order was issued for costs.

 

28 Adar 5769

24 March 2009

       

 

 

 

 

 

       

 

HCJ 10356/02

1.       Yoav Hass

2.       MK Musi Raz

3.       ‘Yesh Gevul’ Movement

v.

1.       IDF Commander in West Bank

2.       State of Israel

 

HCJ 10497/02

Hebron Municipality and others

v.

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

2.       Civilian Administration for Judaea and Samaria

3.       Government of Israel

 

 

The Supreme Court sitting as the High Court of Justice

[4 March 2004]

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

 

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

 

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

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

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

 

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

 

Petitions denied.

 

Legislation cited:

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

Palestine Order in Council, 1922, art. 83.

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

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

For the respondents — Y. Gnessin.

 

 

JUDGMENT

 

 

Justice A. Procaccia

The question

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

Background

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

The petitions

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

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

The original position of the State

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

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

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

The sequence of proceedings

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

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

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

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

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

Decision

Right to be heard

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

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

Legality of the requisition order

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

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

The area commander’s responsibility and scope of authority

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

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

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

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

Requisition of land

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

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

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

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

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

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

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

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

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

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

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

Levels of scrutiny of the requisition order’s legality

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

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

Purpose of the order to increase security measures and irrelevant considerations

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

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

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

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

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

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

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

Freedom of movement and freedom of religion and worship

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

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

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

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

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

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

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

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

Property rights

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

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

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

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

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

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

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

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

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

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

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

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

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

From the general to the specific

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

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

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

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

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

Outcome

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

 

 

President A. Barak

I agree.

 

 

            Justice M. Cheshin

I agree.

 

Petitions denied.

11 Adar 5764.

4 March 2004.

HCJ 5261/04

Advocate Yossi Fuchs

v

Prime Minister of Israel, Ariel Sharon

HCJ 5262/04

Advocate Naftali Gur-Aryeh and another

v

Prime Minister of Israel and another

HCJ 5263/04

Yitzhak Vazana and others

v

Prime Minister of Israel and another

HCJ 5264/04

Advocate Ben-Zion Gispan

v

Prime Minister of Israel, Ariel Sharon and others

HCJ 5317/04

Minister of Tourism, Binyamin Elon

v

Prime Minister of Israel, Ariel Sharon

 

The Supreme Court sitting as the High Court of Justice

[26 October 2004]

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

 

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

 

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

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

 

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

 

Petitions denied.

 

Legislation cited:

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

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

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

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

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

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

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

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

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The petitioner in HCJ 5261/04 represented himself.

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

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

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

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

 

 

JUDGMENT

 

 

President A. Barak

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

The facts

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

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

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

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

The arguments of the parties

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

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

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

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

The procedural aspect

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

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

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

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

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

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

The normative framework

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

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

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

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

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

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

The status of the prime minister

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

The authority to remove a minister from office

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

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

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

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

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

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

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

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

Removal from office on political grounds

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

Removal from office before a Cabinet vote

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

The status of the basic principles

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

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

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

From the general to the specific

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

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

 

 

Justice M. Cheshin

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

‘Termination of the office of a minister

22.(a) …

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

 

     (c) …

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

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

            So much for the scope of the discretion.

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

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

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

 

 

Vice-President E. Mazza

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

 

 

Justice E.E. Levy

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

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

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

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

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

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

b.     Preventing ‘extortion’ by small parties.

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

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

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

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

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

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

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

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

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

 

 

Justice D. Beinisch

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

 

 

Justice J. Türkel

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

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

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

 

 

            Justice A. Procaccia

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

I wish to add the following comment.

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

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

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

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

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

 

 

Petition denied.

11 Heshvan 5765.

26 October 2004.

HCJ 5853/07

Emunah — National Religious Women’s Organization

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Knesset

4.   Haim Ramon

HCJ 5891/07

1.   Tmura — the Legal Struggle against Discrimination Centre

2.   Ahoti for Women in Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Haim Ramon

HCJ 5914/07

Legal Forum for the Land of Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Attorney General

4.   Knesset

5.   Haim Ramon

 

The Supreme Court sitting as the High Court of Justice

[6 December 2007]

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

 

 

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

 

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

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

 

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

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

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

 

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

 

Legislation cited:

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

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

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

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

Municipalities Ordinance, s. 120(8).

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

State Comptroller Law [Consolidated Version], 5718-1958

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

For the Knesset — N. Elstein.

 

 

JUDGMENT

 

Justice A. Procaccia

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

Background and proceedings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The foregoing is the factual background underlying the petitions.

The petitioners’ arguments

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

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

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

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

The respondents’ position

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

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

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

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

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

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

Decision

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

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

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

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

‘Competence, as distinct from discretion’

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

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

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

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

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

Competence for public office

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

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

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

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

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

Conditions of Competence and Statutory Restrictions upon holding office

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

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

The balances required when exercising discretion in the appointment process

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

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

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

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

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

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

 

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

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

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

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

We will now consider these matters in detail.

The scope of discretion in forming a government and appointing ministers

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

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

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

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

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

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

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

Statutory qualifications and restrictions relating to appointments

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

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

‘Qualification of ministers

6. …

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

 

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

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

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

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

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

The Knesset’s approval of the appointment

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

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

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

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

A judicial determination in a criminal trial

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

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

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

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

From general principles to the specific case

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

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

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

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

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

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

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

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

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

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

Before concluding

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

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

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

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

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

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

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

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

Conclusion

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

35. I therefore propose that we deny the appeals.

 

Justice E. Arbel

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

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

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

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

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

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

‘Qualification of ministers

6. …

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

 

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

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

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

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

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

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

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

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

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

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

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

Moreover —

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

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

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

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

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

It has also been said:

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

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

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

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

The criminal trial that is the background to this case

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

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

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

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

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

Hardly a flattering description!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The time factor

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

The seniority of the position and the rule of law

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

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

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

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

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

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

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

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

The message that the appointment conveys is that even if a criminal trial takes place, and even if it ends in a conviction, it may be said, possibly by way of hyperbole, that no one is accountable. The criminal stain that MK Ramon carries at this time is capable of tarnishing the whole Government, and this was not given proper weight. The quick appointment to a senior position, only a short time after the criminal trial ended and the sentence was served, sends a message to the public that there are no values, that one organ of Government has no respect for the work of the others, nor does it act in concert with them, even though all of these are essential for the existence of a democracy.

The nature of the offence and the effect it has on the public

15. Moreover, an additional consideration that should have been considered concerns the nature of the offence of which MK Ramon was convicted. The offence of an indecent act is relatively low on the scale of sexual offences, in view of all the circumstances. Notwithstanding, this does not diminish the seriousness of the act. As the Magistrates Court said: ‘… An offence was committed which, in other circumstances, might have been considered an offence that was not especially serious, but in view of all of the circumstances in which the offence was committed, it becomes more serious and acquires a dimension that has considerable public significance’ (para. 91 of the verdict).

An offence of an indecent act involves not only an injury to the person but also to the dignity of the victim of the offence as a human being, and to the victim’s autonomy as an individual, two things that are interrelated and closely intertwined. The existence of more serious sex offences in the statute books does not diminish the injury to dignity, nor to the autonomy of the individual:

‘Every woman and man is entitled to write his or her life’s story as he or she wishes and chooses, as long as no one encroaches upon the domain of another. This is the autonomy of free will. When a person is compelled to follow a path that he did not choose to follow, the autonomy of free will is undermined. Indeed, it is our fate — the fate of every man — that we constantly act or refrain from acting for reasons other than that it is our own free will, and in this way the autonomy of our will is found wanting. But when the injury to the autonomy of free will is a major one, then the law will intervene and have its say’ (per Justice Cheshin in CrimA 115/00 Taiev v. State of Israel [39], at pp. 329-330, even though that case concerned more serious offences).

The protection of the dignity and person of women is a social interest. No civilized society exists in which the dignity of women — or the dignity of any other person — is trampled without a murmur or without any proper response. The protection of society’s values, of which the value of human dignity is one, is not effected merely by prosecuting criminal trials and holding defendants accountable. It should be expressed wherever such expression is required by the nature of the matter. In our case, what is the message sent to the whole public — men, women and children — when they see that a cabinet minister was convicted of a sex offence that he committed against a young woman officer and then, within a short time, albeit after serving a sentence, he returns to a position that is at least equal to the one he held before his conviction, if not a more important one? It is a message that not only makes the criminal trial and the judicial ruling meaningless, but also erodes the values of respecting the person, dignity and wishes of women, especially in situations involving a disparity of forces (see also in this regard the remarks of Justice Strasberg-Cohen in A v. Chief of General Staff [29], at p. 76). It is a message that elected public officials do not need to be held to the high standard of ethics and the high standard of conduct that might be expected of them as persons who are supposed to serve as examples and models for the whole public (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470; Cohen v. Attorney General [38], at p. 326). How can the appointment be reconciled with the need to uproot norms that have no place in a civilized society? What message is sent to potential complainants that see the trials and tribulations endured by the complainant, who suffered denials and slanders, who underwent cross-examination ‘in a manner deserving of our respect’ (para. 10(a) of the verdict), who is found by the court to be a witness whose veracity is undoubted, and yet after her testimony is accepted, the conviction is reduced to nothingness?

16. I have not overlooked the fact that in sentencing MK Ramon the Magistrates Court expressly left open the possibility of his returning to the Knesset. But the Government went much further. It did not merely re-establish the status quo ante but it completely disregarded the explicit verdict and promoted someone who was recently convicted. The sentence handed down in the Magistrates Court sought to balance between the seriousness of the acts and the conduct of MK Ramon during the trial, as described above, and between the nature of the act and the circumstances in which it was committed. The Magistrates Court sought to achieve this balance by leaving the conviction as it stood, while imposing a light sentence and rejecting the proposition that the offence involved moral turpitude. The court expressly stated in its verdict that this balance was based on a premise that the MK Ramon suffered considerably as a result of the criminal trial and was likely to continue to do so as a result of the court refusing to cancel the conviction. Notwithstanding, the balance that the court struck does not, as I have said, make the exercise of discretion redundant when considering the appointment of MK Ramon to the cabinet.

I should emphasize that the decision in the petitions before us does not concern the competence of MK Ramon to serve as a member of the Knesset, which would give rise to the difficulty of undermining the will of the electorate. Intervening in a decision to appoint someone to the position of cabinet minister does not give rise to a similar difficulty, since it concerns a decision of the person in charge of the executive branch of government, in judicial review of his discretion, and it does not undermine the will of the electorate. Indeed, in the past when this court has considered petitions that sought to cancel the appointment of MK Raphael Pinchasi as chairman of one of the Knesset committees, it was held: ‘A distinction should therefore be made between the competence of a member of the Knesset to carry out his duties as a member of the Knesset and his competent to act in contexts outside the Knesset, such as in the context of the executive branch’ (HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [40], at p. 557; see also H. Cohn, ‘The Competence of Public Servants,’ Selected Writings (2001), at pp. 391, 402). This is also the position in this case.

I should clarify that I do not belittle the damage and mental anguish that MK Ramon certainly suffered as a result of being prosecuted in the criminal trial. Nor do I ignore the fact that the sentence was served in full or that the offence of which he was convicted was a relatively light one. But it is inconceivable that in the case of a public figure, who is expected ‘… to serve as an example to the people, to be loyal to the people and deserving of the trust that the people place in him’ (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470), where the damage that he suffered to his standing was a mitigating factor in his sentence, the outcome should be as it is in this case.

17. It should be emphasized that nothing in the aforesaid casts even the smallest doubt on the professional experience and abilities of MK Ramon to carry out the role given to him by the Prime Minister. In this respect, the offence of which he was convicted does not, in my opinion, have any effect or ramification on his ability to carry out this office. I am not questioning at all the additional considerations that were taken into account, and my assumption is that the Prime Minister, as the person who made the appointment, made the decision regarding the appointment after considering the tasks that confronted the Government and understanding the talents required of the ministers serving in the Government for the purpose of carrying out those tasks (see also Schussheim v. Minister of Public Security [8], at p. 846). I am prepared to accept that MK Ramon has the appropriate and proper qualifications and experience for the position. Nonetheless, it is well-known that disqualifying a candidate from holding public office does not depend only upon a connection between his criminal record and its effect on his professional ability to carry out the job for which he is a candidate, but also on his ethical and moral capacity to carry it out, unless a ‘real and urgent’ state of emergency makes it essential to appoint him as the only candidate (Sarid v. Prime Minister [28], at p. 280). In our case no such argument was made, and that is sufficient to prevent the conviction from being denied its proper weight.

A determination that a government decision to appoint a minister suffers from unreasonableness that goes to the heart of the matter creates a tension between the world of law and the world of politics, between two separate worlds that are governed by different sets of laws and different game rules. ‘The law is based, to a large extent, on ethics; democracy is based, first and foremost, on representation’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 63). When deciding petitions concerning the formation of the government, the court has the task of carefully balancing, with an approach of maximum restraint, the need to allow the public to be represented as it wishes by someone who was successful in an election and the need to preserve public confidence in government institutions and the proper moral standards of elected representatives (see CSA 4123/95 Or v. State of Israel [4], at p. 191; Movement for Quality in Government in Israel v. Government of Israel [9], at p. 429 {293-294}; HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [41], at p. 186).

This court has already, on several occasions in the past, considered the relationship between law and ethics, and between legal norms and ‘government culture’ norms (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 917-918 {440}; Movement for Quality Government in Israel v. Prime Minister [41], at pp. 157-158, 176-177). Petitions concerning the formation of the government — the appointment of a minister or his removal from office — often give rise to questions concerning the location of the border between the ethical sphere and the legal sphere, which decisions are determined by government culture norms and which are also determined by legal norms. The remarks made by Justice Cheshin in another case are pertinent in this regard:

‘… We should be always mindful of the fact that we are speaking of a government culture that is steeped in law — in norms from the field of criminal law — and the question we should ask ourselves is whether in this sphere that contains both government and law, the weight of law is so minimal that we will shrug it off and continue on our way without law. Surely allowing the demands of law to recede… is tantamount to giving up norms to which we, as people of law, regard ourselves as being committed, and which, moreover, we regard ourselves as obliged to disseminate and impose on those around us?’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 176).

He also held:

‘When we realize that the culture of “it simply isn’t done” has been undermined and that our standards have fallen very low, should the law not make itself clearly heard? Surely its voice should not sound merely like a piccolo, “clear and pure, but drowned out by the tumult?” ’ (ibid. [41], at p. 177).

President Barak also discussed the relationship between the rules of ethics and the rules of law and the proper place of the principle of reasonableness in regard to them, when he said:

‘One of the ways in which the rules of ethics become rules of law, in so far as the public authority is concerned, is through the value of reasonableness. An unethical act may, in certain conditions, be an unreasonable act. Indeed, I am of the opinion that a comprehensive application of the principle of reasonableness to all the acts of the executive branch — including acts that harm the integrity of the administration — is proper. Of course, in countries where the government exercises self-restraint, it is possible that there is no need to develop the principle of reasonableness and apply it to the field of governmental ethics. But in countries where this self-restraint is lacking — and the concept of “it simply isn’t done” is not sufficiently developed — the principle of reasonableness and the concept of the margin of reasonableness should be extended to all government acts’ (A. Barak, The Judge in a Democracy (2004), at p. 369).

There is no statutory restriction upon the appointment of MK Ramon, but it would appear that the appointment, in the circumstances described above, undermines those principles that support the rule of law, are essential to the existence of a civilized society, and ensure that public service enjoys and deserves public confidence. In such circumstances, I am of the opinion that this court has no alternative but to intervene in the appointment decision, in order to protect the norms to which our legal system is committed.

Postscript

19. I have read the opinion of my colleague Justice A. Grunis and the remarks of my colleague Justice Procaccia in response thereto. I agree in full with her remarks concerning the place and status of the ground of reasonableness in our law, and I would like add to them a few brief remarks:

a.     The premise of judicial review is the principle of the separation of powers. The separation of powers is essential for the existence of democracy. At the same time, the separation of powers does not imply that there is no connection between the branches of government. On the contrary, there is a connection between them: ‘… there is a reciprocal relationship between the different powers, so that each power checks and balances the other powers’ (HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [42], at p. 786; see also Barak, The Judge in a Democracy, at pp. 103-105). One of the expressions of the separations of powers lies in the principle, which has been mentioned innumerable times in the case law of this court, that the court will not intervene in a decision of the authority as long as it falls within the margin of reasonableness. The court does not examine whether it was possible to make a more correct, more proper, more efficient or better decision. As long as the decision that was chosen falls within the margin of reasonableness, there is no ground for the intervention of the court. Notwithstanding, it is obvious in my opinion that the principle of the separation of powers and the respect that each power shows the others — which also lie at the heart of my opinion — cannot render the function that the power has been authorized to exercise devoid of any real content. In our case, the rule of very narrow intervention in the decisions of the executive branch and the legislative branch cannot result in the decisions of those branches having a de facto immunity against judicial review. Moreover, where the court does not exercise its judicial review, it errs with regard to the principle of the separation of powers, the checks and balances that the powers owe to one other. In my opinion, restricting judicial review to various forms of procedural failures and questions of authority presents a real danger to the future of Israeli society and the proper functioning of the organs of government, since it leaves the court with a function that is almost totally technical and rules out real judicial review in which the court protects and promotes the values of society. In my opinion, restricting judicial review by an almost complete rejection of the ground of reasonableness leaves the public exposed to danger, since it is the public that will pay the price of those decisions that fall outside the margin of reasonableness.

b.     The difficulties raised by my colleague Justice Grunis in his opinion are indeed real ones, but as my colleague Justice Procaccia also says, the solution to them does not require complete or almost complete abandonment of the use of the ground of reasonableness, only great caution and maximum restraint that the court should adopt when exercising judicial review. Particularly in the case before us, I am of the opinion that the difficulty discussed by my colleague — the court being no better placed than any citizen of the state to assess the reasonableness of the decision — does not really arise. The reason for this is that the court has expertise with regard to assessing the weight of a criminal conviction, the time that has passed from the conviction and the serving of the sentence until the appointment, and the other considerations that I have discussed. No one can assess their weight as well the court. Moreover, even if it is true that determining the unreasonableness of the decision solely from the outcome that was reached — an outcome-based decision — gives rise to considerable difficulty, in the case before us the weight given to these considerations in making the decision can be seen not only from the outcome but also from the proceedings of the Knesset and all of the material presented to us. I should re-emphasize that ultimately I saw no reason to reconsider the approval given by the Knesset to the Government’s notice of the appointment, since this has been discussed in detail in the opinion of my colleague Justice Procaccia, it is not the subject of dispute in my opinion and I only saw fit to address the issues on which my opinion is based.

My remarks above address only a very small part of my position regarding the place and status of the ground of reasonableness as a tool of judicial review. The matter will, no doubt, arise in the future, and when it does, I shall discuss it in full.

Summary

20. The government’s ability to rule is based not only on the confidence expressed in it by elected representatives. The government’s ability to rule also depends ultimately on public confidence in it. As such, even if we assume that political and parliamentary considerations have considerable weight in determining the composition of the government, an essential condition for its proper functioning is a proper standard of principles, values and morality. When the court is called upon to exercise judicial review with regard to a decision that concerns the composition of the government, it should be guided, not only by the principles and rules that my colleague discussed, but also by the values and principles that society cherishes. Even in such a case it needs to strike a balance, which is merely a balance between different considerations:

‘When striking this balance, idealism that has no normative basis should be avoided. The judge does not aspire to the lofty and the pure that are unattainable. He does not contemplate an ideal society that has no real existence and cannot be achieved. He does not rely upon a perception of man as an angel. At the same time, the court should avoid a pragmatism that is based on market morality. The judge does not reflect the distorted views that are widespread in society. He does not direct his gaze at a sick society that is sinking into the abyss. He does not rely on a perspective that man is an animal… He takes current reality into account, but he does not regard it as the whole picture. The fact that “everyone does it” is not a criterion for the proper conduct of a civil servant. The fact that it is customary, commonplace and normal to act in a certain way does not make it the proper way to act…’ (Suissa v. Attorney General [33], at p. 781; see also H. Cohn, ‘Thoughts on Integrity,’ Selected Writings 417 (2001), at p. 451).

These remarks that were made in a different context are also apt in our case.

I have not overlooked the public debate surrounding the appointment in the prevailing circumstances and following the differences of opinion that surrounded the decision to bring MK Ramon to trial. Notwithstanding, judicial determinations are made in accordance with legal criteria, according to the basic principles of the State of Israel as a democratic state that espouses the rule of law and a culture of law, and the court has a duty to stand guard and protect these (see also Barzilai v. Government of Israel [34], at p. 585-586 {68-69}).

The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the Government and its members. As I have said, we are dealing with an issue that focuses on imposing ‘the rule of law on the government,’ to use Justice Barak’s expression in Eisenberg v. Minister of Housing [1], at p. 238 {23}. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. At the same time, I would emphasize that these remarks relate to the present moment, a short time after the events and the trial. Obviously, when a proper period of time has passed since the conviction and the serving of the sentence, the shadow cast by the criminal conviction and the disparaging remarks made by the Magistrates Court will fade, and it will no longer stand in the way of an appointment to a senior public office. I see no reason to consider the question of what should be the proper period of time that should pass before the appointment would be a proper one, since it has already been said in the past that ‘… any period of time that is determined contains an element of arbitrariness’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 175). We are not dealing with a question of mathematics, and in any case the determination depends inter alia on the nature of the position, the unique abilities of the candidate and the nature of the offence of which he was convicted, and these differ from case to case. Notwithstanding, a period of a few months, as in this case, is insufficient.

For all the reasons set out above, I am therefore of the opinion that it was right to issue an order nisi in the petitions. However, in view of my colleagues’ position, I have sought to set out my position, which, in essence, is that at the present time there is no alternative but to revoke the decision to appoint MK Ramon to the cabinet.

In conclusion I would like to refer to the remarks of Justice Türkel in A v. Chief of General Staff [29], where he cited remarks made originally by Justice Silberg:

‘If we seek to be a model state, a society that is a light unto the nations and a chosen people, we should remember — as Justice M. Silberg put it so well — that:

“Morality is the ideological basis of the law, and the law is the external, concrete form of some of the principles of abstract morality… The provisions of the law are — in the eyes of the legislature — the minimum moral standard that is required and expected of every citizen.

The desired ideal is that they will… coincide with one another to the fullest extent, as the water covers the sea’ (M. Silberg, Kach Darko Shel Talmud (1964), at pp. 66-67; emphasis in the original).”

This ideological basis is the infrastructure that enables the court to enforce legal norms that embody moral values. In my opinion, more than any other consideration, this is the cornerstone on which our decision stands’ (A v. Chief of General Staff [29], at pp. 77-78).

The image of society and the state is fashioned by decisions of the government in practical matters. Words are not enough. This consideration should be given a proper weight when making a decision to appoint someone to public office, and this is what should have been done in this case.

 

 

 

Justice A. Grunis

1.    With respect to the difference of opinion between my colleagues, I agree with the opinion of Justice A. Procaccia that the petitions should be denied. However, my approach is different from that of my colleague. According to my approach, in a case of this kind, where the Knesset approves the addition of a new cabinet minister, following a proposal of the Prime Minister and a decision of the cabinet, it is doubtful whether there is any basis for intervention by the High Court of Justice. Even if the court does intervene, it will do so only in a very rare and exceptional case. The present case does not justify intervention.

2.    Section 15 of the Basic Law: The Government sets out how a new minister can be brought into an existing government. The process begins with a proposal of the Prime Minister that is brought before the cabinet. The cabinet may decide to add a new minister. The Government is required to notify the Knesset of the decision and of the position that the new minister will hold. However, these steps alone are not sufficient. It is also necessary for the Knesset give its approval to the Government’s notice. In other words, the process of adding a new minister to the cabinet is not complete without a decision of the Knesset. The need for the Knesset’s approval is a characteristic of our parliamentary system, in which the formation of a government and its continuation in office depend upon the confidence of the Knesset. Thus, s. 13(d) of the Basic Law: The Government  provides that ‘The Government is constituted when the Knesset has expressed confidence in it,…’, whereas s. 28(a) of the Law states that ‘The Knesset may adopt an expression of no confidence in the Government.’

3.    In any case of court intervention in a decision of another branch, we need to take into account the relationship between three factors: the identity of the person or body that made the decision, the nature or classification of the decision and the error  tainting the decision or the ground for intervention. We shall address each of these, but we should emphasize that in this case we are not dealing merely with a challenge to a decision of an administrative authority. The addition of a minister to the government requires, as aforesaid, a decision of the Prime Minister, a decision of the Cabinet and a decision of the plenum of the Knesset. ‘The Government is the executive authority of the State’ (s. 1 of the Basic Law: The Government ). The government is the most senior administrative authority in the state. Of course, the rules applicable to judicial review of decisions of administrative authorities also apply in principle to decisions of the government. Nonetheless, the court will exercise great caution when intervening in a government decision (see HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], especially at pp. 836-837, 840-841 {316-328, 321-323}, per Justice E. Rivlin, at pp. 867-868 {359-360}, per Justice T. Or; I. Zamir, Administrative Authority, vol. 1 (1996), at pp. 89-91). Bringing a new minister into the cabinet does not take effect until the Knesset has made a decision. It follows that the success of the petition to the court depends on the court setting aside not only a decision of the most senior administrative authority, but also a decision of the Knesset. Naturally there should be a difference between judicial review of a decision of an administrative authority, and even of the Government, and judicial review of a decision of the Knesset. In our case, we are speaking of a decision of the Knesset that does not take the form of statute. Statutes are also the result of Knesset decisions, but the decisions to which we are referring give rise to different and separate questions. We are speaking of decisions of various kinds. Some of them have normative effect and may be made by various bodies in the Knesset, such as the Speaker, one of the Knesset committees, or the plenum. Since the ‘The Knesset is the parliament of the state.’ (s. 1 of the Basic Law: The Knesset), it follows that judicial review of its decisions should not be exercised in the same fashion and in the same manner as it is with regard to an administrative authority. Decisions made by the parliament, which was elected by the whole body of citizens, should not be treated in the same way as decisions of administrative authorities, even if we are speaking of the most senior authorities (see, for example, Movement for Quality Government in Israel v. Prime Minister [11], especially at p. 848 {332-333}, per Justice E. Rivlin; HCJ 73/85 Kach Faction v. Knesset Speaker [43], at pp. 158-159). When we speak of the identity of the body making the decision, we should distinguish between a situation in which a decision is made by the Knesset, such as in the present instance, and a case in which the Knesset takes no action and for that reason the administrative decision requiring the approval of the Knesset is not valid. Let us assume that the Prime Minister decides to bring a new minister into the cabinet and also that the cabinet makes a decision approving this. Were the minister to begin to act in the ministry over which he has been given responsibility before the Knesset has given its approval, we would say that the minister is acting ultra vires. If a scenario of this kind occured, it is possible that the court would act, since the seriousness of the defect is so blatant that prima facie little weight would be attached to the fact that the most senior administrative authority — the Government — has approved the appointment. Since the law requires the approval of the Knesset, if such approval was not given, it would appear that there would be a strong basis for the intervention of the court. The court’s intervention in such a case would constitute support and backing for the Knesset’s role, as opposed to intervention in a decision of the Knesset.

4.    In addition to examining the identity of the body that made the decision being challenged before the court, we should examine the decision in accordance with the nature of the act or decision. On this subject, it has been said in the past that the activity of the Knesset should be divided into three categories: legislation, decisions regarding internal parliamentary affairs, and quasi-judicial decisions (see, for example, HCJ 652/81 Sarid v. Knesset Speaker [2], at pp. 201-202 {55-56}; HCJ 1956/91 Shammai v. Knesset Speaker [44], at pp. 315-316; HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19], at pp. 141-142; HCJ 12002/04 Makhoul v. Knesset [26], and many other cases; A. Rubinstein & B. Medina, The Constitutional Law of the State of Israel (vol. 1, 2005), at pp. 235-259). Alongside the aforesaid three categories, there is another category of decisions — namely, decisions concerning parliamentary scrutiny of the Government. The main decision of this kind is a decision expressing confidence in the Government when it is formed. In addition to this decision, we should mention a decision of no less importance, which is the opposite decision — expressing no confidence in the Government (regarding the importance of such a decision in a parliamentary system, see Kach Faction v. Knesset Speaker [43]; C. Klein, ‘On the Legal Definition of the Parliamentary System and Israeli Parliamentarianism,’ 5 Hebrew Univ. L. Rev. (Mishpatim) 309 (1973), at pp. 312-313). Less significant powers given to the Knesset with regard to the formation of the government, its structure, and its composition, are the approval of government decisions regarding a change in the division of functions between members of the government (s. 31(a) of the Basic Law: The Government); transferring a power given by law from one minister to another (s. 31(b) of the Basic Law: The Government); combining, separating or eliminating government ministries; establishing new ministries (s. 31(c) of the Basic Law: The Government); and, of course, adding a new member to the cabinet.

5.    In addition to the aforementioned powers of the Knesset relating to the Government, the Knesset has additional powers of supervision. The ultimate possibility of exercising supervision is by means of primary legislation. The Knesset can pass various laws that increase or limit the powers of the executive branch. In this way, it is possible to exercise supervision of this branch. Another possible type of supervision is introducing a condition that the validity of subordinate legislation depend upon a decision of the Knesset (usually, one of the Knesset committees). The authority for such a requirement arises from an express provision in a Basic Law or an ordinary statute (for a general discussion of the Knesset’s supervisory role regarding subordinate legislation, see B. Bracha, ‘Towards Parliamentary Supervision of Subordinate Legislation? The Draft Basic Law: Legislation, Chapter 3,’ 7 TAU L. Rev. (Iyyunei Mishpat) 390 (1979)). In this context we should mention that this court has held that the scope of judicial review with regard to subordinate legislation that has received the approval of the Knesset is narrower than that exercised with regard to ordinary subordinate legislation that does not require such approval (see, for example, HCJ 108/70 Manor v. Minister of Finance [45], at p. 445; HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [46], at p. 774; HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [47], at p. 172; for a general discussion of the grounds for intervening in subordinate legislation, see HCJ 156/75 Daka v. Minister of Transport [48]). It follows that the fact that the Knesset approved an administrative decision — in that case subordinate legislation — narrows the scope of the scrutiny. In addition to supervision that has normative force, the Knesset has additional means at its disposal. We should mention the possibility of tabling motions, debates in the plenum or in one of the Knesset committees, submitting questions, and the activity of the Knesset (and especially the State Control Committee), with regard to reports and opinions of the State Comptroller (see chapter four of the State Comptroller Law [Consolidated Version], 5718-1958; for a general discussion of the Knesset supervision of government actions, see Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 2), at pp. 745-756).

6.    We therefore need to ask how we should rank the various types of Knesset decisions — legislation, parliamentary supervision, internal parliamentary matters, and quasi-judicial acts — from the viewpoint of judicial review. In other words, when will judicial review be relatively broad and when will it be narrow? There is no doubt that, with regard to primary legislation, judicial review is very limited. The court does not have the power to set aside a statute, except in those cases where there is a conflict between an ordinary statute and a Basic Law. At the other extreme of the spectrum lie quasi-judicial decisions of the Knesset or of one of its committees. Between these lie the decisions on internal parliamentary matters and decisions concerning parliamentary supervision of the executive branch. It can be said that insofar as a decision concerns the essence of the parliamentary function, namely legislation and parliamentary supervision of the executive branch, the court will tend to refrain from intervention. The relatively broad scope of intervention in quasi-judicial decisions is founded, it would appear, on the idea that the parliamentary minority needs to be protected against the excessive power of the majority (regarding the protection of a parliamentary minority, even with regard to a decision that is not quasi-judicial, see Kach Faction v. Knesset Speaker [43]; Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 1), at pp. 241-242). The difference in the scope of judicial review exercised with regard to different decisions is also explained on the basis of the political element in the decision under consideration. The greater the political element in a decision, the greater the restraint that is required of the court. This can be shown by means of a comparison between intervention in subordinate legislation that has received the approval of the Knesset and exercise of judicial review with regard to a vote of confidence in a new government. Clearly the court will intervene in a decision of the latter type only in extreme cases (see Movement for Quality Government in Israel v. Prime Minister [11]), and in cases where forgery, fraud, or a similar voting impropriety determined the result (see and cf. HCJ 5131/03 Litzman v. Knesset Speaker [49]). Decisions within the framework of parliamentary supervision are often decisions in which the political element is considerable. The court ought to distance itself from intervention in decisions of this kind (see the opinion of the majority justices in Movement for Quality Government in Israel v. Prime Minister [11]).

7.    Another factor that may affect the intervention of the court and its scope in decisions of the Knesset is the ground for the intervention or the defect in the decision or in the decision-making process. Broadly speaking, the defects can be divided into three types: ultra vires, procedural impropriety, and unreasonableness. In addition to these we should mention other defects such as discrimination, conflict of interest, incorrect interpretation of the law, and disproportionality.

8.    The defect of a procedural impropriety, in the context of judicial scrutiny of Knesset decisions, presents a special problem. The court has recognized expertise on the subject of procedural improprieties. Sometimes a claim is raised in the court that an administrative decision should not be allowed to stand because of an impropriety in the decision-making process. The willingness of the court to intervene in a decision because of a procedural impropriety is relatively high. One reason for this is that intervention on the ground of a procedural impropriety does not consider the question whether the decision on its merits was right, reasonable, or logical, since the court is not the competent body to make that decision. Another reason is that the court, and especially an appeals court, is responsible for correcting procedural improprieties that are found in the actions of lower courts. When the court sets aside an administrative decision because of a procedural impropriety, it compels the authority to act in accordance with the law. It tells the authority that it should comply with the provisions of the law in the process of making the decision. It follows that there is great justification for judicial intervention when a decision is not made in accordance with the proper procedure. On the other hand, insisting upon every detail of the proper procedure, no matter how minor, may make it difficult for the authority making the decision to function. Not every procedural defect is significant, nor should every impropriety in procedural matters result in judicial intervention. The problem is particularly obvious with regard to procedural improprieties in acts of the Knesset. There is a natural desire to refrain from judicial involvement in the activity of the Knesset, in view of the fact that the Knesset is the body elected by all the citizens of the state. This reluctance is highlighted in cases of internal parliamentary matters. This term often refers to procedural matters and the everyday proceedings of the Knesset. Therefore the court does not intervene with regard to the time at which a debate on a no-confidence motion in the government will be held (Sarid v. Knesset Speaker [2]), a petition against a decision of the Speaker of the Knesset to include a certain matter in a debate at the request of the Government when it is claimed that insufficient notice has been given (Shammai v. Knesset Speaker [44]), or a decision of the Speaker to postpone the holding of a vote on a draft law when the delay is a short one (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]). Notwithstanding, procedural defects may be very harmful, even when we are speaking of the actions of the Knesset. One example of this is the lifting of a Knesset member’s immunity without giving him an opportunity to state his case (see Pinchasi v. Knesset [23]). The justification for judicial intervention here derives from the fact that this was a quasi-judicial proceeding in which there was a serious flaw. It is possible that even when we are not speaking of a quasi-judicial proceeding in the Knesset, the court will intervene if the procedural flaw seriously harms an opposition party in the Knesset. Case law has held, in a very broad fashion, that the court will intervene if major values of the constitutional system are undermined (as in Sarid v. Knesset Speaker [2], at pp. 203-204). For example, if a decision of the Speaker of the Knesset denies an opposition party the right to address the Knesset, thereby committing a flagrant and ongoing breach of the rules of the Knesset, it is possible that the court ought to intervene. If the court does not grant relief, there would be no other body that could help to enforce the law upon the parliament. Thus, in my opinion, by intervening here the court would fulfil its classic role in the field of public law — the protection of minorities — which in this case concerns a parliamentary minority.

9.    The defect on which the petitioners base their petition against the decision to bring MK Ramon into the Government is unreasonableness. My colleague, Justice E. Arbel, accepts this argument and holds that the decision was unreasonable. My opinion is different. We should recall that in this case we are not speaking merely of a challenge to a decision of the Prime Minister and of the Government to appoint MK Ramon as a cabinet minister, but also of a challenge to a decision of the Knesset. The ground of unreasonableness is essentially different from the defects of ultra vires and procedural defect. When the court examines these two defects, the advantage and unique role of the court are self-evident. The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws. We should point out that questions of authority and procedural flaws arise also in the fields of criminal law and civil law. By contrast, the court has no special advantage or expertise on the subject of unreasonableness. Admittedly, the ground of unreasonableness is not new to our law and it was recognized in the early years of the state (see, for example, CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [50]). Notwithstanding, in recent decades, especially since the judgment of Justice A. Barak in HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], it has undergone a change and has almost developed into a kind of ‘supreme norm’ (like good faith and public policy). In the course of this development, it has swallowed up, like a person whose appetite is insatiable, specific grounds for judicial scrutiny that were recognized in the past (for example, the grounds of irrelevant purposes and irrelevant considerations). The great disadvantage of this ground in its current scope lies in its high degree of abstraction. The high degree of abstraction expands the role of judicial discretion and thereby increases legal uncertainty. It creates a huge disparity between its exalted position in the legal universe and its application in a concrete case. The development of the law in common law countries is done by the courts, inter alia by means of doctrines and subtests that apply very abstract norms, whether founded on statute or case law, on a more specific level. The ground of reasonableness is different in the sense that the passage of time has not resulted in the development of norms on a lower level of abstraction, which would make it easier for us to find a concrete solution and to reduce uncertainty when a claim of unreasonableness is raised. In this it differs, for example, from the ground of disproportionality (regarding the subtests of disproportionality, see for example HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [51] (opinion of Justice A. Barak); HCJ 3379/03 Mustaki v. State Attorney’s Office [52], at pp. 907-908; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [53], at pp. 839-840 {296-297}, and many other cases). Often use is made of the concept of weight in order to emphasize the concrete application of the ground of unreasonableness. Thus it has been said on more than one occasion that a decision will be set aside for unreasonableness even if the authority that made the decision took into account all of the relevant considerations, where it gave the wrong weight to one or more of the considerations that were taken into account (see Daka v. Minister of Transport [48], at pp. 105-106; HCJ 935/89 Ganor v. Attorney General [14], at pp. 514-516 (per Justice A. Barak); HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at pp. 420-421 (per President M. Shamgar); HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 464, and many other cases). Admittedly metaphors, such as weight, are an accepted tool of legal language. The imagery helps the court to analyze, develop its thoughts and convey the reasoning to the reader. At the same time, the use of metaphors may sometimes make the reasoning vaguer rather than clearer. The use of the image of weight in the context of unreasonableness admittedly helps to some extent. But we cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product, i.e., the outcome of the decision. In other words, the use of the metaphor of weight with regard to considerations that the competent authority making the decision took into account can sometimes, it would seem, be used to disguise disagreement with the result. The problem is particularly acute when the authority making the decision is a collective body.

10. The decision to approve the appointment of MK Ramon to the cabinet was approved by a majority of members of the Knesset, 46 versus 24. Where a decision is made by a body composed of a number of members, it is difficult to examine the considerations that were taken into account. Even if each of the members of the body publicly stated his reasons, it is impossible, or at least very difficult, to determine the relative weight that was given to each consideration in reaching the final result, which is a collective decision. This is the reason that the duty to give reasons, which usually applies to administrative authorities and other authorities, has not been applied, at least not in full, to authorities that are collective bodies (see, for example, HCJ 89/64 Greenblatt v. Israel Bar Association [54], at pp. 409-410; HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [55], at pp. 329-330; HCJ 306/81 Flatto-Sharon v. Knesset Committee [22], at p. 133). In the case before us, only a small number of Knesset members expressed their opinions during the debate in the plenum, and even they did not address the appointment of MK Ramon in specific terms but only in general statements (minutes of the 138th session of the seventeenth Knesset (4 July 2007). Clearly, in such circumstances it cannot be said with certainty what were the considerations that were taken into account by each of the members who voted to approve the decision. It is even harder to determine the weight given to each consideration. Therefore, what is done de facto by the judge who thinks that the decision is tainted by unreasonableness is to examine the outcome, i.e., the ramifications of the decision. Sometimes what is done in such cases can be referred to as ‘reverse engineering.’ In other words, the court examines the outcome, i.e., the decision, and in a process of hindsight it lists the considerations that it imagines were taken into account by the body that made the decision. If the final decision is unacceptable to the court, it will say that one of the considerations was given excessive weight or that a certain consideration was not taken into account at all. We therefore need to take with a grain of salt the remark that is sometimes made in this regard, that the court does not replace the discretion of the authority authorized by the law to make the decision with its own discretion (for use of this formula, see for example HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [56], at p. 69 (per Justice I. Zamir); HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [57], at p. 125; HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security [58], at para. 7(c) (per Justice E. Rubinstein); for a case in which, despite this statement, it was decided to intervene in the authority’s discretion, see Zidan v. Minister of Labour and Social Affairs [47]). It would therefore appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is indeed replacing the discretion of the authority with its own discretion. In this case we should remember that we are dealing with a collective body of 46 members of Knesset who voted for the decision to bring MK Ramon into the Government.

From our deliberations hitherto we see that the use of the ground of unreasonableness is highly problematic, especially when a decision of a collective body is challenged on this ground.

11. I do not intend to say that we should ignore or cancel the ground of unreasonableness. In my opinion, the use of relatively narrower and more concrete grounds — such as irrelevant reasons, irrelevant purposes, or discrimination — should be preferred. These grounds or defects have a lower level of abstraction and therefore their use will reduce the scope of judicial discretion and increase legal certainty. The use of the ground of unreasonableness will be justified in extreme cases, only when all the possibilities of judicial review on the basis of more precise grounds have been exhausted, and especially when the case involves a violation of human rights. It is possible that we should return to the use of the term extreme unreasonableness, which it would appear has been forgotten to some extent. Of course, this verbal test also suffers from imprecision and involves a significant amount of judicial discretion. Notwithstanding, the use of the adjective ‘extreme’ acts as a warning to the court. The court should refrain from replacing the authority’s discretion with its own discretion, not merely as a matter of rhetoric but also in practice.

12. The petition before us raises a claim of unreasonableness with regard to a decision of the plenum of the Knesset, which gave its approval to a decision of the Prime Minister and the Government to add a minister to the cabinet. The new minister is MK Ramon, who was convicted a few months ago of a sex offence. MK Ramon was sentenced. The sentence he was given and the determination of the court that the act does not involve moral turpitude lead to the result that the conditions provided in the law were not violated by the appointment (I am, of course, referring to the provisions of s. 42A of the Basic Law: The Knesset, and s. 6 of the Basic Law: The Government). Should this court determine that the decision of the Knesset, when it approved the appointment, was unreasonable? My answer to this question is no. The body that made the ultimate decision that completed the appointment process was the parliament. The decision to approve the appointment is clearly a political one. Naturally, the members of the Knesset had a duty to take into account the fact that the new minister had been convicted of a sex offence. We cannot say how this consideration compared with other relevant considerations. The alleged defect in the decision is not one of ultra vires. The defect on which the petitioners rely does not concern a procedural impropriety in the process in which the Knesset reached its decision. We are not even dealing with a question of the interpretation of statute, nor with a decision that violated an existing right of an opposition minority. The claim is that the decision to bring MK Ramon into the Government is unreasonable. As stated, this ground is very amorphous, because of its high level of abstraction. In these specific circumstances, the court is no better placed than any citizen of the state to determine the question of the reasonableness of the decision. We are not dealing with a matter that requires legal expertise. On the basis of all the aforesaid, my conclusion is that the court should refrain from intervening in the decision.

13. The determination that the court will not set aside the decision to bring MK Ramon into the Government does not amount to a ratification of that decision (see and cf. Movement for Quality Government in Israel v. Prime Minister [11]). Non-intervention is not equivalent to giving approval or legitimizing a decision. All that the court is saying is: ‘In the circumstances of the case, it is not for the court to determine whether the decision is improper.’ The court leaves the question in the public domain. It may be assumed that there will be citizens who will think that the appointment of a cabinet minister who has committed a sex offence is absolutely wrong. They may think that such an appointment is a stain on the Government. Even if this is the case, the matter does not require the court to intervene. We are distinguishing between our opinion as citizens and our thinking as justices. Public opinion and judicial opinion are not necessarily the same thing, and it is right and proper that they should not be.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

26 Kislev 5768.

6 December 2007.

 

H.C.J. 282/61

 

           

MAHMUD EL-SARUJI et al.

v.

MINISTER OF RELIGIOUS AFFAIRS AND THE MOSLEM COUNCIL. ACRE

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 6, 1963]

Before Silberg J., Landau J. and Berinson J.

 

 

 

Administrative law - consultative body appointed by Minister- judicial review of its powers and activities.

 

The petitioners complained generally of the alleged interference of the Minister of Religious Affairs in matters affecting the Moslem Community of Acre and more particularly of the activities and powers of the local Moslem council appointed by the Ministry.

 

Held. The departure from the country of Moslem leaders and officials as a result of the events of 1948 had led to a complete collapse of all Moslem institutions and their ceasing to function. In order to remedy the situation and recreate these institutions the Ministry had not proceeded under any express statutory provision but by virtue of general power vested in the Government and within the framework of the State budget. In the course of doing so, it appointed the second respondent with which to consult and to act as its agent in the distribution of necessary funds for various public Moslem purposes. No evidence of misuse of funds had been adduced. In all these circumstances, the High Court of Justice would not intervene to control the action by the Ministry or its agent, either generally or specifically, in its choice of advisers or in resolving the public political problems with which it is faced.

 

M.N. Huari for the petitioners.

Z. Bar-Niv, State attorney, Z. Terlo and M. Cheshin for the first respondent.

E. Berenblum for the second respondent.

 

LANDAU J. The order nisi granted to the three petitioners, residents of Acre and members of the Moslem community there, calls upon the Minister of Religious Affairs and the Moslem Council of Acre to show reason "why the first respondent should not cease from interfering in matters affecting Moslems, their charitable trusts, courts of law and personal situation, and why he should not procure that the activities and powers of the Moslem Council in Acre, appointed by him, should not cease and it be dispersed."

 

The petitioners' application, as formulated in the order nisi, contained two separate complaints, one general, regarding the position of the Moslem Council in the country as a whole, and one regarding the powers and activities of the Moslem Council of Acre (or more precisely the Consultative Council for Moslem Religious Affairs of Acre).

 

            Under the first complaint, petitioners' counsel tried to show the lack of organisation and neglect which in his opinion prevail in respect of the affairs of the Moslem community in the country. Let it be said at once that this Court is not the suitable forum for voicing general complaints of this kind. The affidavit on behalf of the first respondent, made by Mr. S.Z. Kahana, the director-general of the Ministry of Religious Affairs, describes the changes that have occurred with regard to the country's Moslem Community, in the following terms:

           

"Upon the termination of Mandatory rule and the outbreak of the War of Independence the religious institutions of the Moslem Community in the country collapsed. Senior religious personnel, muftis and qadies - except for the late Sheikh Ta'ahar Tabri (who died in 1959), Mufti and Qadi of the Tiberias district - fled from the country. The system of religious jurisdiction broke down completely. Most of the officials concerned in religious services fled. The communal educational system and social welfare and health institutions ceased to exist. Among those who left the country were also the members of the Supreme Moslem Council and its Wakf Committee (bodies founded at the beginning of Mandatory rule) and the members of the Governmental Awkaf Commission, appointed by the High Commissioner by virtue of the Palestine (Defence) Order in Council, 1937. Israeli Moslems thus remained without religious organisation and religious leadership."

 

            We accept this as an accurate description of the situation created as a result of the War with which the State of Israel on its foundation was fettered by the Arab states and the flight of a large part of the Moslem population from its territory. Mr. Kahana's affidavit goes on to describe the steps taken by his Ministry to repair as far as could be the organisational breakdown of the Moslem Religious Community in Israel: the jurisdiction of the Moslem religious courts was restored on a new legal basis by the Sharia Courts (Validation of Appointments) Law, 1953, and the Qadis Law, 1961. These courts continue to act under the powers granted to them by article 52 of the Palestine Order in Council. Petitioners' counsel did not dispute that in his summation and so retracted the deprecatory remarks about the Qadis of these courts which he had permitted himself to indite in paragraph 10(c) of the petition.

 

            Mr. Kahana went on to detail in his affidavit the different measures taken by the Ministry of Religious Affairs in order to fill the vacuum created in the provision of religious requirements, religious education, charity, social welfare and so on for the country's Moslem Community. In so doing, the Ministry of Religious Affairs did not act under express statutory provision but by virtue of general governmental powers resting in the Government and its Ministries, within the financial framework of the State's Budget approved by the Knesset.

           

            The petitioners and those for whom they speak are not pleased with the existing order of things. I assume that in complaining they express the view of some part of the members of Acre's Moslem community, although I do not know whether they constitute a majority of the community. They would prefer the autonomy of the Moslem community regarding all the matters raised in their petition, but that is certainly a public-political problem not for this Court to be concerned with. Under the democratic regime existing in our country, the Knesset is the arbiter in matters of this kind and it possesses the authority to initiate changes in the existing position through the enactment of new laws, if it finds it proper so to do.

           

            The main burden of the petitioners' complaints, to all appearances, concerns the administration of Moslem charitable and religious trusts (awkaf). Under the British Mandate these trusts were administered by the Supreme Moslem Religious Council, set up by an order of the High Commission of 20 December 1921 (N. Bentwich, The Laws of Palestine, vol. 2, pp. 395 ff.). Among the functions of the Council, appointed in the manner prescribed by the order, was the control and administration of Moslem charities (paragraph 8(1)(a)). There were also set up a General Awkaf Committee and local awkaf committees under paragraphs 10 ff. In 1937, the administration of Moslem charitable trusts was transferred to a Commission appointed by the High Commissioner under the Defence (Moslem Awkaf) Regulations, 1937 (Official Gazette 1937, Suppl. 2, No. 730-731). That continued to be the position until the end of the Mandate when members of the Commission left the country and became absentees. The original order of 1921 was wholly repealed by section 25 of the Qadis Law, 1961; petitioners' counsel was mistaken in maintaining that the repeal went only to the provision relating to the appointment of qadis. It is questionable, however, whether as a result of the repeal, the said Regulations of 1937 were also repealed. In his summation, the State Attorney argued that these also were repealed by implication. It seems to me that this argument is inconsistent with what is said in paragraph 3(k) of Mr. Kahana's affidavit. What emerges from the latter is that the 1937 Regulations were not repealed and that the administrative powers of the appointed Commission became "absentee property" in the sense of section 1(a) ad finem of the Absentees' Property Law, 1950, upon its members becoming absentees. I hesitate from ruling definitively on this question which was not exhaustively argued in these hearings, but I incline to the latter view, that the 1937 Regulations exist independently, without being linked to the 1921 Order, although the Commission replaced the body instituted by the 1921 Order. The Regulations indeed vest in the Commission the powers of the Council under the old order (see regulation 5) but they are not, for that reason alone, to be regarded as an enactment intended merely to amend the Order. The result, it would appear, is that the Government to which the powers of the High Commissioner passed may but is not bound to appoint a new Commission under the 1937 Regulations and, so long as it does not, public Moslem religious and charitable trusts continue to be managed by the Custodian of Absentees' Property who took the place of the Commission that existed on the eve of the establishment of the State. I have found no basis for the vague submission of petitioners' counsel in his summation, that the right to control the funds of these trusts lies in any event with the Moslem residents now living in the country. No precedent was cited to base this view.

 

            The petitioners' complaints about the second respondent's activities are in the main that it acts without authority and has no proper concern for Moslem religious matters in Acre. The petition also alleges misuse of funds entrusted to its members. From the affidavits in reply by Mr. Muhmad Habashi, one of such members, and by Mr. Kahana it emerges that the council was established by the Minister of Religious Affairs as a consultative body on matters of religious, social welfare and educational services. The Ministry of Religious Affairs is also assisted by the Council in implementation of the activities initiated by the former for the benefit of the Acre Moslem community. To this end money is on occasion passed to the Council intended for the requirements of the city's Moslem community and the Council lays out the money in accordance with the directions and under the prescribed supervision of the Ministry. When the said affidavits were made on behalf of the respondents, the members of the consultative Council were Sheikh Mussa Tabri, the principal Qadi, who acted as chairman, Sheikh Jemal Saadi, Imam and preacher of the Aljezar Mosque, Ahmad Edalbi, a notable of the community, and the deponent Muhmad Habashi who is also a deputy mayor of Acre.

 

            This is not a commission appointed under enacted law but, as I have said, a consultative council which the Minister of Religious Affairs appointed in order to maintain contact with the Moslem community of the city. In so far as the council is entrusted with the allocation of money for the community's requirements, it acts as agent of the Ministry of Religious Affairs. The Minister of Religious Affairs is interested in choosing advisers in this field, whom he considers to be fit for the task of representing the community, and this Court will not direct him to choose other fitter advisers. As for the activity of the Council, we allowed petitioners' counsel to cross-examine at length but in spite of his protracted assault on the witness, Mr. Habashi, his efforts were in vain as regard the matters touched upon in cross-examination. The impression one obtains from the cross-examination is of conflict between contending groups of community workers. No indication was given to us of misuse of funds or of other acts contrary to good order on the part of members of the Council. In my opinion, the order nisi should be discharged.

 

SILBERG J. I agree.

 

BERINSON J. I agree.

 

            Order nisi discharged.

            Judgment given on February 6, 1963.

HCJ 6163/92

1.       Yoel Eisenberg

2.       Advocate Avraham Oren

v.

1.       Minister of Building and Housing

2.       Appointments Committee for the Civil Service Office

3.       Civil Service Commissioner

4.       Government of Israel

5.       Prime Minister

6.       Yosef Ginosar

7.       Tarak Abed Al Hai, Mayor of Taibeh

8.       Zeidan Muhammed, Head of Kefar Manda Local Council

 

The Supreme Court sitting as the High Court of Justice

[23 March 1993]

Before Justices A. Barak, E. Goldberg and E. Mazza

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The sixth respondent (Ginosar) was formerly a member of the General Security Service. He was involved in the ‘300 bus’ affair and the ‘Nafso’ affair.

In the ‘300 bus’ affair, a bus was seized by terrorists. The army stormed the bus, rescued the passengers and two of the terrorists were arrested alive. It was later announced that all the terrorists died in the rescue. A commission of enquiry was appointed, and Ginosar was one of its members. He acted in this capacity to cover up the involvement of some of the General Security Service personnel in the case. Ginosar received a pardon with regard to this from the President of the State and was not indicted.

In the ‘Nafso’ affair, a suspected terrorist was interrogated by a team headed by Ginosar. The interrogators acted improperly in the interrogation and perjured themselves in the trial in which Nafso was convicted. The matter was subsequently investigated by the Landau Commission, which recommended not indicting Ginosar.

Ginosar was recently appointed director-general of the Ministry of Building and Housing. The petition argues that in view of his involvement in the ‘300 bus’ affair and the ‘Nafso’ affair, he was unfit to be appointed to such a senior position in the Civil Service.

 

Held: An administrative body making an appointment must take into account the criminal past of the candidate, notwithstanding the absence of a criminal conviction and notwithstanding the granting of a pardon by the President, if there is reasonable evidence of a criminal past. In the circumstances of the present case, Ginosar was not a suitable candidate for a senior position in the Civil Service, and his appointment was therefore disqualified.

 

Petition granted.

 

Legislation cited:

Basic Law: Administration of Justice, 5744-1984, s. 15(c).

Basic Law: Government, 5752-1992, s. 1.

Basic Law: Human Dignity and Liberty, 5752-1992, s. 1.

Basic Law: President of the State, 5754-1994, ss. 1, 11(b).

Civil Service (Appointments) Law, 5719-1959, ss. 12, 17, 19, 46, 46(a).

Commissions of Enquiry Law, 5729-1968, s. 1.

Courts Law, 5717-1957, s. 7(a).

Courts Law [Consolidated Version], 5754-1984, s. 40(2).

Criminal Register and Rehabilitation Law, 5741-1981, ss. 1, 2, 3, 4(a)(1), 5(a), 16(a), 16(c), First Schedule s (c).

Labour Court Law, 5729-1969, s. 24(a)(1a).

Labour Court Law (Amendment no. 18), 5750-1990.

Law of Return, 5710-1950.

Local Authorities (Elections) Law, 5725-1965, s. 7(6).

Military Jurisdiction Law, 5715-1955, ss. 73, 537.

Penal Law, 5737-1977, ss. 22, 24(a)(1).

 

Israeli Supreme Court cases cited:

[1]      HCJ 264/77 Moshe v. National Insurance Institute [1978] IsrSC 32(1) 678.

[2]      HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [1991] IsrSC 45(5) 445.

[3]      HCJ 3/73 Kahanoff v. Tel-Aviv Regional Rabbinical Court [1985] IsrSC 39(1) 449.

[4]      HCJ 403/71 Alkourdi v. National Labour Court [1972] IsrSC 26(2) 66.

[5]      HCJ 40/74 Barkol v. Minister of Education and Culture [1984] IsrSC 38(1) 785.

[6]      HCJ 578/80 Genaim v. Muasi [1981] IsrSC 35(2) 29.

[7]      HCJ 221/69 A v. Minister of Defence [1970] IsrSC 24(1) 365.

[8]      HCJ 7/70 Agai v. Minister of Agriculture [1973] IsrSC 27(1) 127.

[9]      HCJ 344/69 Kadouri v. Tel-Mond Local Council [1969] IsrSC 23(2) 620.

[10]    HCJ 991/91 David Pasternak Ltd v. Minister of Building and Housing [1991] IsrSC 45(5) 50.

[11]    HCJ 209/68 Simchi v. Civil Service Commissioner [1968] IsrSC 22(2) 673.

[12]    HCJ 10/59 Levy v. Tel-Aviv Regional Rabbinical Court [1959] IsrSC 13 1182; IsrSJ 3 161.

[13]    HCJ 453/84 Iturit Communication Services Ltd v. Minister of Communications [1984] IsrSC 38(4) 617.

[14]    CA 436/62 Ramat-Gan Municipality v. Tik [1963] IsrSC 17 1262.

[15]    HCJ 341/80 Duick v. Bachar, Postal Services Manager [1981] IsrSC 35(2) 197.

[16]    HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [1980] IsrSC 34(3) 729.

[17]    HCJ 688/81 Migdah Ltd v. Minister of Health [1982] IsrSC 36(4) 85.

[18]    HCJ 653/79 Azriel v. Director of Licensing Department, Ministry of Transport [1981] IsrSC 35(2) 87.

[19]    CrimA 22/89 Azva v. State of Israel [1989] IsrSC 43(2) 592.

[20]    CrimA 124/87 Nafso v. Chief Military Prosecutor [1987] IsrSC 41(2) 631; IsrSJ 7 263.

[21]    HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[22]    HCJ 88/88 Nafso v. Attorney-General IsrSC [1988] 42(3) 425.

[23]    HCJ 727/88 Awad v. Minister of Religious Affairs [1988] IsrSC 42(4) 487.

[24]    HCJ 58/68 Shalit v. Minister of Interior IsrSC [1969] 23(2) 477.

[25]    CA 165/82 Kibbutz Hatzor v. Assessing Officer, Rehovot [1985] IsrSC 39(2) 70.

[26]    HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

[27]    CA 752/78 Authority under the Nazi Persecution Victims Law 5717-1957 v. Frisch Estate [1979] IsrSC 33(3) 197.

[28]    HCJ 1635/90 Jerezhevski v. Prime Minister [1991] IsrSC 45(1) 749.

[29]    HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [1971] IsrSC 25(1) 325.

[30]    HCJ 669/86 Rubin v. Berger [1987] IsrSC 41(1) 73.

[31]    HCJ 4566/90 Dekel v. Minister of Finance [1991] IsrSC 45(1) 28.

[32]    HCJ 531/79 Petah-Tikvah Municipality Likud Faction v. Petah-Tikvah Municipal Council [1980] IsrSC 34(2) 566.

[33]    CrimA 884/80 State of Israel v. Grossman [1982] IsrSC 36(1) 405.

[34]    HCJ 313/67 Axelrod v. Minister of Religious Affairs [1968] IsrSC 22(1) 80.

[35]    HCJ 1601/90 Shalit v. Peres [1991] IsrSC 45(3) 353; IsrSJ 10 204.

[36]    BAA 18/84 Carmi v. State Attorney [1990] IsrSC 44(1) 353.

[37]    BAA 1/68 A v. Attorney-General [1968] IsrSC 22(1) 673.

[38]    CA 254/64 Hassin v. Dalyat al Carmel Local Committee [1965] IsrSC 19(1) 17.

[39]    CrimA 521/87 State of Israel v. Einav [1991] IsrSC 45(1) 418.

[40]    CrimA 121/88 State of Israel v. Darwish [1991] 45(2) 633.

[41]    HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

[42]    HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

[43]    HCJ 156/75 Daka v. Minister of Transport [1976] IsrSC 30(2) 94.

[44]    HCJ 127/80 Odem v. Mayor of Tel-Aviv [1981] IsrSC 35(2) 118.

[45]    FH 9/77 Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [1978] IsrSC 32(3) 337.

[46]    CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [1963] IsrSC 17 1319; IsrSJ 5 120.

[47]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[48]    HCJ 10/48 Zeev v. Acting District Commissioner of Tel-Aviv [1948] IsrSC 1 85; IsrSJ 1 68.

[49]    HCJ 732/84 Tzaban v. Minister of Religious Affairs [1986] IsrSC 40(4) 141.

[50]    HCJ 251/88 Oda v. Head of Jaljulia Local Council [1988] IsrSC 42(4) 837.

[51]    HCJ 436/63 Ben-Aharon v. Head of Pardessia Local Council [1967] IsrSC 21(1) 561.

[52]    BAA 2579/90 Bar Association District Committee, Tel-Aviv v. A [1991] IsrSC 45(4) 729.

[53]    HCJ 94/62 Gold v. Minister of Interior [1962] IsrSC 16 1846; IsrSJ 4 175.

[54]    HCJ 442/71 Lansky v. Minister of Interior [1972] IsrSC 26(2) 337.

[55]    EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

[56]    HCJ 31/81 Moshav Beth Oved Workers Commune for Cooperative Agricultural Settlement Ltd v. Traffic Supervisor [1982] IsrSC 36(3) 349.

[57]    CA 492/73 Schpeizer v. Council for Regulating Sports Gambling [1985] IsrSC 39(1) 22.

[58]    HCJ 5684/91 Barzilai v. Government of Israel [1992] IsrSC 46(1) 536.

 

American cases cited:

[59]    May v. Edwards 529 S.W. 2d. 647 (1975).

[60]    State ex rel. Wier v. Peterson 369 A. 2d 1076 (1976).

 

Jewish Law sources cited:

[61]    Maimonides, Mishneh Torah, Laws of Repentance 7, 6.

 

For the first petitioner — E. Ben-Tovim.

For the second petitioner — S. Baruch.

For respondents 1-5 — A. Mandel, First Senior Assistant to the State Attorney.

For the sixth respondent — A. Zichroni.

For respondents 7-8 — D. Cohen.

 

 

JUDGMENT

 

 

Justice A. Barak

The Government appointed Yosef Ginosar as director-general of the Ministry of Building and Housing. Ginosar was involved in the ‘300 bus’ affair. As a member of the Zorea Commission, he was instrumental in covering up the part played by General Security Service (GSS) personnel in the affair. He was granted a pardon by the President for his part in this affair and was not put on trial. Ginosar was also involved in the ‘Nafso’ affair. He led the interrogation team. The interrogators used improper interrogation methods against Nafso and committed perjury before the special military tribunal that convicted Nafso. For this behaviour he was not put on trial. The question that we must decide is whether, in view of Ginosar’s past, the Government’s decision to appoint him is lawful.

The problem of jurisdiction

1.    The petitioners in this case — whose interest in the subject of the petition lies in imposing the rule of law on the Government — complain that the appointment of Ginosar (hereafter — ‘the respondent’) is unlawful. At the beginning of the hearing, the respondent’s attorney raised an argument that the only court competent to decide the subject-matter of the petition is the Regional Labour Court, not the High Court of Justice. We must therefore consider this argument first. The argument is based on s. 24(a)(1a) of the Labour Court Law, 1969, as introduced by the Labour Court Law (Amendment no. 18), 5750-1990. The text of the provision is as follows:

‘(a) The Regional Labour Court shall have exclusive jurisdiction to try —

(1a) An action arising from negotiations towards making a contract to create an employee-employer relationship, an action arising from a contract as stated before an employee-employer relationship is created or after termination of the said relationship, or an action arising from accepting someone for employment or refusing to accept him.’

Counsel for the respondent argues that the petition before us is essentially an action ‘arising from accepting someone for employment…’ and therefore the Regional Labour Court has exclusive jurisdiction to try it. This argument is unacceptable both to the petitioners and to the counsel for the other respondents, the Minister of Building and Housing, the Appointments Committee, the Public Service Commissioner, the Government of Israel and the Prime Minister (hereafter — ‘the respondents’). According to counsel for the petitioners, the purpose of the new jurisdictional provision was to give the Labour Court jurisdiction that was in the past vested in the civil courts (the Magistrates or District Court). The provision is not intended to negate the jurisdiction of the High Court of Justice. According to counsel for the respondents, the change of jurisdiction applies only to matters raising issues that are closely related to labour law. In this case, the substantive issue that the court is asked to examine is the exercise of executive power. The consequence whereby employee-employer relations are created is marginal. Therefore the High Court of Justice has the jurisdiction to try the petition before us, whether this is exclusive jurisdiction or concurrent jurisdiction.

2.    Section 24(a)(1a) of the Labour Court Law extends the jurisdiction of the Labour Court. This exists now not only for actions arising from an employee-employer relationship but also for actions arising from events that preceded the creation of an employment relationship or that took place after the employment relationship ended. Within this framework, it was also provided that the Labour Court has jurisdiction to try actions arising from accepting someone for employment. It seems to us that the case before us falls into this category, and that the Labour Court — as well as the High Court of Justice — has jurisdiction to try the action which is the subject of the petition. When the respondent was appointed by the Government, he was accepted for employment. An employee-employer relationship was created between him and the State as a result of the act of the Government as the competent authority. There is no material difference, formally, between accepting the respondent for employment and accepting other candidates for employment in the Civil Service. It is true that other employees are sometimes chosen by tender (s. 19 of the Civil Service (Appointments) Law, 5719-1959 (hereafter — ‘the Appointments Law’) and the authority acting on behalf of the State is not the Government. Notwithstanding, at the end of the process, irrespective of the form of selection, an appointment is made by the Civil Service Commissioner (s. 17 of the Appointments Law), and an employee-employer relationship is created between the State and the appointees. The same applies to the appointment of employees in other executive bodies, such as municipalities and local councils. The same law applies, of course, to the appointment of employees by private employers (corporations and individuals). In all these situations there is a candidate who is accepted (or not accepted) for employment, and an action arising from improprieties that occurred in accepting a person for employment or not accepting him is tried by the Labour Court. When the jurisdiction of the Labour Court was extended, there was a corresponding narrowing of the jurisdiction of the District Court. Its jurisdiction is residual (‘any matter that is not in the exclusive jurisdiction of another court…’: s. 40(2) of the Courts Law [Consolidated Version], 5744-1984). When exclusive jurisdiction was given to the Labour Court to try actions arising from accepting someone for employment, the jurisdiction of the District Court was automatically reduced at the same time (unlike the jurisdiction of the High Court of Justice).

3.    The key question is, what impact does the extension of the exclusive jurisdiction of the Labour Court have on the jurisdiction of the High Court of Justice? When the jurisdiction of the Labour Court was extended, was there a corresponding narrowing of the jurisdiction of the High Court of Justice? Indeed, were the High Court of Justice a court of residual jurisdiction, its status would then be — for the purpose of the narrowing of jurisdiction — like that of the District Court. But in matters where it has jurisdiction, the High Court of Justice does not have residual jurisdiction. It follows that the precise question is whether extending the exclusive jurisdiction of the Labour Court has the effect of reducing the jurisdiction of the High Court of Justice. In my opinion, the answer to this is no. The reason for this is three-fold: first, the intention of the legislator was not to affect the jurisdiction of the High Court of Justice. The intention was to extend the jurisdiction of the Labour Court’s authority and to take this jurisdiction away from the civil courts (see the draft Labour Court (Amendment no. 16) Law, 5748-1988, at p. 284). Second, the presumption is that the jurisdiction of the High Court of Justice can only be negated in clear and unambiguous language (HCJ 264/77 Moshe v. National Insurance Institute [1], at p. 687; HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [2]). This presumption is particularly strong when the jurisdiction is taken away from the court system and conferred on a non-judicial body. This presumption is weaker when the change occurs in the framework of the jurisdiction of the regular courts between themselves. The presumption is of medium strength when the jurisdiction is taken away from the regular courts and moved to ‘special’ courts from which there is no appeal to the Supreme Court (such as from regular court to the Rabbinical Court, or to the Labour Court — see HCJ 3/73 Kahanoff v. Tel-Aviv Regional Rabbinical Court [3], at p. 453). Justice Berinson rightly pointed out that:

‘This Court is charged with preserving the legality, propriety and reasonableness of the acts of Israeli public authorities, and this role has supreme constitutional and public importance. Any harm to this may undermine one of the foundations of the rule of law in the public life of the State and strike at the most vulnerable spot of the judiciary in Israel’ (HCJ 403/71 Alkourdi v. National Labour Court [4], at pp. 72-73).

Third, the jurisdiction of this court under the provision of section 15(c) of the Basic Law: Administration of Justice is particularly wide. Under this provision the jurisdiction of the High Court of Justice has been recognized even where another court or tribunal has jurisdiction in a matter, provided that there are special circumstances that justify this. Justice Berinson discussed this with regard to the Labour Court in particular, pointing out that:

‘… when sitting as the High Court of Justice, we have decided several times, under s. 7(a) of the Courts Law, 5717-1957, to bring within our review a matter within the jurisdiction of another court or tribunal, when the remedy that can be expected there is not sufficiently effective or speedy (HCJ 40/74 Barkol v. Minister of Education and Culture [5], at p. 788).

For this reason it seems to me that the mere act of conferring jurisdiction on a special court to try matters which the High Court of Justice has jurisdiction to try does not amount to clear and unambiguous language that the jurisdiction of the High Court of Justice is negated. Such a conferral of jurisdiction is therefore interpreted as creating concurrent jurisdiction.

4.    I am aware that this approach of mine constitutes a departure from several judgments made by this court in the past (mostly by majority opinion), including case-law with which I myself was associated (see HCJ 578/80 Genaim v. Muasi [6]). In those judgments the question posed was whether the High Court of Justice or the Labour Court had exclusive jurisdiction (see, for example, HCJ 221/69 A v. Minister of Defence [7]; HCJ 7/70 Agai v. Minister of Agriculture [8]; HCJ 344/69 Kadouri v. Tel-Mond Local Council [9]). If I regard myself as justified (objectively) in re-examining this question, this is merely because of the new approach prevailing in this court that the proper view is the one that recognizes the existence of concurrent jurisdiction, such that in certain cases both the High Court of Justice and another court or tribunal will have jurisdiction (see HCJ 991/91 David Pasternak Ltd v. Minister of Building and Housing [10]). This viewpoint creates the proper balance between the various considerations that have been examined in extensive case-law with regard to the reciprocal relationship between the High Court of Justice and other courts and tribunals in Israel. It should be noted that this judgment is restricted merely to the interpretation of section 24(a)(1a) of the Labour Court Law, and we are not adopting any position with regard to any jurisdiction arising from other provisions of the Labour Court Law.

5.    Thus an action arising from accepting a person for employment is in the jurisdiction of the Labour Court. When the decision about accepting a person for employment is made by an executive authority acting under a law, the High Court of Justice also has jurisdiction with regard to the legality of the decision (Barkol v. Minister of Education and Culture [5]; HCJ 209/68 Simchi v. Civil Service Commissioner [11]). Jurisdiction with regard to the legality of accepting a person for employment is therefore concurrent. Nonetheless, the decision on the question of venue is not dependent on the choice of the plaintiff or petitioner. It is true that we do have jurisdiction to hear a petition arising from accepting someone for employment. However, our jurisdiction is ‘discretionary’ (in the language of Justice Sussman’s in HCJ 10/59 Levy v. Tel-Aviv Regional Rabbinical Court [12], at p. 1194 {173}). In accordance with this discretion (‘discretionary jurisdiction’: HCJ 453/84 Iturit Communication Services Ltd v. Minister of Communications [13]), we will not hear a petition as long as the petitioner has an alternative remedy (see CA 436/62 Ramat-Gan Municipality v. Tik [14], at p. 1266). Therefore we have referred petitioners, who complain of invalid decisions of executive authorities within the framework of proceedings in a tender, to the civil court, for that is where alternative relief can usually be found (David Pasternak Ltd v. Minister of Building and Housing [10]). Note that:

‘The question of the alternative remedy does not raise the question of jurisdiction. Instead, it raises the question of judicial discretion. Where an alternative remedy exists, the High Court of Justice is likely to exercise its discretion to refrain from considering the petition.’ (ibid., [10], at p. 60).

6.    How should we exercise our judicial discretion in this case? As in similar cases, we must find a balance between conflicting considerations. In principle, disputes arising from accepting a person for employment — just like the other matters listed in section 24(a)(1a) of the Labour Court Law — should be tried by the Labour Court, which is properly equipped for deciding the dispute. It will do this on the basis of both labour law and the rules of administrative law. Indeed, when considering an action arising from acceptance of a person for employment, based on a decision of an executive authority, the Labour Court will examine the legality of the act of the executive authority according to the same criteria that the High Court of Justice would adopt if it were to consider the matter. This is the ‘normative duality’, which characterises the proceedings of any judicial forum in the country with regard to any matter with an executive aspect (see HCJ 341/80 Dueck v. Bechar, Director of Postal Services (Jerusalem District) [15]; HCJ 840/79 Israeli Contractors and Builders Centre v. Government of Israel [16]; HCJ 688/81 Migdah Ltd v. Minister of Health [17]). Notwithstanding, we are always prepared to exercise our authority in exceptional cases that justify this. In a similar case we determined the following standard for exercising our discretion:

‘The case is exceptional if it raises a problem that, because of its nature, ought to be tried in the highest administrative court as a court of first instance. This will certainly be a petition that does not raise a need to decide a real dispute of factual matters, but which raises a difficult and important legal problem. Such a question may arise either in the absence of case-law in the matter under discussion or because of conflicting decisions in the civil courts in this matter or because of conflicting decisions in the Supreme Court itself. Similarly, a case will be deemed special if it raises an especially urgent issue that the civil court is unable — despite the temporary remedies available to it — to deal with effectively. Finally, we will treat a case as exceptional if the context in which it arises is “an expression of a struggle between powerful forces and the citizen, and it is desirable that it should be heard by the court which is recognized by the public and the Government as the highest judicial authority” …’ (David Pasternak Ltd v. Minister of Building and Housing [10], at p. 64).

It need not be said that this list is not closed ‘and it is merely an expression of the legal policy considerations underlying the alternative remedy itself’ (ibid., see also Barkol v. Minister of Education and Culture [5], at p. 788).

7.    On the basis of these criteria, we think that this petition should be heard by us, and that we should not refer the petitioners to the Labour Court. It is sufficient to point out that the case before us, on the one hand, does not raise any factual dispute and, on the other, it raises a legal problem that has not yet been decided in Israeli law. Moreover, we are dealing with a significant and central issue, which has profound ramifications on the rule of law (both formal and substantive) and the public’s confidence in the actions of Government authorities in general and of the supreme executive organ of State (the Government) in particular. For these reasons we have decided to consider the petition on its merits.

8.    The result, therefore, is that both the High Court of Justice and the Regional Labour Court have jurisdiction to try a certain petition. The High Court of Justice has discretion to decide when it will exercise its jurisdiction and when it will refrain from hearing a petition and refer it to the Labour Court. In the case before us, we have decided — for the reasons given — to consider the petition on its merits. We will begin by presenting the normative framework; then we will review the chain of events before and after the appointment. Finally, we will consider the essence of the petition, which is whether the Government’s discretion in appointing the respondent was lawful.

The general normative framework: the authority and procedure for making appointments

9.    The Appointments Law addresses the Government’s authority to appoint a director-general of a Government ministry. The Appointments Law does not include any provision about the qualifications of a candidate for the office of director-general. It has no provision about his criminal past and the effect thereof on the appointment. However, it does have a provision about the appointment procedure. Section 12 of the Appointments Law stipulates:

‘Subject to the provisions of this law and conditions that it may determine, the Government shall appoint a director-general for each ministry, on the recommendation of the minister responsible for that ministry, and the appointment shall not be subject to a compulsory tender under section 19.’

By virtue of its authority under s. 12 of the Appointments Law, the Government determined conditions for appointing directors-general. These conditions stipulate, inter alia, that the Prime Minister shall appoint the Civil Service Commissioner and five persons who are not civil servants, who will form an appointments committee that will express an opinion about all the candidates for the office of director-general. The appointments committee shall have three members: the Civil Service Commissioner, who is the chairman, and two members selected by him for each case from the list of five in rotation, in alphabetical order of their surnames. A recommendation to appoint someone to the office of director-general shall be submitted to the Government by the minister responsible for the ministry having the relevant position, together with the opinion of the appointments committee.

The chain of events before and after the appointment

10. The Minister of Building and Housing (the first respondent) referred the appointment of the respondent to the position of director-general of the Ministry of Building and Housing with the appointments committee. The members of the committee were the Civil Service Commissioner (Mr M. Gabbay), Dr Moshe Mandelbaum and Adv M. Wagner. The committee interviewed the candidate. It considered his professional qualifications and experience. The respondent’s involvement in the ‘300 bus’ affair as a member of the Zorea Commission was neither presented to the appointments committee nor was it discussed. Similarly the respondent’s involvement in the ‘Nafso affair’ was not presented to the appointments committee nor was it discussed. In any case, no questions were asked at the appointments committee about these matters. When it ended its deliberations, the appointments committee unanimously recommended appointing the respondent to the proposed position.

11. At this stage — before the Government considered the appointment — the petition in HCJ 6163/92 was filed. The Minister of Building and Housing was asked to explain why he should not retract his recommendation to the Government to appoint the respondent as director-general in his ministry. The appointments committee was asked to retract its recommendation. The Government was asked to refrain from appointing the respondent to the proposed position. At the same time, an interim order prohibiting the Israeli Government from considering the respondent’s appointment was sought. The petition was referred to a panel of three judges. All the parties were summoned to the hearing. It was determined that the application for an interim order would be heard by the panel. At the beginning of the hearing on the interim order before the panel, counsel for the petitioner restated his application that an interim order should be made to stop the appointment process. On the other side, counsel for the respondents argued that the petition was premature. The Government should be allowed to discuss and decide the matter. The Government’s decision is reversible and it is unable to change the petitioner’s legal status. At the end of the parties’ arguments about the interim order, we made (on 27 December 1992) the following decision:

‘After hearing the arguments of the parties, we are satisfied that the decision regarding the interim order should be given by the panel that will hear the petition. We have noted for the record the statement of counsel for respondents 1-4 that an appointment will not constitute a change in the legal position, and that the petitioner will subsequently be able to raise all the arguments that he may raise today.’

The hearing about issuing a show cause order was postponed to another date, after the Government made a decision. Meanwhile an additional petition (HCJ 6177/92) was filed, with the same contents.

12. Since no interim order was made, the Government held a discussion, on the very same day, about the proposal of the Minister of Building and Housing to appoint the respondent to the position of Director-General of the Ministry of Building and Housing. The Government held a long and thorough discussion about the questions relating to the acts of the respondent in the past. At the end of this discussion, a decision was made to appoint the respondent to the proposed position. After the Government made its decision, the hearing before us was set down for continuation (on 31 January 1993).

13. At the beginning of the hearing on the question of issuing a show cause order — but before the various problems arising were examined — we raised the following question: the appointments committee dealt only with the respondent’s personal qualifications for carrying out the position. Unlike the Government, the appointments committee did not hold any discussion about the effect of the respondent’s past on his appointment. Is not this omission sufficient to render the decision of the appointments committee and the Government defective? In the petitioners’ opinion, the decision of the appointments committee was indeed defective as stated. As we have seen, this was the main complaint of the petitioners in their petition. In their opinion, the appointments committee ought to reconsider the matter anew, with a different panel. In contrast, counsel for the respondents thought that the defect that occurred did not influence the Government’s decision. In her opinion, the appointments committee is not a statutory committee, but an internal committee that was appointed by virtue of a Government decision. In these circumstances, the comprehensive discussion that took place in the Government was sufficient. Counsel for the respondent agreed with this view. He pointed out in addition that the information about the respondent’s past is public knowledge, and was doubtless considered by the appointments committee as well. In view of this disagreement — and in order to resolve it — we asked the parties whether they were prepared to regard the petition as though a show cause order had been issued. The respondents and the respondent rejected the proposal. We set down the continuation of the hearing with regard to the show cause order for an early date (2 February 1993).

14. On 2 February 1993, we held a hearing with regard to issuing a show cause order. We heard the arguments of the parties about the jurisdiction of the High Court of Justice and about the merits of the case. We immediately decided to grant a show cause order as requested. We allowed seven days for a reply. We then considered the application of the petitioners to grant an interim order, suspending the activity of the respondent as director-general until the petition was decided. We reached the decision that the interim order should be granted as requested. We ordered the suspension of the respondent’s activity as director-general of the Ministry of Building and Housing pending judgment in the petition. Several days later (on 8 February 1993), before hearing the case on its merits, we were asked by the respondents to cancel the interim order. We dismissed the application. On 10 February 1993 we decided that the question of revoking the interim order ought to be considered within the framework of the hearing of the petition itself. This hearing was set down for 16 February 1993.

15. At the beginning of the hearing of the petition (on 16 February 1993), we were told that in view of our comments during the case, and in order to remove all doubt about the validity of the appointment, the Minister of Building and Housing decided (on 1 February 1993), with the approval of the Prime Minister and the Attorney-General, to return the matter to the appointments committee for reconsideration, so that it might give its opinion about the candidate after considering all of the relevant aspects. The Government appointed an appointments committee with a different panel (D. Vinshal, H. Koversky and Prof. Z. Lev). The appointments committee convened (on 3 February 1993) and interviewed the candidate. It considered his qualifications and experience for filling the position. It was presented, by the legal adviser of the Prime Minister’s office, with factual and legal material relating to the respondent’s service in the General Security Service, and the candidate was asked questions about this matter. The committee heard arguments from the respondent’s attorney. After examining the various aspects, the committee unanimously reached a decision to recommend that the Government appoint the respondent. The committee’s position was presented to the Government, and it decided once again to appoint the respondent.

16. The new decision of the appointments committee makes it unnecessary to make a decision about the propriety of the original proceedings before the appointments committee and the effect of that impropriety on the decision of the Government. Notwithstanding, in view of the respondents’ position in principle that even if there was a defect in the decision of the appointment’s committee, this was insufficient to make the Government’s decision defective, we ought to take a position on this matter. The premise is that the appointments committee was not established by the Appointments Law. Nonetheless, it was established by virtue of a decision of the Government, acting under s. 12 of the Appointments Law. The Government may, of course, change its decision without needing to change the law, if it thinks that the arrangement with regard to the appointments committee needs to be amended. However, as long as the Government has not decided otherwise, the decision — enshrined in s. 12 of the Appointments Law — that the procedure for making a decision about the appointment of a director-general of a ministry has three stages, remains in force. These stages are: the proposal of the responsible Minister; the opinion of the appointments committee; the decision of the Government. Each of these stages is essential for making the final decision about the appointment. Admittedly, the Government is not bound to accept the recommendation of the appointments committee. But it must consider this opinion ‘with an open mind’ (HCJ 653/79 Azriel v. Director of Licensing Department, Ministry of Transport [18], at p. 96). The opinion of the appointments committee is an important factor in the Government’s decision-making process. It is not a mere ‘formality’. My colleague, Justice Mazza, rightly pointed out that:

‘… it is insufficient to hold a consultation, as though it were a religious ritual, merely in order to satisfy the formal requirement of the law that requires it to be held. A ‘consultation’ that is an empty shell does not discharge the competent authority of its duty’ (CrimA 22/89 Azva v. State of Israel [19], at p. 597).

From this we can also see that it is important for the appointments committee to consider the matter properly, since the Government relies on its opinion. It is possible that as a result of a proper consideration — during which the whole picture would have been presented to the first appointments committee — its opinion would have been different. A different opinion of the appointments committee would possibly have led to a different decision of the Government. But the consideration that was made by the appointments committee was not a proper one. It was not shown the whole picture. It was not presented with all the facts. The recommendation focused on the respondent’s qualifications, and did not take into account at all his part in the ‘300 bus’ affair or the ‘Nafso’ affair. In these circumstances, had this recommendation and the Government’s decision that followed it remained as they were, there would have been no alternative but to invalidate the recommendation (of the appointments committee) and the decision (of the Government). However, as stated, the defect was repaired. A new appointments committee reconsidered the matter. Its opinion was considered anew by the Government. Now we must examine the legality of the decision of the Government itself.

The respondent and the Nafso affair

17. Nafso was an IDF officer, holding the rank of lieutenant. He was arrested (in 1980) on suspicion of treason, grave espionage, assisting the enemy and assisting the enemy during wartime. He was interrogated by a team of the General Security Service. The respondent headed the team. At the end of the interrogation, he made a handwritten confession. On the basis of this confession, together with ‘something extra’, Nafso was convicted by the Special Court Martial. He was sentenced to eighteen years imprisonment, was discharged from the army and was stripped of his military rank. His claim that his confessions were inadmissible, because they were elicited from him by improper means, was rejected by the trial court. His interrogators (including the respondent) testified in the Special Court Martial that the confession had been made freely and voluntarily, without any means of pressure being exerted on him. His appeal to the Appeals Court Martial was denied. An appeal by leave was heard in the Supreme Court (CrimA 124/87 Nafso v. Chief Military Prosecutor [20]). At the beginning of the appeal hearing, the Chief Military Attorney notified the court that before the appeal hearing, the GSS had conducted an investigation of the claims that Nafso had raised in his trial about improper means used against him during his interrogation. The Military Attorney himself conducted his own investigation. According to the results of the investigation, there was truth in most of Nafso’s claims about pressures that had been exerted on him with regard to his confessions, and which he alleged had affected his free will. According to Nafso, acts of violence had been perpetrated against him, which included pulling his hair, shakings, throwing him on the ground, kicks, slaps and humiliations. He had been ordered to undress and was sent to have cold showers. He was deprived of sleep for long periods during the day and especially at night. He was forced to stand in the prison yard for many hours, even when he was not being interrogated. He was also threatened with the arrest of his mother and wife and with the publication of intimate information about him that was in the possession of his interrogators. According to the Military Attorney’s notice to the court, apart from the claim that he was hit or slapped, the truth of most of Nafso’s claims about the method of his interrogation was confirmed. In view of these findings, the Military Attorney agreed that Nasfo’s conviction should be overturned. Within the framework of an agreement between Nafso and the Chief Military Attorney, Nafso confessed to a crime of overstepping his authority to a degree endangering State security (an offence under s. 73 (first part) of the Military Jurisdiction Law, 5715-1955). The Supreme Court allowed the appeal, overturned the conviction and the sentence imposed by the Special Court Martial and it convicted Nafso of an offence under section 73 (first part) of the Military Jurisdiction Law. He was sentenced to twenty-four months imprisonment from the date of his arrest and was relegated to the rank of sergeant-major.

18. In his opinion, President Shamgar said: ‘It became clear to us from the statement of the learned counsel for the State that, in his opinion, the General Security Service interrogators exceeded, in view of the cumulative effect of their acts, what was permitted and went from bad to worse when, in testifying before the Special Court Martial about the interrogation of the appellant, they lied by denying the main claims of the appellant about the interrogation methods’ (ibid., at p. 636). In assessing this behaviour, President Shamgar noted:

‘We should not minimize the seriousness of this conclusion, which shows the indifference of the aforesaid witnesses to the duty to tell the truth when testifying before a court. These acts involve extreme damage to the integrity of the agents of the said branch of Government. In this way, the court was prevented from deciding the appellant’s case on the basis of true facts, and the standing and authority of the court that was led astray by the statements of the interrogators were damaged.

The grave act discovered in this case, which led the court to base its findings on confessions after incorrect facts were given to the court about how they were obtained, requires decisive measures be taken in order to uproot this kind of phenomenon, and we therefore draw the attention of the Attorney-General to it’ (ibid.).

19. In the wake of the ‘Nafso’ affair, the Government decided (on 31 May 1987) ‘that the issue of the interrogation methods of the General Security Service regarding hostile terrorist activity is a matter of critical public importance at this time, and it requires investigation.’ On this basis it was decided to establish a commission of enquiry, under s. 1 of the Commissions of Enquiry Law, 5729-1968, ‘about the interrogation methods and procedures of the GSS with regard to hostile terrorist activity and testifying in court about these interrogations.’ The president of the Supreme Court appointed a Commission of Enquiry (Justice (ret.) Moshe Landau, chairman of the Commission, Yaakov Malz (then State Comptroller) and General (res.) Yitzchak Hofi) (hereafter — ‘the Landau Commission’). The Landau Commission submitted a report to the Government (The Commission of Enquiry regarding interrogation methods of the General Security Service regarding hostile terrorist activity — Report, Part 1). One of the chapters of this report was devoted to the Nafso affair. The Commission reiterated the determinations of the Supreme Court. Furthermore it pointed out that in the internal investigation conducted in the Security Service before the hearing of Nafso’s appeal, Nafso’s interrogators claimed that ‘in using means of pressure they did not deviate from what they were permitted in the guidelines of the Service that existed at that time, and what was worse, they claimed that when they perjured themselves in the trial court, where they denied using these means of pressure, they had not deviated from what was accepted practice in the Service, and this was done with the knowledge of their superiors’ (p. 7). The Commission determined that ‘to our great regret and shame, we must find that these claims about the permission to use pressure, and the “norm” of committing perjury in court in this respect, have been proved to us to be correct’ (ibid.).

20. Later on in the report, the Landau Commission noted that the General Security Service takes great care:

‘not to accept from persons being interrogated false confessions based on untrue facts. The aim is to obtain true confessions, even if with psychological pressure, and sometime even with physical pressure, as was used against Nafso. Any false confession mistakenly thought to be true obviously undermines the Service’s efforts to frustrate hostile terrorist activity. For this reason, a thorough comparison is made between information obtained in a confession and information received from other persons being interrogated and information received by the Service from confidential sources that cannot be disclosed in court’ (ibid.).

This background emphasizes the difference between the Service’s normal interrogations and the interrogation of Nafso:

‘Fundamental differences of opinion emerged between the eight interrogators who participated in the interrogation at various stages: two of them believed that Nafso was entirely innocent, and there was one who held that he committed all the offences of which he was accused, whereas the head of the team himself had doubts about Nafso’s guilt in the most serious indictment, about the smuggling of the weapons into Israel’ (ibid., at p. 8).

In summing up the Nafso affair, the Commission of Enquiry pointed out:

‘This affair should shock and terrify us, not merely because of the miscarriage of justice towards Nafso personally, but no less because of the corruption of values in committing perjury, which was brought out into the open and which must now be completely eliminated’ (ibid., at p. 9).

At the end of the report several recommendations were made. We will address these below. Now we will turn to the ‘300 bus’ affair and the respondent’s involvement in that matter.

The respondent and the ‘300 bus’ affair

21. The Landau Commission mentioned the ‘300 bus’ affair. But its mandate did not relate to this affair, and the Commission’s report does not contain detailed findings about this matter. We will base our findings mainly on the judgment of this Court in HCJ 428/86 Barzilai v. Government of Israel [21] and the ‘Opinion about the Investigation of the 300 Bus Terrorist Incident’; this opinion was prepared by a team (Y. Karp, E. Arbel, and Y. Elisof) appointed by the Attorney-General, Mr Y. Harish. The opinion was submitted to us by the petitioner (in HCJ 6163/92), and no claim was raised by the respondents in this respect. We are not analysing all aspects of the ‘300 bus’ affair; we are limiting ourselves merely to the respondent’s part in this affair.

22. On 12 April 1984, a group of four terrorists hijacked an Egged bus on line 300 and threatened the lives of its passengers. The bus was stopped by the security forces. At dawn the next day, military personnel stormed the bus. In the first burst of fire, two of the terrorists were killed. The remaining two terrorists were beaten by soldiers immediately after they stormed the bus in order to stun them, because of a fear that they might detonate an explosive device in their possession. The two were removed from the bus alive. Later it was reported that they had died. It was not reported that the two were shot dead by General Security Service agents, who acted on the orders of the Head of the Service. A demand arose to investigate the circumstances of the two terrorists’ deaths. The Minister of Defence at that time, Moshe Arens, established a commission of enquiry (under s. 537 of the Military Jurisdiction Law). The members of the Commission were General (Res.) M. Zorea, chairman, and the respondent, who was at that time a senior employee in the General Security Service. The Zorea Commission’s mandate was ‘to determine the facts relating to the cause of death of the terrorists, to draw conclusions and make recommendations, including conclusions and recommendations on a personal level.’ The Head of the Service initiated activity to prevent a leak of information about the circumstances of the case and for this activity he recruited a number of secret partners. Among the secret partners was the respondent, who was appointed a member of the Zorea Commission. Upon the appointment of the respondent as a member of the Zorea Commission, he was ordered by the Head of the Service to find out the circumstances of the killing of the terrorists. Members of the Service gave him full details about what actually happened at the time of the event. They agreed on a cover story for the Zorea Commission and on a briefing of the witnesses. The Head of the Service issued a directive not to speak about the killing before the Commission. The respondent knew of the directive. Throughout all the deliberations of the Commission, the Security Service personnel denied the role of the Security Service in the killing of the terrorists. Throughout the whole period of the activity of the Zorea Commission (26 April 1984 – 18 May 1984), meetings took place each night between Security Service personnel involved in the affair. The respondent also participated in those meetings. He apprised the participants of the Commission’s deliberations, and the versions of the events to be testified by the Service personnel before the Commission were formulated and coordinated, all for the purpose of distancing the investigation from the issue of the killing. According to the understanding reached in these meetings, the various witnesses who testified before the Zorea Commission received briefings. When the Zorea Commission finished its work, it submitted a report (on 20 May 1984). The report of the Zorea Commission was not made public. From a note written by Prof. Zamir, the Attorney-General at the time, we learn that the Zorea Commission —

‘reached the conclusion that no-one gave an order to kill the two terrorists, but they were beaten to death by enraged soldiers during their interrogation. Only one suspect was identified by the Commission — the Chief Paratroopers Officer’ (I. Zamir, ‘The Attorney-General at a Time of Crisis: The General Security Service (GSS) Affair’ Sefer Uri Yadin, Boursi, vol. 2, A. Barak and T. Shapnitz eds., 1990, 47, 50).

On the basis of the Zorea Commission’s report it was decided to conduct an investigation in order to clarify the suspicion about the commission of offences with regard to the death of the two terrorists. It was decided to establish a team, headed by State-Attorney, Mr Blatman. The team (appointed on 4 June 1984) took statements and collected evidence. Here too, instructions were given to conceal the role of the Security Service in the killing of the terrorists. According to the affidavit of the respondent before this Court, he had no connection with the Blatman team. The team focussed on a suspicion against Brigadier-General Mordechai, since there was no evidence against Security Service personnel with regard to their part in the killing of the terrorists. In July 1985, the Blatman team submitted a report to the Attorney-General. As a result of the report, disciplinary proceedings were initiated against military personnel and members of the General Security Service (who were acquitted on 6 September 1985).

23. After these events, the Attorney-General, Prof. Zamir, received information that the facts, in so far as they related to the role of the Security Service personnel with regard to the death of the two terrorists, were entirely different from the statements and testimonies given by the General Security Service personnel before the Zorea Commission, the Blatman team and the disciplinary tribunal of the General Security Service. After examining the matter, the Attorney-General (on 18 May 1986) filed a complaint with the Commissioner-General of the police, to the effect that information had been brought to his attention that there were grounds for suspecting that criminal offences had been committed by persons who held offices in the General Security Service. At this stage, the President of the State (on 25 June 1986) granted a pardon to the head of the General Security Service and to ten of its employees, for all of the offences involved in the so-called ‘300 bus’ affair. The respondent was also included among those who received a pardon. In the pardon document, the President said: ‘By virtue of my authority under s. 11(b) of the Basic Law: President of the State, I pardon Yossi Ginosar for all of his offences involved in the so-called ‘300 bus’ affair, from the time of the incident on the night between the 12th and 13th of April 1984 until my signing this document.’ In wording the pardon to the head of the General Security Service and to its ten interrogators, the President wrote:

‘My decision was made as a result of a profound recognition that the public interest and the State’s interest require protecting our security and saving the General Security Service from the damage that will ensue if the affair continues…   

As President of the State, I feel obliged to stand by the GSS agents, knowing as I do the devoted, strenuous and secret efforts they make day by day and hour by hour, and to prevent demoralization in the intelligence community and in the security and anti-terror establishment.

The State of Israel’s special circumstances do not allow us, nor may we allow ourselves, to undermine or hinder the security establishment and the good people who protect the nation’ (from Barzilai v. Government of Israel [21], at pp. 517-518 {6}).

In his affidavit of reply, the respondent wrote that he had initially opposed submitting an application for a pardon. He thought ‘that he had acted in the affair in accordance with clear instructions and principles identical to those practised by the Service in other cases, both before the affair and after it.’ In the end, the respondent agreed to submit the application for a pardon, because of the pressure exerted by Government representatives, who explained this pressure in light of the desire ‘to prevent an investigation during which important state secrets would be disclosed’ (affidavit of reply, at p. 6). The validity of the pardon was confirmed in the judgment of this court in Barzilai v. Government of Israel [21]. The police investigation continued and the investigation material was submitted (on 18 September 1986) to the Attorney-General, Mr. Charish. After receiving the opinion of the Karp Commission, the Attorney-General decided (on 29 December 1986) that with regard to the liability for the killing of the terrorists the pardon prevented any indictment. With regard to the obstruction of the investigation and justice, the Attorney-General pointed out that ‘the persons in the GSS personnel who orchestrated, directed and perpetrated the obstruction were also pardoned by the President of the State, and for this reason they cannot be put on trial for those offences.’ The Attorney-General also decided not to put on trial the GSS agents who were suborned to give improper evidence before the investigation authorities, since ‘as those who had suborned them were pardoned, it is not just that only they should be punished by being brought to a criminal trial.’

24. Additional details about the respondent’s share in the ‘300 bus’ affair may be obtained from the affidavit that he submitted within the framework of the proceeding regarding the legality of the President’s pardon. Details of the affidavit were included in the petition (and they also appear as an appendix to the article of M. Kremenitzer: ‘The GSS Pardon – Did the High Court of Justice Pass the Test?’ 12 Iyunei Mishpat, 595, 620), and they state the following:

‘I, the undersigned ( — ), after being warned that I must tell the truth and that I shall be liable to the penalties provided by law if I do not do so, hereby declare in writing as follows:

1.            I am the head of a department in the General Security Service.

2.            After the affair known as the ‘300 bus’ affair occurred, I was appointed, on 26 April 1984, as a member of a Commission of Enquiry into the circumstances of the deaths of two of the terrorists who took control of the bus.

3.            As a member of the Commission, I acted to conceal the part of General Security Service agents in the killing of the terrorists; thus I committed an offence or offences under the laws of the State of Israel (hereafter — ‘the offences’).

4.            I committed the offences for the purpose of carrying out my job.

5.            On 24 June 1986, the head of the General Security Service told me that he had approached the President of the State and told the President about the details of the ‘300 bus’ affair and the interrogation proceedings thereafter, including the offences that had been committed — by myself and others — in the process.

The head of the General Security Service suggested that I submit an application to the President for a pardon.

6.            As a result, on 25 June 1986 I submitted an application for a pardon to the President of the State of Israel (hereafter — ‘the application’); in signing the application and submitting it to the President, I intended to confess — and I even did confess — to committing those offences and I asked the President to pardon me for them.

7.            I argued in my application that all of my actions had been done on the instructions and with the approval of my superiors, for the sake of State security and protecting its secrets; in saying this I did not intend to claim before the President any defences that nullified those offences.

8.            I said this — as the reason for the pardon application and in order that the President and anyone else who might see my application would know — because all my actions and deeds were done in order to carry out my job and in full confidence that they were intended to serve the interests and security of the State of Israel.

9.            I hereby declare that this is my name, this is my signature and everything stated in this affidavit is true and accurate.

( — ).’

25. As we have seen, the ‘300 bus’ affair was not the focus of the deliberations of the Landau Commission. Nonetheless, the Commission did note that there was a link between the ‘300 bus’ affair and the Nafso affair:

‘… their most serious failure, with respect to the criminal conspiracy that they made to pervert the deliberations and mislead the Commissions which investigated that case — was what laid the foundation for the revelations that accompanied the Nafso affair: after trust was so severely undermined in the first case, it was impossible any longer to cover up the phenomena that were exposed in the Nafso appeal’ (ibid., at p. 3).

In discussing the ‘300 bus’ affair, the Landau Commission stated:

‘The second affair, known as the ‘300 bus’ affair, differs significantly from the practice of giving false testimony in trials within a trial. It is different, and in our opinion, far more serious. Here, in addition to the commission of perjury, there was a deliberate and intentional perversion of an investigation of a Commission by a member of the Service who was appointed as a member of that Commission. Suffice it to say that it is almost certain that an act of unparalleled gravity such as this could not have happened, and could not even have been conceived by anyone, had there not been a background of a long-standing policy of giving false testimony in the courts, which succeeded in misleading the courts in so many cases’ (ibid., at p. 30).

The Landau Commission briefly considered the respondent’s part in the ‘300 bus’ affair, stating:

‘A short time before judgment was given in the Appeals Court Martial, a criminal conspiracy was exposed between several senior members of the Service, for perverting the proceedings of Commissions that investigated the bus affair, which occurred on 12 April 1984. In the course of this conspiracy, a senior member of the Service, Mr Yossi Ginosar, acted as a “Trojan horse” on the Zorea Commission, as a member of the Commission alongside General (res.) Zorea’ (ibid., at p. 6).

26. On 30 October 1987, the Landau Commission submitted a report to the Government. On 8 November 1987, the Government decided to accept the report and all of its recommendations. The Commission’s recommendations were many and far-reaching. They deal with the proper methods of interrogation, which were intended —

‘to comply with the credo of the State, as a State governed by law and based on the foundations of morality. Any harm to these basic concepts, even against those seeking to destroy the State, is liable to repay us by corrupting internal morals’ (ibid., at p. 71).

The Commission points out that —

‘An interrogator who is summoned to testify before a court or a tribunal or any other authority that is authorized to collect evidence, shall tell only the truth and only the whole truth. This is a basic principle and in no way may it be compromised’ (ibid., at p. 75).

There are also many other recommendations. Within the framework of the petition before us, we will only consider the recommendations of the Commission about legal proceedings because of the behaviour of the Service’s interrogators in the past. With regard to all aspects of physical or psychological pressure that interrogators used against persons suspected of hostile terrorist activity, the Commission thought that as long as the acts did not deviate from the guidelines prevailing in the Service at the time of the interrogation, the interrogator who carried out the acts would have a defence of justification (under s. 24(a)(1) of the Penal Law, 5737-1977) and a defence of necessity (under s. 22 of the Penal Law). This was not the case with regard to the perjury committed by interrogators of the Service before courts or tribunals. Here the investigator would not have a defence of necessity or of obeying the orders of superiors, since ‘committing perjury is a serious criminal offence and a manifestly illegal act, over which there flies a black flag saying that it is forbidden’ (ibid., at p. 82). In this matter the Landau Commission considered the matter at some length before making a recommendation that ‘the criminal indictment of interrogators for perjury should be avoided’. The reasons of the Landau Commission for this were two: first, ‘the motive of the investigators was not a selfish one of procuring a benefit for themselves, but the thought — even if a totally improper thought — that even in this behaviour they were serving the public’ (ibid.); second — and this was the decisive reason for the position of the Landau Commission —

‘Indicting interrogators, even in some of these cases, may cause deep shock among interrogators, and moreover in the whole Service, and cause serious damage to the ability of the Service to function effectively in frustrating hostile terrorist activity. It must be taken into account that most of the interrogators liable to have criminal complaints filed against them are still members of the Service, and some of them currently hold senior positions. This is a small and close-knit group of people, who have considerable expertise that they have acquired over the years. Replacements for these persons will neither be found easily nor overnight. But the activity of the interrogation unit must continue day by day, without respite... we believe that today these interrogators, at all levels, are strongly motivated to learn the lessons of the past. It is better to allow them to concentrate on providing their essential service to the public. Perhaps this is needed less for their own interest than for the public interest. Also on the personal level, therefore, we should take a path of healing wounds rather than amputating the body of the Service, for who knows what consequences that will bring. We could not reconcile ourselves to the thought that if we were to recommend a response along the lines of “let justice run its course”, this could paralyse the interrogation work of the Service, and it is almost certain that innocent victims would die in acts of terror that the Service is capable of frustrating’ (ibid., at pp. 82-83).

In order to implement this approach, the Landau Commission made a recommendation to the Attorney-General that he should instruct ‘the police that any complaint against an interrogator of the Service for perjury in a trial with regard to the methods of interrogation that the Service used against someone interrogated by them (and also with regard to exerting improper pressure in an interrogation) should be transferred ab initio to the Attorney-General, so that he can decide whether there is a public interest in holding a trial about this matter’ (ibid., at pp. 84-85). The Landau Commission further pointed out that:

‘For the reasons we have given, we think that not only is there no public interest in holding such a trial (and the police investigation that might lead to initiating such a trial), but, on the contrary, holding such a trial would harm the public by weakening its protection from acts of terror, as a result of damage to the functioning of the Service in frustrating such acts’ (ibid., at p. 85).

This recommendation extends both to members of the Service who continue to be employed in the Service and to those whose have stopped working for it. The Commission pointed out that ‘for the same reasons of public interest, we are refraining from making a recommendation that disciplinary measures should be initiated personally against employees who continue to work for the Service’ (ibid., at p. 85).

27. As stated, the Government accepted the recommendations of the Landau Commission. The Attorney-General also accepted the report in so far as it related to his spheres of authority. During the deliberations of the Government about the conclusions of the Commission, the Attorney-General expressed his position to the Government —

‘that measures would not be taken against members of the General Security Service, who in the past were involved in improper activities committed in the course of investigating hostile terrorist activity. He also expressed his position that the police investigation, which at that time was pending against interrogators of the General Security Service with regard to the petitioner’s case should be stopped. This position was acceptable to the Government’ (from my judgment in HCJ 88/88 Nafso v. Attorney-General [22], at p. 427).

The end of the investigation with regard to the respondent and the petition relating thereto

28. As we have seen, the Attorney-General accepted the recommendations of the Landau Commission. As a result, the investigation against Nafso’s interrogators was stopped. Nafso petitioned this court against this decision of the Attorney-General (Nafso v. Attorney-General [22]). His claim was that the recommendations of the Landau Commission do not expressly refer to his interrogators. His claim was that ‘his case was not one of the cases with regard to which the Landau Commission made its recommendation’ (ibid., at p. 428). This claim was rejected by the Supreme Court. It was held that —

‘The petitioner’s case was known to the Commission, and it did not distinguish in its recommendations between his interrogators and other interrogators. The logic in the Commission’s recommendations also applies to the petitioner’s case. Thus, for example, it was not argued before us that the petitioner’s interrogators acted out of a selfish motive of obtaining a benefit for themselves. Consequently, it is clear from examining the Commission’s report that its recommendations relate to all of the Service’s interrogators, including the interrogators of the petitioner. The Commission wanted to distinguish between the past and the future, but it did not want to distinguish between different interrogators in the past’ (ibid., at p. 429).

Developments until the appointment of the respondent by the Government

29. As a result of the recommendations of the Landau Commission, no legal proceedings were initiated against interrogators of the Service who were involved in the Nafso affair, the ‘300 bus’ affair or any other cases whatsoever. The head of the Security Service at that time resigned from the Service. The other interrogators included in the President’s pardon, including the respondent, remained in the Service. From the respondent’s affidavit — which was not contradicted — we learned that some of these interrogators received promotions in the course of their employment. Most of them work in the Service in top security positions. In the affidavit in reply, the respondent pointed out that —

‘In the deliberations that preceded the granting of the pardon and which took place in the presence of the Attorney-General and the Minister of Justice at that time, Mr Yitzchak Modai, in the office of Advocate Yaakov Neeman in Jerusalem, those requesting a pardon were promised that they could remain in the employment of the GSS without any loss of rank and without any “stain on their future”. During that meeting, the Minister of Justice at the time told those requesting a pardon that the matter had already been discussed at the President’s residence and in discussions with the Prime Minister, at which the Deputy Prime Minister, the Foreign Minister, the Minister of Defence, the Minister of Justice and additional ministers participated’ (ibid., at p. 7).

30. In November 1986, the respondent left the Service. He left on his own initiative. He received a letter wishing him success from the Prime Minister and the head of the Service. The Prime Minister said that he was sorry to hear —

‘of your decision to leave your work in the Service, but this does not of course prevent me from conveying my best wishes and wishing you success in your new position, which is very important and requires a high degree of responsibility. I hope that after many years of strenuous and dedicated work for the security of the State, you will be successful and find satisfaction in everything you do’ (letter of 30 December 1986, appendix ‘C’ of the respondent’s affidavit).

The respondent was appointed, on the recommendations of the Minister of Industry and Trade, as director-general of the Israel Export Institute. He held that position for two and a half years. Recently he was appointed chairman of the board of directors of Amidar.

Proceedings of the Government with regard to the appointment

31. After receiving the (first) opinion of the appointments committee, the appointment of the respondent was submitted for Government approval. The Government discussed the respondent’s appointment at length. The Attorney-General informed the Government of the respondent’s involvement in the ‘300 bus’ affair and the granting of the pardon by the President of the State. The recommendations of the Landau Commission were also brought to the attention of the members of the Government. It was emphasized that the Commission held that what was done by the interrogators of the General Security Service in the Nafso affair was part of a practice prevailing in the Service. The Attorney-General read out to the members of the Government parts of the judgment of the Supreme Court in Nafso’s criminal appeal. The Attorney-General reported on Nafso’s petition about proceedings not being initiated against the respondent and his other interrogators. With respect to the ‘300 bus’ affair, the Attorney-General made it clear that the respondent was not involved in the incident itself, but as a member of the Zorea Commission he acted to conceal the role of GSS personnel in the affair, and with regard to this he received, at his request, a pardon from the President.

32. The Government held a thorough discussion of the issues relating to the past actions of the respondent. The Government was asked to examine whether the fact that the respondent did what he did in the past as a result of an erroneous outlook that prevailed at that time among persons who held office in the GSS, should be held against him in the long term, whereas in his favour was his work as a civil servant and his lengthy and devoted service to the Security establishment. The Attorney-General pointed out that the respondent had not acted for his own advantage, nor out of a desire for money or prestige. The Government was advised that it should weigh up the points in favour and against the respondent. A long and profound discussion took place. The respondent’s qualifications, suitability, personality and past were considered. The various considerations were balanced against one another. At the end of the deliberation, a decision was made to appoint the respondent to the position of Director-General of the Ministry of Building and Housing. The Government reached the same decision after receiving the recommendations of the second appointment committee. The petitions before us are directed against these decisions.

The arguments of the parties

33. The main argument of the petitioners is that in view of the respondent’s involvement in the Nafso affair and the ‘300 bus’ affair, he is unfit to be appointed as director-general of a Government Ministry. He lacks those moral and ethical qualities required of a civil servant at such a senior level. The petitioners emphasize that the director-general has disciplinary powers over employees of the Ministry. According to them, giving these powers to someone who was involved in acts involving moral turpitude was ‘outrageous and absurd’. The appointment of the respondent was inconsistent with the norms of behaviour required of civil servants, and a director-general ought to set an example in observing these. It sends the wrong message to the security establishment involved in interrogations, for it is likely to be interpreted as legitimizing improper interrogation methods and perverting judicial proceedings. The respondent showed contempt for the rule of law, and his appointment was inconsistent with the goal of ensuring the subservience of the civil administration to the law. The appointment of the respondent would set a precedent for appointments of candidates with doubtful pasts to senior positions in the Civil Service, something that would impair the service’s moral calibre and the public’s confidence in it. The Government’s use of its discretion in appointing a person who committed offences involving moral turpitude to the position of director-general of a Government ministry was improper. The use of this discretion was unreasonable in the extreme. With regard to the recommendations of the Landau Commission, the petitioners emphasize that these recommendations related only to a (criminal or disciplinary) indictment and they were intended to prevent damage to the General Security Service. The recommendations are totally irrelevant to the respondent’s appointment to a senior administrative position in the Civil Service. When the respondent chose to leave the General Security Service and enter public life, he must comply with the accepted behavioural norms of the Civil Service.

34. The premise of the respondents is that the Government’s power of appointment, with regard to senior positions in the Civil Service, encompasses wide discretion in matters of public ethics, which the representatives of the people are charged to protect. In view of the status of the authority making the decision (namely the Government) and the nature of its powers, the scope within which the Government may act is broad. The appointment of the respondent does not step beyond the limits of reasonableness. The Government made its decision after being apprised of all the facts, and all the relevant considerations were considered. The Government considered the question whether the fact that the respondent did what he did as a result of a very mistaken belief that prevailed in the past among persons holding positions in the Security Service should be held against him in the long term. The Government took into account the respondent’s work as a civil servant and that he served the security establishment for many devoted years and that he acted not for his own advantage nor out of a desire for money or prestige. The Government considered the points in favour and against the respondent. The respondents argue that the Government was permitted to take into account those actions for which he received a pardon, but in addition it was also bound to take into account the fact that the pardon was granted and its circumstances. The respondents emphasize that there is no prohibition in law against the appointment of a person with a criminal past to the position of director-general in a Government Ministry and that the Government’s decision did not step beyond the limits of reasonableness.

35. The respondent’s argument is that the Government’s decision is reasonable. With regard to the ‘300 bus’ affair the respondent received a pardon. The purpose of the pardon was to prevent an investigation and exposing secrets critical to State Security. In deliberations prior to the granting of the pardon, the Attorney-General and Government representatives promised those receiving pardons that their rank would not be affected and their future would not be stained. Because the pardon was given, the respondent was denied the possibility of facing the charges against him. This position is now working against him. The respondent points out that many of those who received pardons continued to serve in the Service, including those directly responsible for the killing of the terrorists, and they were promoted in the course of their employment and they serve today in top security positions. With regard to the Nafso affair, the respondent refers to the findings of the Landau Commission, that the interrogation methods of the respondent were part of the norms that had become accepted in the Service for many years and which were known and accepted at the executive and political levels. Acting according to these norms did not disqualify any of those involved in this affair from serving in the General Security Service nor did it prevent their promotion. Against this background, the respondent claims that the appointment is not unreasonable in the extreme. The contrary is true: setting the appointment aside would be unreasonable in the extreme and would be contrary to basic legal principles. Setting the appointment aside would amount to adopting a double standard in comparison with other appointments in the Civil Service, which do not receive the publicity caused by exposing the identity of the respondent. The disqualification would amount to a reopening of a debate that was closed and sealed and would prejudice the respondent’s right to the finality of proceedings. Since the respondent was not given his day in court with respect to the affairs in which he was involved, his disqualification would contradict the basic principle that a person is innocent until proven guilty. Disqualification of the respondent would amount to discrimination against him as compared with the other members of the Service who were anonymous and who held many positions in the Civil Service, just as in the General Security Service. For this reason, disqualification of the respondent amounts to prejudice and arbitrariness. From a viewpoint that encompasses all the details and the facts, disqualifying the respondent would place the responsibility for the failings of the whole establishment on a single individual who had left it, and even taint him personally. The enquiries made in both cases were on the level of the establishment; using them for drastic measures on a personal level is not only unjust but is even erroneous from a legal viewpoint.

36. At the beginning of the proceedings in the petition, the seventh respondent (Tarek Abed Al Chai) and the eighth respondent (Zeidan Muhammed) applied to join the petition as respondents. We granted the application. These respondents presented themselves as leaders of the Arab community in Israel. They pointed out that the Arab population is necessarily more sensitive than any other community in the State to the interrogations and activities of the General Security Service. Against this background the request of these respondents is not to disqualify the appointment on grounds of extreme unreasonableness. Within the framework of the faith that the Arab community has for the Government establishment, and knowing the positions of the respondent, which are in favour of a relationship of absolute equality and preventing differences between the Jewish and Arab citizens of the State, it is the opinion of the seventh and eighth respondents that reasonableness demands the approval of the appointment of the respondent as director-general in the Ministry of Building and Housing.

The general normative framework: Government discretion

37. The power of the Government to appoint a director-general of a ministry is enshrined in s. 12 of the Appointments Law. This law does not include provisions about the appointment of an employee with a criminal past. It does not contain any provision restricting the Government’s power of appointment, or disqualifying a person from being appointed as a civil servant if he has a criminal past. Provisions disqualifying candidates for public office because of a criminal past (in general) or offences involving moral turpitude (specifically) exist in many countries (see: 63A Am. Jur. 2d, Rochester and San Francisco, 1984, 690; 67 C.J.S., St. Paul, 1978, 253; and also ‘The Collateral Consequences of a Criminal Conviction,’ 23 Vand. L. Rev., 1969-1970, 929). In Israel too there are provisions of this kind in various laws (see s. 7(6) of the Local Authorities (Elections) Law, 5725-1965); a provision in this vein was also included in the draft Civil Service Law, 5713-1953, which stipulated, inter alia, that ‘anyone convicted of an offence which in the opinion of the Civil Service Commissioner involved moral turpitude…’ would not be appointed as a civil servant (section 14(a)). This provision does not appear in the Appointments Law. It follows that the existence of a criminal past does not, in itself, negate the Government’s authority to make an appointment or the fitness of the candidate. The courts should also not create a restriction of (the Government’s) power or a restriction of (the candidate’s) fitness: ‘in the absence of statutory conditions of competency, we should not stipulate conditions of fitness in case-law…’ (HCJ 727/88 Awad v. Minister of Religious Affairs [23], at p. 491).

38. Notwithstanding, we must distinguish between questions of competence (or authority) and questions of discretion. The absence of an express statutory provision regarding the disqualification of someone with a criminal past establishes the candidate’s competence, but it does not preclude the possibility of considering his past within the framework of exercising the administrative discretion given to the authority making the appointment. Indeed, the criminal past of a candidate for public office is a relevant consideration, which the authority making the appointment is entitled and obliged to take into account before making the appointment. I discussed this with regard to the appointment of a candidate with a criminal past as a member of a religious council, where statute did not provide any disqualifying provisions, pointing out:

‘...even someone convicted of an offence involving moral turpitude is competent to be appointed as a member of a religious council… Nonetheless, the competency of the candidate is distinct from the administrative discretion of the person making the appointment. Therefore, even if a person convicted of an offence involving moral turpitude is competent to be appointed as a member of a religious council, this does not legitimize the use of administrative discretion to appoint a person who committed an offence involving moral turpitude as a member of a religious council. It is true that the absence of any provision about the competence of someone convicted of an offence involving moral turpitude implies the absence of an absolute bar to the appointment of such a person as a member of a religious council. Nonetheless, the appointment of a person as a member of a religious council must be made after weighing up all the relevant considerations, and only these considerations.

A conviction for an offence involving moral turpitude is, without doubt, a relevant consideration that any authority making an appointment is permitted and obliged to take into account before making the appointment’ (Awad v. Minister of Religious Affairs [23], at p. 491).

Indeed, no-one has a natural or constitutional right to be appointed to a public office. A person’s right is that he is able to present his candidacy for a public office, and that in his appointment only lawful considerations will be considered. Among the lawful considerations that the public authority must take into account is also the consideration relating to the past of the candidate, including his criminal past. The legal basis for this determination is twofold:

39. First, there is a presumption with regard to all legislation granting an executive authority a power to make an appointment that the power shall be exercised after considering the criminal past of the candidate. One should not assume that the legislator — when empowering the executive authority to exercise the power of appointment — allowed this power to be exercised without taking into account the fact that a candidate has a criminal past. Indeed, all legislation is made within the framework of a ‘normative environment’. ‘An expression in a statute is an entity that lives in its environment’ (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [24], at p. 513). The environment of the statute is not merely other laws relating to the same issue. The environment of the statute is a whole range of attitudes, values, principles and interests that a legal norm in that legal system is intended to realize (see CA 165/82 Kibbutz Hatzor v. Assessing Officer, Rehovot [25], at p. 75). This environment influences the interpretation of every piece of legislation. It is a kind of ‘normative umbrella’ that extends over all legislation (see HCJ 14/86 Laor v. Film and Play Review Board [26], at p. 433). This ‘normative umbrella’ includes, inter alia, the democratic nature of the State (CA 752/78 Authority under the Victims of Nazi Persecution Law, 5717-1957 v. Frisch Estate [27], at p. 208), the need to maintain law and order and the belief that every executive authority must act reasonably and fairly (Israel Contractors and Builders Centre v. Government of Israel [16]). From these principles we derive the principle that a public authority is the trustee of the public, and its every action and decision must be made while taking this duty of trust into account.

40. Indeed, the duty of the public authority to take into account among its considerations the criminal past of the candidate when it is appointing a person to public office derives from the status of the public authority. The public authority is a trustee of the public. It has nothing whatsoever of its own. All that it has, it has for the public (see HCJ 1635/90 Jerezhevski v. Prime Minister [28], at p. 840). Justice H. Cohn discussed this and pointed out:

‘… the private domain is not like the public domain, for the one acts with regard to its own property; if it wishes, it may give, and if it wishes, it may refuse. The other was entirely created merely to serve the common good, and it has nothing of its own: everything that it has is deposited with it as a trustee, and as for itself, it has no rights or duties that are in addition to, or different and distinct from, those that derive from this trust or that were conferred on it or imposed on it by virtue of statutory provisions (HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [29], at p. 331).

Indeed, ‘the public figure is a trustee of the public; he does not act for himself but he acts for the public interest’ (HCJ 669/86 Rubin v. Berger [30], at p. 78). This status of trust imposes special duties on the executive authority. It is not free in its considerations. The duty of trust gives rise to a duty to exercise executive discretion fairly, honestly, reasonably and without discrimination. I discussed this in one case, pointing out:

‘Through those acting on its behalf, the State is the trustee of the public, and the public interest and public property have been entrusted to it to be used for the common good…

This special status is what subjects the State to the duty to act reasonably, fairly, in good conscience and in good faith. It is forbidden for the State to discriminate, act arbitrarily or without good faith or to be in a position of a conflict of interests. It must comply with the rules of natural justice. In short, it must act fairly’ (Israel Contractors and Builders Centre v. Government of Israel [16]).

In a similar vein, Vice-President Justice Elon said:

‘A public authority that appoints an employee of the Civil Service, acts as a trustee of the public. It is one of our greatest principles that this duty of trust must be exercised fairly, honestly, without improper considerations and for the public good, for the appointing authority is given its power of appointment by the public and for the public’ (HCJ 4566/90 Dekel v. Minister of Finance [31] at p. 33).

41. From the status of the public authority as trustee this court has derived a series of specific obligations that bind the authority. Thus, for example, because the public authority is the trustee of the public it must make information in its possession available to the public (Shapira v. Bar Association District Committee, Jerusalem [29]); it is forbidden to be in a situation of a conflict of interests (HCJ 531/79 Petah-Tikvah Municipality Likud Faction v. Petah-Tikvah Municipal Council [32], at p. 570; CrimA 884/80 State of Israel v. Grossman [33], at p. 416); it must honour promises and agreements that it made (Jerezhevski v. Prime Minister [28]). From the duty of trust imposed on the executive authority we derive its obligation not to make an appointment merely because of the political affiliation of the candidate (HCJ 313/67 Axelrod v. Minister of Religious Affairs [34], at p. 84). ‘When a public figure appoints an employee of the Civil Service in accordance with improper considerations of party-political interests, such an appointment is improper, and it involves a breach of trust against the public who empowered the authority making the appointment’ (Vice-President Justice Elon in Dekel v. Minister of Finance [31], at p. 35). Similarly, ‘the duty of trust gives rise also to a duty of disclosure’ (HCJ 1601/90 Shalit v. Peres [35], at p. 365 {221}), such as the duty to disclose political agreements. The duty of trust gives rise to the duty of the executive authority ‘to act in accordance with professional ethics’ (Shalit v. Peres [35], citing I. Zamir, ‘Political Ethics’, 17 Mishpatim, 1987-1988, 250, 261. See also Y. Eliasof, ‘The Ethics of Civil Servants in Israel’, 2 Labour Law Annual, 1991, 47). In summarizing this issue I said:

‘Indeed, the duty of trust requires fairness, and fairness requires honesty, objectivity, equality and reasonableness. This list of principles deriving from the status of trust is not exhaustive, nor is this list of values deriving from the duty of fairness frozen. It is the nature of principles and values that they are both stable and evolving. They are rooted in the soul of the nation and do not bend in temporary, passing trends. They are full of vitality and evolve in order to provide fitting solutions to new problems…’ (Jerezhevski v. Prime Minister [28], at p. 841).

42. From the trustee status of the public authority we derive its duty to consider the criminal past of a candidate before making the appointment. An appointment of a civil servant with a criminal past affects the functioning of the public authority and the attitude of the public to it. It has (direct and indirect) ramifications on the public’s confidence in the public authority. The authority making the appointment must take these considerations into account. An individual running his own business who has no duty of trust to another may employ any worker, whatever his criminal past. He may even decide that he wishes to rehabilitate criminals and that in doing so he is even making an important contribution to the society. A public authority does not run its own business, and it has a duty of trust to the public. It too may employ workers with a criminal past, and the consideration of rehabilitating the criminal is also a consideration that should be taken into account. Nonetheless, it is not the only consideration that must be taken into account. The public authority must consider an intricate and complex array of considerations, including the consideration relating to the effect of the appointment on the Civil Service and the public’s confidence in it. That is why we said that the duty of trust that binds the public authority imposes on it the duty to include among its considerations the criminal past of the candidate. An indication of this can be found in the Criminal Register and Rehabilitation Law, 5741-1981. Under this law, the police maintain a criminal register, containing records of convictions and sentences (ss. 1 and 2). The register is secret and information can only be transferred from it in accordance with the Register Law itself (s. 3). The register is obviously available for police activity (s. 4(a)(1)), and the police may transfer information from it to the Government ‘for the purpose of the appointment of office-holders whom it is obliged to appoint…’ (s. 5(a) of the Criminal Register and Rehabilitation Law, and s (c) of the First Schedule to that law). The police may also transfer information to the Civil Service Commissioner, with regard to State employees, and to additional public authorities stipulated in the First Schedule for the purpose of appointments that they make.

43. Until now I have examined the first legal basis from which we derive the duty of an executive authority — every executive authority — as trustee of the public, to include among its considerations, when appointing a civil servant, the criminal past of the candidate. This is a general legal basis, from which derives the duty of every executive authority. This duty is of course also imposed on the Government as one of the executive authorities. It is imposed on it especially, since it is ‘the executive authority of the State’ (s. 1 of Basic Law: The Government), which has a duty of trust to the entire public in Israel. It seems to me that the Government’s duty to take the candidate’s criminal past into account derives also from an additional source. Indeed, there is a second, specific legal basis, from which it can be inferred that in making an appointment of a director-general the Government must take the criminal past of the candidate into account. This specific obligation derives (indirectly) from the provision of s. 46(a) of the Appointments Law. This provision stipulates:

‘Notwithstanding anything stated in this law, the Civil Service Commissioner may refrain from appointing a person as an employee of the State in each of the following cases:

(1) The person committed an offence against this Law in order to obtain the appointment or has a criminal past;

(2) The person was dismissed by virtue of a decision in a disciplinary proceeding held in accordance with statute; and if he appointed such a person, he may revoke the appointment.’

Section 46 of the Appointments Law empowers the Civil Service Commissioner to prevent certain appointments, including the appointment of a person with a criminal past. It seems to me that this provision applies to the appointment of any person as an employee of the State. In this respect, it is irrelevant to ask whether the appointment was made by appointing the successful candidate in a tender, or without a tender by virtue of a Government decision or with the Government’s approval. In every appointment, the substantive decision is not within the jurisdiction of the Civil Service Commissioner, but that of various bodies on whom the law confers the power to make the substantive decision. Nonetheless, ‘the appointment of an employee of the State shall be made in writing, signed by the Civil Service Commissioner, and he shall also sign the letters of appointment of those appointed by the Government under this law…’ (s. 17), and before the Civil Service Commission does so — as a final barrier before the appointment — he may, and he is obliged, to examine whether the appointment was obtained by means of an offence, and whether the candidate was not dismissed by virtue of a decision in a disciplinary proceeding or ‘has a criminal past’, and if the Civil Service Commissioner appointed such a person, ‘he may revoke the appointment’. This is an important power — a kind of objective brake before an appointment — that the law confers on the Civil Service Commissioner.

44. According to its wording, the provision of s. 46(a) of the Appointments Law does not apply to the Government. Nor does it apply to the various tender committees that select State employees. The provision of s. 46(a) applies directly to the Civil Service Commissioner, and to him alone. Nonetheless, the provision of s. 46(a) of the Appointments Law applies indirectly also to the other executive authorities that make appointments within the framework of the Appointments Law. Indeed, if the Civil Service Commissioner may refrain from appointing a person as a State employee if he has a criminal past, it is fitting that the other authorities making appointments or approving them under the Appointments Law should also consider this factor. It seems to me that in accordance with the substance of the text, we should regard the Service Commissioner as a kind of a last filter, considering factors that should have been considered in the past, but which were forgotten or not given the proper weight. One should not assume, in view of the nature of the considerations, that we are dealing with a consideration that is exclusive to the Civil Service Commissioner and which only he — because of his special status — may consider. Indeed, the power of the Service Commissioner to prevent an appointment of a person with a criminal past reflects on the range of considerations for authorities that make decisions about appointments and it gives them the right and the duty to take this consideration into account.

The weight of the factor of a criminal past in the appointment decision

45. We have seen that the criminal past of a candidate for public office is a relevant consideration, which the executive authority making the appointment must take into account among its considerations. Against this background — and assuming that the candidate is found suitable in all other respects — what weight should be attached to the consideration of the criminal past? In order to answer this question, we must ascertain the reasons why the criminal past of a candidate is a factor that should be taken into account. On the one hand, there are considerations relating to the need to rehabilitate offenders and to help them integrate into society. Neither the conviction nor the sentence is death, and at the end of the criminal proceeding the offender should be allowed to find his place in the community and society. The principle of ‘repentance’ is one of the principles of our legal system, which we have received from the tradition of our past (see BAA 18/84 Carmi v. State Attorney [36], at p. 375). The Civil Service must make its contribution to a person’s rehabilitation and his rebuilding as a loyal citizen. Indeed, ‘a person should not be reminded of his sin all his life, and we should allow him to turn over a new leaf in his life and encourage his rehabilitation and full reintegration into society’ (draft Criminal Register and Rehabilitation Law, 5741-1981, at p. 218). He should be allowed to ‘integrate into society as one among equals’ (Vice-President Justice Elon in Carmi v. State Attorney [36], at p. 375). ‘We should not lock the door against sincere and genuine penitents; on the contrary, in the absence of a serious reason, they should be allowed to return to their normal lives, professions and even to their jobs’ (Justice Kister in BAA 1/68 A v. Attorney-General [37], at p. 679). ‘Yesterday this person was hated by the All-present, detested, distant and an abomination, and today he is beloved, pleasant, nearby and a friend’ (Maimonides, Mishneh Torah, Laws of Repentance 7 6 [61]). Indeed, a civilized society does not pursue its criminals to destruction but extends to them a hand, for their benefit and its own benefit (see S.Z. Feller ‘Rehabilitation: A Special and Necessary Legal Institution’ 1 Mishpatim, 1968, 497). The Civil Service must make its contribution to this mission.

46. The rehabilitation of the offender is not the only consideration to be taken into account. It is opposed by important considerations relating to the Civil Service. The Civil Service is, as we have seen, a trustee of the public. It must ‘maintain and safeguard the interests of the public as a whole’ (Justice Agranat in CA 254/64 Hassin v. Dalyat al Carmel Local Council [38], at p. 25). Entrusting a public office to a civil servant with a criminal past may affect the proper discharge of the office. But beyond this, it is the public interest that there should be a ‘Civil Service that is orderly, responsible and has a fitting public standing…’ (Petah-Tikvah Municipality Likud Faction v. Petah-Tikvah Municipal Council [32], at p. 571); the civil servant must be of proper moral standing, and a State employee who has a criminal past is likely to harm these goals of the Civil Service. This ‘requires the public’s faith in the fact that the decisions of civil servants are objective, and are made honestly and fairly’ (ibid.). Indeed, the key to the existence of a Civil Service worthy of the name is the public’s faith in the integrity of the Civil Service. The prestige of public administration and the public’s faith in it are a public interest of great importance (cf. CrimA 521/87 State of Israel v. Einav [39], at p. 434). We must ‘protect the Civil Service from corruption, ensure its proper activity on the one hand and the public’s respect for the Civil Service and trust in the propriety of its activities on the other…’ (Vice-President Justice Elon, in CrimA 121/88 State of Israel v. Darwish [40], at p. 682). Indeed, there is a continuing public interest in the rectitude of the Civil Service and the need to ensure public trust in the organs of Government (Awad v. Minister of Religious Affairs [23], at p. 492). In fact, I discussed this in one case, and pointed out that:

‘Without public trust Government authorities cannot function. This is the case with regard to public trust in the courts… this is also the case with regard to public trust in other Government authorities’ (Barzilai v. Government of Israel [21], at p. 622 {104}).

Indeed, without public trust in public authorities, the authorities will be an empty vessel. Public trust is the foundation of public authorities, and it enables them to carry out their function. The appointment of someone with a criminal past — especially a serious criminal past like someone who committed an offence involving moral turpitude — harms the essential interests of the Civil Service. It undermines the proper performance of its function. It undermines the moral and personal authority of the office holder and his ability to convince and lead. It undermines the trust that the general public has for the organs of Government. In the language of Prime Minister David Ben-Gurion, when presenting the draft Civil Service Law in the Knesset at the first reading, the Civil Service must be —

‘a haven for every citizen, a stronghold for the State and a credit to itself’ (Knesset Proceedings 14 (1953) 1425).

The weight attaching to a criminal past

47. The criminal past of a candidate for public office must be taken into account among the considerations of the authority making the appointment. The weight attaching to this consideration varies in accordance with its effect on the reasons which require it to be taken into account. Someone who committed an offence in his childhood cannot be compared with someone who committed an offence as an adult; someone who committed one offence cannot be compared with someone who committed many offences; someone who committed a minor offence cannot be compared with someone who committed a serious offence; someone who committed an offence in mitigating circumstances cannot be compared with someone who committed an offence in aggravated circumstances; someone who committed an offence and expressed regret cannot be compared with someone who committed an offence and did not express any regret for it; someone who committed a ‘technical’ offence cannot be compared with someone who committed an offence involving moral turpitude; someone who committed an offence many years ago cannot be compared with someone who committed an offence only recently; someone who committed an offence in order to further his own agenda cannot be compared with someone who committed an offence in the service of the State.

48. Moreover, the type of office that the civil servant is supposed to hold also affects the weight of the criminal past in the holding of that office. A minor position cannot be compared with a senior position; a position in which one has no contact with the public cannot be compared with one where there is contact with the public; a position not involving the control, supervision, guidance and training of others cannot be compared with one involving authority over others and responsibility for discipline. Someone who holds the office of a follower cannot be compared with someone who holds the office of a leader; an office that in essence does not make special ethical demands on its holder and on others cannot be compared with an office that is entirely devoted to encouraging a high ethical standard.

49. Finally, the question to what degree is it essential that the candidate for a public office holds that office must be taken into account. A candidate who is one of many cannot be compared with a candidate who is unique, such that only he can, in certain unusual circumstances, carry out the office. One must also consider the question whether there exists a real situation of emergency that requires recruiting everyone, including those with a criminal past, or whether we are dealing with the ordinary activity of public administration, which must derive its strength from upright employees.

Balancing the conflicting interests

50. Sometimes the legislator stipulates that a person with a criminal past cannot hold a certain office. In such a case, the legislator has balanced the various considerations that must be taken into account with regard to the appointment of a person with a criminal past to a public office. In such a balance the legislator determines that the considerations of the integrity of the Civil Service shall prevail. A person with a criminal past cannot be appointed to that office. The court, when required to interpret such a provision, may not determine a balance which is different to the one determined by the legislator. All that remains for the court to do is to determine whether the candidate has ‘a criminal past’. The court deals with the process of sorting and categorization (see K.M. Sullivan, ‘Post-Liberal Judging: The Roles of Categorization and Balancing’ 63 U. Colo. L. Rev., 1992, 293). Note that in order to determine the existence of a category (‘a criminal past’) an act of balancing may be required. This will be a balance between the various aims that make up the purpose underlying the expression ‘criminal past’ in a particular context. This will not be a balance between the various aims that prevail in determining the law with respect to the appointment of someone with a criminal past to a public office.

51. In the petition before us there is no legislative norm establishing statutory rules of competence. There is no legislative norm providing that a person with a criminal past cannot be appointed director-general of a Government ministry. The normative framework merely provides that in making the appointment of director-general, the Government must take into account, inter alia, also the consideration that the candidate has a criminal past. This is not the only consideration. Alongside it there are considerations relating to the personal qualifications of the candidate and his ability to carry out the office in the best possible way. The Government must take all the considerations into account. Since some of the considerations tend to favour the appointment (the suitability of the candidate, the need to rehabilitate him) and others tend to oppose it (the undermining of the fulfilment of the office because of the criminal past, the harm to the public’s confidence in the executive authority), the executive authority must balance the conflicting considerations. This balancing must be done reasonably and it may not be extremely or manifestly unreasonable. Indeed, a basic principle of administrative law is the one that requires an executive authority to act reasonably (see HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [41], at p. 445). The meaning of reasonableness is that the executive authority must balance the different interests in accordance with the proper weight of each of these. ‘A balance may be deemed reasonable if the competent authority accords the proper weight, i.e., the weight required by interpreting the legislative norm which the administrative authority is carrying out, to the various interests that are taken into account’ (Golden Pages Ltd v. Broadcasting Authority [41], at p. 445). ‘Reasonableness means considering all of the relevant considerations, and attaching the proper weight to these considerations’ (HCJ 935/89 Ganor v. Attorney-General [42], at p. 513). Indeed, reasonableness is neither a physical nor a metaphysical concept. Reasonableness is a normative concept. Reasonableness is a process of evaluation. It is not a theoretical process. It is not a concept encompassed only by deductive logic. It is not merely rational. Reasonableness means identifying the relevant considerations and balancing them in accordance with their weight (see HCJ 156/75 Daka v. Minister of Transport [43], at p. 105; HCJ 127/80 Odem v. Mayor of Tel-Aviv-Jaffa [44], at p. 121). Professor MacCormick discussed this concept, pointing out:

‘What justifies resort to the requirement of reasonableness is the existence of a plurality of factors required to be evaluated in respect of their relevance to a common focus of concern. Unreasonableness consists in ignoring some relevant factor or factors, in treating as relevant what ought to be ignored. Alternatively, it may involve some gross distortion of the relative values of different factors, even though different people can come to different evaluations each of which falls within the range of reasonable opinions in the matter at hand’ (MacCormick, ‘On Reasonableness’, Les Notions A Cantenu Variable En Droit (H. Perelman and Vander Lest ed., 1984, 131, 136).

The decision is reasonable if it is made by giving the proper weight to the various values that must be taken into account. The decision to appoint a candidate with a criminal past to the position of director-general of a Government ministry is reasonable if it gave the proper weight to the various considerations that should be taken into account, and it balanced the various considerations in accordance with their weight.

52. What is the weight that should be attached to the criminal past of a candidate, when a decision is being made about his employment in a public office? As we have seen, the answer is that this weight is determined by the weight of the considerations that underlie the requirement to take the criminal past of a candidate into account before he is appointed to public office. As we have seen, these considerations relate, on one hand, to the principle of ‘repentance’ and the candidate’s aptitude for the office, and on the other, to ensuring the proper functioning of the Civil Service and the public’s confidence in it. But what is the weight of these considerations? The answer to this question is determined by the relative social importance that Israeli society gives to the values, principles and interests that make up the various considerations. Of course we speak of ‘weight’ and ‘balancing’ metaphorically. The act of ‘weighing’ is not a physical act but a normative one, which is designed to give the various considerations their place in the legal system and their social value within the whole spectrum of social values. Justice Shamgar rightly pointed out that:

‘... the process of placing competing values on the scales describes the starting point for interpretation, but it does not establish a criterion or ethical weights with which the work of interpretation can be done’ (FH 9/77 Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [45], at p. 361).

In a similar vein I pointed out in another case:

‘These expressions — “balancing” and “weight” — are only metaphors. Behind them lies the belief that not all principles are of identical importance in society’s opinion, and that in the absence of legislative guidance, the court must evaluate the relative social importance of the various principles. Just as there is no person without a shadow, similarly there is no principle without weight. Determining the balance on the basis of weight means making a social assessment as to the relative importance of the various principles’ (Laor v. Film and Play Review Board [26], at p. 434).

In determining ‘the relative social importance’, the court is a ‘faithful interpreter of the accepted attitudes of the enlightened public, in whose midst it dwells’ (Justice Landau in CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [46], at p. 1335 {135}). These are the attitudes enshrined in basic values and basic conceptions, and not in temporary, passing trends. They reflect the ‘social awareness of the people in whose midst the judges dwell’ (Justice Landau in ‘Law and Discretion in Administering Justice’ 1 Mishpatim (1969) 292, 306). They are an expression of ‘the national way of life’ (Justice Agranat in HCJ 73/53 Kol HaAm Co. Ltd v. Minister of the Interior [47], at p. 884 {105}). They reflect ‘the nation’s vision and its basic credo...’ (President Smoira in HCJ 10/48 Zeev v. Acting Director of Tel-Aviv Municipal Area [48], at p. 89 {72}). They are not the product of judicial subjectivity. In attaching weight to the various considerations, the judge aims, to the best of his ability, for judicial objectivity. He does not reflect either his subjective values or his personal considerations. The judge reflects ‘the values of the State of Israel as a Jewish and democratic State’ (s. 1 of the Basic Law: Human Dignity and Liberty). In this context, he will take into account the weight given to the various considerations in similar situations, for similar situations justify a similar solution. He will also take into account legislative and judicial arrangements, from which he may learn the proper weight that should be given to the various considerations in the case before him.

53. The need to rehabilitate offenders is an important consideration in the legal system. An offender who was tried and punished should be allowed to reintegrate into society (see Carmi v. State Attorney [36], at p. 375). Notwithstanding, the strength of this consideration decreases if the offence is serious in its circumstances or if the position that the candidate seeks to fill is a position that requires an aura of confidence towards him and an aura of confidence to the system in which he seeks to be appointed a leader. It is one thing to rehabilitate a criminal who has served his sentence. It is another thing to place him at the top of the administrative pyramid.

54. The public’s confidence in the system of Government is a central consideration in our legal system. Without this confidence, a democratic society cannot function. In discussing the public’s confidence in the judicial authority, I pointed out:

‘The public’s confidence in the judicial authority is the most valuable asset that this authority has. It is also one of the most valuable assets of the nation. De Block’s saying that a lack of confidence in the administration of justice is the beginning of the end of society is well-known’ (HCJ 732/84 Tzaban v. Minister of Religious Affairs [49], at p. 148).

These remarks apply, albeit to a lesser degree, to all executive authorities. Public confidence in government organs is one of the most precious assets of the executive authority and the State. When the public loses its confidence in the organs of Government, it loses its belief in the social contract forming the basis of communal life. Significant importance should be given to considerations that are designed to maintain, preserve and promote a feeling among the public that its servants are not its masters and that they do their work for the public, honestly and without corruption. Indeed, the integrity of the service and of its members is the foundation of the Civil Service and the basis of our social structure. I discussed this in a certain context, where I said:

‘... in an enlightened democratic society, a public figure, who is chosen by the people and needs the trust of the people, must maintain a proper moral standard in his behaviour — both private and public — so that he may continue to serve in his office’ (HCJ 251/88 Oda v. Head of Jaljulia Local Council [50], at p. 839).

This is a central consideration, and it should be accorded significant weight in the overall balancing process which is the basis of a reasonable decision regarding the appointment of a candidate with a criminal past to public office.

55. The conclusion arising from the various considerations is the following: as a rule, it is unreasonable to appoint a candidate who has committed offences in grave circumstances to a senior office in the Civil Service. For this purpose, the gravity of the offence is determined not by its ‘position’ in the Penal Law, but by its implications on considerations that underlie the appointment. Consequently, an offence should be regarded as serious where its very essence and the circumstances of its commission not only undermine law and order in general (e.g., murder, robbery, rape) but also the foundations of Government structure (e.g., bribery, fraud and breach of trust, perjury, fabricating evidence, obstructing the course of justice). A candidate who has committed these offences and holds a senior office in the Civil Service undermines the public trust in the executive authority and the Civil Service. He will have difficulty in serving as an example and a model for his subordinates. He will have difficulty requiring of them what is required of every civil servant but he himself has profaned. He will have difficulty in radiating fairness, trust, prestige, honesty and integrity to the general public. All of these will affect, to a large degree of certainty, the status, functioning and position of the Civil Service in a democratic society. Indeed, an offence is serious if ‘from the circumstances in which it was committed it can be concluded that the public figure displayed in his behaviour a moral standard so low that he is no longer worthy of holding his public office’ (ibid.). This is the same offence that in the circumstances in which it was committed involves ‘moral turpitude that testifies to the fact that its owner is unworthy of being counted amongst honest people and at any rate is unfit to have public responsibility for decisions and acts on which the affairs of the community and public harmony are dependent’ (Justice H. Cohn in HCJ 436/63 Ben-Aharon v. Head of Pardessia Local Council [51], at p. 564). This last ruling explained the term ‘offence involving moral turpitude’ which appears in a number of laws. In our case, the seriousness of the offence in its circumstances should not be identified with an offence involving moral turpitude, for in our case there is no express statutory arrangement to this effect. Notwithstanding, it seems to me that the two are not far apart. Indeed, the term ‘involving moral turpitude’ is vague and connecting it with the reasonableness of a decision of a public authority making an appointment will not help to clarify the criteria. Nevertheless, connecting the two can indicate the type of factors to be taken into account. In both cases, we are dealing with a criminal past where ‘the crux of the decision is not based on the formal aspects of the offence, but in the circumstances in which the offence was committed…’ (Oda v. Head of Jaljulia Local Council [50], at p. 839). In both cases, we are dealing with a criminal offence, the weight of which is determined in accordance with ‘the outlooks and ethical criteria prevailing in society at that time, in order to protect those interests that the law is designed to protect…’ (BAA 2579/90 Bar Association District Committee, Tel-Aviv v. A [52], at pp. 732-733). Nonetheless, the two should not be considered identical. ‘An offence involving moral turpitude’ emphasizes the immoral element in committing the offence (see R. Gavison, ‘An Offence involving Moral Turpitude as Disqualification for Public Office,’ 1 Mishpatim, 1969, 176). A criminal offence, which may negate the reasonableness of appointing its perpetrator to a high public office, does not need to be specifically of an immoral nature.

56. In principle, the seriousness of the offence is determined by its circumstances (cf. Ben-Aharon v. Head of Pardessia Local Council [51]). Thus, for instance, someone who committed an offence, before the State was established, that undermined the Government of the British Mandate but which was intended to further the establishment of the State, may reasonably be appointed to a senior Government office in the State. The effect of the commission of the offence on the public’s confidence in the executive authorities depends on the circumstances in which it was committed, and not on its elements in the statute book (see Gavison’s article, supra, at p. 180). Therefore someone who committed an offence for financial gain and a desire to enrich himself cannot be compared with someone who committed the same offence out of a (mistaken) desire to further the interests of the State. The offence is identical, but the circumstances in which it was committed are different. The difference in circumstances affects the weight of the criminal past and the reasonableness of the decision to appoint someone with a criminal past to a Government office. Furthermore, the more senior the position, the more weight ought to be attached to the factor of a criminal past. The position’s seniority is determined not only in accordance with formal criteria of seniority and position, but also in accordance with the degree to which the public identifies the holder with the Civil Service itself and the degree of damage inflicted on the public confidence in the Civil Service if the appointment is implemented. Finally, the time that passed from the commission of the offence until the proposed appointment is an important factor. The longer the passage of time, the weaker the link between the person and the criminal offence, and his appointment to the public office will not affect his carrying it out and the public’s confidence in him and the Civil Service. Indeed, a criminal past, even with regard to a serious offence, is not an absolute bar to an appointment to a public office, even a senior one. Time has its effect. Wounds are healed. The candidate is rehabilitated. The ‘enlightened public’ will no longer regard his appointment as an act that harms the integrity of the service and its capacity to function, but rather as vindictiveness and excessive punishment. In such circumstances, there will be no basis for regarding an appointment of such a candidate to a public office as an unreasonable act. The period of time that should pass between committing the crime and serving the sentence and the appointment varies according to the circumstances. Certainly it is not measured in a few years. But decades also should not be required. The pendulum of time will swing between these two extremes, and it will stop in accordance with the circumstances of time and place.

A Criminal Past and a Criminal Conviction

57. Hitherto I have assumed that a candidate has a criminal past because he was convicted in a trial and served his sentence. This is certainly the usual case. However, a criminal past for the purpose of making an appointment is not to be regarded as identical with a criminal conviction. We are dealing with an administrative decision of the Government to appoint someone to a public office, and we are not dealing with a decision to impose on someone penalties prescribed by law. There is no criminal punishment before a criminal conviction. The same is not the case with regard to an appointment. Here it is relevant to examine all the facts that were before the authority making the decision. If from all these facts a reasonable authority could have concluded that a criminal offence was committed, this is sufficient to establish a ‘criminal past’ for the purpose of deciding whether the appointment is reasonable. Indeed, for the purpose of the reasonableness of the decision of the executive authority making the appointment, the decisive factor is the commission of the criminal acts attributed to the candidate. A criminal conviction naturally constitutes a desirable ‘proof’, but other methods of proof may be possible, such as an admission before a competent authority. Justice H. Cohn rightly pointed out that:

‘...the said rule presuming a person to be innocent of a crime, in the absence of rebutting evidence, does not provide — nor do I know of any other legal rule that does provide — that an administrative authority that needs to be convinced of someone’s past is only competent to determine that he has a criminal past when he has been convicted in a trial.

…………………………

Shall we disqualify the refusal of the Commissioner to appoint a candidate as a civil servant when the refusal was based on evidence proving, to a reasonable degree, his criminal past, for the reason that these proofs are defective in that they lack a guilty verdict? Let us assume that this candidate wishes to be accepted into the Civil Service and the Commissioner refuses to admit him for that reason; would we compel the Commissioner to accept him, and disqualify the refusal because of the absence of a criminal conviction?

…………………………

…if the authority to make a decision regarding a person’s past is given to an administrative authority which is not competent to swear witnesses and take evidence in the way that evidence is given in Court, the administrative authority need only base its decision on evidence that would be sufficient to convince a reasonable person about the applicant’s past, even if that evidence would not have been admissible in court and even if it would have been of insufficient weight in a judicial proceeding’ (HCJ 94/62 Gold v. Minister of Interior [53], at pp. 1856-1857 {186-187}).

Indeed, the rule applicable in our case is the  ‘rule of administrative evidence’. A Government authority may base a finding on evidence, if the evidence is such, in view of the circumstances, ‘that any reasonable person would regard it as having probative value and would rely on it’ (President Agranat in HCJ 442/71 Lansky v. Minister of Interior [54], at p. 357). An administrative finding can be based on ‘material whose probative value is such that reasonable people would regard it as sufficient for reaching conclusions about the nature and occupation of the persons concerned...’ (President Shamgar in EA 2/84 Neiman v. Chairman of Central Elections Committee for Eleventh Knesset [55], at p. 249 {100}).

A Criminal Past and a Pardon

58. How does the granting of a Presidential pardon affect the appointment of a candidate who committed an offence (whether convicted in a trial or not)? This question raises serious problems. The ‘institution’ of the pardon is a complex one and its implications have not yet been examined comprehensively in the rulings of this court. With regard to the petition before us, we do not need to examine this issue in depth. The reason for this is that, whatever the general effect of a pardon, it cannot prevent the Government, in making an appointment under the law, from considering the criminal past of someone who has been pardoned for the purpose of that appointment. This is directly implied by the provisions of the Criminal Register and Rehabilitation Law. Under this law, when the President gives a pardon to someone convicted in a trial, the pardon is equivalent to a conviction that was deleted (s. 16(c)). When a conviction has been deleted, information about it may only be given to a limited number of bodies (s. 16(a)). One of these bodies is the ‘Government — for the purpose of appointing holders of offices whom it is obliged to appoint…’ (First Schedule, s. (c)). Thus, even after the deletion of a criminal conviction, the Government can still obtain information about the criminal past, for the purpose of making statutory appointments. This information is not provided for academic purposes, but so that it may be included among the considerations of the Government in making the appointment. In the explanatory notes to the draft Criminal Register and Rehabilitation Law, it was stated (at p. 217):

‘The draft sets out several limitations on the right of an offender that his crimes should not be remembered — because of the gravity of the offence, because of an office the holder of which must set a personal example to the public, or because of a position that requires trust of its holder and the trust required is prejudiced as a result of the offence.’

This conclusion can be seen also from the rulings of this court. With regard to the term ‘someone with a criminal past’ in the Law of Return, 5710-1950, Justice Sussman pointed out:

‘The State of Israel was established, as the Declaration of Independence says, so that it would be open to Jewish immigration and the ingathering of exiles. It was not established to be a centre of attraction and to establish a community of persons who have broken the law in the countries where they live, and for this reason wish to escape justice, even if they are Jews. What difference is there — for the purpose of immigrating to and settling in Israel — between someone who committed a crime and was convicted of it and someone who committed a crime but was not convicted of it, because, for example, the act was too long ago or an amnesty law was issued where it was committed, or because the legal proceeding against him ended or was not begun for another reason of the kind that does not absolve him of his past?’ (Gold v. Minister of Interior [53], at p. 1855 {185}).

Indeed, in this case, as in other cases, the determining factor is the purpose underlying the normative arrangement. When the normative arrangement deals with Government appointments to an executive office, a pardon does not prevent the Government from having the right and the duty to consider the acts which are the subject of the pardon. The need to ensure the public’s confidence in the authorities overrides the need to delete the candidate’s criminal past. This is also the law in other countries (see: May v. Edwards (1975) [59]; State ex. rel. Wier v. Peterson (1976) [60]; 67 C.J.S. supra, at p. 268; G.L. Hall, ‘Pardon as Restoring Public Office or License or Eligibility Therefor,’ 58 A.L.R. 3d., 1974, 1191).

From the general to the specific

59. The respondent committed a number of offences. He gave false evidence in court (in the Nafso affair). He obstructed legal proceedings (in the ‘300 bus’ affair). These are particularly severe crimes in their circumstances. Particular serious was the behaviour of the respondent in the ‘300 bus’ affair and the cumulative effect of all of his behaviour. All of these undermine the administration of justice and so harm the foundations of society and the legal system. They damage the public’s confidence in the legal system and the law enforcement system. It is fitting to recall the remarks of President Shamgar in describing the behaviour of the interrogators in the Nafso affair (of whom the respondent was the chief investigator):

‘These actions involve far-reaching harm to the trustworthiness of the agents of the said branch of State. In this way the tribunal was prevented from deciding the case of the appellant on the basis of true facts, and the standing and power of the tribunal that was misled by the statements of the interrogators were impaired.

The serious act… makes it necessary to take decisive measures in order to uproot this phenomenon…’(Nafso v. Chief Military Prosecutor [20], at p. 636 {267}).

With regard to the same case, the Landau Commission noted:

‘This affair is frightening and shocking, not merely because of the miscarriage of justice towards Nafso personally, but no less because of the corruption of values in giving false testimony, which has been exposed in broad daylight and which must now be totally uprooted’ (ibid., at p. 9).

The same applies to the ‘300 bus’ affair. The Landau Commission pointed out the special gravity of this affair in general, and of the behaviour of the respondent (‘the Trojan horse’) which was described as ‘an incomparably serious act’ (ibid., at p. 30). The Landau Commission emphasized time and time again the need to prevent any harm to the State as a State governed by law, based on the foundations of morality — harm that ‘is liable to repay us by corrupting internal morals’ (ibid., at p. 71).

60. The appointment of the respondent to the office of director-general of a Government ministry seriously harms the Civil Service. It is almost certain that it will adversely affect the functioning of the service. But most of all, it seriously undermines the public’s confidence in the public authority and the Civil Service. How can someone who gave false testimony and perverted the course of justice, and by so doing prejudiced the freedom of the individual, head a Government ministry? What is the personal example that he is likely to show to his subordinates? What requirements of honesty and integrity can he demand of them? How can a criminal who gave false testimony and perverted the course of justice and prejudiced the freedom of the individual, maintain the confidence of the public as a whole in the fairness, honesty and dignity of civil servants? What example does the Civil Service give to each individual when such a person is one of the heads of the Civil Service? Is it possible to maintain a relationship of trust between the citizen and the Government when the Government speaks to the citizen through the respondent? What social and moral message does the Government thereby send to the citizen, and will the citizen return to the Government? Indeed, an appointment to a senior position in the Civil Service of someone who by his offences undermined the foundations of the social structure and the ability of judicial or quasi-judicial institutions to do justice is an unreasonable act in the extreme. Furthermore, twelve years have passed since the Nafso affair. Eleven years have passed since the ‘300 bus’ affair. The wound has not yet healed. The events are still a part of the public consciousness. Considerations of rehabilitating the respondent, which are normally relevant to the appointment of a person with a criminal past to a public office, are not significant in this case. The respondent was rehabilitated before his appointment to the Civil Service. The office to which the respondent was appointed is prestigious and considerations of rehabilitation with regard to it are of minor weight. Notwithstanding all of the respondent’s qualifications — which no-one has disputed — it was not argued before us that he is the only person capable of fulfilling the office of director-general in a way that no-one else can. Against this background, the question of the weight that should be attributed to the effect of the respondent’s criminal past on the Civil Service and the public’s confidence therein remains a most compelling one.

61. In their pleadings before us, counsel for the respondent and counsel for the respondents raised three main arguments, which in their opinion justify the appointment of the respondent. The first argument is that the respondent did not commit his offences for pecuniary gain or to promote his own interests, but for the security of the State. Indeed, the respondent did not act for himself, but for the general public. He took into account the needs of the State and its security. His outlook was erroneous and damaging, but it cannot be ignored that he did not act for his own interests but for the security interests of the residents of the State. This consideration must be taken into account. It is not a minor matter. From the viewpoint of the elements of an offence it is not usually relevant. But from the viewpoint of the considerations at the basis of the reasonableness of the appointment it is very relevant. Nonetheless, this consideration is insufficient — both on its own and together with other considerations — to turn the scales. The Landau Commission rightly pointed out that we must at all costs protect the State as a State governed by law based on basic concepts of morality. ‘Any deviation from these basic concepts, even towards those who wish to destroy the State, is likely to repay us by corrupting internal morals’ (ibid., at p. 71). Whatever the motive, nothing can justify perjury, perverting the course of justice and prejudicing the freedom of the individual. Security is valuable, but it is security which operates within the framework of the law. When those who maintain security break the law, law and security are both prejudiced. Security without law is anarchy. Without law, there is no purpose to security. These are first principles. They are simple and elementary. This is the first lesson of national democratic life. The offences of the respondent harmed all of these. The offences which the respondent committed were so grave in their other circumstances, and the injury to the social fabric is so serious, that the motive of the respondent in committing the acts cannot sufficiently alleviate the damaging effect of his actions on the functioning of the Civil Service and the public’s confidence in it.

62. The second argument raised before us — by counsel for the respondent — is the claim of discrimination. The respondent’s colleagues, who committed crimes as he did and who remained in the service, were promoted. Their criminal past did not hurt them. Why should a different rule apply to the respondent, who left the General Security Service? The answer to this argument can be found in the report of the Landau Commission. This Commission recommended that the members of the General Security Service (including the respondent) who committed various offences in the course of their duties should not be put on (criminal or disciplinary) trial. The main reason underlying this recommendation was the need to prevent a ‘deep shock to the ranks of the interrogators, and in addition to the Service as a whole, and to cause severe damage to the ability of the service to operate effectively in order to frustrate hostile terrorist activities’ (ibid., at p. 82). The Commission emphasized that ‘we could not reconcile ourselves to the thought that if we were to recommend a response along the lines of “let justice run its course”, this could paralyse the interrogation work of the Service, and it is almost certain that innocent victims would die in acts of terror that the Service is capable of frustrating’ (ibid., at p. 83). The Commission pointed out that in its opinion the holding of (criminal or disciplinary) trials against those agents who had committed crimes would cause ‘damage to the public by weakening the protection given to it against terrorist acts, as a result of harm to the ability of the Service to frustrate such acts’ (ibid., at p. 85). It is therefore clear that had the respondent continued his activity with the Service, he would not have suffered. The reason for this is not related to the respondent, but to the Service, whose proper functioning is in the interest of the whole State. But when the respondent left the Service, that reason can no longer help him. Now he stands on his own merits. The proper comparison is no longer between him and his colleagues in the Service who are being promoted. He is not a victim of discrimination in comparison with them, for they are not equal in their relevant characteristics. The proper comparison is between him and any other candidate with a similar criminal past. The appointment of the respondent to the office of director-general would be an act of discrimination against all of the many candidates who are rejected by the Civil Service Commission because of their criminal past.

63. The third argument raised before us relates to the pardon that the respondent received from the President of the State. This pardon, as the respondent’s counsel argued, deletes his criminal past, and it may not be taken into account again for the purpose of the appointment. Moreover, because of the pardon the respondent was not indicted, and his guilt was not determined by the court. Therefore we must presume that he is innocent of every crime. Even the circumstances in which the respondent committed his offences were not determined judicially, and therefore we must make presumptions in his favour. As we have seen, the Government is entitled to take account of a candidate’s criminal past, if that criminal past is proven to it under ‘the rules of administrative evidence’. In the case before us, such evidence exists. Admittedly, the respondent was not convicted in a trial, but there is evidence on which a reasonable executive authority could base a finding. Indeed, the respondent did not deny the facts in principle and did not contest his involvement in criminal acts. Moreover, one can learn about the criminal past of the respondent from the judgment in the Nasfo affair, and from the extensive material that was accumulated with regard to the ‘300 bus’ affair, including the respondent’s application to the President of the State for a pardon, which includes a confession of the facts that constitute the offences for which he was pardoned by the President. The President’s pardon cannot prevent the Government from taking the criminal past into account, and in any event this pardon does not apply to the Nafso affair. Notwithstanding, the Government ought to take into account the fact that the President of the State, who is ‘the Head of State’ (s. 1 of Basic Law: the President of the State), saw fit to grant a pardon to the respondent. The President’s considerations in granting the pardon should also be taken into account, in so far as these relate to the interests of the respondent. The President based his decision on the need ‘to prevent additional serious harm to the General Security Service’ (quoted in Barzilai v. Government of Israel [21], at p. 517 {6). His decision was given:

‘as a result of a profound recognition that the public interest and the State’s interest require protecting our security and saving the General Security Service from the damage that will ensue if the affair continues…            the Israeli public is totally unaware of the debt that we owe all of those anonymous fighters, members of the General Security Service, and how many Israeli lives have been saved because of them’ (ibid.).

The President concluded his decision by noting that:          

‘As President of the State, I feel obliged to stand by the GSS agents, knowing as I do the devoted, strenuous and secret efforts they make day by day and hour by hour, and to prevent demoralization in the intelligence community and in the security and anti-terror establishment.

The State of Israel’s special circumstances do not allow us, nor may we allow ourselves, to undermine or hinder the security establishment and the good people who protect the nation’ (ibid., at pp. 517-518).

This reasoning focuses mainly on the Security Service and on the need to ensure the continuation of its proper functioning. This reasoning does not have any real implication for the appointment for someone who received a pardon to a senior public position outside the Security Service itself. In any event, the weight of such a consideration cannot be compared to the damage to the Civil Service and the confidence that the public will have in it if the appointment is carried out.

Government Discretion and Judicial Review

64. The appointment of the respondent as director-general of the Ministry of Building and Housing is within the authority of the Government. In the absence of a statutory provision negating the competence of the respondent, he is competent to be appointed to the senior position. The Government considered all the relevant factors. It was not argued before us that it had any irrelevant consideration, nor have we found any. Nonetheless, the Government’s decision is invalid. It is manifestly and extremely unreasonable. The Government did not properly balance the various relevant considerations. It did not attach the proper weight to the damage that would be suffered by the Civil Service as a result of the respondent’s appointment. It did not make a proper balance between the considerations supporting the respondent’s appointment (mainly his qualifications and capabilities) and those opposing this appointment (primarily the damage to the public’s confidence in the executive authority).

65. It was argued before us that once the Government decided to make the appointment, there is no basis for judicial intervention. The Government balanced the various considerations, and once it decided that in the overall balance the respondent should be appointed, the court should not replace the Government’s discretion with its own discretion. Indeed, had the balance made by the Government fallen within the scope of reasonableness, there would have been no room for our intervention. The case before us falls into the category of those cases where a decision of the executive authority deviates in the extreme and substantially from the scope of reasonableness. In such instances, the court is not at liberty to refrain from setting the administrative authority’s decision aside (see HCJ 31/81 Moshav Beth Oved Workers Commune for Cooperative Agricultural Settlement Ltd v. Traffic Supervisor [56], at p. 354). In such situations, the question is not whether the decision of the executive authority is wise or not, but whether the decision of the executive authority is lawful or not. Since we have reached the conclusion that the decision deviates in the extreme from the scope of reasonableness and is tainted with illegality, there is no alternative but to declare it void. The exalted position of the Government’ as the State’s executive authority (s. 1 of the Basic Law: The Government) cannot give it powers that the law does not confer upon it. Every executive authority may make an unreasonable decision that will be disqualified by the court, and the Government is no exception to this rule (see CA 492/73 Schpeizer v. Council for Regulating Sports Gambling [57], at p. 26; HCJ 5684/91 Barzilai v. Government of Israel [58]). Indeed, this is the strength of a democracy that respects the rule of law. This is the rule of law in its formal sense, whereby all executive authorities, including the Government itself, are subject to the law. No authority is above the law; no authority may act unreasonably. This is also the substantive rule of law, according to which a balance must be made between the values, principles and interests of the democratic society, while empowering the Government to exercise discretion that balances between the proper considerations (see Barzilai v. Government of Israel [21], at p. 621 {103}).

The result is that we are making the show cause order absolute, in the sense that the appointment of the respondent as director-general of the Ministry of Building and Housing is void as of today. The State will pay the petitioners’ costs in a total amount of NIS 7,500 to each petitioner.

 

 

Justice E. Goldberg: I agree.

 

 

Justice E. Mazza: I agree.

 

 

Petition granted.

23 March 1992

 

 

 

CrimA 3854/02

1.  John Doe

v.

1.  District Psychiatric Board for Adults

2.  The Attorney-General

 

The Supreme Court Sitting as the High Court of Justice

[January 22, 2003]

Before President A. Barak, Justices E. Mazza and D. Beinisch

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

 

Facts: The Treatment of the Mentally Ill Law-1991 provides that, when a court is of the opinion that one accused of a criminal offence is unfit to stand trial, the accused may be hospitalized. The District Psychiatric Board is responsible to review the case of such a mentally ill accused person, and it can order the accused’s release from the hospital. This petition concerns the amount of time a mentally ill accused person may be hospitalized on the authority of the initial judicially issued criminal hospitalization order.

 

Held: The Supreme Court held that the treatment of the psychiatric patient must balance between the patients’ rights, on the one hand, and the public interest, on the other.  Forced hospitalization of an incompetent criminal defendant infringes his constitutional rights, including his liberty, his dignity, his autonomy and his self image, by imposing a stigma upon the accused long after his release from commitment. Nevertheless, the court stated, these constitutional rights are not absolute.  Opposite them stand the interests of protecting public peace and safety from the accused, as well as the public interest in treating the accused and protecting him from himself. Pursuant to these general principles, the Court held that a mentally ill accused person could not be held indefinitely pursuant to an initial criminal hospitalization order. As such, the Court ordered the court that had issued the original criminal hospitalization order to review the case in order o determine whether forced criminal hospitalization pursuant to the original order had become unreasonable. The Court noted that no explicit statutory provisions governed the reexamination of such criminal hospitalization orders. As such, until the Knesset examined the matter, the Court set out guidelines for the examination of such cases in the future.

 

Legislation cited:

Treatment of Mentally Sick Persons Law-1955, §6(a)

The Criminal Procedure Law [New Version]-1982, § 170

Treatment of the Mentally Ill Law-1991 §§ 10m 15(a), 16(a), 17, 21, 24(c), 28, 28(a), 28(b) 29(a), 30(a), 35(b)

 

Israeli Supreme Court cases cited:

[1]        CApp 2060/97 Valinchik v. Tel Aviv District Psychiatrist, IsrSC 52(1) 697

[2]        VCA 2305/00 John Doe v. State of Israel, IsrSC 54(4) 289

[3]        VCA 92/00 John Doe V. State of Israel, IsrSC 54(4) 240

[4]        VA 196/80 Toledano v. State of Israel, IsrSC 35(3) 332

[5]        HCJ 547/84 Of Haemek, Agricultural Society v. Ramat Yeshai Local Council, IsrSC 40(1) 113

 

United States cases cited:

[6]        Jackson v. Indiana, 406 US 715 (1972).

 

Foreign books cited:

[7]        R.D. Makay. Mental Condition Defences in the Criminal Law 219 (1995);

[8]        E. Tollefson & B. Starkman, Mental Disorder in Criminal Proceedings 115 (1993)

 

Foreign articles cited:

[9]        P. Fennel & F. Koenraadt, Diversion, Europeanization and the Mentally Disordered Offender, in Criminal Justice in Europe- A Comparative Study 171 (P. Fennel et al. eds., 1995)

[10]      A. Feinberg, Out of Mind, Out of Sight: The Disposition of Mentally Disordered Persons Involved in Criminal Proceedings, 3 Monash U.L. Rev. 134 (1975)

[11]      Grant H. Morris & J. Reid Meloy, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Criminal Defendants, 27 U.C.D.L. Rev. 1 (1993)

[12]      S.N. Verdon-Jones, The Dawn of a ‘New Legalism’ in Australia? The New South Wales Mental Health Act, 1983 and Related Legislation, 8 Int. J.L. & Psychiatry 95 (1986)

 

Miscellaneous:

[13]      9.3 The Laws of Australia, Criminal Law Principles (1993). 

 

Petition denied.

 

For the petitioners— Yehonatan Ginat

For the respondent— Hovav Arzi

 

 

JUDGMENT

President A. Barak

      Petitioner was brought to criminal trial. The court found that the petitioner was mentally ill and was unfit to stand trial. The court ordered that the petitioner be hospitalized in a psychiatric institution.  He currently resides in the psychiatric institution, and, despite his medical treatment, remains unfit for trial.  How long may this hospitalization be carried out under the authority of the original judicial hospitalization order?  Is the judicial hospitalization order limited by time, and if so, what is that limitation? This is the question before us in the petition at hand.

 

Facts and Proceedings

 

1.  The petitioner was prosecuted.  He was charged with assault and theft.  The court ruled, based on the opinion of the District Psychiatrist, that the petitioner suffered from a mental disorder, schizophrenia, and that he was not fit to stand trial.  On August 30, 1988, the court instructed that the petitioner be hospitalized pursuant to section 6(a) of the Treatment of Mentally Sick Persons Law-1955.  During his hospitalization, petitioner was once again charged with assaulting and threatening his mother. Pursuant to this indictment, an additional hospitalization order was issued against the petitioner.

 

2.  The petitioner recently approached the Psychiatric Board [hereinafter the Board].  The petitioner requested that the Board grant him a discharge, and cancel the hospitalization order issued against him.  The petitioner based his application on the findings of the doctors of the ward in which the he was hospitalized.  Those doctors had determined that the petitioner showed neither suicidal nor aggressive tendencies, and that he could be granted occasional leave. The Board rejected the discharge request.  It determined that the petitioner presented a danger both to himself as well as to others.  However, the Board decided to allow the petitioner short periods of leave, not to exceed 72 hours.  An appeal against this decision was submitted to the District Court.  The petitioner argued that there was no justification for the fact that the original hospitalization was issued for an indefinite period of time.  He also argued that there was no room to deviate from the doctors’ conclusions—certainly not without giving reasons for doing so.

 
District Court

 

3.   The District Court (Judge Berliner) ruled that the original hospitalization order was not issued for an indefinite period of time.  It also ruled that the Board was permitted to determine, based on its experience and expertise, that the petitioner continued to present a danger, both to himself and to others. The court ordered the Board to reexamine the petitioner’s condition within a month’s time and, if the Board determined that he no longer presented any danger, consider whether to discharge him or take other steps to alleviate the conditions of his hospitalization.  The court also drew the Board’s attention to the need to give reasons when determining whether a patient presents a degree of danger which differs from that suggested by his doctors.  An application for permission to appeal this judgment was submitted.  The application was accepted and permission granted.

 

Continuation of the Proceedings

 

4.  The Board reexamined the petitioner’s case.  He was not discharged from the forced hospitalization.  The Board did not change its assessment of the danger presented by the petitioner.  However, it extended the duration of the occasional periods of leave that could be granted.

 
Petitioner’s Arguments

 

5.  Petitioner argued that, in criminal proceedings, issuing a hospitalization order for an indefinite period of time is unreasonable and disproportional.  Petitioner argued that, in consideration of the long amount of time that has passed since the issue of the original hospitalization order, and taking into account the maximum sentence the petitioner would have been expected to serve had he been convicted, the Board should have cancelled the hospitalization order issued on the “criminal track.”  The petitioner noted that annulling the hospitalization order does not necessarily lead to the discharge of the petitioner from forced hospitalization, as he may still be hospitalized via the “civil track.”  The infringement of the petitioner’s liberty is less severe in civil hospitalization. The petitioner also claimed that the Board has the responsibility to give reasons for its decision, if that decision conflicts with the position of the doctors treating the petitioner. 

 

Respondents’ Arguments

 

6.  The Attorney-General (respondent 2) relies upon the District Court’s judgment.  He claims that, due to their nature, the duration of mental illness cannot be predicted, and thus the validity of judicial, criminal hospitalization orders should not be bound by time. Such limitations would disturb the delicate balance provided by the current law and would also harm the public interest.  The “civil track” is also insufficient, as it does not offer the necessary supervision and control over a person who has proven himself to be dangerous—so it is argued—by committing a criminal offense. The Attorney-General agrees that the Board must give reasons for its decision.  However, in this case, he asserts that the fact that it neglected to do so is not reason enough to invalidate the Board’s decision. 

 

The Normative Framework

 

7.  When there is an indictment, the court, whether by its own initiative or by the appeal of one of the parties, is faced with the question of whether, due to mental illness, the accused is fit for trial.  If the court decides that the accused is unfit for trial, the court must suspend the proceedings. See The Criminal Procedure Law [New Version]-1982, § 170. The court may order that the accused be hospitalized in a psychiatric institution. See Treatment of the Mentally Ill Law-1991, § 15, which states:

 

15(a) Hospitalization or Clinical Treatment of an Accused by Virtue of a Court Order

 

Where an accused person is brought to trial, and the court is of the opinion, based on the evidence before it, that the accused is not fit to stand trial by reason of his being ill, it may order that he be admitted to a hospital or receive clinical treatment;  Where the court has decided to investigate the guilt of the accused pursuant to section 170 of the Criminal Procedure Law [New Version]-1982 [hereinafter the Criminal Procedure Law], the hospitalization order issued will be valid until the investigation is complete.  When it has been completed, or the investigation has been discontinued and the accused has not been acquitted, the court shall decide on the question of his hospitalization or clinical treatment.

 

While he is in the hospital, the accused is treated by a staff of doctors.  Nevertheless, neither the staff of doctors nor the hospital’s director may order that the accused be discharged.  His liberty is in the hands of the District Psychiatric Board.  This Board reviews the case of an incompetent criminal defendant at least once every six months. Treatment of the Mentally Ill Law, § 28(a). It is authorized to approve periods of leave.  It has the authority to unconditionally discharge the patient from the hospital. Treatment of the Mentally Ill Law, § 28(b). One of those notified of the date of discharge is the Attorney-General, who may order that the accused be prosecuted for the crime he was charged with. See Treatment of the Mentally Ill Law, § 21.

 

 8.  What is the objective of hospitalizing an accused person who suffers from mental illness?  The primary objective is “to provide medical treatment.” See Treatment of the Mentally Ill Law, § 35(b). If this treatment is successful, the Psychiatric Board will order that the patient be discharged. The Attorney-General will then consider whether to continue the criminal proceedings against the accused. What is the law, however, in a case where the medical treatment is unsuccessful, such that the patient cannot be discharged from the hospital due to the danger he presents to himself and to others, and such that he cannot to be brought to criminal trial?  In such a case, the mentally ill accused will remain in the psychiatric institution on the authority of the hospitalization order. See Treatment of the Mentally Ill Law, § 35(b). This forced hospitalization infringes upon the liberty and dignity of the patient.  Nevertheless, this infringement is justified in that it is intended both for the protection of the accused as well as for the protection of society. See  CApp 2060/97 Valinchik v. Tel Aviv District Psychiatrist, [1] at 707. 

 

9.  This petition is raised against this legal background.  For what length of time may the mentally ill accused be held on the authority of a hospitalization order?  The petitioner before us has been hospitalized for over fourteen years.  Had his trial continued regularly, and had he been convicted, he would have finished serving his sentence long ago.  Can the accused be forcibly hospitalized for such a long period of time?  Does a judicial hospitalization order, which authorizes the hospitalization of the accused, have the power to compel hospitalization for a period of time which exceeds the maximum punishment the accused may have been sentenced to?  See  R.D. Makay. Mental Condition Defences in the Criminal Law 219 (1995) [7]; P. Fennel & F. Koenraadt, Diversion, Europeanization and the Mentally Disordered Offender, in Criminal Justice in Europe- A Comparative Study 171, 175 (P. Fennel et al. eds., 1995) [9].  And if the Psychiatric Board does not order that the accused be discharged, will he be held in the hospital for the remainder of his life, only because of a hospitalization order issued after charges of assault and theft?  Does this not amount to life imprisonment without the possibility of a pardon? See A. Feinberg, Out of Mind, Out of Sight: The Disposition of Mentally Disordered Persons Involved in Criminal Proceedings, 3 Monash U.L. Rev. 134, 144 (1975) [10].

 

10.  It must be noted that the alternative to the indefinite validity of the judicial hospitalization order is not the discharge of the mental patient. We assume that the accused continues to pose a danger, both to himself and to others.  Thus, continuing the forced hospitalization is justified.  Yet, is it justified that his hospitalization be carried out under the authority of a judicial hospitalization order which originates from a criminal charge that cannot be prosecuted?  In order to understand this dilemma, it is appropriate to clarify that forced hospitalization on the authority of a judicial hospitalization order issued during a criminal proceeding is not the only form of forced hospitalization recognized by the law. See, e.g., Treatment of the Mentally Ill Law, § 17 (examination of a suspect); Treatment of the Mentally Ill Law, § 16(a) (hospitalization of a suspect); Treatment of the Mentally Ill Law, § 15(a) (hospitalization of the accused). In addition to criminal hospitalization under the authority of a judicial order ("the criminal track"), the law also recognizes hospitalization on the authority of a “civil” hospitalization order (“the civil track”). See VCA 2305/00 John Doe v. State of Israel [2].  A comparative study of the criminal and civil tracks shows that the infringement upon the mental patient’s liberty is more severe in the criminal track.  Justice M. Cheshin correctly noted:

 

Comparing the status of those moving along the civil tack to the status of those moving along the criminal track will reveal to us—unsurprisingly—that the status of the former is more comfortable than that of the latter; the civil track is more comfortable for the patient; the criminal track more difficult.

 

John Doe, [2] at 311. Thus, for example, in the criminal track, only the Psychiatric Board is authorized to discharge a mentally ill accused, and only it has the authority to grant periods of leave. Treatment of the Mentally Ill Law, § 28. In the civil track, on the other hand, the director of the hospital may discharge the patient from the hospital and approve periods of leave. Treatment of the Mentally Ill Law, § 30(a). Furthermore, in the criminal track, the forced hospitalization, on the authority of the judicial order, continues until the Psychiatric Board orders that the accused be discharged. Treatment of the Mentally Ill Law, § 28. In the civil track, on the other hand, the period of hospitalization cannot exceed six months, unless the Psychiatric Board extends the period, and each additional extension cannot exceed six months. Treatment of the Mentally Ill Law, § 10.

 

11.  As such, the real question before us is for what length of time may a mentally ill accused person be held on the criminal track?  Is there not a point in time at which the accused may no longer be held through the criminal track, and where the hospitalization must be carried out through the civil track, which is more comfortable for the mental patient?  Of course, on both tracks, the mental patient will be discharged from hospitalization if such discharge is medically justified.  However, where the mental patient presents a danger to himself and to others in such a way as to justify his forced hospitalization, when should the mental patient be transferred from the criminal track to the civil track?

 

12.  These questions are not unique to us.  They have arisen in several modern democracies.  In the United States, for example, in the State of Indiana, a law was in effect which allowed the indefinite pretrial commitment of incompetent criminal defendants The Supreme Court of the United States unanimously ruled that this law was unconstitutional.  It ruled that a period of judicially forced hospitalization can last only for the period of time reasonably necessary to decide whether the accused will, in the future, be fit for trial.  Justice Blackmun wrote:

 

We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period necessary to determine whether there is substantial probability that he will attain that capacity in the foreseeable future.  If it is determined that this is not the case, then the state must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.  

 

Jackson v. Indiana, 406 US 715, 738 (1972) [6]. Following this judgment, a number of states changed their laws.  The new statutes generally established a period of time, after which the mentally ill criminal defendant would be transferred to a civil track. See Grant H. Morris & J. Reid Meloy, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Criminal Defendants, 27 U.C.D.L. Rev. 1, 9 (1993) [11] [hereinafter Morris & Meloy].  In Canada, the Penal Law specifies the maximum period that an incompetent criminal defendant may be forcibly hospitalized.  After that period has passed, if the accused continues to present a danger, he may be hospitalized under civil legislation. See E. Tollefson & B. Starkman, Mental Disorder in Criminal Proceedings 115 (1993) [8] [hereinafter Tollefson & Starkman].  In New South Wales, Australia, the law establishes a special mechanism through which an incompetent criminal defendant is transferred from the criminal track to the civil track. See S.N. Verdon-Jones, The Dawn of a ‘New Legalism’ in Australia? The New South Wales Mental Health Act, 1983 and Related Legislation, 8 Int. J.L. & Psychiatry 95, 110 (1986) [12] [hereinafter Verdon-Jones].

 

13.  What, then, is the law in Israel?  The law contains no explicit provision regarding a maximum time period for a judicially ordered hospitalization issued during a criminal proceeding.  Furthermore, there is no explicit provisions concerning the transfer of an accused from the criminal track over to the civil track.  Does this mean that the judicial criminal order is indefinite, and that so long as the Psychiatric Board does not order that the mentally ill accused be discharged, in accordance with its authority under section 28(b) of the law, he will remain hospitalized via the criminal track?

 

14.  Our response to these questions is that the Treatment of Mentally Sick Persons Law-1991 is deficient in that it does not explicitly regulate the issue at hand.  We hope that, following this judgment, the law will be amended and will provide a comprehensive statutory arrangement which appropriately balances the psychiatric patient’s liberty against concerns of public safety.  Yet, until the law is amended, can we not offer any assistance?  Our response is that although we cannot, through judicial means, set up the mechanisms and institutions which can only be established through legislation, we can make progress towards the proper arrangement with the few legal tools at our disposal. 

 

15. The Treatment of Mentally Sick Persons Law-1991 does not stand alone.  It is one link in a long chain of Israeli legislation.  It exists within the framework of the Israeli legal system, which constitutes the “normative material” in which the law is embedded.  This normative framework includes values and fundamental principles which constitute the objective goals of the law.  Relevant to the issue at hand is the principle of reasonableness.  We must keep in mind that the psychiatric patient’s treatment demands that we reasonably balance between the patients’ rights, on the one hand, and the public interest, on the other.  Forced hospitalization of an incompetent criminal defendant infringes his constitutional rights, including his liberty, his dignity, his autonomy and his self image, by imposing a stigma upon the accused long after his release from commitment. See Valinchik [1]; VCA 92/00 John Doe V. State of Israel, [3] at 249-51; VA 196/80 Toledano v. State of Israel, [4] at 336.  Nevertheless, these constitutional rights are not absolute.  Opposite them stand the interests of protecting public peace and safety from the accused, as well as the public interest in treating the accused and protecting him from himself.

 

16.  The principle of reasonableness also applies to hospitalization orders issued by judges during criminal proceedings. Compare HCJ 547/84 Of Haemek, Agricultural Society v. Ramat Yeshai Local Council, [5] at 141.  It also applies to the conditions for issuing those orders, as well as to the conditions for their continuing validity.  Hospitalization orders lie outside the “zone of reasonableness” when it becomes apparent that there is no longer an actual probability that the mentally ill accused will become fit for trial. Hospitalization orders also go fall outside the zone of reasonableness when—regardless of the probability of the defendant eventually becoming fit for trial—the ratio between the period of time the accused has been hospitalized and the maximum sentence that the accused would have received had he been convicted is unreasonable.  In these and other situations, continuing to implement the hospitalization order may become unreasonable over time. 

 

Comparative law may also be of aid here.  In a number of states of the United States, the period of hospitalization via the criminal track may last only as long as the maximum period of imprisonment which one would have served for committing the crimes he has been charged with. See Morris & Meloy, [11] at 16-17.  In contrast, in some of the states, there is one uniform hospitalization period set for all offences. Morris & Meloy, [11] 14-15. Canada has implemented the “caps” method, which divides criminal offences into three categories and sets a maximum period of “criminal track” hospitalization for each.  In the first category, which includes offences such as treason and murder, the maximum period is hospitalization for life.  In the second category, which includes offences for causing bodily harm or compromising national security, the maximum period is hospitalization for ten years.  The third, residual category consists of the remainder of unspecified offences, and the maximum period of hospitalization for these offences is two years. See Tollefson & Starkman, [8] at 116.  New South Wales, in Australia, employs a different method.  There, when a person is held to be unfit for trial, his case is transferred to a Psychiatric Tribunal which assesses whether he will become fit for trial within the next 12 months.  If the tribunal determines that he will become fit for trial, the court then orders that he be hospitalized for that period of time.  If, on the other hand, the tribunal decides that the defendant will not recover within one year, the Public Prosecutor must decide whether a special hearing should be held or whether the charges should be dropped.  This hearing is held in a manner which is as similar as possible to criminal proceedings, and it may result either in acquittal, acquittal by reason of mental illness, or a ruling that the crime was committed.  If the hearing concludes that the crime was indeed committed, the court must rule on whether the accused would have been sentenced to imprisonment had he been fit for trial and been convicted. This period is called the “limiting term,” and it constitutes the maximum period for “criminal track” hospitalization. See 9.3 The Laws of Australia, Criminal Law Principles 133-34 (1993).  This law also grants the court the authority to determine that a patient who is unfit for trial be considered a “continued treatment patient,” thus entitling him to the rights to which a patient hospitalized via the civil track is entitled. See Verdon-Jones, [12] at 113. 

 

17.  What is the result when the duration of the hospitalization order lies outside the zone of reasonableness?  The result, of course, is not the immediate cancellation of the order, nor is the mentally ill accused allowed to leave the hospital as he wishes.  Such a result would be unreasonable and should be avoided.  Hospital gates should not open of themselves.  A conscious determination is necessary, which may not lead to the release of the patient, but rather to transferring him from the criminal track to the civil track.  What conscious determination must be made and who is to make it?   It is of course appropriate that these questions be explicitly answered in legislation.  Yet, what is the law where such an explicit provision is absent?  It is insufficient to simply determine that in principle, the hospitalization order is unreasonable.  Detailed arrangements are needed to actualize this determination.  What are these arrangements and what is their legal basis?

 

18.  It seems to me that the answer to these questions is that the court must decide whether the hospitalization order should be cancelled.  The court issued the original hospitalization order, and it is responsible to decide whether time has brought the need for its cancellation.   A hospitalizing order is not automatically cancelled as a result of its having becoming unreasonable.  However, unreasonableness is a cause for the cancellation of the hospitalization order by whoever issued it, namely, the court itself.  So long as the court has not cancelled the hospitalization order, it remains valid.  No other official may cancel the hospitalization order.  As such, we are of the opinion that the Psychiatric Board does not have the power to cancel the hospitalization order.

 

19.  How will the court become aware of the need to reconsider the reasonableness of the hospitalization order?  Usually, the court does not act of its own initiative.  It must be prompted by an interested party.  Who is this party?  Of course, the psychiatric patient himself is allowed to approach the court and request the annulment of the hospitalization order.  However, due to his condition, this task must not only be left to him.  An institutional arrangement that has the ability to follow the development of the situation must be ensured.  For this reason, we should also not be satisfied with granting permission to the relatives of the accused.  Which institutions may here be considered?  One of the institutions which may be considered is the Psychiatric Board.  It reviews the psychiatric patient’s case every six months. See Treatment of the Mentally Ill Law, § 28(a).  It is familiar with the psychiatric patient's condition.  It is aware of whether there is an actual probability that the accused may be fit for trial, and what the chances of his recovery are.  A jurist who is able to assess the necessity of approaching the court stands at the head of the Board. See Treatment of the Mentally Ill Law, § 24(c).  One of the obstacles before such a resolution is that the Psychiatric Board is a statutory body of limited authority.  I doubt that the authority to approach the court in the matter at hand falls within its authority.

 

20.  Another institutional agent is the Attorney-General.  He charged the accused, and is aware of the hospitalization order.  He has the ability to appeal the decisions of the Psychiatric Board before the court. See Treatment of the Mentally Ill Law, § 29(a).  As such, he has information regarding the condition of the accused.  As one who is appointed over the public interest, he has the responsibly, and the means, to follow the development of the situation and examine whether the continuing validity of the hospitalization order lies outside the zone of reasonableness. He has the ability to turn to the court and request that the hospitalization order be cancelled or that the charges be dropped.  As one who is responsible for the public interest, he also has the ability to approach the District Psychiatrist and encourage him to transfer the patient from the criminal track to the civil track. 

 

21.  Thus, absent specific legislation, and so long as such legislation has not been passed by the Knesset, the practical resolution which may be achieved within the bounds of the law is that the Attorney-General shall be responsible for ensuring the continuing reasonableness of the hospitalization order. It is appropriate that, for this purpose, detailed guidelines be set out which arrange a system for supervising the hospitalization of the accused.  Within the framework of this system, the Psychiatric Board may be asked to report to the Attorney-General regarding its decision for continuing to hospitalize the accused.  Furthermore, the guidelines may also specify that, after a certain period of time, the Attorney-General will examine the need to continue hospitalizing the accused via the criminal track.  If the Attorney-General is of the opinion that there is room to cancel the hospitalization order, he may approach the court.  He can simultaneously approach the District Psychiatrist, in order to bring to his attention the need to transfer the accused to the civil track.  Additionally, the guidelines may specify a maximum period of hospitalization that a mentally ill accused may remain on the criminal track.   When designating this period, The Attorney-General can draw upon the comparative law here discussed.  The Attorney-General will have to take into account the nature of the offence that the mental patient is charged with, its severity, the conditions under which it was committed, the sentence specified by the law, the amount of time which has passed since the beginning of his hospitalization, as well as the patient’s chances of recovery.  In our opinion, this solution, whereby the authorities will be directed by detailed, clear guidelines, is the proper resolution to be implemented until the Knesset considers this matter.  We are aware that our resolution is not free of difficulty.  However, these difficulties pale in comparison to the current situation, where an accused may be forcibly hospitalized under the authority of an unreasonable hospitalization order.

 
From the General to the Specific

 

22.  The case at hand cries for help.  For over fourteen years the petitioner has been in a psychiatric institution under the authority of a hospitalization order.  He has been forgotten, and had it not been for his commendable attorney, he would probably have continued in that situation for some time.  The attorney acted admirably in approaching the District Court.  The court must examine the accused’s case.  It must hear the Attorney-General’s opinion regarding the continuing validity of the charge and the validity of the hospitalization order.  It must decide whether there is room to cancel the hospitalization order, while also taking into account the arrangements for hospitalization via the civil track.

 

The result is that we grant this appeal, and return the case to the District Court so that it may rule in accordance with par. 22.

 

Justice E. Mazza

I agree.

 

Justice D. Beinisch

I agree.

 

 

Petition Granted.

January 22, 2003

 

 

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

Comments, questions and suggestions are all welcomed, and may be directed towards elig@supreme.court.gov.il

 

 

 

 

 

 

 

 

HCJ 2481/93

Yosef Dayan

v.

1. Yehuda Wilk – Jerusalem District Commissioner

2.       Rabbi Ovadya Yosef

3.       Dr Meira Sarel and Professor Shalom

4.       Shoshana Eitan

5.       Ricka Barsela

6.       Oren Sheindel

 

The Supreme Court sitting as the High Court of Justice

[9 February 1994]

Before Vice-President A. Barak and Justices S. Levin, E. Goldberg

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The petitioner applied for a permit to hold an assembly directly outside the home of Rabbi Ovadya Yosef, spiritual leader of the Shas political party. The District Commissioner of Police refused the permit, because it would violate the rights of privacy of the rabbi, his family and his neighbours.

 

Held: It is necessary to balance the petitioner’s right to freedom of assembly against the right of privacy of the public figure, his family and his neighbours. According to Vice-President Barak, these rights are of equal importance: in principle there is a right to hold an assembly outside the private home of a public figure, but this right must not materially intrude on the right of privacy of the public figure and his neighbours. When the home is used to some extent also for public activity, then slightly less protection will be given to the right of privacy of the public figure in his home than in a case where the home is not used for public activity. According to Justice S. Levin, the right of privacy of the public figure in his home is of greater importance than the right to hold an assembly outside that home. According to Justice Goldberg, an assembly outside the private home of a public figure should only be allowed when he conducts all or most of his public activity from home.

In the present case, Vice-President Barak and Justice Goldberg would have granted the petition and allowed the petitioner to hold an assembly outside the home of Rabbi Ovadya Yosef, if the petitioner had agreed to restrictions of time, place and manner. The petitioner, however, refused to agree to any restrictions.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 3, 7, 7(a), 8.

Penal Law, 5737-1977, s. 226.

Police Ordinance [New Version], 5731-1971, ss. 83, 84, 84(a), 85.

Protection of Privacy Law, 5741-1981, ss. 2(1), 4, 5, 18, 19.

 

Israeli Supreme Court cases cited:

[1]      HCJ 3080/92 – unreported.

[2]      HCJ 148/79 Saar v. Minister of Interior [1980] IsrSC 34(2) 169.

[3]      FH 16/61 Companies Registrar v. Kardosh [1962] IsrSC 16(2) 1209; IsrSJ 4 7.

[4]      HCJ 953/87 Poraz v. Mayor of Tel Aviv–Jaffa [1988] IsrSC 42(2) 309.

[5]      FH 9/77 Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [1978] IsrSC 32(3) 337.

[6]      CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [1991] IsrSC 45(4) 529.

[7]      HCJ 693/91 Efrat v. Director of Population Registrar [1993] IsrSC 47(1) 749.

[8]      HCJ 153/83 Levy v. Southern District Commander [1984] IsrSC 38(3) 393; IsrSJ 7 109.

[9]      HCJ 243/62 Israel Filming Studios Ltd v. Geri [1962] IsrSC 16 2407; IsrSJ 4 208.

[10]    HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [1989] IsrSC 43(2) 22; IsrSJ 10 229.

[11]    MApp 82/83 State of Israel v. Alia [1983] IsrSC 37(2) 738.

[12]    HCJ 3815/90 Gilat v. Minister of Police [1991] IsrSC 45(3) 414.

[13]    FH 13/60 Attorney-General v. Matana [1962] IsrSC 16 430; IsrSJ 4 112.

[14]    EA 2/84 Neiman v. Chairman of Central Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

[15]    HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[16]    FH 9/83 Appeals Court Martial v. Vaknin [1988] IsrSC 42(3) 837.

[17]    HCJ 109/70 Coptic Orthodox Mutran of Jerusalem v. Minister of Police [1971] IsrSC 25(1) 225.

[18]      HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

[19]    HCJ 73/53 Kol HaAm Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[20]    CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840.

[23]    HCJ 399/85 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

[22]    HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.

[23]    CrimA 126/62 Disenchik v. Attorney-General [1963] IsrSC 17 169; IsrSJ 5 152.

[24]    HCJ 869/92 Zvilli v. Chairman of Central Elections Committee for Thirteenth Knesset [1992] IsrSC 46(2) 692.

[25]    HCJ 456/73 – unreported.

[26]    HCJ 991/91 David Pasternak Ltd v. Minister of Building and Housing [1991] IsrSC 45(5) 50.

[27]    HCJ 6163/92 Eisenberg v. Minister of Building and Housing [1993] IsrSC 47(2) 229, [1992-4] IsrLR 19.

[28]    CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [1963] IsrSC 17 1319; IsrSJ 5 120.

[29]    CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.

[30]    CA 670/79 HaAretz Newspaper Publishing Ltd v. Mizrahi [1987] IsrSC 40(2) 169.

 

Israel Magistrates Court cases cited:

[31]    CrimC (Jer.) 4300/81 – (unreported).

 

Australian cases cited:

[32]    Australian National Airways Pty Ltd v. The Commonwealth (1945) 71 C.L.R. 29.

 

American cases cited:

[33]    Rowan v. Post Office Dept. 397 U.S. 728 (1970).

[34]    City of Wauwatosa v. King 182 N.W.2d 530 (1971).

[35]    Public Utilities Comm’n v. Pollack 343 U.S. 451 (1952).

[36]    Martin v. Struthers 319 U.S. 141 (1943).

[37]    Gregory v. Chicago 394 U.S. 111 (1969).

[38]    Carey v. Brown 447 U.S. 455 (1980).

[39]    Cox v. Louisiana 379 U.S. 536 (1965).

[40]    Pruneyard Shopping Centre v. Robins 447 U.S. 74 (1980).

[41]    United Electrical, R. & M. Workers v. Baldwin 67 F. Supp. 235 (1946).

[42]    Cohen v. California 403 U.S. 15 (1971).

[43]    Frisby v. Schultz 487 U.S. 77 (1988).

[44]    Kovacs v. Cooper 336 U.S. 77 (1949).

 

English cases cited:

[45]    Minister of Home Affairs v. Fisher [1979] 3 All ER 21 (PC).

[46]    Francis v. Chief of Police [1973] 2 All ER 251 (PC).

 

German cases cited:

[47]    Ovg. Koblenz, Beschl v. 24.5.86 7B 36/86.

 

Indian cases cited:

[48]    Indulal v. State (1963) 50 A.I.R. Gujarat 259.

 

Canadian cases cited:

[49]    R. v. Big M. Drug Mart Ltd [1985] 1 S.C.R. 295.

[50]    Committee for the Commonwealth of Canada v. Canada [1991] 1 S.C.R. 139.

[51]    Cheema v. Ross (1991) 82 D.L.R. (4th) 213.

 

For the first respondent — N. Arad, Director of High Court of Justice Department at State Attorney’s Office.

For respondents 2-6 — Y. Bar Sela.

 

 

 

JUDGMENT

 

 

Vice-President A. Barak

A asks the competent authority in the police force for a permit to hold an assembly. He wants to hold it, together with others, on the pavement outside the apartment of B (in a cooperative house). B is a public figure. His apartment is also used for public purposes. B opposes the granting of the permit. The neighbours also oppose it. What is the scope of discretion of the competent authority in the police force in such circumstances? This is the question before us.

The facts

1.    Rabbi Ovadya Yosef is a spiritual leader. He is the president of the Council of Torah Scholars. This council is the supreme body of the Shas movement. This movement is a political party represented in the Knesset. It is a member of the coalition. Rabbi Yosef lives, together with his wife, in a cooperative house in a residential neighbourhood in Jerusalem (36 Jabotinsky Street). Rabbi Yosef has an office elsewhere (Hizkiyahu HaMelech Street). Persons interested in meeting Rabbi Yosef must arrange such meetings in advance with the rabbi’s office. Rabbi Yosef’s family lives in his private apartment. The rabbi does not regularly hold meetings in his home about matters relating to his public activities. Nonetheless, he receives visits from persons in government at his apartment, such as the Prime Minister, cabinet-ministers, deputy-ministers and members of the Knesset. The frequency of the visits of deputy-ministers and members of the Knesset from the Shas party is four to five visits a month. The Minister of the Interior (a Shas representative) usually visits Rabbi Yosef once a week. The Council of Torah Scholars does not meet in the rabbi’s house.

2.    The petitioner applied to hold an assembly (on 6 May 1993) outside Rabbi Ovadya Yosef’s apartment. He wants to ‘protest the continued participation of Shas in the Government’. He expects two hundred and fifty participants. He wants to use a stage and two loudspeakers. The assembly is to last two hours (19.00-21.00). The demonstrators are to meet at Wingate Square (near the rabbi’s house) and disperse there. On 2 May 1993, the petitioner applied to the Jerusalem District Commissioner of the Israel Police Force to receive a licence for the assembly. Clarifications requested from the petitioner indicated that the demonstrators intend ‘to approach Rabbi Ovadya Yosef’s house with signs and loudspeakers, to erect a stage and protest against the rabbi and the Shas party’. In communications with the petitioner, it was suggested that he hold the assembly in the plaza of the Van Leer Institute (an aerial distance of two hundred meters). This is situated nearby. The petitioner rejected the suggestion.

3.    The Jerusalem District Commissioner (on 4 May 1993) denied the petitioner’s request. The reason was the ‘ruling held by the Supreme Court with regard to a demonstration involving an intrusion into the private domain of a public figure and a harassment in his private life’. The petition before us was filed against this decision. We issued on that day a show cause order as requested. We ordered that Rabbi Ovadya Yosef should be joined as an additional respondent in the petition. We fixed the hearing for 12 May 1993, in view of the statement of the petitioner that he wanted to hold the meeting on a new date. At the beginning of the hearing (on 12 May 1993), we discovered that the service of the court papers on Rabbi Ovadya Yosef was not done properly. We postponed the continued hearing of the petition to a new date, after proper performance of service. We granted an application of residents (the applicants in HCJApp 2593/93) to be joined as additional respondents in the petition. Several days later (on 18 May 1993), we held a hearing on the petition itself. We heard the arguments of the parties. The attorney of Rabbi Ovadya Yosef was asked to submit, within a week, a list of the frequency of the visits of persons in Government to the rabbi’s house during the last month. The parties were given leave to submit further arguments in writing.

The petitioner’s position

4.    According to the petitioner, the police’s position deprives him of his basic right to freedom of speech. The purpose of the assembly is to draw public attention —

‘to the protest of Sefardim (Jews of oriental origin) against the direction in which the rabbi was going. We approach the head of the pyramid in order to influence him, for his opinions influence others.’

The petitioner further claims that the police are discriminating against him. In the past, a permit was given to hold an assembly opposite the private residence of the Prime Minister (in Ramat-Aviv), and opposite the apartments of Supreme Court justices. According to the petitioner, Rabbi Ovadya Yosef carries out his political activity mainly from his apartment. The rabbi is ‘a figure standing at the head of a political movement, and his movement is involved in an acute political controversy among the Israeli public, and it is therefore inconceivable that he is immune to public criticism.’

The position of the police

5.    The position of the Jerusalem District Commissioner is mainly based on the consideration about the intrusion into the private life of a public figure and harassing him in his private life. The first respondent (hereafter — ‘the respondent’) relies on a guideline of the Attorney-General that ‘a permit to hold a demonstration directed against a public figure may be refused if it is to be near his private residence, as distinct from his place of work…’ (Attorney-General’s guideline no. 21.566, (‘freedom of assembly’), s. 12(e)). In the respondent’s opinion, the significance of holding the assembly and its immediate effect is a disturbance, harassment and intrusion into the private life of the rabbi, his family members and his neighbours. In these circumstances, the right of the petitioner and his friends to demonstrate must yield to the right of the rabbi, the members of his family and his neighbours not to be harassed in their private lives. In her arguments before us, Mrs Arad, arguing for the respondent, pointed out that the freedom of speech does not include the freedom to force another person to listen to that speech. A demonstration whose purpose is to put pressure on a specific person should not be permitted in the name of freedom of speech. Within the framework of the considerations for granting a permit, the District Commissioner must take into account the right of privacy of the rabbi and his family. He must also take into account the fact that the demonstration will cause a nuisance. Mrs Arad further argued that the petitioner wants to hold an assembly on public land, but at the entrance to a person’s house, literally adjacent to his private premises. This is likely to constitute a real nuisance to him and intrude upon his privacy. The consideration of preventing an intrusion on privacy is a relevant factor that must be considered. The rabbi and members of his household may become involuntary ‘prisoners’, in that they will be a captive audience; among the District Commissioner’s considerations, he must take into account the reasonable balance required in realizing the right of free speech against the right to privacy. In this respect, the fact that the rabbi has public standing is insufficient to justify an intrusion on his privacy. This right is currently protected both in the Protection of Privacy Law, 5741-1981, and the Basic Law: Human Dignity and Liberty, and with regard to the petitioner’s freedom of speech, this can be exercised at some distance from the door of the rabbi’s house, without undermining the purpose of the assembly and the message that it carries to the public.

6.    In his reply, the District Commissioner pointed out that when he refused to grant the permit, he assumed that it referred to the home of Rabbi Ovadya Yosef. He did not imagine that a claim might be made that the rabbi’s apartment is also used as an office. A claim to this effect was never made by the petitioner during the contacts with him. Nonetheless, when the claim was raised, it was also investigated. The attorney of Rabbi Ovadya Yosef explained the actual situation, and in view of this explanation there is no justification for intruding on the privacy of the rabbi and the members of his household. Neither is there any discrimination, for in similar circumstances applications to hold demonstrations outside the private homes of public officials were refused.

7.    In his affidavit of reply, the District Commissioner mentioned another consideration. It is impossible to hold an assembly on the plaza at the intersection of Jabotinsky Street and Marcus Street. The crossroad is a ‘traffic island’, approximately twenty metres in diameter, at an intersection of four main roads. The plaza is covered with decorative plants and grass and there is no access to pedestrians. It was not designed for holding assemblies, erecting platforms, for meetings or for gatherings. An assembly as requested should not be held at the intersection of Jabotinsky Street and Marcus Street since there is no suitable physical location for this. The assembly can be held nearby. Nonetheless, the District Commissioner points out that ‘the most important reason given for refusing the request was in essence the applicants’ demand that the assembly had to take place outside the home of Rabbi Ovadya Yosef.’

8.    The respondent rejects the claims of discrimination. He points out that in the past a petition was filed against his decision not to allow a demonstration or a disturbance to be held outside the homes of judges. The petition was dismissed in limine (HCJ 3080/92 [1]). Similarly approval was not given in the past to hold demonstrations outside the private home of the Prime Minister, where he lives in Ramat-Aviv.

The position of Rabbi Ovadya Yosef

9.    Rabbi Ovadya Yosef supported the District Commissioner’s position. His attorney pointed out that ‘the rabbi’s apartment is not used as his office, even though, in the course of his daily affairs, important visitors and guests whom the rabbi cannot receive in his office come to the rabbi’s apartment, and the apartment essentially serves as his home where the rabbi spends most of the day and night in study.’ In a statement on behalf of the rabbi, it was also pointed out that —

‘More than the rabbi suffers from the ongoing harm to his ability to enjoy his private apartment, the rabbi’s wife, who is unwell, suffers greatly from the disturbances which include, inter alia, people shouting at her when she goes out and comes in, and banging on the door of the apartment late at night. In addition to this there is the suffering of the neighbours.’

It should also be noted that ‘the congregating of many dozens of people and speeches made with loudspeakers, would constitute a serious and real disturbance to the rabbi’s household and to all the neighbours.’ ‘Both the rabbi and his neighbours who live in the building are entitled to lead their private lives without disturbance and without any disruption of their lifestyle. The rabbi and the members of his household are entitled to leave and enter their home freely, to pass along the pavements adjoining their home, and not to be exposed to fears and injuries.’

The neighbours’ position

10. Respondents 3-6 are neighbours of Rabbi Ovadya Yosef. They are residents in the building where his apartment is situated. They wish to support the decision of the District Commissioner. They point out that ‘for some time a kind of mini-demonstration has been held next to the building in the form of a protest vigil. This phenomenon has recurred from time to time over a period of years.’ They add:

‘The most recent protest vigil began several weeks ago. At first it was right in front of the building next to the entrance to the house. The participants in the vigil brought chairs and tables and signs, and they sat around the tables, eating, drinking and talking. In addition, one car or more always accompanied the group, and this contained equipment and supplies. The police surrounded the demonstrators with protective barriers, and on the police barriers the participants hung up protest signs against the Prime Minister, Rabbi Ovadya Yosef, Minister Deri and other similar signs. After a while, and apparently as a result of complaints made by neighbours, the police moved the protest vigil from the front of the building to the side of the building, on the pavement next to the plaza adjacent to the building.’

The neighbours emphasize that the protest vigil has caused an intolerable disturbance to the residents of the building and it has disrupted the lives of the residents of the building. This was the background for the fundamental position of the neighbours. They recognize the importance of freedom of speech. It has the same status as a person’s right to enjoy his privacy and his freedom to enjoy his own home and property without interference. The petitioner can realize his freedom of speech at some distance from the respondents’ house. Among its considerations, the police must take into account the neighbours’ right to privacy, enjoyment of their apartments and quiet living. Just as a property right warrants protection, the right to privacy and enjoyment of property also warrants protection. The neighbours have no other remedy. Applying to the civil court will not help them. An injunction against the organizers is ineffective, for others will come to demonstrate. A civil court can examine the question of nuisance, but not the legality of the permit. The neighbours have the standing to turn to the police and oppose the granting of a permit to the petitioner. From this standing derives their right also to apply to the court against a decision to grant a permit. ‘Just as a person can apply to this honourable court for the right to demonstrate, the door of the honourable court must also be open to anyone in Israel whose privacy is being invaded.’

The normative framework

11. The normative premise is enshrined in s. 84 of the Police Ordinance [New Version], 5731-1971 (hereafter — ‘the Police Ordinance’). This provision provides that the district commissioner of police may determine — whether in general or in a specific instance — that holding an assembly or a procession requires a licence. This decision depends upon whether the district commissioner of police thinks this is necessary in order ‘to maintain public security or public order’. On the basis of this provision, district commissioners of police have issued general notices whereby anyone who wishes to organize or conduct a procession or an assembly out of doors must obtain a permit (see HCJ 148/79 Saar v. Minister of Interior [2], at p. 173). Under this provision, anyone wishing to organize or hold an assembly (which under s. 83 of the Police Ordinance means a gathering of fifty or more persons for the purpose of hearing a speech or lecture) or a procession  (which means, under the definition in s. 83 of the Police Ordinance is a march or assembly in which 50 or more persons are to walk together) must apply to the district commissioner of police for a licence. The Police Ordinance provides that the officer in charge may grant the licence, refuse it, or grant it subject to conditions (s. 85 of the Police Ordinance). The Police Ordinance does not establish the scope of the discretion given to the officer in charge (see D. Libai, ‘The Right to Assemble and Demonstrate in Israel’, 2 Iyunei Mishpat, 1973, 54, at p. 58). This means that the officer in charge must exercise his discretion within the framework of the purpose for which he was given the authority (see FH 16/61 Companies Registrar v. Kardosh [3]). This purpose includes a specific purpose and a general purpose (see HCJ 953/87 Poraz v. Mayor of Tel-Aviv–Jaffa [4] at p. 326). The specific purpose is enshrined in the Police Ordinance, and it concerns maintaining security and public order. The general purpose concerns protecting and promoting fundamental values, such as the freedom of speech, freedom of movement, property rights and the right of privacy. Justice Shamgar discussed this, saying:

‘… the recognition of basic freedoms as a substantial part of the Israeli legal system leads also to the conclusion that the basic freedoms are, both in name and in purpose, a part of the law, i.e., as basic rules that guide and formulate ways of thinking and legal interpretation, and influence these by their character and their purpose’ (FH 9/77 Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [5], at p. 359).

I too discussed this in one case, where I said:

‘… the constitutional premise is the existence and protection of basic rights in a democratic regime. The assumption is that the legislature (parliament or a delegated authority), when passing legislation, wishes to maintain and protect basic rights. It follows that the purpose of all legislation is to maintain and protect basic rights and not to harm them’ (CA 524/88, Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [6], at p. 56).

And in another case I said:

‘The basic principles of the system and basic human rights determine the purpose of legislation. The presumption is that the purpose of legislation is to realize the principles of the system, and to promote human rights in it. These principles constitute a kind of “normative umbrella” that extends over all legislation… they permeate into all legislation and constitute its purpose’ (HCJ 693/91 Efrat v. Director of the Population Registrar at the Ministry of Interior [7], at p. 763.

We will consider these purposes and the relationship between them.

The right to hold an assembly or a procession

12. Holding an assembly, procession or picket is one of the basic human rights in Israel (Saar v. Minister of Interior [2]; HCJ 153/83 Levy v. Southern District Commissioner of Police [8]). This right ‘is recognized, alongside the freedom of speech or as deriving therefrom, as belonging to those freedoms which shape the character of the Government in Israel as a democratic government’ (ibid., at p. 398). ‘Through this freedom, means of expression are granted to those who do not have access to political or commercial avenues of expression. For this reason our legal system, like the legal systems of other enlightened democracies, accepts that the right of demonstration and assembly has a recognized place in the hall of basic human rights’ (D. Kretzmer, ‘Allocating Resources to Protect Demonstrations: The Israeli Approach’, Freedom of Expression and the Charter, ed. D. Scheiderman, 1991, 424). In the past, this right was recognized in case-law, and it was one of those ‘basic rights that are “unwritten”, but which derive directly from the character of the State as a freedom-loving democracy.’ (Justice Landau in HCJ 243/62 Israel Filming Studios Ltd v. Geri [9], at p. 2415 {216}). It appears that now this right can be derived from the Basic Law: Human Dignity and Liberty, which provides a statutory constitutional basis for the human right to dignity and liberty. The freedom to express oneself — in words alone or by expressive actions — is a major expression of human dignity and liberty. Indeed, ‘the freedom of demonstration and assembly has a broad ideological basis, at the centre of which is the recognition of the worth of the human being, his dignity, the freedom given to him to develop his personality, and the desire to maintain a democratic form of Government’ (Levy v. Southern District Commissioner of Police [8], at p. 398 {114}).

13. In analyzing the constitutional right we did not distinguish between an assembly, a procession or a picket. All three are characterized by the fact that the speaker has a physical presence at the place of the expression. Nonetheless, Israeli law distinguishes between these forms of expression. Thus, for example, a permit is required for holding an  ‘assembly’ or a ‘procession’, but a permit is not required for a picket (see CrimC (Jer.) 4300/81 [31] and Kretzmer, ‘Demonstrations and the Law’, 19 Isr. L. Rev. 1984, 47). This derives from the special arrangements in the Police Ordinance. As we have seen, the Ordinance requires a licence for holding an assembly or a procession. Assembly is defined in s. 83 as follows:

‘ “assembly” – fifty or more persons who have congregated in order to hear a speech or lecture on a political issue or in order to discuss that issue.’

It follows that fifty or more persons holding a picket, without having ‘congregated in order to hear a speech’ does not constitute an assembly. The same is true of forty-nine or less persons who have congregated to hear a speech or lecture. ‘Procession’ is defined in s. 83 as follows:

‘ “procession” – fifty or more persons walking together, or who have congregated in order to walk together, from one place to another, whether they are actually moving or not, and whether they are organized in any specific form or not.’

It follows that fifty or more persons who have not congregated in order to walk together do not constitute a procession. The same applies to forty-nine or less persons who have congregated together to walk together. Other arrangements can be found in the Penal Law, 5737-1977, and in the Protection of Privacy Law. I will first analyse the constitutional rights in accordance with their inherent nature, without reference to these special definitions. Thereafter I will examine the influence of the said provisions, in so far as they are relevant to this case, on the realization of the constitutional rights.

14. An assembly, procession or picket are characterized inter alia by the fact that the participant in an assembly, procession or picket has a physical presence at the place of the expression (see Kretzmer, supra, Isr. L. Rev., at p. 51). This presence may naturally impair the interests and values of others. A procession through city roads is liable to impair the right of movement of those using the roads. An assembly or picket next to a house may impair the use and enjoyment derived by the residents of the building from the land in their possession. An assembly, procession or picket may harm public order. This ‘friction’ between the right of assembly, procession or picketing and other values and interests necessitates a balance between the conflicting rights, involving reciprocal concessions. We will address the nature of this balance below. It expresses the ‘relativity’ of the constitutional right. In this case, it should be emphasized that the restriction of the right of assembly, procession or holding a picket does not derive from the ‘inherent’ nature of the right, or its own innate insufficiency. The restriction of the right of assembly or procession or holding a picket is derived from considerations that are ‘external’ to the right itself, which derive from the existence of competing rights and conflicting interests. Indeed, we must distinguish between matters that are included within the inherent nature of a basic right (‘the extent of the right’) and the degree of recognition given to its inherent nature in a given context (‘the extent of the protection’): see HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [10], at p. 33 {244}, and also F. Schauer, Free Speech: A Philosophical Enquiry, Cambridge, 1982.).

Property rights and the right of privacy

15. An assembly, procession or picket are all liable to interfere with a person’s ability to use and enjoy his property. When the assembly or picket take place on a person’s property without his consent, they interfere with his property rights. The same applies to an assembly or picket that are supposed to take place in the streets of the city that are intended for assemblies, when they are held outside a person’s house or apartment. In such a case, the assembly or picket may interfere with the person’s ability to enjoy his property, namely the ability to escape into one’s own private property from the pressures of society and the inquisitive public eye. Property rights have been recognized by Israeli case-law as a constitutional right (see Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [6]; J. Weissman, Property Rights: General Part, The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, 1993, 37). In particular, the assembly, procession and picket interfere with a person’s right of privacy. This right is also a constitutional basic right (see MApp 82/83 State of Israel v. Alia [11], at p. 741, and cf. HCJ 3815/90 Gilat v. Minister of Police [12], at p. 424). These two basic rights — property rights and the right of privacy — were recognized as basic rights by the Basic Law: Human Dignity and Liberty. The Basic Law states: ‘One may not harm a person’s property’ (s. 3) and ‘Every person is entitled to privacy and confidentiality’ (s. 7(a)). For the purposes of petition before us, we do not need to set down the boundary between property rights and the right of privacy, or between them and other rights. Since the focus of the petition lies in the violation of the right of privacy, we will consider this issue, and reserve judgment on the question whether, in addition to the violation of the right of privacy, there is also a violation of the resident’s property rights.

16. Every person in Israel is ‘entitled to privacy’ (s. 7(a) of the Basic Law: Human Dignity and Liberty). The scope of this right is not entirely free of doubt. Much has been written about it (see, inter alia, R. Gavison, ‘Privacy and the Limits of the Law’, 89 Yale L.J., 1979-1980, 421). Now that it has a statutory constitutional basis, it must be interpreted from a ‘broad perspective’ (Justice Agranat in FH 13/60 Attorney-General v. Matana [13], at p. 442 {124}) ‘with the understanding that we are dealing with a provision that shapes our way of life… the issue is one of human experience, which must adapt itself to changing realities’ (EA 2/84 Neiman v. Chairman of Central Elections Committee for Eleventh Knesset [14], at p. 306 {157}). For this reason a constitutional provision must be construed ‘with a broad outlook, and not in a technical manner’ (HCJ 428/86 Barzilai v. Government of Israel [15], at p. 618 {100}). This is the source of the approach — accepted in enlightened democratic countries — that a constitutional provision should be interpreted ‘liberally’ (Justice Wilberforce in Minister of Home Affairs v. Fisher [45], at p. 25), with a substantive approach and not a ‘legalistic’ one (in the language of Judge Dickerson in R. v. Big M. Drug Mart Ltd [49]), with an objective approach and not a ‘technical’ or ‘pedantic’ one (in the language of Judge Dixon in Australian National Airways Pty. Ltd v. The Commonwealth (1945) [32], at p. 81). Against a background of such an approach, it can be held that the constitutional right of privacy includes, inter alia — but without any attempt to encompass all aspects of the right —a person’s right to lead the lifestyle he wishes inside the privacy of his home, without outside disturbance. A man’s home is his castle, and inside it he is entitled to be left to himself, to develop the autonomy of his own private will (see Rowan v. Post Office Dept. (1970) [33], at p. 736). In this respect, the right to privacy is, inter alia — in the language of Prof. Gavison — a restriction on the accessibility of others to the individual (see Gavison, in her article, supra, at p. 428). Indeed, in the tumult of life in modern society, a person’s right of privacy allows him to be on his own and with the cherished members of his family, and enables him to gather strength at home for the following day (see City of Wauwatosa v. King (1971) [34], at p. 537). The right of privacy is therefore intended to ensure that a person does not become a prisoner in his home, and is not compelled to expose himself at home to disturbances that he does not want. In this way, the right of privacy constitutes — in the language of Justice Douglas — the beginning of freedom (see Public Utilities Comm’n v. Pollack (1952) [35], at p. 467). Indeed, Warren and Brandeis referred — in their preliminary list on this matter — to a person’s right to be let alone as a right that is the ‘most comprehensive of rights and the right most valued by civilized man’ (S.D. Warren and L.D. Brandeis, ‘The Right to Privacy’, 4 Harv. L. Rev. 1890-1891, 193). Justice Frankfurter rightly said in the case of Martin v. Struthers (1943) [36], at p. 153, that:

‘….homes are sanctuaries from intrusions upon privacy and of opportunities for leading lives in health and safety.’

In a similar vein, Justice Black said that allowing every person to do as he wishes would ultimately lead to a situation where:

‘…homes, the sacred retreat to which families repair for their privacy and their daily way of living, would have to have their doors thrown open to all who desired to convert the occupants to new views, new morals, and a new way of life. Men and women who hold public office would be compelled, simply because they did hold public office, to lose the comforts and privacy of an unpicketed home. I believe that our Constitution, written for the ages, to endure except as changed in the manner it provides, did not create a Government with such monumental weaknesses’ (Gregory v. Chicago (1969) [37], at p. 125).

Justice Brennan made similar remarks in Carey v. Brown (1980) [38], at p. 471, where he stated:

‘Preserving the sanctity of the home, the one retreat to which men and woman can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual “to be let alone” in the privacy of the home, “sometimes the last citadel of the tired, the weary, and the sick”.’

Justice Shamgar gave an excellent description of this, when emphasizing that a picket outside or at the door of a person’s home, intrudes on his privacy, for it is liable to —

‘…deprive a person of his tranquillity, his feeling of personal security and the feeling that he can run his own life, without having his private affairs becoming a display for all, and hence the harassment and the resulting infringement of privacy’ (FH 9/83 Appeals Court Martial v. Vaknin [16], at p. 851).

So we see that the right of privacy draws the line between the individual and society. It defines the boundaries within which the individual is left to himself, for the development of his own individuality, without the interference of others (see T.I. Emerson, The System of Freedom of Expression, New York, 1970, 544). Indeed, just as the recognition of human dignity and liberty leads to the recognition of freedom of speech, assembly and demonstration, so the recognition of human dignity and liberty leads to the recognition of a person’s right to be free from unwanted speech. This was discussed by Prof. Black, who said:

‘The claim to freedom from unwanted speech rests on grounds of high policy and on convictions of human dignity closely similar if not identical with those classically brought forward in support of freedom of speech in the usual sense. Forced listening destroys and denies, practically and symbolically, that unfettered interplay and competition among ideas which is the assumed ambient of the communication freedoms’ (C.L. Black, ‘He cannot Choose but Hear: The Plight of the Captive Auditor,’ 53 Colum L. Rev. 1953, 961, 967).

Indeed, just as everything in human rights necessitates freedom of speech, there is nothing in human rights that necessitates the hearing of unwanted speech.

Freedom of movement

17. The right to hold an assembly, procession or picket may conflict with the right of the individual to move freely in the roads and streets. ‘Roads and streets were intended for walking and travelling’ (Saar v. Minister of Interior [2], at p. 177). Just as one person has a constitutional right to hold a procession through a city street, so another has a constitutional right to walk along a city street. This constitutional right exists independently, and it can also be derived from human dignity and liberty.

The public interest

18. Hitherto I have discussed human rights with regard to an assembly, procession or picket. Alongside these rights of the individual, there also exists the public interest (R. Pound, ‘A Survey of Social Interests,’ 57 Harv. L. Rev. 1943-44, 1). These are the interests of the public as such, which it demands as an organized entity. One cannot maintain an organized democratic society without maintaining the public interest in security, order and public peace. Admittedly, one cannot have democratic government merely on the basis of public order alone, but one cannot have democratic Government without public order. Public order is one of the basic values of the legal system (see HCJ 109/70 Coptic Orthodox Mutran of Jerusalem v. Minister of Police [17], at p. 246). The public interest includes public peace, the quiet and tranquillity of daily life, the personal security of a person in his home and in public places, and the proper relationships between individuals and between the individual and government. Indeed, the public interest also includes protection of the human rights of the individual. Without public order it is impossible to ensure human rights. Without order there is no freedom (see HCJ 14/86 Laor v. Film and Play Review Board [18], at p. 433). When a group of people want to hold an assembly, picket or procession in a city street, there is a public interest in maintaining order and security in the city streets, in ensuring the flow of traffic in the streets and in protecting property and privacy. Justice Brennan discussed this in Carey [38] at 471, saying:

‘The state’s interest in protecting the welfare, tranquility and privacy of the home is certainly of the highest order in a free and civilized society.’

It follows that there is a public interest in protecting the interest of the individual and it is the interest of the individual to protect the public interest. In a democratic society there is an inseverable link between order and freedom. How can we ensure the proper operation of this link? The answer that our legal system gives to this question lies in the need to balance interests and values when they conflict. The key lies in an attitude of ‘give and take’ and a balance of conflicting values. Human rights are not ‘absolute’. They are ‘relative’. The public interest wishes to ensure proper ‘subsistence areas’ for the relative nature of the right. We will now turn to this matter.

Balancing between conflicting interests

19. As we have seen, the District Commissioner of Police has discretion in granting a licence for an assembly or a procession. This discretion is exercised within the framework of the purpose of the Police Ordinance. This purpose includes the realization of the specific and general aims underlying the Ordinance. As we have seen, these purposes include safeguarding the constitutional right to hold an assembly and a procession, safeguarding the constitutional right to property, privacy and freedom of movement and safeguarding the public interest. No difficulty arises when all the values and interests that must be taken into account point in the same direction. This is certainly the case when there is a request to hold an assembly in the desert, far from any town. The individual exercises his right without harming anyone. The public interest is realized in its entirety. But in the vast majority of cases the individual does not want to hold an assembly in the desert. The individual wants to hold an assembly in the busy streets of the city, or on the quiet promenades of a residential neighbourhood. He wants to convey a message to others by means of a physical presence, and thereby he is likely to injure the rights of others and the public interest. Indeed, giving the protection of the law to the right of assembly and procession to the fullest extent will harm the right of property, the right of privacy and the freedom of movement, which also demand protection to the fullest extent. It necessarily harms the public interest. Therefore a constitutional process is required to restrict the protection given to constitutional rights, so that they are only protected to a partial extent. This restriction is based on the recognition that it is impossible to protect all of the rights to the fullest extent. The fullest protection of the right of A to hold an assembly cannot be reconciled with the fullest protection of the right of B who does not consent to the presence of A on his property (the property right), or who wishes not to be exposed to A’s speech (the right of privacy), or who desires to walk in precisely the same area where A wishes to hold the assembly (the freedom of movement). Indeed, complete protection of human rights contains an inherent contradiction, for human rights are not only directed against the Government, but they are also directed one against another. There exists between them a structure of connected vessels. Therefore an act of constitutional balancing is required (see HCJ 3080/92 [1]). By means of the constitutional balance, proper protection will be given to the various constitutional rights and the public interest in a manner that achieves constitutional harmony. Justice Agranat discussed this, when addressing the relationship between the freedom of speech and public peace:

‘… the right to freedom of speech is not an absolute and unlimited right, but a relative right, which can be restricted and supervised in view of the aim of upholding important socio-political interests that in certain conditions may be preferable to those protected by the realization of the principle of free speech. Delineating the limits of the use of the right of freedom of speech and of the press depends therefore on a process of placing the different values on the scales and, after weighing them, choosing those which, in the circumstances, must prevail (HCJ 73/53 Kol HaAm Ltd v. Minister of Interior [19], at p. 879 {99}).

Israeli law adopts a similar position with regard to the conflict between other constitutional human rights (such as the conflict between the freedom of speech and the right to reputation; see Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [5]; CA 214/89 Avneri v. Shapira [20]; the conflict between freedom of speech and freedom of movement; Saar v. Minister of Interior [2]). Similarly, Israeli law adopts this approach with regard to the conflict between human rights and the public interest (such as the conflict between the freedom of speech and public order; see HCJ 399/85 Kahana v. Broadcasting Authority Management Board [21]; freedom of movement and state security; see HCJ 448/85 Dahar v. Minister of Interior [22]; freedom of speech and judicial integrity; see CrimA 126/62 Disenchik v. Attorney-General [23]; freedom of speech and the public interest in election propaganda; see HCJ 869/92 Zvilli v. Chairman of Central Elections Committee for Thirteenth Knesset [24]; freedom of assembly and the public interest in the privacy of a public figure; HCJ 456/73 [25] and HCJ 3080/92 [1]).

Principled balance

20. The ideal balance between conflicting human rights — among themselves and between them and the public interest — should be a principled balance; cf. HCJ 991/91 David Pasternak Ltd v. Minister of Building and Housing [26], at p. 60. What characterizes a principled balance — as opposed to an ad hoc balance — is that a ‘rational principle’ (in the language of Justice Agranat in Kol HaAm v. Minister of Interior [19], at p. 881 {--}) is established that reflects ‘a criterion that expresses a principled guideline’, as distinct from a ‘chance, paternalistic criterion, the nature and direction of which cannot be anticipated’ (Justice Shamgar in Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [5], at p. 361). Indeed, the principled balance reflects a general legal norm, which establishes a constitutional principle that applies to all similar cases (see T.A. Aleinkoff, ‘Constitutional Law in the Age of Balancing’, 96 Yale L.J. 1986-87, 943, 948).

Different kinds of principled balancing

21. The principled balance cannot be expressed by one formula. I discussed this in one case, when I said:

‘The diversity of possible situations requires a diversity of balancing points. One cannot adopt a single criterion, which can solve all of the problems. The reason for this is that the conflicting interests are not always of the same normative level, and the difficulties raised by the conflict are of diverse kinds’ (Levy v. Southern District Commissioner of Police [8], at pp. 401-402 {117}).

In a similar vein, Vice-President Justice Ben-Porat said:

‘… the proper criterion is not fixed and standard for all types of cases… but a proper test must be adopted by considering the nature and importance of the competing principles in our way of thinking as to their relative priority and the degree of protection that we wish to give to every principle or interest’ (Dahar v. Minister of Interior [22], at p. 708).

Take the conflict between the freedom of assembly and procession and property rights. The balance between these two constitutional rights when one wants to hold the assembly or the procession on land belonging to the State or to public authorities is not the same as the balance when the assembly or procession are to be held on private property (see Levy v. Southern District Commissioner of Police [8], at p. 402 {117}). Moreover, even with respect to land owned by the State or public authorities, one must distinguish between different kinds of land according to their typical functions. There is therefore a basis for distinguishing between land that has been designated, by social tradition, for holding assemblies or processions (such as streets, roads or airports — see Committee for the Commonwealth of Canada v. Canada (1991) [50]) and land not designated for that purpose (such as Government offices). Between these two there are intermediate situations, such as State land which is used for courts and prisons (see Cox v. Louisiana (1965) [39], and also H. Kalven, ‘The Concept of the Public Forum: Cox v. Louisiana’ [1965] Sup. Ct. Rev. 1). Moreover, with regard to roads and streets, which belong to the State or to public authorities, roads and streets in busy city centres are not the same as roads and streets in residential areas. The same is true of private property. Private property which according to social tradition is the ‘castle’ of the individual (such as his apartment or house) is not the same as private property that according to social tradition is used by the public (such as a shopping centre: see Pruneyard Shopping Centre v. Robins (1980) [40]). Indeed, the balancing formulae vary in accordance with the conflicting values, and within the framework of a given set of values, in accordance with social aims and basic constitutional outlooks. We therefore distinguish between a ‘vertical balance’ and a ‘horizontal balance’. In the ‘vertical balance’, one value that conflicts with another value is superior to it. Nonetheless, this superiority is realized only if the requirements of the balancing formula are fulfilled with regard to the likelihood and extent of the harm to the superior value. Thus, for example, the public interest in public peace and public order prevail over the freedom of speech, provided that there is ‘near certainty’ that real damage will be caused to the public interest if the freedom of speech is not curtailed (see Universal City Studios Inc. v. Film and Play Review Board [10]). Similarly, the public interest in security will prevail over the freedom of movement outside the borders of the state, provided that there is a ‘genuine and serious fear’ of harm to security if the right to leave the country is realized (see Dahar v. Minister of Interior [22]). In the  ‘horizontal balance’ the two conflicting values have equal status. The balancing formula examines the degree of reciprocal concession of each of the rights. Thus, for example, the right of movement and the right to hold a procession are of equal status. The balancing formula will establish conditions relating to place, time and extent in order to allow the two rights to co-exist. Needless to say, these conditions of place, time and extent are liable to change in accordance with the nature of the ‘equal’ rights, the social purposes underlying them and basic constitutional perceptions.

Legislative balancing and judicial balancing

22. As we have seen, the balancing formulae determine the extent of the protection that the legal system gives to constitutional human rights, from which the ‘relativity’ of constitutional human rights is derived. For this reason they are so important. Occasionally it is the constitutive authority, or the legislature (in Israel — the Knesset) that establishes the balancing formula. Thus, for example, the Canadian Charter provides a list of human rights. Alongside these rights, there is a general provision (section 1) according to which these rights are subject:

‘… to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

In a similar vein, the Basic Law: Human Dignity and Liberty provides a list of human rights. Alongside these, there is a general balancing formula (‘a restriction clause’), whereby:

‘The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive.’ (s. 8).

In these situations, there is a statutory balancing formula and the court is required to interpret it and to give it specific content. Sometimes there is no statutory balancing formula. The law (whether legislation or case-law) recognizes human rights and the public interest, even in the absence of a statutory balancing formula. In such a situation, there is no alternative but to develop balancing formulae in case-law. This, for example, is the position in the United States. The First Amendment to the Constitution regarding freedom of speech, establishes this freedom in ‘absolute’ terms (‘Congress shall make no Law… abridging the freedom of speech’). Notwithstanding this, judicial balancing formulae have been established that have moderated the absolute freedom and have restricted the protection given to the freedom of speech, out of consideration for other values. The same is true in Germany. A number of constitutional human rights established in the Basic Law (the Grundgesetz) do not provide balancing formulae, and these have been determined by the courts (see D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Durham, 1989). A similar approach has been adopted in Israel. Alongside the statutory balancing formulae, case-law balancing formulae were established in the past (such as the test of ‘near certainty’: see Israel Filming Studios Ltd v. Geri [9]). This is the method that the courts must adopt in the future, when constitutional human rights established in the Basic Laws are in conflict with one another.

Balancing, ‘weight’ and the ‘enlightened public’

23. Before we proceed to the balance required in the case before us, it should be pointed out that the word ‘balancing’ is merely a metaphor. Behind this word lies a constitutional outlook that the various rights, values and interests do not have the same social importance. ‘Balancing’ between values and interests is merely an examination of the relative social importance of the different values and interests. I discussed this in one case, where I said:

‘These terms — balance, weight — are merely metaphors. They are based on the outlook that society does not regard all principles of equal importance, and that in the absence of statutory guidance, the court must assess the relative social importance of the different principles. Just as there is no man without a shadow, so there is no principle without weight. Determining the balance on the basis of weight means making a social assessment as to the relative importance of the different principles’ (Laor v. Film and Play Review Board [18], at p. 434).

Indeed, the determination of the ‘balance’ is a normative activity. It is intended to reflect the value society attributes to the values and interests within the values of society as a whole. This action is not done in accordance with the subjective attitudes of the judge. It is an expression of the objective attitudes of society. I discussed this in HCJ 6163/92 Eisenberg v. Minister of Building and Housing [27], at p. 265 {68}, where I said:

‘In determining “the relative social importance”, the court is a “faithful interpreter of the accepted attitudes of the enlightened public, in whose midst it dwells”… These are the attitudes enshrined in basic values and basic conceptions, and not in temporary, passing trends. They reflect the “social awareness of the people in whose midst the judges dwell”… They are an expression of “the national way of life”… They reflect “the nation’s vision and its basic credo”... They are not the product of judicial subjectivity. In attaching weight to the various considerations, the judge aims, to the best of his ability, for judicial objectivity. He does not reflect either his subjective values or his personal considerations. The judge reflects “the values of the State of Israel as a Jewish and democratic State.”…’

The criterion guiding normative judicial activity is the one established by Justice Landau, according to which the judge is obliged:

‘to be a faithful interpreter of the accepted attitudes of the enlightened public, in whose midst he dwells’ (CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [28], at p. 1335 {135}).

The judge must be familiar with the society in which he lives:

‘He must learn about the social consensus, the foundations and values that are common to members of society. He must absorb the legal ethos and the basic principles that make society a democratic society’ (Efrat v. Director of Population Register at Interior Ministry [7], at p. 780).

He must express ‘the conscience of the general public and the value beliefs of society with regard to appropriate and inappropriate behaviour…’ (CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [29], at p. 532). He must give expression to the basic beliefs of society. Against this background, we will now turn to the balancing required in the type of cases to which the case before us belongs.

An assembly, procession or picket outside the apartment of a public figure

24. The petitioner wants to hold an assembly outside the apartment of Rabbi Ovadya Yosef. This apartment is used by him and his family for their home. Nonetheless, persons in government visit him there. The apartment is located in an apartment building, in which there are several residents. The building is situated in a residential area. The District Commissioner of Police refused to give the petitioner a licence to hold the assembly. His main reason was the intrusion on the privacy of Rabbi Ovadya Yosef. He also gave a ‘traffic related’ reason, but it was emphasized that the ‘most important reason’ relates to the violation of the right of privacy. On the basis of this factual background, the focus must be on the relationship between the right of someone to hold an assembly with others outside the private residence of a public figure in a residential area and the right of the public figure and his neighbours to protect their privacy. There is no reason, within the framework of the petition before us, to discuss the ‘traffic related’ consideration and the relationship between the petitioner’s right to hold an assembly and the right of any person in the community to move freely on the road or the pavement upon where the assembly is supposed to take place, since this consideration was not the basis for the District Commissioner’s decision. Furthermore, the petitioner wishes to hold the assembly on the pavement or on the road. He does not want to enter the premises belonging to the individual. In these circumstances, we do not need to examine the relationship between the right of assembly and property rights (in the narrow sense). Finally, the permit requested a location outside an apartment which is used by the public figure mainly as his home. It is not a Government office, nor is it even an ‘official’ residence like the President’s House. A change in the designated use of the house changes the proper balance between the conflicting rights. The petition before us focuses on the relationship between the individual’s right to hold an assembly in a residential area and the right of a public figure and his neighbours not to have their privacy in their private apartments violated by the holding of the assembly, and the relationship between these two rights and the public interest in maintaining public order.

The right to hold an assembly, procession or picket next to the private house of a public figure

25. The constitutional premise is that every man has the right to hold an assembly, procession or picket. This right is not restricted only to Government or commercial centres of the city. In terms of its internal scope, the right extends even to holding an assembly, procession or picket in residential areas (see Comment, ‘Picketing the Homes of Public Officials’, 34 U. Chi. L. Rev., 1996-1997, 106). In discussing a picket in a residential area, the Supreme Court of the United States held, in the opinion of Justice Brennan:

‘There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighbourhoods, the Illinois statute regulates expressive conduct that falls within the first Amendment’s preserve’ (Carey [38], at p. 460).

In explaining this approach, another American court noted that the recognition of the right to hold a protest vigil next to the (private) home of an employer:

‘… brings home the fact that a man may leave his tools at his work but not his conscience or his relations with his fellow man’ (United Electrical, R & M Workers v. Baldwin (1946) [41], at p. 242).

Indeed, in view of the public reasons which underlie the right to hold an assembly, demonstration or picket, there is no substantive difference between an assembly, demonstration, or picket in a residential neighbourhood and an assembly, demonstration or picket in another area. The individual may also wish to express himself in a residential area. Sometimes it is precisely the residential neighbourhood that serves as an effective focal point for expressing that view. It creates the direct link between the petitioner and a public figure, which an assembly or procession in Government areas (such as the Government complex) or commercial areas do not create (see D.M. Taubman, ‘Picketers at the Doorstep’ 9 Harv. Civil Rights L. Rev., 1974, 95, 106). Prof. Kretzmer discussed this, noting that:

‘There are times when demonstrations outside the home of a public figure are the most effective way of communicating a view on a matter of public importance. In other cases such demonstrations may be the only really effective way of communicating that view to the public figure involved. The privacy interests of public figures should not override the expression interest involved in such demonstrations’ (Kretzmer, supra, Isr. L. Rev., at 120).

There is also no difference — from the viewpoint of the (inherent) scope of the right to hold an assembly, demonstration or picket — between an ‘official’ residence of a public figure (such as the President’s House or the Prime Minister’s House) and his ‘private’ home. Both of these are a focus for an assembly, demonstration or picket and the reasons that underlie the constitutional right to demonstrate, assemble or picket, exist for both of them.

The right of privacy of the public figure and his neighbours

26. ‘Every person has a right to privacy’ (s. 7(a) of the Basic Law: Human Dignity and Liberty). The public figure is also entitled to privacy. The fact that he is a public figure should not deprive him of the right to live within the privacy of his own home, on his own or with his family. It is precisely because of the public exposure involved in his position or office that he needs the quiet and tranquillity of his home, and the privacy is intended to give him these at the end of the day. Indeed, it is the right of public figures ‘to protect at least part of their lives from the media’ (Gavison, ‘Prohibition of Publication that Violates Privacy,’ Civil Rights in Israel, The Association for Civil Rights in Israel, ed. R. Gavison, 1982, 177, 200). In one case, the petitioner applied to hold an assembly outside the home of the Foreign Minister. The District Commissioner of Police refused the application. The petition to the Supreme Court was denied. The court said:

‘The freedom of assembly and the freedom of expression upon which the petitioner relied in his petition do not mean that permission is given to intrude on the privacy of a person holding public office and to harass him and the members of his family in their private lives in order to influence him, in this way, with regard to his public activity’ (HCJ 456/73 [25]).

In a similar vein, Prof. Kretzmer stated:

‘All persons, including public figures, are entitled to respect for the privacy of their homes’ (Kretzmer, supra, Isr. L. Rev., at 120).

The neighbours of the public figure are entitled to realize their right to privacy. The fact that nearby there lives a person holding public office should not deprive them of that right.

The public interest

27. The public interest in this case is mainly restricted to the realization of the right of assembly, procession and picket on the one hand and the right to privacy on the other hand. As we have seen, the public interest in the freedom of movement was not the basis for the decision in this case. Nor is there any fear of a disturbance of the peace. Indeed, we are concerned with the public interest in protecting the human rights to hold an assembly, procession and picket on the one hand and the privacy of the home on the other. The question is how we can protect, in a democratic society, both the freedom of assembly, procession and picketing and the right of privacy. The answer to this question lies in the necessity of balancing these two values. We will now turn to this balance.

The balance

28. The right to hold an assembly, procession or picket in the city streets and the right to the privacy of a person’s home are constitutional rights in Israel. They are cherished by Israeli democracy. They are rights of equal stature. Neither of them is preferable to the other. Justice Burger rightly pointed out in Rowan [33], at p. 736, ‘… the right of every person “to be let alone” must be placed in the scales with the right of others to communicate’. It follows from this equality that it is insufficient for there to be a near certainty of a substantial violation of one right in order to deny the other right. Even if it is proved that it is definitely certain that the freedom of assembly, demonstration or picketing will intrude on privacy, this is insufficient to justify denying that freedom. Similarly, even were it proven that it was definitely certain that the full exercise of the right to privacy would violate the right of assembly, procession or picket, denying the right to privacy would still not be justified. Indeed, we are not dealing with a  ‘vertical balance’ which looks for formulae of reasonable likelihood. We are concerned with two human rights of equal standing, and the balance between them must therefore find expression in a reciprocal waiver whereby each right must make a concession to the other in order to allow the coexistence of both. The protection of the law does not extend to either of the rights in its entirety. Each right suffers restrictions of time, place and manner in order to allow the substantive realization of the other right. Indeed, the proper balance between the freedom of speech and privacy is one of the foundations of a sound democratic regime. The balance required between the rights is a horizontal balance. We are dealing here — in the language of Justice Landau in Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [5], at p. 343 — ‘not with a “vertical” scale of a “supreme right” as opposed to a normal right’ but with a horizontal delineation of ‘rights of equal standing, without an aim of preferring one right as defined in legislation at the expense of another.’ At the heart of the horizontal balance is the recognition that both freedom of assembly, procession and picketing in the streets and privacy in homes are rights that are cherished by the democratic regime, but in a democratic society it is impossible to give protection to each of these rights to the fullest extent without harming the other right. Democracy therefore requires a reciprocal restriction of the extent of the protection given to each of the rights. This restriction must, in so far as possible, preserve the essence of each of the competing values (see L.H. Tribe, American Constitutional Law, Mineola, 2nd ed., 1988, 977). It must try, in so far as possible, to prevent a major violation of one right in upholding the other right. With regard to legislation that violates the freedom of speech in order to uphold the right to privacy, Justice Harlan said:

‘The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is… dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner’ (Cohen v. California (1971) [42], at p. 21).

The horizontal balance results in limitations of time, place and manner for realizing one of the rights in order to maintain the essence of the other right (see, Emerson, Toward a General Theory of the First Amendment, New York, 1966, 75). With regard to legislation restricting the freedom of assembly, procession and protest in order to uphold the right of privacy, Justice Brennan said:

‘The ordinance is subject to the well-settled time, place and manner test; the restriction must be content and viewpoint neutral, leave open ample alternative channels of communication, and be narrowly tailored to further a substantial governmental interest’ (Frisby v. Schultz [43] at 491).

For this reason, Justice Brennan — who was in the minority in that case — thought that legislation which absolutely prohibited picketing in a residential area violated the constitution and was void. On the other hand, legislation passes the constitutional test if it establishes arrangements governing place, time and manner. Justice Brennan wrote, at p. 494:

‘Thus, for example, the government could constitutionally regulate the number of residential pickers, the hours during which a residential picket may take place, or the noise level of such a picket. In short, substantial regulation is permitted to neutralize the intrusive or unduly coercive aspects of picketing around the home. But to say that picketing may be substantially regulated is not to say that it may be prohibited in its entirety. Once size, time, volume, and the like have been controlled to ensure that the picket is no longer intrusive or coercive, only the speech itself remains, conveyed perhaps by a lone, silent individual, walking back and forth with a sign.’

In fact, an assembly or a picket that is held on one occasion is not the same as repeated assemblies or pickets; an assembly or picket held in the morning or afternoon is not the same as an assembly or picket held during hours of rest; an assembly or picket with a large attendance is not the same as an assembly or picket with few participants; an assembly or picket that is supposed to be held over several hours is not the same as a short assembly or picket; an assembly where use is made of loudspeakers or other means of amplifying sound is not the same as one that is held quietly; an assembly held next to a private building is not the same as an assembly held at some distance from it; and an assembly held alongside pickets is not the same as an assembly held without picketing (see A. Kamin, ‘Residential Picketing and the First Amendment’, 61 Nw U. L. Rev, 1966-67, 177; R. E. Rigby, ‘Balancing Free Speech in a Public Forum v. Residential Privacy: Frisby v. Schultz’, 24 New Eng. L. Rev., 1989-90, 888).

Restrictions regarding time, place and manner

29. It follows that in Israel a person in entitled to hold an assembly or picket in a residential area. He is entitled to hold an assembly or picket next to the house of a public figure. Nonetheless, in the circumstances of holding the assembly or picket a proper balance must be guaranteed between a person’s right to hold an assembly or picket and the right of the public figure and his neighbours to their privacy in their apartments. This proper balance reflects the public interest, which the police must protect. Within the framework of the police’s statutory powers, it must ensure that the right of assembly of the one does not substantially intrude on the privacy rights of the other. For this purpose, the police may determine reasonable restrictions of time, place and manner. With regard to time, the police may determine that the assembly may not be held during hours of rest. It may also determine that the assembly will be held for a relatively short time. It may determine — on the basis of equality and without any reference to the substance of the message being conveyed at the demonstration — the frequency for holding demonstrations, so that the right of privacy of the public figure and his neighbours is not seriously violated. It may also take into account the frequency of holding assemblies or pickets in the past. With regard to place, the police can determine that the assembly will take place at a certain distance from the home of the public figure. It may determine that the assembly will not prevent free entry and exit to and from the building. With respect to manner, the police may restrict the number of participants. It may regulate the use of loudspeakers, including their volume and number (see Kovacs v. Cooper (1949) [44]; Francis v. Chief of Police (1973) [46]; Indulal v. State (1963) [48]; Cheema v. Ross (1991) [51]).

A private apartment used for public activity

30. The balances that I have discussed assume that the public figure does not use his private apartment for his public activity. In this situation, the public figure is entitled to the same measure of privacy as his neighbours. The balance may change if the private home of the public figure is also used for his public activity. The extreme case is that of an official residence (e.g., the President’s House or the Prime Minister’s House) which are situated at a distance from residential areas. This residence acts as a symbol of the office and here the public figure carries out both his public and private activity, without it being possible to distinguish them. Because of the unique nature of the official residence, it should generally be regarded as a public building (such as a Government office). The appropriate balance between the freedom of assembly, demonstration or picketing and the right to privacy will therefore in these circumstances tend in favour of the freedom of assembly, demonstration and picketing. An intermediate case is one where there is a basic distinction between the place of the public activity of the public figure and his home, even though the public figure carries out some public activity at his home. In this situation, the proper balance between the right to hold an assembly, procession or picket and the right of privacy must take account of this special situation. The extent of protection for the privacy of a public figure who keeps his public activity and his residential apartment separate is not the same as the extent of protection for privacy when the public figure carries out part of his public activity in his apartment (see: Carey [38], at p. 471; Frisby [43] at p. 479). The proper balance between the constitutional rights must reflect the special function of the home. It follows that the more the private home is used for public activity, the more the balance will tend in ‘favour’ of the freedom of assembly, procession or picketing.

31. It is a special case when the private home of a public figure is also used for a part of his public activity. Nonetheless, this apartment is situated in a residential building, where there live additional residents who are not involved in the public activity. How will the proper balance be made in such a case? It seems to me that, in making the proper balance, one must take account of the special aspects of this complex situation. On the one hand, there is no justification, in a democratic society, for substantially limiting the extent of protection for the privacy to which a ‘private’ resident is entitled, merely because his neighbour is a public figure. On the other hand, there is a justification in a democratic society for demanding some concession with regard to the privacy of a private resident because of the fact that his neighbour is a public figure. This is the ‘price’ that the private neighbour must pay for the public activity of his neighbour. It seems to me that the proper balance between the constitutional rights must take account of this complicated situation. One must therefore guarantee, within the framework of the proper balance, that the ‘private’ neighbour is given substantial protection for his privacy, even if this protection may be slightly less than the protection given to a resident whose neighbour is not a public figure.

From the general to the specific

32. Against the background of this normative framework we must examine the case before us. It seems to me that had the petitioner asked to hold a procession on one occasion — with the number of participants proposed by him — which would pass by the apartment of Rabbi Ovadya Yosef and his neighbours, there would be a basis for approving it, subject to restrictions of time and manner, taking account of the question whether such processions took place in the recent past and taking account of the transport factor. A procession passing by the house intrudes minimally on privacy and it upholds the proper balance between the relevant constitutional rights. Similarly, it appears to me that the petitioner would have been within his constitutional rights — in accordance with the proper balance between these and the rights of the residents of the building — if he had asked to hold a picket on one occasion with a small number of participants, standing silently with signs, without there having been such picketing in the past. Even here there would be justification for fixing restrictions of time and place. The petitioner may hold this picket without a police permit. He is entitled to police protection if he wants to hold this kind of picket (Levy v. Southern District Commissioner of Police [8]). It also seems to me that a picket held within the framework of the proper constitutional balance is a legal activity for the purpose of the Protection of Privacy Law (see ss. 18 and 19). It should be emphasized that with respect to the picket, there was a basis for taking account of the fact that in the recent past pickets have been held next to the house and the extent of the intrusion on privacy that these caused.

33. The petitioner does not want to hold a procession or a picket. His request is to hold a  ‘picketing assembly’. He wants approximately two hundred and fifty people to participate. He wants to use a stage and two loudspeakers. He wants to hold it for two hours (19.00-21.00). Had this assembly been an isolated event, without there having been pickets in the past, it might have been possible to approve it, subject to certain restrictions in terms of time (shortening the length of the assembly) and manner (foregoing the loudspeakers, reducing the number of participants). The problem is that the assembly requested comes against a background where pickets have been held next to the house for a long time. In these circumstances it was proper to consider the overall balance between the freedom of assembly of the petitioner and his friends and the intrusion on the privacy and the property of the residents of the building. Such an examination was not made by the police. It did not take account of the number of pickets that took place in the past, but it was satisfied with the intrusion on privacy as the sole reason for the refusal. In doing so, it acted albeit without discrimination and in accordance with its usual practice. Nonetheless, it did not accord sufficient weight to the freedom of assembly. We asked the petitioner whether he would be prepared to hold the assembly subject to the restrictions that would be placed on him with regard to the size of the assembly (less than two hundred and fifty persons) and with regard to additional factors of manner and time (such as use of loudspeakers, length of the assembly). The petitioner told us that from his viewpoint he was not prepared for any change at all, in the sense of ‘all or nothing’. In these circumstances, there is no point in returning the petition for reconsideration by the respondent, and it should be denied.

Supplementary remarks

34. Our premise in examining the petition before us was the discretion of the District Commissioner of Police. In order to examine this discretion, we needed to examine the relationship between the right to hold an assembly, procession or picket, on the one hand, and property rights and the right of privacy on the other. We established a formula for principled balancing in the relationship between one human right and another. This balancing formula was also sufficient for establishing the extent of the administrative discretion, for in the circumstances before us, there was no reason, in view of the positions of the parties, for taking account of additional considerations. Such considerations, had they existed (such as the fear of a disturbance, the traffic consideration), would have necessitated the establishment of additional balances. Indeed, the case before us is based on normative harmony. There is a complete internal balance between public law and private law. An individual’s right with respect to the Government (to hold an assembly) within the framework of public law is derived from the balance between that individual’s right (to hold an assembly) and another individual’s right (to protect his privacy) within the frameworks of both public and private law. Indeed, if the persons holding the assembly were sued by the persons entitled to privacy for committing a tort (such as private nuisance), the action would be dismissed, since the proper constitutional balance between the human rights determined the proper degree for reasonable use of land to which a person is entitled under the law of torts. Indeed, the various torts of private law — and its other remedies — are merely an expression of the proper balance between constitutional human rights. The source of constitutional human rights is in public law and balancing between them is constitutional. Nonetheless, they are afforded protection, inter alia, within the framework of private law, and in accordance with the doctrines accepted by private law. Reasonableness, fairness, proper behaviour, public policy and similar working concepts of private law are merely instruments of private law that express the constitutional balance between human rights. Note, moreover, that public law does not merely deal with the structure and powers of Government authorities. Public law (and the Basic Laws that reflect them) also deals with the various human rights, their interrelationship and their relationship to Government authority. It follows that one can consider the case before us from the perspective of public law towards private law (by means of the discretion given to a public authority), and one can consider the case before us from the perspective of private law towards public law (by means of torts). The difference in perspective does not change the balance. The law is consistent. But again, this is not always the case. Sometimes the public authority considers general factors of security, law and order and keeping the peace. In such cases, the balance between the various human rights may require one balancing formula, whereas the balance between the human right and the requirements of security, law and order and keeping the peace may require a different balancing formula. Thus, for example, sometimes the balancing formula between human rights that conflict with one another is horizontal, whereas the balance between human rights and considerations of security, law and order and keeping the peace is vertical.

The result is therefore that the petition is denied.

 

 

Justice S. Levin

1.    In HCJ 456/73 [25], this court held, in a short unreported decision, which was given in a petition to allow the petitioner to organize an assembly in the form of a demonstration next to the house of the Foreign Minister, that:

‘Under the Police Ordinance [New Version], 5731-1971, ss. 84 and 85, the police have discretion to grant the licence requested, to grant it with sureties or with conditions or restrictions, or to refuse it. It appears that the police believe that the freedom of assembly and the freedom of speech, on which the petitioner relies in his petition, do not amount to granting a permit to intrude upon the privacy of a person holding public office, and to harass him and the members of his family in their private lives, in order to influence him, in this way, with regard to his public activity. We found nothing wrong with this attitude.’

For that reason the petition was denied.

I rely on that decision, and had my esteemed colleague, the Vice-President, not written his monumental opinion, with his extensive erudition, in accordance with current practice, I would merely have denied the petition, as our predecessors did twenty years ago, without adding to, or subtracting from, the aforesaid; but since I cannot merely remain silent, I have found at least four reasons for supporting the aforesaid view: first, in my opinion a public figure has — no less than the average man, and perhaps even more so — the right to privacy in his home, and for me the saying ‘a man’s home is his castle’ is not merely theoretical and it applies also to public figures. An intrusion on privacy, under ss. 4 and 5 of the Protection of Privacy Law, is a tort and also a criminal offence. Within the framework of an ‘intrusion on privacy’, s. 2(1) of the said law also includes ‘sleuthing or shadowing a person, which may disturb him, or another harassment’; President Shamgar also discussed this in his judgment in Appeals Court Martial v. Vaknin [16], where he wrote, at p. 851, the following:

‘What is “another harassment”? It seems that this may include, for example, the usually acceptable act of walking behind another person wherever he goes, openly and closely and even in protest, which does not constitute trailing him secretly but following him openly. Picketing, by standing next to someone’s home or by his door, is similar to this. Such an act may deprive a person of his tranquillity, his feeling of personal safety and his feeling that he can conduct his life on his own, without his private affairs being on display for others, and therein lies the harassment in the act and the intrusion on privacy that derives from it.’

Second, there is a fear that permitting demonstrations next to the private home of public figures may dissuade potential public figures, who are qualified, from engaging in public activity, and there is even a fear that under the pressure of the demonstration, or under the pressure of the members of his family as a result of the demonstration, the public figure may change his opinion, not for objective reasons but merely to stop the harassments against him. Third, if we allow demonstrations outside the home of a public figure, we will make him, his family and his neighbours the ‘captive audience’ of the demonstrators, since they will be left with no choice but to listen to what they are saying, even if they do not wish to do so. Fourth, a public figure, no less than any other person, has the right — within the proper limits — to prevent the harm caused to him as a result of the demonstration within the framework of civil law (such as the commission of a tort of nuisance or trespass) and to prevent a criminal offence that is about to be committed against him and which derives from the breach of law and order.

2. Notwithstanding the right of privacy of the public figure in his home that is his castle, this court has recognized the freedom of demonstration: Saar v. Minister of Interior [2]; and even though this freedom is not expressly mentioned in the Basic Law: Human Dignity and Liberty (whereas property rights and the right of privacy and confidentiality are mentioned in ss. 3 and 7), I am prepared to assume, without deciding the matter, that the law does not compel us to prefer one basic right to the other merely because one is not mentioned expressly in the Basic Law whereas the other is mentioned.

Like my esteemed colleague, the Vice-President, I too will not refrain from making a balance between the competing rights, but in my opinion, in the circumstances that have been proved before us, the right of privacy prevails over the right of demonstration. Before explaining my approach in this matter, I would like to make several fundamental assumptions:

First, what is stated in our judgment does not relate to the freedom of demonstration next to the place of work of the public figure and the place of his public activity, with regard to which there are considerations that do not exist in the circumstances of the present case. Second, the decision whether to allow or not to allow an assembly or procession to be held is the duty of the District Commissioner of Police, who is obliged to consider, mainly (but not only) factors of ‘maintaining public safety or law and order’ (s. 84(a) of the Police Ordinance [New Version]). The decisions that the District Commissioner must make must naturally be made within a short time, and too complicated a burden of balancing should not be required of him, since he is not in the legal profession, and he will be unable to discharge it. Third, it is precisely for this reason that I believe that it is sufficient in our case to distinguish between the private home of the public figure and his place of work or the place of his public activity, and we should not incorporate in the balance equation the complicated case where we are dealing with a private home that is used, to some extent, also as a place for public activity. Fourth, in view of the aforesaid, I will assume that because of the minimal public activity of Rabbi Ovadya Yosef in his private apartment, we are merely dealing with the private apartment of the revered Rabbi.

3.    In my opinion, the right of privacy is of great value especially in an open society that tends more and more to interfere in the affairs of its citizens, whether through Government institutions or through the media, supported by the principle of the public’s right to know. In CA 670/79 HaAretz Newspaper Publishing Ltd v. Mizrahi [30], I considered the proper balance between the power of the media to publish incorrect facts about the individual and the right of the individual to his good name, and I held that there is no basis for the attitude that ‘in the prevailing circumstances it is necessary to disturb the delicate balance established in case-law by a greater restriction on the individual’s right to his reputation in favour of extending the power given to the press to publish incorrect facts about him’ (ibid., at p.200). In the case before us we must evaluate the balancing equation between the right of demonstration and the right of privacy, and what was stated above is even more applicable when speaking of a public figure; the acts of the public figure in his public activity, as well as in most areas of his overt private activity, are exposed to the public, and this is also proper in an open and democratic society; there is no doubt that a person who accepts public office exposes himself to a large extent to the watchful public eye. There is only one place whither he can escape from his day’s work at the end of his onerous public activity — to the bosom of his family, protected for a short time from the major external pressures to which he is subject, so that he may renew his strength for tomorrow. This is his private home. This home must be protected to the maximum extent that the law allows.

The extra protection granted to the right of privacy of the public figure in his private home as compared with other basic rights is nothing new and is accepted in other countries; see in Canada: the Cheema [51] case, where the court did not see any reason to distinguish between the rights of a public figure not to be excessively disturbed at his home and the rights of his neighbours not to have their rest disturbed; in the United States, see the Carey [38] judgment, at p. 2295, and especially the minority view of Justice Rehnquist, at p. 2296 et seq.; and the comment of Justice Black in the Gregory [37] case, at pp. 953-954, and also Frisby [43]. Kamin’s article, supra, at p. 182, says something with which I entirely agree:

‘In the Constitutional value scale, the quiet enjoyment and privacy of residential premises — even of the privately-owned homes of public officials — merits higher priority than freedom of speech.’

Kamin gives reasons for this opinion, at p. 228, that if such demonstrations are to be permitted:

‘All demonstrations at the homes of public officials will, of necessity, affect neighbors who are strangers to the political controversy. Does assumption of public office by a householder terminate the right of privacy for him, his family and his neighbors? The question has a pervasive significance in a democratic society. If losing the last redoubt of privacy and repose, if subjecting one’s family and neighbors to the constant harassment of sidewalk demonstrations is the price of holding public office, then the republic shall have lost the services of its ablest citizens.’

He sums up, at pp. 230-231:

‘Residential picketing is neither a primary nor a conventional way of communicating the existence of a grievance to a public officer. Rather, it is an instrument of achieving political results by oppressing and harassing the official and his family.’

In American law also, especially recently, there are signs of a trend that sees a need to balance the right of privacy and tranquillity against the right to demonstrate vertically; in other words, we are not talking of rights on an equal footing but of one right (privacy) that prevails over the other (freedom of demonstration), even when we are speaking of a quiet demonstration held outside the home of a public figure. It therefore appears that in the circumstances of the case before us, when the issue is one of holding a demonstration outside the home of a public figure who lives in the middle of a residential neighbourhood, American law would also have the result of prohibiting the holding of the demonstration.

In Germany: the judgment in the case of Ovg. Koblenz, Beschl v. 24.5.86 7B 36/86 [47] considered the question whether to permit or prohibit a demonstration intended to protest Government policy with regard to nuclear reactors, near the home of Chancellor Kohl’s home (a building used as the Chancellor’s home but where meetings and official events were occasionally held). The Supreme Court for administrative matters held that such a demonstration was prohibited since it violated the rights of the individual. It held that in the balance between the public interest (to hold a demonstration) and the individual interest (the right of the individual, his family and neighbours to enjoy their private property without disturbance), the interest of the individual prevails. The court even added that especially when a public figure is concerned, the importance of the right of privacy and property rights increases, for the public figure is constantly exposed to criticism and his private home is truly his castle, the only place where he can rest and recover from his public work.

If we add to the aforesaid also the interests of the family and the neighbours to prevent nuisance, and the possibility, which has been proved in this case, of holding the demonstration at some distance from the home of Rabbi Ovadya Yosef, I am satisfied that there is no sufficient reason for intervening in the discretion of the first respondent.

For these reasons I too, like my esteemed colleagues, thought on the day we gave our judgment that the petition should be denied.

 

Justice E. Goldberg

1.    An assembly, which is one of the basic freedoms in Israel, is embodied, even according to its definition in the Police Ordinance [New Version], in the simultaneous existence of two elements: the first element, which is the main one, is the actual physical presence of the demonstrators at the place of the assembly, and the second element is verbal expression on the part of those present on the subject of the assembly. The physical presence is not merely a means of making it possible to hear what is said at the assembly, but in itself it serves as a ‘medium’ for conveying the message which the assemblers wish to convey, and in this the assembly is different from other methods of expression. The presence attracts the attention of the public, arouses awareness of the subject of the assembly and emphasizes the extent of the support for it. This is in addition to the direct application inherent in the presence to whoever is the target of the assembly.

It can therefore be said that the demonstration is one of the effective ways in which those present at an assembly may express themselves, when direct access to the electronic media is not available to everyone, and an application to the written media is likely to be buried in the vast amount of information conveyed in them.

In this respect Prof. Kretzmer said in his article, supra, in Is. L. Rev., at p. 53:

‘The demonstration is a form of expression which exploits the “physical presence factor” in order to communicate a view likely to be lost if communicated in other ways. It is indeed true that the modern demonstration is very often geared towards the news media, and dependent on coverage therein for its success, but it is the unique “physical presence” factor that makes the view expressed “newsworthy”, and which therefore gains the demonstrators access to the media.’

It transpires from what we have said that real implementation of the freedom of speech by way of an assembly occurs when there is a link between the physical presence of the assemblers and the site of the assembly. Without an effective site, the assembly is ineffective.

2.    But the right of assembly, despite its great importance, is not absolute. Other interests and rights conflict with it and they may be harmed by it, albeit temporarily. This is the source of the need to balance between the right to hold an assembly next to the homes of public figures and the property rights and right of privacy of the public figures, members of their families and their neighbours.

Since we said that effectiveness of the site is the very essence of the assembly, the appropriate balance when considering the question whether to permit an assembly next to the home of a public figure lies, in my opinion, in whether there is or is not an alternative site for the assembly, an alternative where the effectiveness will be maintained and not materially impaired. If there is such an alternative, then the right of privacy and property rights will prevail, for the harm to these rights with then be excessive. This is in the spirit of the Basic Law: Human Dignity and Freedom, which protects property rights (s. 3) and the right of privacy (s. 7(a)), but alongside the protection lies the provision in section 8 that:

‘The rights under this Basic Law may only be violated by a law… and to an extent that is not excessive.

This ‘compromise’ position was adopted by the author of the article, supra, in U. Chi. L. Rev., at p. 140, who said:

‘The practice of residential picketing exerts “injuries” upon the home-owner public official, making of him and his family a captive audience and intruding into the enjoyment and privacy of their home. In weighing the benefits of the residential sites against the detriments, the argument for prohibition of residential picketing is strongest, since only by such prohibition can the homeowner’s interests be protected.

Undeniably, prohibition of residential picketing would work to the detriment of the picketer; he would lose a forum which affords him economy, publicity and effectiveness. These benefits are not completely lost; they can be largely approximated elsewhere. Thus prohibition, its detriments mitigated by the availability of other demonstration sites, offers the most tenable compromise.’

3.    This is the basis for the distinction between a case where an assembly next to the home of the public figure is the only effective site, and a case where there is an effective alternative site. In this context Prof. Kretzmer states:

‘There are times when demonstrations outside the home of a public figure are the most effective way of communicating a view on a matter of public importance. In other cases such demonstrations may be the only really effective way of communicating that view to the public figure involved. The privacy interests of public figures should not override the expression interest involved in such demonstrations’ (Kretzmer, supra, Isr. L. Rev., at 120).

4.    In my opinion, the home of a public figure should be regarded as the only effective site for holding an assembly only when he conducts all or most of his public activity there. In any other case, there is no reason that the site next to the office of the public figure should not be considered an effective alternative. In the first case, the assembly will be allowed outside the home of the public figure, albeit subject to proper restrictions of time, number of participants, holding the assembly and the frequency of assemblies at that site. In the other case, it will be prohibited.

5.    The circumstances in our case fall into the first category, and therefore I would have seen fit to grant the petition, had not the petitioner refused to hold the assembly with the restrictions required to limit the extent of the intrusion on privacy resulting from it.

The result is that the petition should be denied.

 

 

Petition denied.

9 February 1994.

 

 

 

 

HCJ 164/97

Conterm Ltd.

v.

1.  Finance Ministry, Customs and VAT Division

2.  Customs Officer, Ashdod

3.  Port and Train Authority

 

 

 

The Supreme Court Sitting as the High Court of Justice

[February 4, 1998]

Before President A. Barak and Justices M. Cheshin, I. Zamir

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The petitioner acquired a license from the Customs Authority to operate a licensing warehouse on land in dispute between it and the Port and Train Authority. The Customs Authority asked for proof that the petitioner had a right in the land, as required by the regulations, and in return it received an agreement that did not appear to address such a right. The Customs Authority granted the license anyway. When it became aware of the dispute over the land, it refused to renew the license. The central question is whether the petitioner had a duty to disclose the existence of the dispute to the Customs Authority, and more broadly, whether individuals owe a duty of fairness in their dealings with administrative agencies.

 

Held: All three justices held that the Customs Authority had a right to refuse to renew the license, each on different grounds. Justice Zamir held that not only does the government owe a duty of fairness to citizens, but citizens owe a reciprocal duty of fairness to the government, including a duty to disclose information material to a request for a license. Such duty stems from the social contract, in which citizen and government are partners in the democratic enterprise. The petitioner’s breach of such duty in failing to disclose material information of primary importance justified refusing to renew the license. President Barak held that the individual owes no general duty of fairness to the government. Any duty owed by the individual to the government must be specific to the issue in question and dependent on the proper balance between the interests of society as represented by the government and the rights and freedoms of the individual. The petitioner’s duty of disclosure owed to Respondents 1-2 stems from the fact that a proper exercise of governmental authority requires the individual to make appropriate disclosures to the government concerning material facts which serve as the basis for the governmental decision. Justice Cheshin held that in his or her dealings with the government, the individual bears no duty to disclose information at its own initiative. The government is better situated to know what information is material and to ask for it. The Customs Authority’s decision not to renew the license, however, does not warrant judicial intervention because the petitioner did not meet a material condition set by the Regulations regarding a right in the land.

 

Objection to order-nisi of February 25, 1997. Petition denied. Order-Nisi rescinded.

 

For the petitioner—Yehoshua Wolf and Yaakov Yaniv

For Respondents 1-2 —Dana Briskman, Executive Deputy State Attorney

For Respondent 3 —Yaakov Liraz.

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty.

Basic Law: Freedom of Occupation.

Basic Law: The Judiciary – s.1(a).

Basic Law: The Government – s.1.

 

Israeli Legislation Cited:

Port and Train Authority Law, 1961.

Contract Law (General Part), 1973 – ss.12, 13, 15, 39, 61(b).

Interpretation Law, 1981 – ss.11, 17(b).

Land Law, 1969 – s. 14.

Legal Capacity and Guardianship Law, 1962.

Mandatory Education Law, 1949.

Penal Law, 1977 – ss.262, 491.

Traffic Ordinance [new version] – s.64a.

Shipping Law (Sailors), 1973 – s.39.

Law of Return, 1950.

Business Licensing Law, 1968 – s.1(a)(1).

Customs Ordinance [new version] – s.70(b).

 

Regulations Cited:

Customs Regulations, 1965 – numbers 12, 14, 14(b), 12-23, ch.7, sixth addendum, part 3.

Traffic Regulations, 1961 – numbers 144, 146.

 

Israeli Supreme Court Cases Cited:

[1] HC 233/53 Alspector v. Mayor of Beit Shean, IsrSC 8 659.

[2] HC 9/49 Bloi v. Interior Minister, IsrSC 2 137.

[3] HC 56/53 Kakanda v. City of Ramla, IsrSC 7 949.

[4] HC 56/76 Berman v. Police Minister, IsrSC 31(2) 687.

[5] HC 799/80 Shallam v. Gun Law, 1949 Licensing Clerk, Oil Administration of Petach Tikvah, Interior Ministry, IsrSC 36(1) 317.

[6] HC 475/81 Deak & Co. Inc. v. Governor of the Bank of Israel, IsrSC 36(1) 803.

[7] CA 433/80 I.B.M. Israel Assets, v. Property Tax Director and Compensation Fund of Tel-Aviv, IsrSC 37(1) 337.

[8] CA 736/87 Yaakobovitch v. Land Appreciation Tax Director of Nazareth, IsrSC 45(3) 365.

[9] CA 1928/93 Securities Authority v. Gabor Savarina Textile Factories., IsrSC 49(3) 177.

[10] CA 338/85 Speigelman v. Chapnik, IsrSC 41(4) 421.

[11] HC 707/80 Ilanot Housing, Building and Development Co. v. Arad Local Council, IsrSC 35(2) 309.

[12] CA 391/80 Mira Lesserson v. Workers Housing Ltd., IsrSC 38(2) 237.

[13] CA 402/76 Azaranikov v. State of Israel, IsrSC 31(1) 270.

[14] HC 640/77 Baranovsky v. Department of Customs and Excise Director, IsrSC 32(2) 75.

[15] HC 566/81 Amrani v. Chief Rabbinical Court, IsrSC 37(2) 1.

[16] HC 221/86 Kanafi v. National Labor Court, IsrSC 41(1) 469.

[17] FH 22/82 Beit Yules Ltd .v. Raviv Moshe & Partners, Ltd., IsrSC 43(1) 441.

[18] HC 376/81 Lugassi v. Communications Minister, IsrSC 36(1) 449.

[19] HC 4422/92 Efran v. Israel Land Administration, IsrSC 47(3) 853.

[20] HC 840/79, Center for Contractors and Builders in Israel v. Government of Israel, IsrSC 34(3) 729.

[21] HC 549/75 Noach Film Company, Ltd. v. Film Review Council, IsrSC 30(1) 757.

[22] HC 135/75 Cy-Tex Corporation Ltd. v. Trade and Industry Minister, IsrSC 30(1) 673.

[23] HC 3/58, Berman v. Interior Minister, IsrSC 12 1493.

[24] HC 335/68 Israeli Consumer Council v. Chair of the Gas Services Investigatory Committee, IsrSC 23(1) 324.

[25] HC 135/71 Fresman v. Traffic Supervisor, IsrSC 25(2) 533.

[26] HC 1930/94 Nathan v. Defense Minister, IsrSC 48(4) 643.

[27] HC 656/80 Abu Romi v. Health Minister, IsrSC 35(3) 185.

[28] HC 337/66 Estate of Kalman Fital v. Assessment Committee, Town of Holon, IsrSC 21(1) 69.

[29] HC 421/86 Ashkenazi v. Transportation Minister, IsrSC41(1) 409.

[30] HC 727/88 Awad v. Religious Affairs Minister, IsrSC 42(4) 487.

[31] HC 2911/94 Baki v. Interior Ministry Director-General, IsrSC 48(5) 291.

[32] HC 2918/03 City of Kiryat Gat v. State of Israel, IsrSC 47(5) 832.

[33] HC 442/71 Lansky v. Interior Minister, IsrSC 26(2) 337.

[34] HC 987/94 Euronet Golden Lines (1992) Ltd. v. Communications Minister, IsrSC 48(5) 412.

[35] HC 1635/90 Zharzhavski v. Prime Minister, IsrSC 45(1) 749.

[36] HC 669/86 Robin v. Berger, IsrSC 41(1) 73.

[37] HC 142/70 Shapira v. Bar Association Jerusalem Regional Council, IsrSC 25(1) 325.

[38] HC 6163/92 Eisenberg v. Housing and Construction Minister, IsrSC 47(2) 229.

[39] CA 6821/93 United Mizrachi Bank. v. Migdal Agricultural Cooperative Village, IsrSC 49(4) 221.

[40] HC 1601/90 Shalit v. Peres, IsrSC 44(3) 353.

[41] CA 148/77 S. Roth v. Yeshufa Construction Ltd., IsrSC 33(1) 617.

[42] CA 207/79 Raviv Moshe & Partners, Ltd. v. Beit Yules Ltd. IsrSC 37(1) 533.

[43] HC 59/80 Be’er Sheva Public Transportation Services Ltd. v. National Labor Court in Jerusalem, IsrSC35(1) 828.

[44] HC 8507/96 Orin v. State of Israel, IsrSC 51(1) 269.

[45] HC 3872/93 Mitral Ltd. v. Prime Minister and Religious Affairs Minister, IsrSC47(5) 485.

[46] CrimA 119/93 Lawrence v. State of Israel, IsrSC 48(4) 1.

[47] HC 1/49 Bazherno v. Police Minister, IsrSC 2 80.

[48] HC 192/61 Kalo v. City of Bat Yam, IsrSC 16 1856.

[49] HC 328/60 Musa v. Interior Minister, IsrSC 17 69.

[50] HC 43/76 Amitar Company, Ltd. v. Tourism Minister, IsrSC 30(3) 554.

[51] HC 208/79 Ineis v. Health Ministry General Director, IsrSC 34(1) 301.

[52] HC 758/88 Kendel v. Interior Minister, IsrSC 46(4) 505.

[53] HC 740/87 Bentali v. Interior Minister, IsrSC 44(1) 443.

[54] CA 186/52 Jerusalem “Eden” Hotel v. Dr. Gerzon, IsrSC 8 1121.

[55] HC 1921/94 Sukar v. Jerusalem District Committee on Construction, Residence, and Industry, IsrSC 48(4) 237.

[56] HC 35/48 M. Breslov & Partners Ltd. v. Trade and Industry Minister, IsrSC 2 330.

[57] HC 132/57 First v. City of Lod, IsrSC 11 1324.

[58] HC 280/60 “Avik” Ltd. v. Voluntary Authority on Importation of Pharmaceutical Preparations , IsrSC 16 1323.

[59] HC 115/61 Yakiri v. City of Ramat Gan, IsrSC 16 1877.

[60] HC 27/62 Alt v. Tel Aviv-Jaffa Local Town Building and Planning Committee, IsrSC 25(1) 225.

[61] HC 278/62 Sarolovitch v. City of Jerusalem, IsrSC 17 508.

[62] HC 329/64 Guri v. Bnei Brak Local Town Building and Planning Committee, IsrSC 19(1) 365.

[63] HC 109/70 Orthodox Coptic Metropolitan in Jerusalem v. Police Minister, IsrSC 25(1) 225.

[64] HC 37/49 Goldstein v. Jaffa Guardian of Abandoned Property, IsrSC 2 716.

[65] HC 143/62 Schlesinger v. Interior Minister, IsrSC 17 225.

[66] HC 58/68 Shalit On His Own Behalf and On Behalf of His Children v. Interior Minister, IsrSC 23(2) 477.

[67] HC 5364/94 Welner v. Chair of Israeli Labor Party, IsrSC49(1) 758.

[68] HC 305/82 Y. Mor v. Central District Regional Planning and Construction Committee, IsrSC 38(1) 141.

[69] HC 107/59 Mei-Dan v. Tel-Aviv-Jaffa Local Planning and Construction Committee, IsrSC 14 800.

 

United States Cases Cited:

[70] Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986).

[71] Thomas v. Union Carbide Agric. Products Co. 473 U.S. 568 (1985).

 

English Cases Cited:

[72] Scruttons v. Midland Silicones [1962] 1 All E.R. 1 (H.L.).

[73] Donoghue v. Stevenson [1932] A.C. 52.

[74] Reg v. Home Secretary, Ex p. Zamir [1980] A.C. 930.

[75] Reg. v. Home Secretary, Ex p. Khawaja [1984] A.C. 74.

 

Israeli Books Cited:

[76] H. Klinghofer, Mishpat Minhali [Administrative Law] (1957).

[77] G. Shalev, Dinei Chozim [Contract Law] (1995).

[78] A. Barak, Shikul Da’at Shiputi [Judicial Discretion] (1987).

[79] 2 I. Zamir, Hasamchut Haminhalit [Administrative Authority] (1996).

[80] M. Mautner, Yiridat Haformalism Vialiyat Haarachim Bamishpat Hayisraeli [Decline of Formalism in Israeli Law] (1993).

[81] 1 B. Aktzin, Torat Hamishpat [Jurisprudence] (2nd ed. 1968).

[82] G. Shalev, Chozei Rishut Biyisrael [Contracts]  (1985).

[83] 1 B. Bracha, Mishpat Minhali [Administrative Law] (1987).

[84] M. Cheshin, Mitaltilin Bidin Hanizikin [Chattel in Torts] (1971).

 

Foreign Books Cited:

[85] L.H. Tribe, Constitutional Choices (1985).

[86] L.H. Tribe, American Constitutional Law (2nd ed. 1988).

 

Jewish Law Sources Cited:

[a] Babylonian Talmud, Order Tractate Shabbat 31:1; 104:2.

[b] Leviticus 19;18; 25;17.

[c] Isaiah 58:7.

[d] Micah 6: 8.

[e] Exodus 21:15, 16.

[f] Babylonian Talmud, Tractate Baba Metzia 59:1.

[g] Mishnah, Tractate Avot, 2:3; 1:10.

[h] Genesis 4:22.

 

 

 

JUDGMENT

Justice I. Zamir

 

            1. The petitioner, Conterm Company Ltd., received a customs license to operate a licensing warehouse.  By law, the license had to be renewed yearly. The Customs Authority refused to renew the license. The petitioner is challenging that refusal; it claims that it has a right to a renewal of the license.

 

            A central question raised in this petitions is the duty of fairness between the administrative agency and the citizen. Usually, that question is directed at the administrative agency: What kind of duty does it owe the citizen? This time, the question is directed at the citizen: Does the citizen owe a duty of fairness (or, in other words, a duty to behave properly) to the administrative agency?

 

The Facts

 

            2. For over 20 years, the petitioner has operated a freight terminal in Ashdod. The terminal operates as a licensing warehouse through a license granted by the customs director, under the seventh chapter (beginning at Regulation 12) of the Customs Regulations, 1965 (hereinafter – the Regulations). The license authorizes the storage of goods for which customs duties apply. The warehouse operates on land which the petitioner owns, in the northern industrial zone of Ashdod, about 50 meters from the railway leading to the Ashdod Port (hereinafter: the main railway).

 

            The petitioner wanted to take advantage of the warehouse’s convenient location by using the railway to make the process of shipping the freight to and from the facility more efficient, minimizing the use of trucks and saving on transportation costs. The petitioner submitted a proposal to the Port and Train Authority, under which it would build, at its expense, an extension of the tracks from the main railway to the warehouse. The extension would allow the petitioner to load freight from the port onto the train, then unload it close to the warehouse and store it there, as well as to load freight from the warehouse onto the train, to send to the port.

 

            The Port and Train Authority, a statutory corporation created by the Port and Train Law, 1961 (hereinafter – the Port Authority), owns and operates the railway. It also owns 44 dunams [4.4 hectares – trans.] of land bordering the main railway on one end, and the warehouse on the other (hereinafter – the land). The petitioner wanted to build the railway extension on the land, which was vacant and unused, so that the railway would reach the warehouse. Toward the end of 1992, it approached the Port Authority with its request.

 

            On June 6, 1994, following extensive negotiations, the petitioner and the Port Authority signed a contract (hereinafter – the contract). Section 2B of the contract declared the following:

 

All lines and systems of the extension will be built on land belonging to the Authority [The Port Authority – I.Z.] and will become its property upon their construction. The company [the petitioner – I.Z.] has no right whatsoever to the Authority’s land in general, and to the land on which the extension is built, in particular.

 

As an appendix to the contract, the parties attached a scheme marking the route of the main railway and the planned extension: The Chief Engineer of Israel Railways signed it on January 3, 1994, and later the petitioner, the Train’s Deputy Director-General for Commerce, Economics, and Finance, and the Train’s Deputy Director-General for Operations signed as well (app. R/7 of the Port Authority’s Statement).

 

            3. Not long after the parties signed the scheme designating the route of the extension (hereinafter – the first scheme), the petitioner approached the Port Authority with a request to change the route of the extension. According to the petitioner, the change was necessary to allow it to set up and operate machinery for loading and unloading bulk seeds. The change would mean that the route of the extension, which, under the first scheme, was to reach the border of the warehouse, would be moved further from the warehouse, close to the main railway. The change would enlarge the open area between the extension and the warehouse.

 

            The Port Authority agreed to the proposed change. The new route of the extension was drawn on a new scheme prepared by the petitioner’s planner, and on May 15, 1995, the Director of the Engineering Department in Israel Railways signed it (hereinafter – the second scheme). The new route was not the only change between the first and second scheme; on the second scheme, the parties labeled the area between the extension and the warehouse as a “storage area.”

 

            4. The appendix to the contract, signed at the same time as the contract itself, gave the petitioner a limited right to use the land (referred to in the appendix as “the plot”). The petitioner was to be allowed to use the land to load and unload freight and to transport it from the train to the warehouse and from the warehouse to the train. According to the appendix:

 

3. The company [the petitioner – I.Z.] may make use of the plot running along the tracks of the train stationed in the extension exclusively for purposes of loading and/or unloading trains which are stationed at the extension for that purpose, so long as they are stationed there.

 

Unloading and/or loading trains include transporting or shipping the freight from the extension to the company’s storage facilities adjacent to the plot and the reverse.

 

4. Any change of any kind to the plot and/or anything attached and/or connected to it requires the advance written approval of the Director-General of Israel Railways.

 

            5. The petitioner, however, had a larger plan: It intended to use the area of the land not just to load and unload freight from the train and onto the train, as the contract provided, but also to store freight. It planned to enlarge the area of the warehouse to include the area of the land, as well. In order to accomplish this, it needed to do two things. First, it needed to do work on the land, in order to prepare it for use as a licensing warehouse, including fencing in the land to prevent freight from being added or removed without undergoing inspection. This task posed a problem with the Port Authority, which owned the land. The second thing the petitioner needed was a license to use the land as a licensing warehouse. That task posed a problem with The Customs Authority, which is authorized to grant such licenses.

 

            6. The petitioner began working on the first task: preparing the land for storing freight. Under the terms of the contract, the petitioner could not make “any change, of any kind” to the land, without “the advance written approval of the Director-General of Israel Railways.” Para. 4, supra. However, the petitioner began work on the land without obtaining such approval. Nor did it obtain permission once the work was completed. Without such approval, the petitioner paved the land with asphalt, erected a fence around the perimeter, installed lighting, and built gates. It finished its preparatory work on March 18, 1996.

 

            7. The petitioner and the Port Authority disagree over when the Port Authority became aware of the work that the petitioner was doing on the land. According to the petitioner, the work was done in the presence of representatives of the Port Authority. The Port Authority, on the other hand, claims that it became aware of the work only by coincidence, in early January, 1996, during a tour that its employees took of the land.

 

            In any event, immediately after the tour, on January 8, 1996, the Deputy Director-General for Commerce, Economics, and Finance at Israel Railways (hereinafter: the Railways Deputy) sent the following letter to the Director-General of the petitioner:

 

Pursuant to my tour of the site and the measurements we conducted, I wish to call your attention to the following points:

 

1.     Our measurements show that Conterm has annexed an area of 38.5 dunams [3.85 hectares – trans.].

2.     That area is being used to store containers, in violation of the contract.

3.     The areas have been fenced in, paved, and marked, and Conterm’s equipment and installations have been placed there.

4.     According to the appendix of the contract, you are permitted to use a strip of land along the length of a train only, for loading and unloading trains exclusively.

5.     Seizure and use of the land constitute a violation of the contract.

6.     Be advised that, according to the appendix, we may give anyone approval to use the land.

7.     You must immediately vacate the areas noted above.

8.     Be advised that you will be charged taxes and rent on the areas seized, for the period of time from the seizure until you vacate, as determined by an assessor.

I would appreciate your taking immediate action to vacate the area and to avoid violating the contract between us.

 

            The petitioner gave no response whatsoever to this letter. On March 10, 1996, the Railways Deputy sent another letter to the petitioner’s Director-General. This letter warned of the petitioner’s violations of the contract in a few ways, including violation related to “use of the areas.” It noted that Israel Railways considers the violations to be severe and added that if they are not corrected, Israel Railways will feel free to take action to preserve its rights. The petitioner’s Director-General responded to this letter on March 19, 1996. Regarding the use of the land, he wrote the following:

 

During our last three meetings, we discussed the above-stated issue, and to the best of my recollection, we agreed to find a way to resolve the issue.

 

At this stage, as you agreed, I am waiting to set a date for another meeting with you.

 

By the way, at this stage, the area is being used exclusively for loading and unloading containers.

 

The dispute, however, remained unresolved. On April 18, 1996, counsel for the Port Authority wrote to the petitioner, alerting it to the encroachment onto the Port Authority’s land and the illegal use of the land, including fencing it in and using it for storage. Counsel demanded that the petitioner vacate the land immediately. The Railways Deputy also wrote the petitioner, again, on April 21, 1996, demanding that it vacate the land immediately. The letters went unanswered.

 

            On May 19, 1996, the petitioner wrote to the Deputy Director-General for Operations at Israel Railways in a letter that made no mention whatsoever of the letters sent by the Port Authority demanding evacuation of the land. The petitioner wrote, in part, that,

 

We intend to begin storing empty containers, before they are transported to the ports, and we ask that you price our requests, addressing the factor of the substantial quantities to be transported.

 

On May 23, 1996, The Railways Deputy Director-General for Operations responded by saying that Israel Railways did not intend to transport containers from the Ashdod Port to the petitioner’s warehouse. He also wrote that:

 

I remind you that the contract is about transporting containers between Ashdod and Haifa, not storing empty containers or vehicles in the terminal station.

 

            The Port Authority and the petitioner continued their correspondence and discussions. The former repeatedly demanded that the latter vacate the land. On June 20, 1996, the Director of the Commerce and Transportation Department of Israel Railways wrote the following to the petitioner:

 

1. Pursuant to the discussion that took place in the office of Israel Railways’ Deputy Director-General for Economics, Finance, and Commerce, it became clear that the Conterm Company seized about 40 dunams [four hectares – trans.] of territory belonging to Israel Railways, in the area of the Conterm Ashdod extension. Conterm fenced it in without permission and even placed hundreds of vehicles belonging to the Universal Motors Company and the Mazda Company in the area.

 

2. In that same discussion mentioned above, we demanded that you vacate the area. Thus far, you have failed to do so and continue to seize the area.

 

3. I wish to advise you that in the coming days, Israel Railways intends to sell the area through a public auction. You are therefore asked to vacate the area immediately, removing every object, person, and thing.

 

The Port Authority sent additional letters containing similar contents on July 21, 1996, October 14, 1996, and November 28, 1996.

 

            Throughout the correspondence between the Port Authority and the petitioner, when the Port Authority claimed that the petitioner was trespassing on its property in violation of the contract, the petitioner did not claim that it had a right to the land as renter or lessee, or that it had permission to fence in the land and use it for storage. Only on June 30, 1996, did the petitioner address its right regarding the land. It wrote:

 

 …

3. There is no doubt that Conterm has rights to the above-mentioned area for purposes of loading and unloading trains that are stationed in the extension.

 

4. As you must know, we invested a substantial amount of money in the extension and in preparing the above-mentioned area for operating the extension.

 

5. In addition, there is no doubt that Conterm has certain rights in the area by virtue of the [written – trans.] agreement and the agreements between the parties.

 

…

 

8. On the other hand, given the current circumstances, we suggest that the parties negotiate in order to find a mutually-agreed upon solution for how the above-mentioned area will be operated.

 

            The Railways Deputy responded to that letter on July 21, 1996:

 

…

2. Conterm has no rights to the above-mentioned area, even if it made investments. Such investments were done without our approval, and there were no agreements over use of the area.

 

3. Areas cannot be allocated except through a bidding process, except in rare circumstances, which do not exist in this case.

 

8. When the parties did not resolve the dispute through negotiation, as the petitioner suggested, the Port Authority brought an action of ejectment against the petitioner in Ashdod Magistrate’s Court. That action is still pending in the Magistrate’s Court.

 

            The Magistrate’s Court will decide the dispute between the Port Authority and the petitioner, and its resolution, whatever it may be, is not the concern of this court. If that is the case, then how is their dispute relevant to the issue before us? That dispute is also the root of the argument between the petitioner and The Customs Authority at the heart of this petition. How?

 

9. The petitioner took the first route – preparing the land for storage of freight – at the same time that it took the second route: On June 8, 1995, a year after the contract was signed and shortly after the second scheme was signed, the petitioner asked the Customs Authority branch in Ashdod for a license to enlarge the area of the warehouse to include the area of the land, as well, meaning the area between the extension and the warehouse. The petitioner and Customs engaged in a process of verification to make sure that the petitioner met the criteria necessary to receive a license to operate a licensing warehouse.

 

            According to Regulation 14 of the Regulations, an application for a license must be submitted to the Customs branch “in the form provided in the Sixth Addendum.” The Sixth Addendum details what must be included in an application, including the following:

 

Below are the details of the warehouse:

 

We declare that we own the warehouse registered in the Land Registry as Block Number … Parcel … we are in possession of it under the terms of a rental contract or lease with … for a period of … years, beginning on …. and ending on … attached is a schematic description of the warehouse and the marked areas of the requested warehouse …

 

According to the addendum, these details must be submitted whether the application is for a new license or “if changes are made in the area or in the size of the warehouse.” The implication is that the Regulations require applicants to declare that they own, rent, or lease the warehouse, as a condition of receiving a license for a new licensing warehouse or of expanding an existing one.

 

            This condition seems appropriate, or at least reasonable. In any event, the petitioner does not challenge the legality of the condition or of any other provision of the Regulations.

 

            10. Pursuant to this regulation, and after the petitioner applied for a license for the land, on December 5, 1995, the Ashdod Customs branch wrote to the petitioner asking for various details and documents, including “a rental or lease contract for the additional area.”

 

            In response, on December 11, 1995, the petitioner sent the Customs branch the June 6, 1994 contract and attached a map prepared by its surveyor on December 7, 1995 (Appendix 7 to the Petition).

 

            The Customs Authority presumed that the petitioner met all the conditions set forth in the Regulations for receiving a license. Among other things, the Customs Authority presumed that the petitioner held rights to the land, as required by the Regulations. It was unaware of the fierce dispute between the Port Authority and the petitioner over the rights to the land, a dispute expressed in a number of ways, including in letters that the Port Authority sent the petitioner on January 8, 1996. Therefore, once the Customs Authority concluded that the land had been properly prepared for use as a licensing warehouse, it decided to grant the petitioner the license it had requested, on July 1, 1996.

 

            11. So long as the petitioner communicated in these two parallel tracks, with the Port Authority on one hand, and the Customs Authority on the other, each agency separate from the other, it seemed as though the petitioner had achieved what it set out to obtain. When the two agencies communicated with each other, however, their relationships with the petitioner hit a snag.

 

            In September 1996, the Customs Authority learned of the dispute between the Port Authority and the petitioner over rights to the land. On September 25, 1996, the Customs Authority wrote to the Port Authority asking for the precise status of the petitioner with respect to the land and “whether, under the contract signed with you, the Conterm Company has a right to store containers in the area.” The Port Authority responded by saying that the petitioner has a right to load and unload the trains stationed at the extension but not to store containers on the land. After receiving this response, the Customs Authority asked the petitioner for an explanation. On November 18, 1996, the petitioner responded by telling the Customs Authority that it had an “understanding” with representatives of the Railway allowing the petitioner to store freight on the land and that, “the arrangement has not been put on paper because of Israel Railways’ limitations.” It attached the second scheme, on which the area of the land was labeled “storage area.” The petitioner added that “this document is irrefutable, decisive evidence of the Authority’s intentions, beyond what is said in the agreement.” The Customs Authority, however, was unconvinced. It decided not to renew the petitioner’s license for the land. On December 26, 1996, the Customs Authority informed the petitioner that it was canceling the authorization it had granted the petitioner to use the land as a licensing warehouse, and that the license granted the petitioner for 1997 would be renewed exclusive of the area of the land. In the same notice, the Customs Authority also demanded that the petitioner remove the freight from the land and put it into a licensing warehouse within 30 days.

 

            12. The petitioner claims that the Customs Authority did not have the right to revoke the license it had granted to use the land as a licensing warehouse. It therefore filed this petition against the Customs Authority, later joining the Port Authority as respondent. The petitioner is asking for an order obligating the Customs Authority to include the area of the land in the license for 1997.

 

            At an early stage of the proceedings, we issued an order-nisi and decided that the license to use the area of the land as a licensing warehouse would remain valid in the interim.

 

            On September 10, 1997, we decided to deny the petition without giving an explanation at the time, and we imposed court costs on the petitioner in the sum of 25,000 NIS to be paid to Respondents 1 and 2 and 25,000 NIS to Respondent 3.

 

            We now explain our decision.

 

The Reasons for Revoking the License

 

13. The Customs Authority gives two reasons for its refusal to include the area of the land in the license granted the petitioner for 1997: the first – substantive; the second – procedural.

 

The first reason: Under the Regulations, the petitioner is not eligible to receive a license for the area of the land. The Regulations stipulate that without rights to the land (through ownership, rental, or lease), there is no right to a license. If it becomes clear that a license was granted to someone who has no right in the land, because of misrepresentation or mistake, that license can be revoked. Therefore, the Customs Authority’s realization that the petitioner had no right in the land is reason enough not to renew the license for the area of the land.

 

This reason, of course, touches on the private law dispute between the petitioner and the Port Authority over rights to the land.

 

The Custom Authority’s second reason is the petitioner’s procedural obligation to disclose all material information regarding its application for a license, including information about rights to the land. By failing to disclose material information on this issue to the Customs Authority, the petitioner violated this obligation. This violation alone is reason enough not to renew the license for the area of the land.

 

This second reason is entirely the province of public law: the claim is that a citizen applying for a license has an obligation to disclose information material to the license to the administrative agency.

 

The petitioner, on the other hand, argues that neither the substantive nor the procedural reason justify the Custom Authority’s decision. First, the petitioner claims that its dispute with the Port Authority over rights to the land is not the concern of the Customs Authority. In any event, the petitioner claims, the dispute does not constitute a reason to revoke a license already granted. Second, the petitioner claims, it fulfilled any disclosure obligation to the Customs Authority that may have existed by submitting the June 6, 1994 contract it signed with the Port Authority regarding the rights to the land.

 

We will examine each of these reasons in order.

 

Rights to the Land

 

14.  The petitioner claims that, “With all due respect, the relations between the petitioner and the PTA [Port and Train Authority – I.Z.] are not the concern of the Customs Authority.” It also argues that, “It is inconceivable that, at a point at which a dispute has yet to be decided, and it could go either way, the Director of Customs should take a stance and adopt the PTA’s version.”

 

Indeed, it is an old precedent that an agency authorized to grant a license must make that decision based on considerations from the field of public law, not private law. HC 233/53 Alspector v. Mayor of Beit Shean (hereinafter – the Alspector case[1]), held that a local council may not condition receipt of a license to operate a business in an apartment on the consent of the apartment owner. As Justice Berinson held (at 665):

 

By opening a store in his apartment without the consent of the apartment owner, the applicant may indeed be violating the terms of his lease. If that is the case, the apartment owner may fight his fight with the applicant. That is not the concern of the municipality, however, and it cannot serve as the basis for refusing to grant the license.

 

See also HC 9/49 Bloi v. Interior Minister [2]; HC 56/53 Kakanda v. City of Ramla [3].

 

            This precedent would seem to construct a high wall between private and public law.  See H. Klinghofer, Mishpat Minhali [76] at 128-30. That is not the case. Today, it is well-known that there is no clear and rigid separation between these two fields. They are separated by a widely-spaced net, easily passed through or jumped over. The two fields are becoming more and more intermingled, and there is nothing wrong with that. In principle, therefore, considerations from the field of private law may influence an administrative agency’s decision. In any event, it depends on the context: the nature of the power, the nature of the agency, and the circumstances in question. For example, is it illegitimate for a municipality to refuse to grant a license to operate a business, or for a planning and building committee to refuse to grant a license to erect a building, when it is clear that the license applicant has no rights to the land of which he or she has taken possession?

 

            The Alspecter case, supra, provided for this possibility. Justice Berinson qualified the rule he stated:

 

If the case involved a construction permit to make changes to the building, which could not be issued without the request or consent of the building owner, then the reason would be valid.

 

The same is true in the case before us. The Regulations require that an applicant for a license declare that he or she has a right in the land. See para.9, supra. It is therefore clear that the question of rights in the land is relevant. The Customs Authority may and even must take it into consideration. It may and even must clarify the answer. Under the Regulations, it should require a license applicant to declare what kind of right he or she has in the land. If a license applicant declares that he or she has no right in the land, the Customs Authority may and even must deny the application for a license. The same is true of a situation in which the applicant declared that it has a right in the land, but an investigation by the Customs Authority reveals the declaration to be false or misleading. In either case, under the Regulations, the Customs Authority need not, and may not even be permitted, to give a license to a trespasser.

 

            If the petitioner does not have a right in the land, the Customs Authority was under no obligation to grant the license. Indeed, the Customs Authority claims that if it had known that the petitioner had no such right, it would not have granted the license.

 

            15. The petitioner, however, argues that even if the Customs Authority could have refused to grant the license from the outset, it may not revoke a license already granted. There is a difference between prospectivity and retrospectivity: the holder of a license purchased a right, and revoking a vested right is different, and more difficult, than refusing to grant the right in the first place. Therefore, not every consideration sufficient to refuse to grant a new license justifies refusing to renew an existing license.

 

            The case law distinguishes between refusing to grant a new license and refusing to renew an existing license. The considerations relevant for renewing a license are not identical to the considerations for granting a license; the weight of the considerations may vary. More so than is the case for granting a new license, in renewing an existing license, the balance tips toward the citizen, in order to protect the right that the license gave him or her.

 

            However, if the agency’s grant of the license stemmed from a substantive error, it generally may revoke the license or refuse to renew it, particularly if the applicant is responsible for the mistake. See e.g. HC 56/76 Berman v. Police Minister [4]. As Justice Barak said in HC 799/80 Shallam v. Gun Law, 1949 Licensing Clerk, Oil Administration of Petach Tikvah, Interior Ministry [5] at 331:

 

 

As is known, the administrative law rule is that an administrative agency may generally review its decision and correct it “for the following reasons: deceit, fraud, mistake, surprise, inadvertence, new evidence that has come to light, changed conditions” …

 

There seems to be no doubt that deceit by the license applicant is generally grounds in itself to justify revoking a license … what happens, however, if the problem is pure mistake, not caused by the applicant, but rather solely the fault of the agency? In a case like that, the license may still be revoked, but the power to do so must be exercised only in special circumstances.

 

Justice Barak continued in HC 475/81 Deak & Co. Inc. v. Governor of the Bank of Israel [6] at 807:

 

 Once a license is granted, its holder may assume that the application was investigated with the required care and that he or she may now invest money and effort into running the business for which a license was granted, without having to worry that the administrative agency will change its mind. At the same time, where the agency has the formal authority to revoke a license, under extraordinary circumstances, it may be justified in exercising it. Such circumstances may involve facts in existence prior to the granting of the license but which became apparent to the administrative agency only afterward … they may also involve new facts which came about after the license was already granted.

 

Deciding whether a set of facts justifies revoking a license or refusing to renew it depends on the balance of interests in each set of circumstances, primarily the balance between the license-holder’s interests and those of the general public, which the administrative agency represents.

 

            In balancing these interests, the ramifications of the mistake in the administrative process are of particular importance. Did the mistake cause the administrative agency to make an ultra vires decision or a decision that violates the law in some other way? Or is the decision, though undesirable from the point of view of the agency, nevertheless legal? In CA 433/80 I.B.M. Israel Assets v. Property Tax Director and Compensation Fund of Tel-Aviv [7] at 351, Justice Bach classified the different kinds of administrative mistakes into three categories:

 

1. A decision that violates the law or is ultra vires in some other way;

2. A decision resulting from a technical bureaucratic mistake, made inadvertently;

3. A decision involving an oversight, meaning that a clerk improperly implemented the agency policy or exercised discretion unreasonably.

 

What is the difference between each kind?

 

Public agencies generally can go back on the first two types of decisions which are mistaken or in other ways contrary to the law and make new decisions in their place;

 

The third kind of decision, involving only some kind of ‘oversight’ in an exercise of discretion, is different. The agency will generally be bound by its decision, especially when the citizen has already begun to take action in accordance with the original decision.

Id. at 351-52 (Bach, J.).

 

See also CA 736/87 Yaakobovitch v. Land Appreciation Tax Director of Nazareth [8] at 372;  CA 1928/93 Securities Authority v. Gabor Savarina Textile Factories [9] at 191-92.

 

            16. Under the case law, then, whether the Customs Authority’s refusal to renew the petitioner’s license was justified depends on the circumstances. If the Customs Authority mistakenly believed that the petitioner had rights in the land, as required by the Regulations, and only after granting the license did it realize the mistake, particularly if the petitioner is to blame for the mistake, then the petitioner holds a license to which it is not entitled under the Regulations, and the balance will tip toward refusing to renew it. Are those the circumstances in this case?

 

            Before discussing whether the circumstances justify the Customs Authority’s refusal to renew the petitioner’s license, I will examine the second reason cited for the refusal to renew. The Customs Authority also claims that the petitioner violated its duty to disclose information material to the license, meaning information material to its rights in the land. Does the petitioner owe such a duty to the Customs Authority?

 

The Citizen’s Duty to the Agency

 

            17. Contract law imposes a duty on contractual parties, regardless of their identities, to disclose information material to the circumstances at hand.  That duty derives from the duty to negotiate a contract formation in good faith and using acceptable forms of behavior, under section 12 of the Contract Law (General Part), 1973. It also derives from the obligation to act in good faith and use acceptable forms of behavior in fulfilling a duty and exercising a right stemming from the contract, under section 39 of the Law. Section 15 governs the consequences of failing to disclose information which must be disclosed under the circumstances. According to Section 15, a party who enters a contract because of a misrepresentation made by the other party has the right to void the contract. What is considered misrepresentation? Under the section, it includes, “nondisclosure of facts which the other party should have disclosed by law, by custom, or under the circumstances.” The rule incorporates the duty of good faith under sections 12 and 39 of the Law, including the duty to disclose facts. See e.g. CA 338/85 Speigelman v. Chapnik at 426 [10]. See also G. Shalev, Dinei Chozim [77] at 55, 223. Contract law imposes a duty to disclose material facts, and non-disclosure of such facts is grounds for voiding the contract.

 

            This duty applies to contracts between the citizen and the administrative agency, obligating the citizen as well as the agency. See, e.g., HC 707/80 Ilanot Housing, Building and Development Co. v. Arad Local Council [11] at 312. See also Shalev, supra [77] at 652.

 

            In public law, however, there is no similar statute imposing a duty to disclose material facts on parties in a power relationship involving a lawful exercise of authority, such as in a citizen’s application for a license. Must we conclude that, in the context of this relationship, both the administrative agency as well as the citizen may conceal material facts from each other?

 

            No properly-functioning society could accept that possibility. If the law forbids people from misleading each other, including concealing material facts, a fortiari it forbids people from misleading an administrative agency, which is the embodiment of the public. A person who misleads an administrative agency misleads the public, even if only indirectly. The result may be that the agency, in the name of the public and sometimes at its expense, grants a benefit to a person who misled the agency and who is not entitled to the benefit. Misleading an administrative agency harms the public as a whole. If contract law forbids a person from misleading another, including by concealing material facts, could public law permit a person to mislead the public? Justice Alon’s comments on good faith are instructive here:

 

Just as the legal system forbids a contractual party from “using the contract to play the scoundrel,” so it also forbids and prohibits the party from using the law or public activity, in any area of law, to play the “scoundrel.”

CA 391/80 Mira Lesserson v. Workers Housing Ltd. [12] at 262.

 

            The legal system cannot allow that possibility to take place. It delineates two ways of preventing misrepresentation, including the concealment of material facts, in public law as well. The first way is to copy the duty to act in good faith, as established by the Contract Law (General Part), from private law into public law. The second way is to establish a special public law rule.

 

            First, we will evaluate whether the duty to act in good faith applies in public law, and whether it applies to a citizen in his or her dealings with an administrative agency.

 

The Duty of Good Faith

 

            18. Although they are designed primarily to apply to contracts, the provisions of the Contract Law (General Part) have other applications as well:

 

Where appropriate and with the necessary changes, the provisions of this law apply to legal actions not involving contracts and to obligations that do not stem from a contract.

Id. at sec. 61(b).

 

Under the simple language of the statute, the provisions of sections 12 and 39, which impose a duty of good faith, can also apply to the actions of an administrative agency, so long as they are “legal actions.” Undoubtedly, an administrative agency, acting by law to grant rights to a citizen or to impose obligations on him or her, engages in legal actions. Such actions may, for example, include granting a license or pension, confiscating land, and assessing taxes. It would therefore seem right to say that the Contract Law (General Part) imposes a duty of good faith on the agency to the citizen and on the citizen to the agency, when they engage in these actions.

 

            Indeed, the case law supports this position. President Sussman addressed the principle established by section 39 of the Contract Law (General Part), imposing a duty of good faith:

 

As an expression of a universal rule of behavior between persons and between a person and an agency, this principle imposes obligations beyond this context, and it also applies in public law.

CA 402/76 Azaranikov v. State of Israel [13] at 274.

 

See also HC 640/77 Baranovsky v. Department of Customs and Excise Director [14] at 78; HC 566/81 Amrani v. Chief Rabbinical Court [15] at 10; HC 221/86 Kanafi v. National Labor Court [16] at 476-77.

 

            True, thus far, the Court’s application of this principle in public law has been limited to imposing a duty on the administrative agency, vis à vis the citizen. The principle, however, as established by the Contract Law (General Part), applies to both parties. It would seem, therefore, that we can use the principle to impose a duty of good faith on the citizen vis à vis the administrative agency.

 

            The duty of good faith requires one party to disclose material information to another. See para. 17, supra. It would therefore seem that a citizen who applies to an administrative agency for a license or other benefit has an obligation to disclose the information material to the application. If the citizen violates this duty, and the agency, as a result, grants the license or other benefit, the agency may void its decision.

 

            19. The public law duty of good faith that we might impose on both parties to the legal actions of an administrative agency is not necessarily the same duty as that imposed on parties to a contract. The duty of good faith varies with the circumstances. Good faith in the relationship between parties to a sales contract is not necessarily the same as the good faith between trustee and beneficiary or principle and agent. See FH 22/82 Beit Yules Ltd .v. Raviv Moshe & Partners, Ltd. [17] at 484. If good faith changes according to the type of contract, it certainly changes according to the field of law. Section 61(b) of the Contract Law (General Part) applies the statutory provisions, including those addressing good faith, to legal actions not involving contracts, only “where appropriate and with the necessary changes.” In translating the duty of good faith into public law, we can therefore adapt it to the special nature of that field. See HC 376/81 Lugassi v. Communications Minister [18] (hereinafter – the Lugassi case) at 465.

 

            It is possible, then, to apply the duty of good faith, with adaptations, into the field of public law and to require the citizen to disclose material information to the agency. Is that what the rule is?

 

            20. The question is not whether it is possible, but rather whether it is desirable, to copy the duty of good faith, with the necessary changes, from private law into public law. Section 61(b) of the Contract Law (General Part) says that the statutory provisions apply to legal actions not involving contracts only “where appropriate.” Is it appropriate to impose a duty of good faith in public law? As noted, some justices have said yes. Para. 18, supra. However, some justices believe that the duty of good faith, as established in private law, is inappropriate for public law.

 

            Justice Shamgar discussed this issue in the Lugassi case [18]. He said that while an administrative agency must act in good faith, that duty does not arise from the Contract Law (General Part). In his words (at 455-56):

 

The intention [of Section 61(b) of this law – I.Z.] was not that a norm from contract law would be adopted as is into administrative law, which, for a long time, has already had a robust, existing rule about good faith, derived from another source. In any event, the condition that the provisions of the statute will be applied ‘where appropriate and with the necessary changes’ means there should not be a simplistic standardization of private law and public law rules. It is preferable not to take things out of the context of their subject matter and primary legal source. In any case, we do not need to look at what is said in section 61(b) in order to evaluate the good faith of an administrative agency, the way it acts, and its fulfillment of its duties …

 

Justice Ben-Porat concurred in that opinion (Id. at 465).

 

            I, too, agree with Justice Shamgar. From the outset, administrative agencies had a duty of proper behavior vis à vis the citizen, irrespective of the duty of good faith established in the Contract Law (General Part). There is no need, and it would not be a good idea, to uproot the agency’s duty of proper behavior, which sprouted long ago in public law soil, and to replace it with a good faith duty that sprouted later, in a different kind of soil, namely that of private law. This is especially true because there is a difference between the two duties. The soil of private law bore one species of the duty of good faith, while the soil of public law bore a different species. The fact that those species bear the same name might blur the distinction. Differentiating the names can help make the difference more pronounced and preserve the distinction in substance, and indeed, today we do use different names: in private law, there is a duty of good faith; in public law, there is a duty of fairness.

 

            To be sure, there is a duty of good faith in public law, as well, but it generally has a different meaning: we say that an administrative agency is not acting in good faith when it knows it is not acting according to the law, such as when it makes a decision based on an irrelevant consideration, knowing the consideration is illegitimate. See e.g. the Lugassi case [18] at 459-60. We should preserve the distinction between the meanings of each phrase: in public law, good faith refers to the mental state of the administrative agency (which can also be called arbitrariness or malice), while fairness refers to the behavior (including omissions) of the administrative agency.

 

            21. What, then, is the difference between the duty of good faith in private law and the duty of fairness in public law? The difference in the nature of the duties reflects a difference in the nature of the relationships. First of all, the relationship between an administrative agency and a citizen is generally a relationship of authority, under the law, while the relationship between citizens is generally one of equality, under an agreement. Moreover, the relationship between an agency and a citizen, as is common in relationships of authority, is one of trusteeship. Professor A. Barak explained that well in his book, Judicial Discretion [78]:

 

In determining the content of an administrative duty of fairness, the judge must compare it to the contractual duty of good faith. The two are not one and the same. The contractual duty of good faith sets a minimum level of fairness based on contractual “rivalry.” Each contractual party seeks to achieve his or her self-interest, and the rules of good faith are designed to guarantee “a fair game,” set by the ethical perspective of enlightened Israeli society. The administrative duty of fairness is different. It is not based on rivalry between the self-interest of the public agency and the interest of the citizen. The public agency takes care of the general interest, including the interest of the citizen. The public agency has no “self” interest of its own. The duty of fairness in administrative law therefore imposes a higher-level duty than the “contractual” duty of good faith. This is not minimal fairness, but rather the fairness imposed on a body charged with achieving the collective interest.

Id. at 487-88. See also Id. at 473-75.

 

Justice Dorner addressed this point as well:

 

The duty of administrative fairness – rooted in the status of the agency as a trustee of the public – is more exacting than the duty of good faith required of an individual.

HC 4422/92 Efran v. Israel Land Administration [19] at 860.

 

            I think these principles lead to an additional conclusion. For administrative agencies, we should distinguish between two areas: actions in the field of private law and actions in the field of public law. When an administrative agency acts in the field of private law, such as by forming a contract, it bears a double duty: the private law duty of good faith and the public law duty of fairness. In practice, however, because the duty of fairness is more exacting, it will generally encompass the duty of good faith. As a practical matter, within the field of private law, the duty of fairness suffices. On the other hand, when the agency acts in the field of public law, such as by considering an application for a license, the duty of good faith does not apply at all. Because the agency bears a similar duty – the duty of fairness – we might say, in the language of section 61(b) of the Contract Law (General Part), that the duty of good faith is not appropriate. See also Shalev, supra [77] at 45. Practically, we can say that the administrative agency is subject to the duty of fairness in all its actions, whether in public or private law, and there is no need to subject it to the duty of good faith.

 

            What, then, is the duty of fairness?

 

Duty of Fairness

 

            22. A cornerstone of public administrative law is that the administrative agency, as the trustee of the public, must behave fairly. See e.g. HC 840/79, Center for Contractors and Builders in Israel v. Government of Israel [20] at 745-46. The administrative agency owes a duty of fairness, first and foremost, to the public. This is the duty of a trustee to a beneficiary. In practice, because the public is composed of people, the duty does not just apply to the public as an abstract body but also to every person.

 

            It is often said that the administrative agency owes a duty of fairness to the citizen. One can say that, but we should bear in mind that, in this context, citizen means person, including a resident who is not a citizen and a collective body such as a corporation.

 

            The duty of fairness that an administrative authority owes the citizen is the conceptual source for various rules governing the relationship between the agency and the citizen. An example of this is the rule requiring the agency to grant the right to be heard to those affected by its decisions. As President Agranat said:

 

The reason for the above-stated rule [the citizen’s right to be heard before the administrative agency – I.Z.] is to guarantee that the administrative agency will address the citizen’s concern with fairness …

HC 549/75 Noach Film Company, Ltd. v. Film Review Council [21] at 767.

 

            The same is true of the rule about fulfilling administrative promises. In Justice Berinson’s words:

 

[If – trans.] a promise is given by an official, within the bounds of his or her authority, with the intention of giving it legal validity, where the other party accepted it as such, then public fairness demands that the promise in fact be fulfilled, even if the citizen did not change his or her position for the worse in reliance on the promise.

HC 135/75 Cy-Tex Corporation Ltd. v. Trade and Industry Minister [22] at 676.

 

23. Such is the duty of fairness imposed on the administrative agency to the citizen. Does just the administrative agency bear the duty of fairness, while the citizen is exempt from the obligation to treat the agency fairly?

 

The answer is that the relationship between the agency and the citizen is, in fact, two-sided. In my opinion, the citizen should therefore owe a duty of fairness to the agency, as the agency owes a duty of fairness to the citizen. This requirement is deeply rooted: it springs from the social contract at the foundation of the state. Under this contract, as it is understood in a democratic state, the agency and the citizen stand not on opposite sides of the barricade but rather side-by-side, as partners in the state. In a democracy, as Justice Silberg said, “the government is part of the very body of the citizen …” HC 3/58, Berman v. Interior Minister [23] at 1511. The government [… – ed.] has a duty to serve the public – to guarantee safety and order; to provide essential services; to protect the dignity and liberty of every citizen; to do social justice. The public administration, however, which has nothing of its own, can only give the public what it receives from the public. It is desirable, indeed, necessary, that the relationship between the administration and the public be a reciprocal relationship of give-and-take. The same is true of the relationship between the public administration and the citizen. As a moral and a practical matter, the citizen cannot assume that he or she may demand and receive from the agency without being obligated to provide anything. A citizen’s right vis à vis the agency is coupled with an obligation vis à vis the agency. This is the essence of the social contract among citizens and between citizens and the public administration. It is also the root of the existence of the state.

 

24. The citizen’s obligations to the state, in essence, to the public, are generally delineated in the statute books: the duty to pay taxes, to go to school until a certain age, to serve in the army, and others. Duties may also, however, arise from judicial case law. That is how the administrative agency’s duty of fairness to the citizen arose. That is also how the citizen’s duty of fairness to the administrative agency arises.

 

If the citizen did not bear a duty of fairness to the administrative agency, we might say that the citizen bears a duty of good faith in his or her relationship with the agency, under section 61(b) of the Contract Law (General Part). See para. 18, supra. The duty of fairness, in this context, however, is preferable to the duty of good faith. First, the duties involved in the relationship between the administrative agency and the citizen should not come from different sources, meaning that the agency bears the duty of fairness, whose source is public law, and the citizen bears the duty of good faith, whose source is private law. The harmony between the citizen and the agency will be enriched if reciprocal duties arise from a single source, namely public law.

 

Second, the relationship between the citizen and the administrative agency, which represents the public, is substantially different from the relationship between citizens. When the agency acts within the field of public law, therefore, we should not copy the duty of good faith from private law and apply it, even with changes, to the relationship between the citizen and the agency. It is better to allow the case law to develop the duty that arises from this relationship in its own way, appropriate to the environment in which the duty lives, namely the environment of public law. I call this duty, arising from public law, the duty of fairness.

 

25. What does the duty of fairness include? There is no comprehensive answer, even within the context of the agency’s duty to the citizen, except to say that this court has long recognized such a duty. Indeed, we would do well not to give a comprehensive answer. The concept of the duty of fairness, by nature, is opaque. It can and should be filled with content from time to time, according to changing needs, rather than delineated into a rigid definition. It should be open-ended, so that new rules can be added and subtracted as necessary.

 

The same is certainly true of the citizen’s duty of fairness to the agency. This duty is a new concept. It must develop gradually, as the common law does, from case to case, until the time is ripe to formulate rules.

 

Having said that, and without pretending to make any final ruling, I would like to suggest guidelines to characterize a citizen’s duty of fairness to the agency:

 

(a) In a well-ordered society, the duty of fairness must express the appropriate relationship between the public administration, which acts as the trustee of the public, and citizens, who are the public. This relationship is a reciprocal relationship between partners in a goal-oriented activity, based on respect, trust, and reliability. The duty of fairness should develop from this foundation, gradually becoming a system of flexible rules by which both citizen and agency must and can abide. Compare this with the nature of the duty of good faith, FH 22/82 [17] at 484-85.

 

(b) As noted, an agency’s duty of fairness to the citizen is different from the citizen’s duty of fairness to another citizen, because of the different nature of the two kinds of relationships. See para. 21, supra. Similarly, the citizen’s duty of fairness to the agency may differ from his or her duty of good faith to a fellow citizen.

 

(c) It would seem that a citizen’s duty of fairness to the agency differs from the agency’s duty of fairness to the citizen, because of the difference between the status of a citizen and the status of an agency. The agency is a trustee of the public, including of the citizen, and the duties stemming from that status differ from the duties owed by a citizen.

 

(d) The citizen’s duty of fairness to the agency, like the agency’s duty of fairness to the citizen, varies with the circumstances of each case. One example is the agency’s duty to hear the citizen, which derives from the duty of fairness. Ordinarily, the agency fulfills that duty by providing an opportunity for the citizen to submit something in writing; in certain circumstances, the duty of fairness may obligate the agency to conduct an oral hearing or even to allow the citizen to examine witnesses. As Justice Sussman said in HC 335/68 Israeli Consumer Council v. Chair of the Gas Services Investigatory Committee [24] at 334:

 

There is no standard rule we can set for the way the agency must proceed on every issue, except to say that it must treat the citizen with fairness. The appropriate level of fairness depends on the circumstances.

 

We can say the same thing about the citizen’s duty of fairness to the agency: the decision about whether, in a particular case, the citizen must behave in a certain way toward the agency depends on the circumstances.

 

            26. While I will not attempt to define the citizen’s duty of fairness to the agency, I will suggest, again, without setting a rigid rule, examples of duties that derive from the duty of fairness.

 

            In my opinion, the duty to act with the speed appropriate to the circumstances derives from the duty of fairness. The agency owes such duty to the citizen. See sec. 11 of the Interpretation Law, 1981. See also HC 135/71 Fresman v. Traffic Supervisor [25] at 540. In my opinion, the citizen owes a similar duty to the administrative agency.

 

            Similarly, the requirement that a citizen not shirk obligations that he or she has undertaken to the agency derives from the duty of fairness. See e.g. HC 1930/94 Nathan v. Defense Minister [26], p. 655 and thereafter.

 

            Elsewhere I noted an additional example:

 

It is a question whether a person who alleges that an agency is acting outside the scope of its authority may suppress that allegation, only to raise it later, if and when it becomes convenient to do so. For example, may a person choose to wait and see how the agency decides: to keep quiet if it decides in his or her favor, not saying a word about authority, but if the agency decides against him or her, to argue that the action was ultra vires from the outset? That question remains open. In my opinion, the right rule is that a person who has allegations against an administrative agency must compile them and present all of them to the agency at the earliest opportunity to do so, rather than suppress part of them until he or she feels like raising them. That rule applies to an allegation of ultra vires actions. Such an allegation means that the agency must remove itself from the case and that perhaps another agency can and must deal with it. It is inappropriate to let the administrative agency continue to take the trouble, and possibly to trouble others, for a pointless discussion.  We might say that alongside the agency’s duty to treat the citizen with fairness, a parallel duty is imposed on the citizen to treat the agency with fairness. The duty of fairness obligates a citizen who claims that an agency acted without authority to raise that claim at the earliest opportunity.

2 I. Zamir, Hasamchut Haminhalit [79] at 696-97.

 

The Duty to Disclose

 

            27. The duty of fairness is the source of the duty to disclose information material to the matter at hand. This duty is owed, first and foremost, by the administrative agency to the citizen. It is expressed in the agency’s obligation to hear the citizen before making a decision that could harm his or her interests. As Justice Barak said in HC 656/80 Abu Romi v. Health Minister [27] at 189:

 

The right to a hearing is not properly observed unless [the agency – trans.] brings information that has been received in the citizen’s case to his or her attention and provides an opportunity to respond to it appropriately.

 

            It is also expressed in the agency’s duty, in certain circumstances, to grant a citizen access to the agency file connected to his or her case. As Justice Witkon said in HC 337/66 Estate of Kalman Fital v. Assessment Committee, Town of Holon [28] at 71-72:

 

A legitimate administration in a free society does not approve of all of this ‘secrecy,’ which erects a barrier between the government and the citizen ....

 

The petitioner’s demand [to see the agency file – I.Z.] is justified, not just because his right to access the documents stems from the provisions of the statute, but – and primarily – because the common sense and elementary fairness in the public relations between government and citizen inexorably lead to this conclusion.

 

The agency’s obligation to disclose information to the citizen has been expressed in additional contexts, in legislation and in case law, and it continues to develop.

 

            28. The citizen also owes a duty to disclose material information. As noted, in private law, a citizen owes a duty of disclosure to other citizens, as part of the duty to act in good faith. Para. 17, supra. A citizen who petitions the court for a remedy against an administrative agency also owes that duty. For example, President Shamgar discussed that duty (which is part of the duty to act with clean hands) in HC 421/86 Ashkenazi v. Transportation Minister [29] at 410:

 

A primary rule that has always guided this court is that someone who petitions the High Court of Justice must disclose all relevant facts to the Court. Someone who conceals facts that bear on the petition does not deserve a remedy from the Court.

 

            The citizen bears a similar duty to the administrative agency, not just in the field of private law, but also in public law. That duty may be imposed by legislation, as a condition of receiving a certain license or benefit. However, even if there is no statutorily-imposed duty, it exists under the common law as an expression of the duty of fairness. Fairness does not tolerate a situation in which a citizen seeks a license or benefit from an administrative agency to which he or she is not entitled or in some other way tries to influence the agency’s decision through misrepresentation, including by concealing information. Disclosure of material, reliable information by a citizen applying to the agency is not just a moral imperative, it is also a practical need. After all, an agency must make its decision based on the relevant considerations. If the citizen conceals material information, it is likely to eliminate relevant factors from the agency’s awareness, obstruct the work of balancing considerations, and distort the agency’s decision. As a result, the agency is likely to make a wrong or perhaps even illegal decision, to the detriment of the public. For example, it may grant a license to someone who is not qualified, or give a money grant from the public treasury to someone who is not eligible. Hence the rule, derived from the duty of fairness, that a citizen must disclose to the agency material and reliable information related to the issue at hand.

 

            29. The Court articulated this rule in HC 727/88 Awad v. Religious Affairs Minister (hereinafter – the Awad case) [30]. There, the Minister of Religious Affairs authorized the appointment of the petitioner as chair of the religious council in Rosh Haayin. The minister later discovered that the petitioner had been convicted of stealing in the course of his job as treasurer of the religious council. The minister rescinded his approval of the appointment, and the petitioner challenged that decision. The Court held that a candidate’s qualifications for a job, including whether he has a criminal past, are relevant considerations that the minister properly took into account in deciding about the appointment. Justice Barak added:

 

In formulating his position on these qualifications, the minister accessed a set of facts that did not comport with reality. The minister knew nothing about the petitioner’s conviction in the past. Moreover, under the circumstances, the petitioner had a duty to inform the local council about his conviction, and both the local council and the petitioner had a duty to inform the minister about the conviction. The duty of good faith and fairness require nothing less …

Id. at 492.

 

            30. What does the citizen’s duty to disclose material information to the agency require? At this stage, the answer is unclear. At this stage, the circumstances of each case will determine what the duty to disclose requires in that particular case. As time goes by, a clearer answer will surely arise from the case law. Even at this stage, however, the following thoughts emerge:

 

            (a) Regarding the scope: The duty does not necessarily apply to every relationship between the citizen and the administrative agency. It primarily applies to cases in which a citizen requests something from the administrative agency, such as a license, appointment, or other benefit, in contrast to cases in which the agency exercises power without being asked to do so by the citizen, particularly if such power harms the citizen. There may definitely, however, be exceptional cases in which the scope of the duty expands or contracts, depending on the special circumstances of each case.

 

            (b) Regarding the substance: The citizen is only obligated to give the agency information that he or she has or can access and that is relevant to the issue at hand. Such a consideration should be taken into account by the agency, and it may affect the content of the decision. In other words, the citizen need not give the agency information about an irrelevant consideration, which the agency, in any event, is barred from taking into account.

 

            (c) The relevant considerations are often numerous and diverse, some of which are primary and some of which are secondary. Generally, as a practical matter, the agency cannot and is not required to take all relevant considerations into account, but rather only the primary ones. There is therefore no need, and it would be impractical, to require the citizen to disclose all relevant considerations to the agency, with no exceptions. It suffices if the citizen discloses the primary considerations that could substantially influence the agency’s decision. The citizen, like the agency, must behave reasonably. In other words, the right test for the level of disclosure is the test of the reasonable citizen, and perhaps more accurately, the test of the reasonable and fair citizen.

 

            (d) The citizen’s duty to disclose does not exempt the administrative agency from its duty to do its own check of the facts that form the basis for its exercise of authority.

 

            31. An additional question of great practical importance is the question of the consequences of the citizen’s breach of this duty. Does a breach of the citizen’s duty to disclose necessarily lead to revoking the agency’s decision? The answer is no. The consequences of breaching the duty depend on every case and its circumstances. In some cases, the breach may justify revoking the decision, whether it’s a decision to give a license, award a pension, make an appointment, or do something else; in other cases, the breach may justify changing an aspect of the decision, declining to renew the license, or another choice that does not rise to the level of revoking the original decision; and sometimes, the circumstances will not justify making a change to the citizen’s detriment.

 

As a matter of principle, on this issue and for others, we should distinguish between breach of a duty and the implications of the breach. That is the case when an administrative agency breaches a duty; not every breach voids the decision. On this issue, I noted:

We should distinguish carefully between a rule obligating an administrative agency and the remedy that the court grants for violating the rule. The rule exists on one plane, and the remedy on another. Ex poste, the considerations that the court weighs may differ from the considerations binding the agency ex ante. Therefore, the agency should fulfill its duty under the case law to grant a hearing, without regard to the anticipated or potential result of breaching the duty.

HC 2911/94 Baki v. Interior Ministry Director-General [31] at 304.

 

            See also HC 2918/03 City of Kiryat Gat v. State of Israel [32] at 848.

            32. The same is true of a citizen’s duty of disclosure owed to the administrative agency – we should distinguish between the duty to disclose and the implications of breaching that duty. The duty of disclosure exists in its own right, and the citizen is not exempt from it, even in circumstances in which breaching the duty would not justify voiding the agency’s decision or taking other steps against the citizen. The set of considerations requiring the citizen to fulfill the duty differs from the set of considerations guiding the agency (or, at the stage of review, the court) in its response to the breach.

            Any response to a citizen’s breach of duty must take into account the need to respect and carry out administrative decisions. The administrative decision may grant a right to a citizen or create an expectation upon which he or she relies, and denying that right, frustrating that expectation, or undermining either of them by voiding or changing the decision should be done only after seriously considering the matter. Which considerations come to bear on the duty of disclosure?

            First, it matters what information the citizen failed to disclose to the agency. Was it of primary or secondary importance for the matter at hand? Was it information that the citizen had, should have had, or should have taken the trouble to obtain? Was it information of which the agency was aware or should have been aware from its own sources, or information that, by its nature, is available to the citizen but not the agency? The important question here is whether the citizen’s disclosure of the information was reasonably likely to have changed the agency’s decision. If the information is a relevant consideration of substantive importance, and the agency did not take it into account before making the decision, then the decision is flawed, irrespective of the citizen’s breach of the duty, and that flaw is sometimes enough to justify voiding the decision.

            An additional consideration of substantial importance concerns the citizen’s intention.  Do the circumstances indicate that the citizen intended to mislead the agency in order to influence its decision, or did the citizen willfully remain blind or act negligently? If so, breach of the duty is very serious, and in some cases may even rise to the level of criminal behavior. In any event, in a case like that, the citizen’s reliance interest becomes so weak as perhaps to disappear entirely. A citizen who knowingly misleads the agency, knowing that the agency’s decision will be based on the misinformation, cannot use his or her reliance interest to prevent the agency from changing or voiding its decision.

            Similarly, it is always relevant to consider the harm to the public interest that is likely to result from the citizen’s breach of the duty, weighed against the damage that the citizen will likely suffer if the agency changes or cancels its decision.

            There may be additional considerations. Consider, for example, HC 135/71, supra [25]. In that case, the Traffic Supervisor decided to revoke a taxi license after finding out that in applying for the license, the license-holder gave misleading information about the period of time in which he had worked as a taxi-driver. Acting President Sussman said:

The petitioner misled the agency about the time in which he had worked as a taxi-driver. That mistake is what led the agency, against the rules, to award him more points than he was entitled to receive. Had the agency known the truth, it would not have awarded him the license. Just as a contracting party who is misled may void the contract, so too, in administrative law, can an agency revoke a license it granted, if it did so because of fraud or misrepresentation …

Id. At 539.

            Nevertheless, the Court held that, under the circumstances of that case, the Traffic Supervisor erred in revoking the license. Why? Primarily “because the respondents failed to act with the required promptness. They delayed the matter too long, for no reasonable purpose.” Id. at 541.

            Whether the administrative agency may revoke the decision, change its terms, refuse to renew a license or take other action against a citizen who violated the duty to disclose depends on the balance of the relevant considerations. It is incumbent upon the administrative agency to exercise caution before taking action against a citizen who violated the duty of disclosure, to make sure it does not shirk the proper execution of its job, does not treat the citizen’s minor violations strictly, as if they were major, and does not cause more harm to the citizen than is warranted by the circumstances.

            What, then do the circumstances warrant in the case before us?

 

The Case at Bar

 

33. The case at bar requires us to examine two claims which, according to the Customs Authority, justify its refusal to renew the petitioner’s license. Supra para. 13. The first claim concerns the petitioner’s rights in the land for which the license was granted: the Customs Authority was justified in refusing to renew the license once it learned that the petitioner had no rights in the land, as required by the Regulations. The second claim concerns the petitioner’s duty of disclosure owed to the Customs Authority: the petitioner breached its duty when, prior to receiving the license, it failed to disclose material information about its rights in the land to the Customs Authority. According to the Customs Authority, the very breach of that duty justifies refusing to renew the license.

 

34. First, regarding the petitioner’s rights in the land: As mentioned, under the Regulations, a license applicant must declare to the Customs Authority that it is the owner, renter, or lessee of the land for which the license is requested. Supra para. 9. That right in the land is, according to the Regulations, a condition of or at least a relevant consideration in applying for the license. Did the petitioner have such a right?

 

When asked by the Customs Authority to produce a rental agreement or lease for the land, the petitioner sent the contract. Supra para. 10. The contract, however, is neither a rental agreement nor a lease, and it does not appear to be one either on its face or upon close scrutiny. Indeed, the petitioner itself does not claim that the contract, by itself, grants a right to rent or lease the land. Paragraph 12 of the petition says that, “the contract itself contains no explicit prohibition against the petitioner storing freight in the area.” Of course, the absence of an explicit prohibition on storage is not the same as the petitioner’s receiving permission to store freight on land that doesn’t belong to it. Does the contract grant that permission? The petitioner fails to point to a single clause of the contract that says that the petitioner was granted a right to lease or rent or even permission to store freight on the land. Moreover, paragraph 13 of the petition says that, “After signing the agreement, the representatives of the P.A. [Port Authority – I.Z.] and the petitioner’s representatives reached an agreement that … among other purposes, the area would be used for storing freight.” In other words, the agreement on storage was reached only after the contract was signed. Paragraph 29 of the petition says that, “The understanding regarding the size of the area, its boundaries, and its designations was reached after the signing.” The petitioner, however, in response to the Customs Authority’s request to produce a rental or lease agreement, produced only the contract, as though it granted it a right to rent or lease the land. It added nothing about an agreement or understanding reached after the contract was signed. In other words, to the Customs Authority, the petitioner produced only the contract, as though it granted it a right of rental or lease, even though the petitioner itself acknowledged that the contract granted no such right, and that is the right that the Regulations require.

 

It is therefore necessary to clarify whether the petitioner was granted such right, as it claims, after the contract was signed. Recall that according to the appendix to the contract, signed along with the contract, the petitioner may use the land “exclusively for the purposes of loading and/or unloading trains” and that, “Any change of any kind to the plot and/or anything attached and/or connected to it requires the advance written approval of the Director-General of Israel Railways.” Supra para. 4. The petitioner, however, does not claim to have any such permission from the Director-General of Israel Railways or from anyone else authorized or pretending to be authorized to write on behalf of the director-general.

 

Moreover, on January 1, 1996, a year and a half after the contract was signed, the Railways Deputy told the petitioner in writing that it was not permitted to use the land for purposes other than loading and unloading, that “[s]eizure and use of the land constitute a violation of the contract,” and that “[y]ou must immediately vacate the areas noted above.” Supra para. 7. One would think that the petitioner, consistent with its version of the story, would rush to tell the Railways Deputy that the agreement reached after the signing of the contract gave it a right to store freight on the land. However, the petitioner failed to respond to the letter entirely. Only two months later, in response to an additional letter sent by the Railways Deputy, did the petitioner address the question of use of the land. In that response, however, it did not claim that there was no basis for the charge of contractual violation or that there was no basis for demanding that it vacate the land, because it was using the area pursuant to an agreement. The Director-General of the petitioner wrote to the Railways Deputy, saying only that, during the course of the last meetings on the subject, “to the best of my recollection, we agreed to find a way to resolve the issue.” Even afterward, in the months during which the Port Authority repeated its demands that the petitioner immediately vacate the land, the petitioner never said that it had a right of rental or lease in the land or that it had a right to fence in the land and use it to store freight. Supra para. 7.

 

During the course of this petition, the petitioner had another chance to produce proof about its right to rent or lease the land. Bear in mind that the petitioner is challenging the Customs Authority’s refusal to renew its license for the land, after the Customs Authority concluded that the petitioner did not and does not have a right in the land. How does the petitioner respond to this stance of the Customs Authority? Its answer is based on two claims, outlined in paragraph 30 of the petition:

 

The scheme clearly contains a notation that the area in question is intended for storage. That document was signed by the Director of the Engineering Department in the P.A./Israel Railways, and the petitioner claims that it is binding in every way. This scheme comes in addition to the oral understandings and agreements reached between the P.A. representatives and the petitioner, and together they constitute the basis for the extensive project and investment undertaken in reliance on the [written – trans.] agreement and the additional agreements and understandings.

 

The petitioner, however, provides no details whatsoever about those agreements and understandings (who agreed or understood, what was agreed or understood, etc.), and it provides no documents to support that claim. It merely makes the claim, which is unsupported by the correspondence between the petitioner and the Port Authority and has no weight as a evidence. We should further recall that, according to the contract, the oral agreements and understandings that the petitioner claims took place are insufficient to authorize transferring a large piece of land to the possession and use of the petitioner, contradicting the contract’s explicit provisions, including the provision requiring “the advance written approval of the Director-General of Israel Railways.”

 

            The sole piece of evidence left for the petitioner is the scheme, that is, the second scheme from May 15, 1995, in which the area of land is marked as “storage area.” Supra para. 3. The petitioner presents the second scheme (signed a year after the contract was signed) as if it were the only scheme. That is not the case. The first scheme was prepared as early as January 3, 1994 (a year and a half before the contract was signed) and signed by the petitioner and two deputies director-general of the Railways, who also signed the contract itself. The first scheme outlines the route of the extension, and it includes no marks designating land use, whether for storage or any other purpose. The second scheme was prepared, as noted above, a year and a half later, by the petitioner’s planner, in order to mark the new extension route proposed by the petitioner. It was signed not by the two deputies director-general who signed the first scheme, but rather only by the Director of the Railways Engineering Department.

 

            The petitioner claims that the second scheme is proof that the Port Authority agreed to let it use the land for storage. The Port Authority counters that in signing the second scheme, the Director of the Israel Railways Engineering Department intended only to approve the new route of the extension from an engineering point of view and not to approve the use of the land, something he was neither involved in nor even authorized to decide. In paragraph 7 of its response affidavit, the Port Authority claims that:

 

According to what he told me, all that Mr. Doron Rubin, Director of the Israel Railways Engineering Department, was asked to do was to sign the back of the scheme from 1995, to indicate approval of the extension route from an engineering point of view. Under these circumstances, claiming that his signature granted rights in the land to the petitioner, just because the petitioner’s planner added the words “storage area” in the margins of the plan, without bothering to call it to Mr. Rubin’s attention, is pure temerity, and it stems from a failure to behave in good faith.

 

            35. Are these claims and evidence enough to rule that the petitioner has no right in the land? Definitely not. Whether the petitioner has a right in the land is an open question, currently pending before the Magistrate’s Court in Ashdod, as part of the action of ejectment brought by the Port Authority against the petitioner. The Magistrate’s Court will rule on that question in light of the arguments and evidence brought before it. Supra para. 8. That, however, is not the question that the Customs Authority faced, and it is not the question before this court. The question before us is whether, in considering whether to renew the license, the Customs Authority had sufficient evidence to decide the issue. As is known, the evidence required to base a decision by an administrative agency differs in substance and in weight from the evidence required to base a judgment by a court. Administrative agencies act according to the test of administrative evidence, not the rules of evidence used in court. Under this test, the administrative agency must have before it sufficient evidence upon which a reasonable person would rely, under the circumstances, in order to make the decision in question. See HC 442/71 Lansky v. Interior Minister [33] at 357; HC 987/94 Euronet Golden Lines (1992) Ltd. v. Communications Minister [34] at 423-24. Such evidence may be sufficient to form the basis for a refusal to renew a license or a revocation of the license. See e.g. HC 475/81, supra [6] at 808.

 

            In my opinion, under the test of administrative evidence, the Customs Authority could have decided at the outset that the petitioner had no right in the land, as required by the Regulations for receipt of a license. The contract itself, which on its face is neither a rental or lease agreement, would have been sufficient evidence for that decision. A fortiari, it would have been sufficient afterward, in view of the Port Authority’s opposition to the petitioner’s seizure and possession of the land. Under the test of administrative evidence, the evidence, which would have been sufficient for a refusal to grant the license at the outset, is also sufficient to determine, for purposes of renewing the license, that the petitioner has no right in the land, as required by the Regulations.

 

            The conclusion is therefore that the Customs Authority granted the license to the petitioner based on a mistake caused by the petitioner’s representation regarding its right in the land. Once the mistake was discovered, and it became clear that, under the Regulations, the petitioner was not entitled to the license, the Customs Authority had the grounds needed under the case law to refuse to renew the license or even to revoke it.

 

            36. Nevertheless, under the facts of this case, I have doubts as to whether these grounds by themselves are sufficient to justify the Customs Authority’s refusal to renew the license for the land. My doubt stems from two sources: First, the Customs Authority is not absolved of responsibility for the mistake that, once discovered, motivated it to decline to renew the petitioner’s license. As noted, when the petitioner applied for the license, the Customs Authority asked it to send a rental or lease agreement for the land, and it sent the contract. The contract, on its face, is neither a rental nor a lease agreement, and that is obvious to a lawyer after a surface reading of it. However, the Customs representative who handled the petitioner’s application did not bother to read the contract at all. The Customs Authority explained that in paragraph 8 of its response affidavit:

 

The Customs Authority representatives who approved the petitioner’s request assumed, based on the relationship of trust that had developed between the two and in light of the assumption that the petitioner was acting in good faith, that the contract submitted by the petitioner indeed granted it storage rights in the area in question and that there was no reason not to approve the request.

 

            This explanation does not absolve the Customs Authority of responsibility. In every case, the Customs Authority, like any administrative agency, must take reasonable steps to clarify whether the conditions set by the statute or regulations for its exercise of authority have been met. This is the administrative agency’s duty owed to the public, which has endowed it with authority, subject to certain conditions. The agency may not exempt itself of the responsibility to investigate those conditions just because it assumes, hopes, or trusts that the citizen will act in good faith.

 

            Furthermore, the citizen can assume that the agency conducts a reasonable investigation of the conditions necessary to exercise its authority, and that if the agency grants the request, the citizen may generally rely on the that decision. As Justice Barak said:

 

A license grantee may assume that the necessary checks were done and that the he or she may begin investments and activities without fear that everything will be re-opened just because of a mistake. There is another reason, and it is connected to proper public administration. Administrative agencies should establish a system of checks and investigations that will allow it to arrive at its stance in advance, before the license is granted. Only under an illegitimate and dangerous system of administration would the agency first grant a license and only afterward investigate.

HC 799/80, supra [5] at 331.

 

The question therefore becomes whether, under the circumstances of this case, the mistake regarding the petitioner’s rights in the land was sufficient to justify the Customs Authority’s refusal to renew the license.

 

The second source of doubt is the fact that the balance of damages seems to tip toward the petitioner. On the one hand, the petitioner invested a lot of money in preparing the land to serve as a licensing warehouse, negotiated with clients, has operated the warehouse for months, and will certainly suffer substantial damage when forced to stop using the land as a licensing warehouse, particularly if it is forced to do so immediately. On the other hand, what damage would result if the petitioner continues to use the land as a licensing warehouse until the civil court rules on the Port Authority’s action to eject the petitioner from the land? From the point of view of the Customs Authority, there is no practical damage, because the land has been properly prepared for use as a licensing warehouse, and only the question of the petitioner’s rights in it remains open. There is therefore no concern that the petitioner will store goods on which customs duties are owed unsafely or unsupervised. What of the damage caused to the Port Authority? Such damage does not appear to be a relevant consideration for the Customs Authority’s decision whether to renew the petitioner’s license. In any event, should the civil court rule that the petitioner has no right in the land and that it is occupying the land as a trespasser, the Port Authority may, should it so desire, sue the petitioner for money damages in the form of the appropriate amount of rent, purging the petitioner of unjust enrichment, or request any other remedy.

 

If that is the case, should the Customs Authority renew the petitioner’s license temporarily, pending the civil court’s ruling on its right in the land? In the final balance, were I required to rule on this case based exclusively on the question of the right in the land, I think that I would rule against the petitioner, despite my doubt. The primary reason is that, based on the administrative evidence, the Customs Authority’s granting of the license was not just an error in judgment but was actually illegal, because it contradicted the Regulations requiring that a license-holder have a right in the land. In principle, an administrative agency is not supposed to accept an illegal situation. Indeed, if it were a question of freezing the current situation for just a brief period, pending a final ruling on the question of the right in the land, it would have been possible to maintain the status quo, out of consideration for the damage that the petitioner would otherwise suffer. In practice, however, years may pass before the courts will give a final ruling, including on any appeals. It would not serve the public interest to allow the petitioner, which apparently received the license in violation of the Regulations, to maintain the license and benefit from it for a long period of time, while the authorized agency is helpless to correct the problem. Therefore, as noted, if I had to rule on this case based on this reason alone, I think that, despite the doubt, I would deny the petition.

 

However, if any doubt remained about whether this reason is sufficient to justify the Customs Authority’s refusal to renew the petitioner’s license for the land, the second reason, namely breach of the duty to disclose, removes any doubt I might have harbored.

 

37. As noted, as part of the petitioner’s duty to disclose owed to the Customs Authority, the petitioner had an obligation to disclose information material to the license requested. Supra text beginning on para. 27. I have no doubt that the petitioner violated that duty.

 

This was the case from the petitioner’s first step in this case. When asked by the Customs Authority to produce a “rental contract or lease” for the land, the petitioner sent the Customs Authority the contract (in December 1995), noting in its cover letter that, “Enclosed is the rental/lease agreement with the Port Authority and the Railways.” However, as noted, that contract is neither a rental agreement nor a lease. Even the petitioner acknowledges in its petition that its claim to a right in the land is based on understandings and agreements made later. Supra para. 34. The petitioner, however, did not tell the Customs Authority that its right in the land derives not from the contract but rather from later understandings and agreements. Had it said that in the letter sent to the Customs Authority, the Customs Authority would likely have sought to clarify what those understandings and agreements are and why they are not included in the appendix to the contract or in another document.

 

Moreover, the petitioner sent the contract to the Customs Authority without attaching the first scheme, which presents the extension route as it was first established. Supra paras. 2-3. Therefore, the picture presented to the Customs Authority was incomplete and inaccurate. Had the petitioner attached the first scheme as well, which left a smaller area between the extension and the warehouse, along with an explanation about the change in the route, the Customs Authority might have investigated and discovered the situation as the Port Authority viewed it.

 

In any event, the petitioner knew very well that the Customs Authority required it to have a right of rental or lease in the land, and that after it submitted the contract, the Customs Authority believed that the petitioner did indeed have such a right.

 

Even if the petitioner believed it had such a right, not long after it submitted the contract to the Customs Authority, it learned that the Port Authority thought otherwise. The letter sent to the petitioner on January 8, 1996 said, in the name of the Port Authority, that the petitioner had seized the land in violation of the contract and that it must immediately vacate the land. The Port Authority repeated that stance over and over for a period of months. Supra para. 7. During that time, the petitioner’s application for a license was pending before the Customs Authority until it decided, on July 1, 1996, to grant the license requested. The petitioner should have known, if it did not in fact know, that this information about the stance of the Port Authority was material to the Customs Authority’s decision on its application for a license. The petitioner itself submitted the contract to the Customs Authority as proof of its rental or lease right in the land. That being the case, during the months in which it engaged in regular communications with the Customs Authority about the license, how could the petitioner have neglected to inform it that the other party to the contract vehemently denied that the contract imparted any such right whatsoever to the petitioner?

 

If the case involved private individuals, we might have said that the petitioner was obligated to disclose that information to the other party as part of its duty to act in good faith during negotiations leading to the formation of a contract, under section 12 of the Contract Law (General Part), and that the other party could consider the failure to disclose as a misrepresentation under section 15 of that law and therefore void the contract. In this case, because we are dealing with an administrative agency and not a private individual, we can say that the petitioner breached its duty owed the Customs Authority to disclose material information.

 

Violation of the duty to disclose may result from a random mistake or from deliberate misrepresentation. It is often difficult to distinguish between the two, and in any event it is difficult to prove that the violation resulted from that latter. Generally, however, there is no need to prove that. It is sufficient that, under the facts of the case, the citizen, as a reasonable and fair person, had a duty to disclose the material information to the agency, and that the citizen’s violation of such duty caused the agency to be misled.

 

38. Misleading an administrative agency by a citizen’s failure to disclose information material to its application for a license or other benefit causes substantial harm, not just to the agency but also to the public. It is clearly in the public interest to avoid such misrepresentation. The public also has an interest in revoking a license or other benefit given by the agency as a result of such misrepresentation. Such misrepresentation, if it is not de minimus, is therefore likely to justify a decision by the administrative agency to revoke the license or other benefit granted, especially if there are grounds to believe that the agency would not have granted the license or benefit, but for the misrepresentation.

 

This is the case before us. The Customs Authority says that, had the petitioner disclosed the full picture of its rights in the land, either at the start of the license application process or at any time before the decision was made, it would not have given the petitioner the license it requested. This claim is persuasive.

 

The consequence is thus that the Customs Authority’s refusal to renew the petitioner’s license for the land was justified.

 

I therefore conclude that the petition should be denied, and the petitioner should pay court costs.

 

Addendum: Person and State

 

39. Finished but not complete. President Barak responds to me: He agrees with the outcome I reach but not with the route I take to reach it. As for the result, he agrees that the petitioner owes the Customs Authority a duty of disclosure, that it violated such duty, and that the petition should therefore be denied. As for the route, he does not agree that the duty of disclosure imposed upon the petitioner derives from a general duty of proper behavior owed by the citizen to the public administration. In his opinion, the duty of disclosure is circumscribed, and it is wrong and perhaps even dangerous to impose a general duty of proper behavior on the citizen, toward the public administration.

 

Because there is no dispute over the outcome, the dispute over the way to get there may seem abstract and marginal. In actuality, however, it is a dispute of principle and importance. It reflects a difference in world views about the nature of the state or, at least, the proper relationship between a person and the state.

 

What is the proper relationship between a person and the state? The point of departure is rooted in the general rule, which is essentially the basic rule of jurisprudence, that every person, including every legal entity, must behave properly in every case, according to the circumstances. That, in my opinion, is the entire body of jurisprudence in a nutshell. As for the rest: go and learn. Indeed, jurisprudence has developed an extensive system of different rules for the proper way to behave in various situations. Beyond those rules, however, and in addition to them, there is a general duty of proper behavior.

 

In private law, which governs relationships between individuals, the general duty is a duty of good faith. That duty applies to contractual relations as well as to other legal acts. It can serve as a conceptual explanation for the existing rules, a legal source from which new rules are derived, and even a duty in itself.

 

In public law, which governs relationships between an individual and the public, the duty is customarily called the duty of fairness. Like the duty of good faith, the duty of fairness requires proper behavior under the circumstances of the case.

 

There is no dispute that the public administration owes a duty of fairness to the citizen. Does the citizen, however, owe a parallel, if not identical, duty to the public administration? The Court has yet to address that question. Now that it has come before us and created a dispute, I see fit to add a few words to explain my position.

 

            40. President Barak does not see a justification for imposing on the citizen a duty of fairness parallel to that owed by the public administration, because the relationship between the citizen and the public administration is asymmetrical. I agree that there is no symmetry. However there is, or at least ought to be, reciprocity.

 

            There is no symmetry because the public administration is the trustee of the public, meaning that of every citizen, while the citizen is not the trustee of the public administration. To clarify: the loyalty owed by the public administration to the citizen is not a legal duty. It is not even a legal relationship. In that way, it differs from the duty of loyalty in private law. In public law, as opposed to private law, loyalty is just a conceptual duty. It expresses the idea that the public administration draws its authority from the public and must exercise that authority for the sake of the public, in the way that public decides. Inter alia, it must exercise its authority with fairness. Various duties owed by the public administration to the citizen arise from fairness, including the duties that the legislature imposes and those that the courts impose.

 

            The citizen, on the other hand, is not the trustee of the public administration but rather the beneficiary. Obviously, then, the citizen’s legal duties owed the public administration cannot be identical to the legal duties owed by the public administration to the citizen. However, it is just as clear that the citizen is not exempt from owing legal duties to the public administration. The citizen is subject to various legal duties imposed by the legislature and by the courts. For example, it is agreed that the citizen must produce a driver’s license to a police officer; may not insult a public servant; and must disclose material information to an agency from which he or she applies for a license to operate a business. These and other duties are not imposed upon the citizen arbitrarily. They are supposed to express the proper way for the citizen to treat the public administration. In that way, they share common ground – a general duty of proper behavior. That duty constitutes a central ingredient in the culture of our lives. It is also necessary for society to function efficiently and legitimately. What, then, is that duty, and how is it distinct from the duty which the public administration owes the citizen?

 

            41. As a conceptual matter, the duty of loyalty owed by the public administration to the citizen is expressed in legal duties which can be roughly divided into three groups: first, authority; second, reasonableness; and third, fairness.

 

            On the issue of authority, every administrative agency has a duty to refrain from exceeding the bounds of its statutorily delineated-power. That is the duty of authority in the broad sense. The duty of authority, in this sense, requires the agency to do only what the statute authorizes it to do, using only the means that the statute authorizes it to use. It includes, for example, the duty to consult with a certain body or to receive authorization from another body, depending on what the statute stipulates. That duty, of course, does not apply to the citizen, who has not been granted authority by the statute.

 

            In addition, the administrative agency has a duty to act, not just within the bounds of authority defined by the statute, but also with reasonableness. That is the duty of reasonableness in the broad sense. The duty of reasonableness, in this sense, tells the agency to exercise its discretion properly. It is composed of two secondary duties: the agency must exercise its authority for a proper purpose; it must consider the relevant considerations and ignore the irrelevant ones; it must give each relevant consideration the proper weight and balance the various considerations (that is the duty of reasonableness in the narrow sense); and it must not harm the citizen to an extent greater than necessary. The citizen also does not owe the duty of reasonableness, because such duty relates to the discretion entailed in authority [which has been delegated – trans.], and the citizen has no such authority.

 

            The duty of fairness relates to the administrative process, meaning the way in which the administrative agency exercises its authority vis à vis the citizen. It is expressed in various duties, like the duty to conduct a reasonable investigation into the circumstances of the case, to lend an ear to the claims of the citizen, to allow the citizen to access documents concerning the matter at hand, and to explain its decision. The common denominator in these duties is the duty to behave properly toward the citizen. It is commonly said that such duty derives from the duty of loyalty that the public administration owes the citizen. That is true, but it is not the only source. The status of the agency as the trustee of the public adds another dimension to this duty, but the duty, at its core, derives from a different source. It derives, first of all, from the basic duty of proper behavior in societal relationships, which includes fairness. Because it derives from this duty, which is not unique to the relationship between the public administration and the citizen, it can apply to the public administration’s duty to the citizen as well as to the citizen’s duty to the public administration.

 

            There may therefore be uncertainty over whether the duty of fairness, as opposed to the duty of authority and the duty of reasonableness, creates a parallel duty which the citizen owes the public administration. President Barak answers that question in the negative. However, his answer gives the duty of fairness a broad meaning. It includes the duty of procedural fairness but also substantive fairness, like, for example, the duty not to discriminate and not to work for an illegitimate goal. In my opinion, the duty of substantive fairness, which concerns administrative discretion, is not part of the duty of fairness but rather part of the duty of reasonableness. That duty is obviously not imposed on the citizen, because the citizen has no authority and therefore cannot be obligated to consider the relevant considerations or fulfill other conditions of exercising authority.

 

            The dispute between President Barak and me is limited to the question of whether the citizen bears a general duty of proper behavior toward the public administration within the field that President Barak refers to as procedural, as opposed to substantive.

 

            42. President Barak objects to imposing a general duty of proper behavior on the citizen vis à vis  the public administration, irrespective of its nature and scope, on two primary grounds: one concerns the reason, and the other concerns the result.

 

            President Barak believes that, first of all, the reason which leads to imposing a duty of proper behavior on the public administration, owed to the citizen, does not lead to imposing a parallel duty on the citizen, owed to the public administration. “A general duty like this,” he says (in paragraph 8), “is inappropriate.” Why? The major reason is this:

 

… The view that the government is the trustee of the public is the basis for imposing a general duty of fairness that government owes to the individual. This view is based on a democratic perspective which puts individual liberty at the basis of the social structure. These reasons for imposing a duty do not exist in a relationship between the individual and the government. The individual is not the trustee of the government … the proper perspective on democracy means that there is no room to impose a duty of fairness that the citizen owes the government. Imposing a general duty of fairness would radically alter the perspective on democracy and the place that the individual occupies within it.

Para. 6.

 

 

            What, however, is the proper perspective on democracy? Obviously, there are many perspectives on democracy – from popular democracy to Western democracy; from formal democracy to substantive democracy; and within substantive democracy, there are different perspectives on what the substance is. There is no dispute that the State of Israel is not just a formal democracy that makes do with choosing representative institutions every few years, primarily the legislative and executive branches. The State of Israel is a substantive democracy, all of whose representative institutions are guided by basic values, at the center of which is human dignity and liberty, in order to serve the human being as a human being. The Court has used that perspective on democracy to establish basic human rights, develop them, and defend them against violation by other institutions. However, even within the context of substantive democracy, with human rights as the consensus, there may still be different perspectives on the proper relationship between the state and the individual.

 

            President Barak believes that, “A democratic regime is based on the recognition of each individual’s human rights … the role of the government is to maintain a society that respects human rights.” Para. 3, infra. Indeed currently, that is the prevalent perspective on the democratic regime here. In my opinion, however, it only captures part of it. A democratic regime is more than recognition and protection of human rights. Human rights are indeed a value of the utmost importance, but they are not the only value. A person is more than a bundle of rights. A person is also a bundle of needs, proclivities, and aspirations. We cannot, therefore, say that the role of the government is to respect human rights – period. That is indeed a role of the utmost importance, but it is only one role among others. In the same breath, we must also say that an additional role is to advance the well-being of people – all people. Another role is to achieve social justice – justice for all. Human rights are not supposed to overshadow personal well-being and social justice. Human rights must not be just for those who have enough. Every person must have enough, so that he or she can enjoy human rights, in actuality and not just by law. This role is integrated, and the government is not the only one who must fill it. It is, first and foremost, the role of society. In other words, each of us must fill that role. Need we fill the role by helping the public administration? Yes. May we shirk the role and impose it on the public administration? No. In fulfilling that role, each of us must take a system of duties upon himself or herself, not just toward other people but also toward society. That, in my opinion, is the proper perspective on a democratic society – rights existing side-by-side with duties. While there is no symmetry in the relationship between the individual and society, there is reciprocity.

 

            That is my view on the social contract. It is not a historical fact whose content is determinable, and it is not even a legal document whose meaning is debatable. The social contract is nothing but an idea that expresses the character that society should have. In my opinion, the desirable character of a society should guarantee not just human rights but also personal well-being and social justice. Toward that end, society does not make do with imparting people with rights; it also imposes duties upon them. That is the soul of democracy.

 

            The State of Israel is a Jewish and democratic state. The Court, as a branch of the state, must be guided by the very democratic values it simultaneously advances. It unquestionably does that and always has. The Court primarily develops and cultivates human rights. However, to be hand-on-heart honest, does it not do so at the expense of other values? The Court devotes it primary efforts and dedicates its first rung on the ladder of priorities to human rights. That is the case in practice, even more so in the rhetoric, and appropriately so: human rights should stand at the top of the ladder of priorities. However, the perspective on democracy as a government which protects human rights is a one-dimensional perspective. Democracy is more complicated and, frankly, better than that. The right perspective on democracy must put personal well-being and social justice together with human rights at the top of the ladder of priorities. The practice and rhetoric of the Court ought to reflect that perspective more clearly.

 

            43. In my opinion, President Barak’s perspective on democracy derives from a feeling of tension or even conflict between the state and the citizen. The state, through this perspective, is a regime that stands against the citizen. Indeed, the government of today is no longer what it was: it is not a totalitarian regime, either monarchical or colonial. Today, in a democracy, the government is the trustee of the people, and it therefore bears a general duty to take care of the public, which includes a duty to protect human rights. That perspective, however, still views the government as a body external to the citizen. It may be a new government, but it has grown from the roots of a totalitarian regime, meaning the roots of paternalism. Even today, the government is like a big brother or beneficent mother whose duty it is to take care of the child, while the child owes obedience and gratitude in return.

 

            This perspective is reflected in the very way we talk about the government. Indeed, the government as trustee. A government, at best, which is legitimate and enlightened. But still a government. It operates externally. And I, as a citizen, am subject to it. Fear its heavy hand. Ask that it leave me alone. Look for ways of restraining it.

 

            It is not the term which is determinative. The perspective is determinative. The term only reveals the perspective. Therefore, even if we find another expression, and replace “government” with “public administration,” nothing will change unless we change the perspective.

 

            44. I reject this perspective. I would like to see the state as a partnership. Of course, not a partnership in the private law sense, and not even a partnership as a legal relationship, but rather a partnership as a conceptual perspective which replaces the perspective of the state as a regime.

 

            According to this perspective, the state is the joint project of all citizens. It includes a division of roles. Those roles dictate the legal relationships. Civil servants play an important role, which entails authority and duties. It gives them control and obligates them as trustees. They are not, however, a regime above me. They are still our partners.

 

            The partnership perspective has implications for the system of rights and duties that apply to both the citizen and the public administration. The partnership is not limited to periodic elections in which the citizen empowers the Knesset and the government to manage national affairs as it sees fit for a few years, until the next elections. Partnership means giving the citizen a real opportunity to participate in the daily running of the country’s national life, and an opportunity, in practice, to act and influence on a daily basis, not just through elections. It requires more publicity and openness of the public administration; additional avenues for early consultation with the relevant bodies outside the public administration; willingness to incorporate those bodies in its regular activities. Administrative regulations stand out as an example. On a regular basis, ministers and other agencies issue a tremendous number of regulations, many of which have the same practical importance as statutes. Unlike the case of statutes, however, the agency authorized to issue regulations does not tend to publish a draft of the regulations and does not hold a public discussion before those regulations enter into force. That process reflects aspects of the government perspective. It is inconsistent with the partnership perspective. The partnership perspective advances democracy to a higher level. It correctly expresses the idea of rule of the people.

 

            The government perspective encourages the citizen to demand personal benefits from the government. It does not encourage the citizen to contribute to society. It tempts the citizen to think: I gave the government power and responsibility, and it should repay me with rights and services. It owes me. This is not a perspective of partnership.

 

            45. The partnership perspective also has implications for the duty that the citizen owes the public administration. The public administration is essentially a public servant. The public servant is flesh of my flesh. He or she works for me and for my benefit. We are partners who have different jobs within the state. According to that perspective, I owe a general duty of proper behavior to the public servant. It is inconceivable that I would owe such a duty such a duty to my employer, my neighbor, as a bus driver or shop salesperson (and it doesn’t matter if we call it good faith or anything else) but not to a public servant, who works for me and for my benefit. Such a duty arises obviously from the partnership relationship between the citizen and the public servant.

 

            I call this duty the duty of fairness. It is a term of convenience. It does not matter very much. We could also call it a duty of good faith. It means a general duty of proper behavior. Proper behavior is an elementary duty. All persons owe it to all other persons. In my opinion, perhaps even a fortiori, the citizen owes it to the public servant.

            The general duty of proper behavior, like the general duty of good faith, does not pretend to be a positive description. In reality, good faith is often lacking in interpersonal relationships. That does not, however, invalidate the duty. The duty is a legal norm, and it exists as such even when breached in practice. The same is true of the duty of fairness that the administrative agency owes the citizen. In reality, the administrative agency may not behave fairly toward the citizen. Nevertheless, and perhaps for that very reason, the duty of fairness is necessary as a legal norm. The norm sends a message, educates, and serves as a tool for adjudicating disputes. For this reason, we also need the norm of a duty of proper behavior owed by the citizen to the administrative agency.

            46. President Barak objects to imposing a general duty of proper behavior on the citizen, to the public administration, not just because he sees no conceptual reason to do so, but also because he is concerned about the practical consequence that will result. In paragraph 13, he says:

The theoretical basis determines how the arrangement develops. The theory determines the practice. In my view, the individual does not owe a general duty of fairness to the government, because such a duty would be inconsistent with the way we view the individual in society ... “Fairness” is a concept that may lead to the creation of duties whose nature is inconsistent with individual liberty in a democratic state.

            Indeed, theoretical perspectives have practical importance. However, the court is responsible for translating the theoretical perspectives into rules of behavior. That principle applies to the theoretical perspective on the duty of fairness owed by the public administration to the citizen. The Court used that perspective to say that various duties that have long been imposed on the public administration, such as the duty to hold a hearing and the duty to disclose, derive from the duty of fairness. The Court, however, has not imposed any additional duties just because they arise from the theoretical perspective on the duty of fairness. The Court will determine that a duty derives from the duty of fairness only after it concludes that the relevant considerations justify imposing such duty on the public administration.

            The same holds true in the opposite direction. In this judgment, the Court holds that, under certain circumstances, the citizen owes a duty of disclosure to the public administration. The Court established that duty by balancing the good of the public against human rights. Having established that duty, I suggest holding that it derives from the duty of fairness. This is the expected course of things. It is also the appropriate course. It may be presumed that if the Court determines that a citizen owes a general duty of fairness to the public administration, the theoretical perspective will not motivate the Court to impose a particular sub-duty on the citizen, unless it concludes that the relevant considerations justify it. It may also be presumed that the Court will only impose additional duties on the citizen through a careful and controlled process, exercising restraint, in order to maintain an appropriate balance in the relationship between the citizen and the public administration.

            47. Clearly, the system of rules derived from the citizen's duty of fairness will differ from the system of rules derived from the public administration's duty of fairness. The name may be the same, but the content is different. In this sense, there is no difference between the duty of fairness and the duty of good faith. For example, the duty of good faith owed by an agent to the principal differs from the duty of good faith owed by the principal to the agent. See para. 25, supra.

            However, in this case, President Barak and I do not dispute the content of the duty of fairness. On that question, I don't think we would disagree. In this case, we agree that, under certain circumstances, the citizen owes a duty of disclosure to the public administration. I expect that there are additional cases in which we would agree that the citizen does or does not owe additional duties. Our disagreement is not over one duty or another, but rather over a prior question which expresses a theoretical perspective: whether the citizen owes the public administration a general duty of fairness, regardless of what the content of that duty may be.

            48. In my opinion, the theoretical perspective that a citizen owes a general duty of fairness to the public administration causes no damage and poses no risk. To the contrary: this perspective adds a helpful theoretical and practical benefit to law and to society. It sends an appropriate message. Fairness is an appropriate message in every human relationship. That is true (in the garb of good faith) of the way people treat each other, and it is true (in the garb of fairness) of the way the public servant treats the citizen. Could it be possible that the way the citizen treats the public servant is the sole exception to this rule? As a person and as a citizen, I willingly assume a duty of fairness to public servants.

 

President A. Barak

            I agree with the result at which my colleague, Justice Zamir arrived: that the petition should be denied. That conclusion is based on the view that the petitioner violated the duty of disclosure owed to Respondent 1. My colleague also recognizes the petitioner's duty of disclosure. The difference in our positions concerns the source of that duty. My colleague sees the duty of disclosure as part of a general duty of fairness which the individual owes the government. I disagree. I will briefly explain my position.

            1. Today, it is universally agreed that the government owes the individual a duty of fairness. This duty is owed by anyone who wields governmental authority. It is owed to any individual, as part of his or her personhood. It applies to every governmental function (legislative, executive, judicial). At first, the legal system recognizes particular duties which the government owed the individual, such as the duty to hear opposing sides, the duty to give reasons, and the duty to behavior reasonably and not arbitrarily. After a while, the system sought and found a general principle at the core of each particular duty. This is the duty of fairness. See HC 840/79, supra [20] at 745. At first, it was just a principle that summarized the particular duties that had already been recognized. Later, it came to be recognized as a super-principal which gives rise to the various duties. The view is that the principle has a life of its own. It is not just a summary of the specific duties recognized in the past. Over the years, new duties that had not been recognized in the past arose from this principle. Indeed, that is – in the Viscount Simonds' words – the "genius" of case law. Scruttons v. Midland Silicones(1962) [72] at 7. It recognizes particular duties that, over time, come to be viewed as an expression of a general principle from which new particular duties arise, which come to be viewed as an expression of a general principle (new or old) from which new particular duties arise, and so on. In the case before us, first the specific duties were recognized, such as the duty to conduct a hearing and avoid a conflict of interests. Later, the legal system derived from them the general principle that, in relationships between the government and the individual, the government must behave fairly toward the individual. Such fairness is both procedural and substantive. Procedural fairness requires the government to establish a procedure that is fair to the individual. For example, the government must hear the individual before making a decision in his or her case, and it may not subject itself to a conflict of interests. Substantive fairness requires the government to consider appropriate considerations (for example, the duty to act reasonably, without discrimination or arbitrariness and not for an inappropriate purpose).  The categories of fairness (procedural and substantive) are never closed or rigid, and they never rest on their lees. HC 1635/90 Zharzhavski v. Prime Minister [35] at 841.

            Why does the government owe a general duty of fairness to the individual? Such duty stems from the view that the governmental authority does not act for itself but rather on behalf of the public. In our legal system, the governmental authority is seen as the trustee of the public who owes the public a duty of fairness. I said as much in one case:

The state, through those who act in its name, is the trustee of the public, put in charge of the collective interest and public assets in order to use them for the collective good …

This special status subjects the state to a duty to behave with reason, integrity, purity of heart, and good faith. The state may not discriminate, act arbitrarily, or in bad faith, or allow itself to be subject to a conflict of interests. It must maintain the rules of natural justice. In short, it must act fairly.

HC 840/79, supra [20] at 745-46.

            Indeed, my view is that the government is the trustee of the collective. My position is that the government is nothing in itself, and anything that it has, it has for the sake of the public. See HC 669/86 Rubin v. Berger [36] at 78. Justice H. Cohen articulated this position:

The individual is different from the public body. The former does as he or she pleases, granting or refusing as he or she wishes, while the latter exists only to serve the collective. It has nothing of its own. All that it has, it holds in trust. On its own, it has no rights or duties beyond, different, or separate from those arising from the trusteeship or granted it or imposed upon it by statutory provisions.

HC 142/70 Shapira v. Bar Association Jerusalem Regional Committee [37] at 331.

My theoretical point of departure is therefore that the government is a trustee, trusteeship requires fairness, and fairness (procedural and substantive) requires behavior based not on self-interest but rather on the need to advance the collective good. See HC 1635/90, supra [36] at 841. See also HC 6163/92 Eisenberg v. Housing and Construction Minister [38] at 258.

            3. Why do I see the government as the public trustee? The reason is that a democratic society is based on the recognition of individual human rights. These rights are natural to people by virtue of their personhood. The government does not grant these rights to people; the rights pre-exist the government. The role of the government is to maintain a society that establishes human rights. Of course, as a matter of daily life in society, human rights sometimes must be infringed. We cannot protect human rights without infringing on human rights. A democratic government is not characterized by the fact that it never violates human rights. Human rights are not a recipe for national destruction. A democratic society is characterized by the fact that an infringement of human rights must be done for a purpose which advances human rights, and the infringement must be to an extent no greater than necessary. A democratic society allows human rights to be infringed upon in order to maintain a social framework that preserves human rights. The right of the individual and its violation derive from a common source. CA 68211/93 United Mizrachi Bank. v. Migdal Agricultural Cooperative Village (hereinafter – the Mizrachi Bank case [39]) at 433. Within the context of this view, the role of the government is to take care of the public. The government in itself has no “private” interest of its own. The government exists for the sake of individuals. The government does not exist for its “own” sake. Those who represent the government have no “self” interest that must be protected. They must act to achieve the collective interest. Indeed, there is a serious concern – a concern which history has repeatedly validated – that representatives of the government will develop their own interests and use the tremendous power granted them for purposes that do not reflect the collective good. The duty of loyalty seeks to prevent that. The duty of loyalty seeks to guarantee that the government takes care of the public and not itself; the general duty of loyalty seeks to guarantee that the government takes care of the public and not itself; the general duty of fairness seeks to guarantee that governmental authority is exercised in a way that serves the collective, and not the government itself.

            4. These reasons, which lie at the core of the general duty of loyalty, determine its content. The general duty of loyalty seeks to guarantee that the government does not achieve “its own self-interest” but rather the collective interest. The duty of loyalty does not set the “rules of the game” between “rivals.” It sets rules of behavior for “friends.” Indeed, like the trustee of a private trust, the government must suppress any “private” or “self” interest. It must exercise its powers for the sake of the public and the collective. Therefore, the government must act with integrity and purity of heart; it must abide by the rules of natural justice; its actions must recognize the equality of persons; it must keep its promises (see HC 135/75, supra [22] at 676); it must provide the public with information (HC 142/70, supra [37]); it must take only relevant considerations into account; it must abide by public ethics in its actions (see HC 1601/90 Shalit v. Peres [40] at 365); it must act in a way that allows it to achieve the public task imposed on it.

            5. Do individuals, in their relationships, bear a general duty of fairness to each other? The answer is no. The law takes as its point of departure that people have rights (in the broad sense) vis à vis each other. The law recognizes the individual's self-interest and the power of the individual to protect that interest and achieve it. The law does not require an individual to suppress his or her self-interest and give priority to the interest of another person (who would also have to suppress his or her own self-interest). The law does not ask for that level of altruism. The law recognizes the self-interest of the individual and his or her will to achieve it. Of course, the individual may not cheat or defraud, but he or she is not asked to ignore his or her personal interest in dealings with others. Our legal system does not recognize that “quality of righteousness” (as Justice Alon called it in CA 148/77 Roth v. Yeshufa Construction Ltd. [41] at 635). However, over the years, our perspective on the proper relationship between individuals has changed. The perspective that has developed is that the “buyer beware” maxim is inappropriate in interpersonal relationships; it would be wrong to allow each individual to achieve his or her desire without considering those with whom he or she comes into contact.  There was a need to raise the threshold for what is considered proper behavior between individuals in their relationships. In private law, emerging principles of social solidarity and social justice set a standard of achieving the reasonable expectations of parties in private law. See M. Mautner, Yiridat Haformalism Vialiyat Haarachim Bamishpat Hayisraeli [80] at 57. Altruistic [in Jewish tradition: “angelic” – trans.] behavior is not required, but it is no longer acceptable for the individual to ignore the interests of others (in Jewish tradition: “wolfish” behavior – trans.]. The accepted view is that individuals must act in good faith in their interpersonal relationships [in Jewish tradition: behave like a person]. See CA 207/79 Raviv Moshe & Partners, Ltd. v. Beit Yules Ltd. (hereinafter – the Raviv case [42]) at 543. The legal system recognizes a general duty of good faith in contractual negotiations and in executing legal actions in private law. Sec. 12, 39, and 61(b) of the Contract Law (General Part). It has also recognized the prohibition on abusing a right. Sec. 14 of the Land Law, 1969. These duties, as important as they are, do not impose a duty of altruism. They do not require the individual to ignore his or her own self-interest. In contracts, the duty of good faith does not require a contractual party to relinquish the self-interest he or she has in the contract and its execution. The duty of good faith imposes a duty on a contractual party to consider the interest that is common to himself or herself and the other party to the contract. The duty of good faith requires the holders of a contract to act to realize their common intent, through dedication to the joint goal that they had in making the contract and consistency in achieving their joint expectations. HC 59/80 Be’er Sheva Public Transportation Services Ltd. v. National Labor Court in Jerusalem [43] at 834. As a rule, for relationships between individuals, the law does not impose the duty of fairness it imposes on the government in its relationships with the individual. The duty of good faith imposed on individuals in their interpersonal relationships is “easier” than the duty of fairness imposed on the government in its dealings with individuals. HC 4422/92 [19] at 860. Good faith starts with the assumption that the individual takes care of his or her own interests. Good faith seeks to guarantee that he or she does so appropriately, taking into consideration the justified expectations of the other party. Good faith does not assume that each party will take care of the interests of the other, at the expense of his or her own interests. Good faith is based on the assumption that each contractual party takes care of his or her own interests, but it seeks to guarantee that he or she exercises integrity in doing so, safeguarding the joint mission of the parties, as befits a civilized society. See FH 22/82, supra [17] at 485. Good faith sets rules for a fair game between “rivals.” In contrast, the duty of fairness sets rules for a fair game between “friends.” The duty of fairness does not view the government and the individual as “rivals.” The government must take care of the collective to which the individual belongs. The government's duty of fairness – like, in some ways, an agent's duty of fairness to the principal, a director's to a company, a guardian's to those with whose care he or she is charged – is a “heavier” duty than the duty of good faith.

            6. Does an individual owe a general duty of fairness to the government? In order to answer that question, we must return to the discussion of the reasons for imposing on the government a general duty of fairness to the individual. As we have seen, the view that the government is the trustee of the public is the basis for imposing a general duty of fairness that government owes to the individual. This view is based on a democratic perspective which puts individual liberty at the basis of the social structure. These reasons for imposing a duty do not exist in a relationship between the individual and the government. The individual is not the trustee of the government. The individual does not seek to advance the liberty of the government. Democracy recognizes the liberty of the individual from the government, but not the liberty of the government from the individual. An individual may do anything that the law does not prohibit. The government may do nothing that the law does not permit. 1 B. Aktzin, Torat Hamishpat [81] at 128. A democratic perspective recognizes the individual's independent will and independent interest. A democratic perspective does not recognize the government's independent will and independent interest, because the government acts for the sake of the public and the collective. In a democratic society, we cannot say that the individual has nothing for himself or herself, and that all that he or she has is for the sake of the collective. These words are true of the government. The proper perspective on democracy means that there is no room to impose a duty of fairness that the citizen owes the government. Imposing a general duty of fairness would radically alter the perspective on democracy and the place that the individual occupies within it. My colleague, Justice Zamir, says that the social contract is the source of the general duty of fairness. I would not draw that conclusion from the social contract. Our accepted view of the social contract is that it establishes a limited government authorized to serve the people and allow them to realize their natural rights. This view gives rise to the government's general duty of fairness to the individual. It does not give rise to a general duty of fairness owed by the individual to the government.

            7. This analysis does not mean that the individual has no duties to the government. Democracy is not just human rights. Democracy is also human duties – duties to other individuals and duties to the government. Indeed, democracy is based on social life and national interests. The government acts for the sake of the public. To facilitate that activity, we must give it rights (in the broad sense), because otherwise it would not be able to achieve the collective interest. Giving rights to the government means imposing duties on the individual, to the government. The purpose of these duties is to make it possible for the government to achieve the objectives imposed upon it in a democratic society. They derive from social life and the need to advance the liberty of every individual. They are based on a view of a social welfare state and social solidarity. They derive from a proper view of the individual as someone who is shaped by society and therefore whose personality necessarily includes a “social aspect” that gives rise to an internal need to take the collective into consideration. These duties also derive from society's demand of the individual, as a member of society, to act for the sake of the collective. They are the product of the balance between the needs of the collective and the needs of the individual. We should recall, however, that the individual's duties to the government and the government's duty to the individual are different. They stem from different sources; they have different scopes. The existence of the government's general duty of fairness to the individual does not entail – as a matter of neither logic nor policy – the existence of a general duty of fairness owed by the citizen to the government.

            8. What duties does the individual owe the government, and how do they differ from the government's duty of fairness to the individual? The individual's duties are based on a view of the individual in a democratic society and the role of the government in a democracy. Their point of departure is individual liberty, on one hand, and the role of the government on the other. There is tension between those two poles, because the government must act for the collective good, and the collective good is likely to conflict with the rights of the individual. That tension is released in various and sundry duties imposed on the individual, to the government. These duties are not based on a general duty imposed on every individual. Creating such a general duty would be inappropriate. By their nature, the duties that the individual owes the government are the product of balancing conflicting values. They are a compromise between the individual's human rights and the collective interest of the public. In this balance, as the infringement on individual rights intensifies and the public interest weakens, the duty owed by the individual will become more moderate. In contrast, as the infringement on individual rights becomes more moderate and the public interest becomes stronger, the duty owed by the individual becomes stronger. Between those extremes lie the hard cases in which the violation of human rights is severe and the public interest is strong. In these situations, each society finds a balance point –which gives rise to the individual's duty – depending on its views about the appropriate relationship between the individual and the collective, between the person and the public.

            9. The complex relationship between the individual and the government is not based on a one general duty owed by the individual to the government. The individual's duties are sporadic, and their content changes according to the circumstances. The individual owes no general duty to the government beyond the duty to obey the law, and he or she certainly owes no general duty of fairness. The individual's duties are “specific.” For some issues, the individual's duties to the government are weaker than the duties of good faith that individuals owe each other in private law, and they may be limited to a duty not to mislead. For other issues, the individual's duties may be identical in scope to the duties of good faith that individuals owe each other. Indeed, in order to facilitate the government's activities in the field of private law, in his or her private law dealings with the government, the individual should bear the same duties of good faith that he or she owes to other individuals. The individual should not be given a break in his or her dealings with the government as it forms contracts or engages in other legal actions in order to fulfill its role. The provisions of sections 12 and 39 of the Contract Law (General Part) therefore apply to every legal action (see section 61(b) of the Contract Law (General Part)) in which the individual engages vis à vis the government. See G. Shalev, Chozei Rishut Biyisrael [82] at 59. For other issues, the individual's duties may be similar in scope to the duties of fairness imposed on the government. Sometimes, the individual may owe even more serious duties.  Indeed, the individual must sometimes sacrifice his or her life in defense of the state. We must, however, keep in mind, that the duties of the individual – unlike the general duty of fairness – are specific in nature and different in character. They result from the balance, at various points, between individual liberty and the collective good. They depend on the special circumstances of each case, entailing an investigation into whether the individual fulfilled his or her duty to the government, the source of the duty, and its scope. I therefore cannot concur with the position of my colleague, Justice Zamir, that the relationship between the agency and the individual is two-sided, such that “the citizen should therefore owe a duty of fairness to the agency, as the agency owes a duty of fairness to the citizen.” No such symmetry exists. The agency's duties to the individual are separate from the individual's duties to the government. The philosophy at the root of each duty differs, as does the scope of each. The relationship between the individual and the government may be two-sided, but they are neither reciprocal nor equal. As my colleague, Justice Zamir, rightfully points out, the proper relationship between the administrative agency and the citizen is “a reciprocal relationship of give-and-take.” Supra para. 23. However, the “give” and the “take” are not identical. The individual gives part of his or her liberty in exchange for a social life that defends his or her liberty. My colleague correctly notes that, “As a moral and a practical matter, the citizen cannot assume that he or she may demand and receive from the agency without being obligated to provide anything.” Id. However, that does not mean that the duty of the individual and the duty of the agency are identical in content. A principal is not entitled to the loyalty of an agent unless he or she fulfills his or her duties to the agent. However, the principal's duty to the agent differs from the agent's duty to the principal. The agent owes a duty of loyalty and fairness. The principal does not. My colleague points out that, parallel to the right that citizen enjoys from the agency, the citizen bears a duty to the agency. That does not mean that the individual's duty to the agency is the same as the agency's duty to the individual. Parallel to the right that the individual enjoys from the agency, the agency bears a duty to the individual. That duty includes the duty of fairness. Parallel to the right that agency enjoys from the individual, the individual owes a duty. The right of the agency is not general, and therefore neither is the duty of the individual (beyond the duty to obey the law). The right of the agency is specific, and it changes according to the issue in question. The individual's duty, derived from that right, is also specific, and it changes according to the issue in question.

            10. Under the circumstances of this case, does the petitioner owe a duty to Respondents 1 and 2? If so, what is the scope of that duty, and what are its sources? My answer is that the petitioner indeed owes a duty of disclosure to Respondents 1 and 2. It must disclose the fact that it has a civil-law relationship with Respondent 3 (The Port Authority). In my opinion, this duty – grounded in the Regulations – includes the duty to disclose its relationship and communications with the Port Authority. Such information is relevant to the execution of a governmental task. It is only natural for the Customs Authority to seek to ensure that it does not give the authority to store goods on which customs duties have yet to be paid to someone whose possession of the land – and therefore, of the goods – is in question. In order for there to be security in protecting goods on which customs duties have yet to be paid, the protector must have stable rights in the land. For that reason, information about the civil-law relationship between the petitioner and Respondent 3 (the Port Authority) – including the information that there is a dispute between them – is material to the decision of Respondents 1 and 2 (Customs). The source of the duty of disclosure is the power of the government to grant a license to the individual (the petitioner). Granting the license must be done for the relevant reasons, based on the proper factual infrastructure. We want the government's decision to be proper and to advance the social interests that justified giving the government the power to make it. That is why the decision must be based on the proper factual infrastructure. Hence, the agency has a duty to collect the factual data, assess them as necessary, and use them to determine – within the rules of administrative evidence – the factual infrastructure relevant to making the governmental decision. While the governmental agency bears the burden of collecting the data and assessing them, the individual must assist the governmental agency in building the factual infrastructure that serves as the basis for the governmental decision of whether or not to grant the license. The harm to the individual in imposing this duty is minimal, while the advancement of the collective interest is substantial. In the final balance, it is therefore appropriate to require the individual – who is applying for the license or permit from the government – to disclose the factual data material to the factual infrastructure which will serve as the basis of the government's exercise of discretion. This is particularly true of information which the applicant knows, but the agency does not. If the individual requests a license or permit from the government, and in order to exercise its discretion, the government needs facts known to the individual, the individual bears the burden of disclosing those facts to the government, unless there is another social interest that weighs against disclosure (such as privacy). The basis for the duty of disclosure is two-fold: First, it is a particular aspect of the principle of good faith, which, through parallel reasoning from private law, applies. If two rivals negotiating a contract bear a duty of disclosure, then it is only natural that such duty applies to negotiations over a governmental license, which is intended for the good of the collective, including the individual. However, the good faith that individuals owe each other is different from the good faith that individuals owe the government. Good faith between individuals is rooted in a conflict of interests. It is good faith between “rivals.” In contrast, the good faith owed the individual to the government is based on the agency's governmental role to act for the collective good, including that of the individual requesting the license. The difference in these basic positions means that good faith differs in these two situations, despite their commonalities concerning the duty to disclose. Second, we can view the basis for the duty as part of a special administrative law that applies to the relationship between the individual and the government, having nothing to do with the principle of good faith. Either way, the duty of disclosure does not derive from a general duty of fairness. Furthermore, there is no recognized general duty of disclosure owed by the individual to the government. The duty of disclosure is always the product of the balance between the right of the individual and the needs of the collective. It exists only where the balance between these values justifies it. It does not always exist. For example, a suspect has the right to remain silent during a criminal proceeding. He or she need not disclose information to the government, if such information may be incriminating. The duty of disclosure I discuss is a duty which is limited to the kinds of issues addressed in this petition.  It applies to licensing governments through which an individual applies for a license. Under those circumstances, I accept that the individual should be required to disclose the facts he or she knows which are relevant to the exercise of governmental discretion. Of course, the duty of disclosure may exist in additional areas. We will address that question when the time comes, by balancing the conflicting values. The duty of disclosure may exist for Issue X, but not for Issue Y.

            11. Of course, we might see a general trend of raising the threshold of what is considered proper behavior of the individual toward the government. We might say that, just as Israeli society raised the threshold of morality in behavior between individuals by requiring them to act in good faith, so should it raise the threshold of morality in behavior of individuals vis à vis the government. We might try to avoid introducing competition into the relationship between the individual and the government, such that the individual could exploit any mistake by the government for his or her personal benefit. However, that trend should be approached with caution. Taken to an extreme, it could turn things topsy-turvy, making the individual the trustee of the government, thereby destroying the democratic nature of the government. We would do well to use the standards of Israeli democracy to evaluate carefully any trend toward stepping up the individual's duty of proper behavior to the government. Such trend must withstand the balance between individual liberty and the collective interest.

            12. One might ask how my approach differs from that of my colleague, Justice Zamir. After all, he also recognizes the individual's duty of disclosure to the government under the circumstances of the present case. Indeed, we do not disagree that, under the circumstances of this case, the individual bears a duty of disclosure. Our dispute concerns the source of that duty. My colleague's position is that the duty derives from a general duty of fairness owed by the individual to the government. In my opinion, there is no such general duty of fairness, because the individual is not the trustee of the government. The source of the duty of disclosure in the present case is the view that a proper exercise of governmental authority requires the individual to make appropriate disclosures to the government concerning material facts which serve as the basis for the governmental decision. In this case, our paths meet. My colleague's general duty of fairness imposes a duty of identical scope as the one I would require, for the special circumstances raised by this petition. Our agreement in this particular zone does not mean we agree on the entire front. Our paths may part ways in other circumstances.

            13. One might argue that the difference in our positions is purely semantic. Isn't the duty of disclosure that I espouse the same as my colleague's duty of fairness? After all, my colleague, Justice Zamir, thinks that the individual's duty of fairness to the government may change with the circumstances of each case. Why not adopt his view, while making sure that a general duty of fairness, of a flexible nature, always leads to the same solutions as I would reach using my approach? There are three reasons not to do so: First, the theoretical basis of a legal arrangement is significant for determining its content and boundaries. The theoretical basis determines how the arrangement develops. The theory determines the practice. In my view, the individual does not owe a general duty of fairness to the government, because such a duty would be inconsistent with the way we view the individual in society. The individual's duty to the government must be specifically defined according to the special circumstances of every case, by balancing the conflicting values. The scope of the duty and its content change according to the circumstance, and the principle of fairness – which derives from the principle of loyalty – is not the common denominator of all these duties. Second, words have a force of their own. They have a life of their own. “Fairness” is a concept that may lead to the creation of duties whose nature is inconsistent with individual liberty in a democratic state. There is some concern that, in the future, if we face the problem of whether the individual owes a particular duty to the government, the question we will ask is whether such a duty flows from the principle of fairness. The law will then try to answer that question, and the duty of fairness will determine how we address the issue. In my opinion, we need to ask a different question. The question is whether the right balance between individual liberty and the collective good allows us to recognize that duty. These two questions are different, and they should not be interchanged. Third, “fairness” – and the duties derived from it – should not be given a double-meaning, sometimes referring to duties arising from a relationship of trusteeship and sometimes referring to duties that have nothing to do with trusteeship. Justice Zamir correctly notes that:

The fact that those species bear the same name might blur the distinction. Differentiating the names can help make the difference more pronounced and preserve the distinction in substance.

Para. 20.

            This approach itself warns against using the term fairness to describe both the duty that the individual owes the government as well as the duty that the government owes the individual. The sources of these duties differ, the scope of each differs, and they develop differently. They may sometimes intersect – as is the case of the duty of disclosure in this petition – but that does not mean we should blur the differences between them.

            14. One might wonder: Can we “really” say that the individual does not owe a duty of fairness to the government? Should we recognize an individual's freedom not to be fair to the government? Of course, if fairness means not to defraud or cheat, then of course the individual owes a duty of fairness to the government (and to other individuals). However, the term fairness is not just the opposite of deception. Fairness is a normative concept. It is an objective concept. It determines standards of behavior. It is a “code” which activates various duties of proper behavior. For the government's dealings with the individual – which derive from the role of the government as a trustee – fairness means the highest standard of proper behavior. It is a standard of behavior that originates in the view that the government has no self-interest, and that it can only aspire to ensure the collective good. Private law imposes a similar (but not identical) duty only on those who owe a duty of loyalty, such as a trustee, agent, director, or guardian. That is the reason we do not say that individuals owe (objective) duties of fairness to each other. The duty of good faith (as stated in the Contract Law (General Part)) applies to relationships between individuals, not the duty of fairness. That is why I believe that the individual owes no general duty of fairness to the government.

            For these reasons, I concur with my colleague's conclusion but disagree with his reasons.

 

Justice M. Cheshin

            1. Not long after the close of the proceedings, we decided that the petition should be denied, and that is how we ultimately ruled. However, from the outset, we knew that we arrived at that conclusion from different places and in different ways. Now is the time for each of us to name those places of origin and to map our routes to our common destination.

            2. My colleagues’ opinions laid out in front of me are comprehensive. They stretch out into a broad, panoramic view of fairness and good faith, of the individual and the government, of the relationships among individuals and between individuals and the government, of friends and not-friends, of the social contract, and of brotherhood. I wish to address two of these: the duty of fairness that the individual owes the government and the status and authority of a public agency to decide disputes between individuals. I will start with the first and end with the second.

Disagreements over the Issue of Fairness

 

            3. My two colleagues, each in his own way, present two different theses that, in some senses even oppose and rip each other. My colleague, Justice Zamir, soars to heights of noble and lofty principles like fairness and good faith – the principles and what lies between and around them – seeking to create a pillar of fire and a pillar of smoke [biblical: guiding light for desert travel – trans.] by which the camp can navigate, mapping the duties of the individual to the government. Truth be told, my colleague presents fairness as a central pillar upon which the entire tent hangs. In our language – the language of jurists – he says that within the context of the reciprocal relationship between the individual and the government, in principle, the individual owes a duty of fairness to the government. My colleague carves out secondary duties from the general duty of fairness: daily duties which are outlined in the case law and in books on administrative law.

            My colleague, the President, opposes this view and, holding buckets of water, throws cold water on the flames of fairness. Unlike my colleague, Justice Zamir, who steers a course between basic principles – primarily fairness –from which he derives the individual’s duties to the government, my colleague, the President, believes that the individual’s duties to the government are “specific” and “sporadic,” and that their content changes, depending on the issue. In the opinion of my colleague, the President, the individual’s duties to the government derive from the balance that is conducted, for every issue, between opposing forces; fairness, as such, is not a primary foundation – if you like, not a necessary foundation – for the creation of these duties.

            4. As for our issue, my two colleagues are of the same mind. Our issue is the case in which the individual applies for a license from the government, and the question is this: what duty does the individual owe the government to disclose – at his or her initiative – factual information relevant to the government’s exercise of discretion? My colleague, Justice Zamir, believes that a secondary duty to disclose that information can be carved out of the duty of fairness owed by the individual to the government. The idea is that the individual’s duty to disclose information to the government is just subsidiary to the parent duty of fairness that the individual owes the government. My colleague, the President, agrees that such a duty of disclosure should be imposed. In his words, “the individual should be required to disclose the facts he or she knows that are relevant to the exercise of governmental discretion.” He also says that, “the individual must assist the governmental agency in building the factual infrastructure that serves as the basis for the governmental decision of whether or not to grant the license.” As for the source of that duty to disclose relevant information, President Barak says, “The source of the duty of disclosure in the present case is the view that a proper exercise of governmental authority requires the individual to make appropriate disclosures to the government concerning material facts which serve as the basis for the governmental decision.”

            5. My colleague, Justice Zamir, concerns himself with basic principles which are supposed to govern the relationship between the individual and the government – meaning, the fairness that the individual, in his opinion, owes the government. On the other hand, President Barak believes that the process of discovering and creating the individual’s duties to the government is the same as the process of discovering and creating any right or duty in law – for our purposes, in administrative law. These processes do not use the duty of fairness, as such, as a generative foundation. For our purposes, President Barak grounds himself in the daily plane of administrative law: the duties that the individual owes the government in the gray area of administrative law and the individual’s duty to supply the government with the information that allows it to exercise discretion properly and decide as we would expect it to decide. In any event, President Barak’s opinion is that the individual does not owe a general duty of fairness to the government.

            6. To sum up: My colleague, Justice Zamir, inserts the foundation of fairness as a primary, generative foundation in founding the duties of the individual to the government. In contrast, my colleague, President Barak, rejects this thesis of fairness. In his opinion, we should predicate the individual’s duties to the government within each system by considering the interests appropriate to each issue and studying their force (“the balancing process”).

            7. The careful reader will understand that my colleague, Justice Zamir, seeks to inject a foundation of content – a foundation of fairness – into the process of creating the individual’s duties to the government. He believes that this foundation of content should influence the development and determination of the extent of these duties. My colleague, President Barak, denies that such foundation of content exists within this context. He applies the balancing formula used throughout our legal system (for our purposes, within the field of public law) to the creation of duties that the individual owes the government.

            My colleagues would appear to take very different positions, such that their paths crossed through happenstance, to bring them to the same place. Just as someone crossing from east to west might meet someone crossing from north to south, after which the two part ways, so did my colleagues meet for a fleeting moment, shake hands in greeting, and then continue on their way, one going west and the other, south. That is how it would appear. I personally am not convinced that that is how it really is. Upon close inspection, it seems to me, that the difference between my colleagues is primarily a difference in rhetoric. That it was not blind fate that brought them to the same destination.

            8. First, I will say that each of my colleagues creates models made of different materials and belonging to different orders. My colleague, Justice Zamir, is concerned with a model of content to determine the individual’s relationship to the government.  He sees fairness as a cornerstone of the relationship between the individual and the government and builds a model for creating the individual’s duties to the government around that principle. My colleague, President Barak, disagrees with the use of fairness as a primary generative foundation for determining the individual’s duties to the government. At the same time, as an alternative model to the model of content, he presents us with a structural model. In his words, “The individual's duty to the government must be specifically defined according to the special circumstances of every case, by balancing the conflicting values. The scope of the duty and its content change according to the circumstance, and the principle of fairness – which derives from the principle of loyalty – is not the common denominator of all these duties.” Para. 13 of his opinion. My colleague, the President, does not determine the content of the individual’s duties to the government, but rather the technique for determining those [duties – trans.]. He therefore does not see himself as rejecting the possibility that a consideration of fairness, even in its broad sense, could sometimes enter the mix of considerations which determine the creation of the individual’s duties to the government. Indeed, in the Awad case, President Barak imposed, in certain cases, a “duty of good faith and fairness” on the individual to the government. Supra [30] at 492. See also para. 28 and subsequent text, infra. My colleagues, then, are not as far apart as they seem upon first glance.

            9. There is more. My colleague, President Barak, objects to the all-encompassing doctrine of fairness of my colleague, Justice Zamir. He even objects to the use of the term “fairness” as such. He therefore says, inter alia, that “words have a force of their own. They have a life of their own. ‘Fairness’ is a concept that may lead to the creation of duties whose nature is inconsistent with individual liberty in a democratic state.” Para. 13 of his opinion. Upon reading these words, I hurry to shake my colleague’s hand firmly and warmly. I have also believed – and still believe – that words can have a magical kind of power, and we should stay as far away from magic as possible.. That is one of the reasons I so strongly objected to using the phrase, “constitutional revolution” to describe the accumulated weight of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. In the Mizrachi Bank  case [39], I expressed this opinion about adding the words, “constitutional revolution” (on p. 567, para. 135):

I see the label, “revolution” as problematic. Isn’t it sufficient to say that there has been a ‘change’ in the path of the legal system? I say this because labels can sometimes blind us, leading us to allow our wishes to fulfill themselves. Moreover, even if we said that the Basic Laws have the potential to work very important changes in the Israeli legal system – and we have said that – the term, “constitutional revolution” means a lot more than the term, change. It not only creates over-excitement, but also, by adding force and energy to one side of the equation, it sucks away force and energy from the other side. Is that the right way for us to build a constitution?

            I fear that careless words will create an entity with a force of its own. If that is our concern, however, let us proclaim loudly and clearly that in discussing the duty of fairness that the individual owes the government, we do not intend to create a dynamic, creative, generative doctrine. We seek only to note what is appropriate and desirable in interpersonal relationships. If we take this course, we, along with everyone else, will know that we have only stated the obvious about the proper way for the individual to behave. That is not, however, what my colleague, Justice Zamir, means. He intends to create a real, live, generative principle. We must address that principle, and not something similar.

            10. Generally: My colleague, Justice Zamir, created a general principle of fairness as a principle that binds the individual in his or her dealings with the government. My colleague, President Barak, objects to creating this general principle, but he does not rule it out as a factor in determining the individual’s duties to the government in these and other legal contexts.

On the Duty of Fairness

 

            11. My colleague, Justice Zamir, demands that we impose a general duty of fairness on the individual, to the government. In his opinion, that duty derives from the social contract at the core of the existence of the state, a contract that makes the citizen and the government partners in the same act of creation: “As a moral and a practical matter, the citizen cannot assume that he or she may demand and receive from the agency without being obligated to provide anything. A citizen’s right vis à vis the agency is coupled with an obligation vis à vis the agency. This is the essence of the social contract among citizens and between citizens and the public administration. It is also the root of the existence of the state.” Para. 23 of his opinion.

            Who could disagree with these noble words of my colleague? How could we help but agree? The individual owes a duty of fairness to the government, says my colleague. Can we say that this is not the law? Can we say that the individual may not behave with fairness – or may behave without fairness – to the government? Can a court say such things? Are these the proper norms of behavior to establish for the relationship between the individual and the government? Indeed, the requirement of fairness captures the heart and lifts the spirit. Only someone apathetic to things beautiful would rise up against the duty of fairness suggested to us. We would appear to be in a sort of trap. We have no choice but to agree to my colleague’s words, or risk being thought of as troublemakers upsetting the proper order of things. And still, I find it difficult to agree.

            12. We measure the relationship between the individual and the government and administrative state using the relationship that members of society have with each other as the model. We can build a few models of human relationships to understand the reciprocal relationships among individuals within society. Hillel’s saying is the foundation, the basis: “What is hateful to you, do not do to your neighbor.” Babylonian Talmud, Order Tractate Shabbat 31, 1 [a]. Hillel goes on to say: “That is the whole Torah. The rest is commentary; go and learn.” Of course, that is not the minimum level of conduct we need present to a well-ordered society and for the proper education of the individual. For now, however, we will allow it to suffice. That is one model. We might resort to a higher level, primarily through the use of “Love your neighbor as yourself” (Leviticus 19:18 [b]), which is the second model. This level is higher than the first because, among other reasons, it does not just impose prohibitions on the individual – negative commandments – it imposes positive duties on the individual. An even higher level of conduct – the third model – stems from the principle that, “Is it not to share your bread with the hungry, and bring the homeless poor into your house; when you see the naked, to cover him, and not to hide yourself from your own flesh?” Isaiah 58:7 [c]. That is the highest degree of love of humanity and of kindness. As Micah the Prophet coined in his wonderful saying – wonderful throughout the generations – about human relationships:

He has showed you, O man, what is good;
and what does the Lord require of you
but to do justice, and to love kindness,
and to walk humbly with your God?

Micah 7:8 [d].

            “Do justice” is primarily about “what is hateful to you” and a little about “love”: mostly negative commandments, and a few positive ones. “Love kindness” is the purest form of love of humanity. If you like: love of love. This is not the place to discuss “humbly.”

13. Law’s primary objective is to order the relationships between individuals in society and to make sure that society is organized properly.  A person is a wonderfully complex creature. The relationships between individuals in society are also complex, and in some ways, they are more complex than the complexity of the individual. From among the wealth of relationships between individuals, the law cuts out a part that seems appropriate for organization and definition by the legal system, and it imposes a network of legal norms on that part.

            Among the three models presented, the law is primarily interested in the first model (the minimal model of “don’t do”): Don’t murder, don’t steal, don’t lie, whoever strikes his father or mother shall be put to death (Exodus 21:15, [e]), and whoever curses his father or mother shall be put to death (Id., verse 17). Lord Atkin discussed this point in the well-known case of Donoghue v. Stevenson (1932) [73], saying what has become a classic:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Id.at 580.

The law borrows from the second model, as well, but very lightly. Honor your father and mother (a positive commandment whose reach is broader than the negative commandment not to hit or curse). Remember the Sabbath day, to keep it holy (a positive commandment alongside a negative one: don’t do any work, etc.)  The third model is supposed to serve the law primarily as a source of inspiration. It is just an illustration of the statement that the law seeks to impose itself on a certain segment of human relationships while leaving other parts of those relationships alone.

14. Against the backdrop of three alternative – or partially cumulative – models, let us evaluate the duty of fairness that individuals in society may owe each other. A superficial glance shows that the duty of fairness is a duty that knows no boundaries. It exists in each of the three models, differently in each, derived from the fundamental principles at the core of each. Examine, consider, and you will know.  We will thus find, perhaps surprisingly so, that the term “fairness” – as well as the term, duty of fairness – is a kind of “framework-term,” whose content varies with the model constructing it, the world surrounding it, and the world in which it lives. “Fairness” in the first model differs from fairness in the second, and “fairness” in the second model differs from fairness in the third. “Fairness” in the second model, for example, includes the “fairness” of the first model, but the reverse is not the case.

15. To the issue of concern to us: When my colleague, Justice Zamir, said that the individual owes the government a duty of fairness, what kind of fairness did he mean?  My colleague told us only that the duty of fairness can vary from issue to issue, depending on the circumstances. But what is the content of that fairness, and which circumstances will fill the fairness with its content? What functioning order did the duty of fairness join, and which model shall we use? Perhaps it is a different model from the three we mentioned? We can’t do anything until we answer that question, which is the central issue. I said, and I will repeat: The duty of fairness is a duty that knows no boundaries – it lives and exists in law and outside law. For example, it exists in the realm of morality – and we therefore must define things precisely: Which part of that all-inclusive duty of fairness – fairness in the broad sense – is the law supposed to take under its protective wing and establish legal sanctions for violating the duty? Which part of “fairness” will the law adopt, and which part will it leave to other systems of norms?

I will give an example from another context: It is strictly forbidden for a person to shame another in public. If Rueben embarrasses Simon in public, the law will come to Simon’s aid by granting him a right in the form of the law against defamation. The law has taken this part under its protective wing. However, if Gad shames Zevulun in public, the law may not grant Zevulun a legal right, even though Gad’s deed was worse than Rueben’s. Of Gad’s deeds, we might say: “He who publicly puts his neighbor to shame has no portion in the world-to-come.” Babylonian Talmud, Tractate Baba Metzia, 59:1 [f]. We might say that, and no more. Both Rueben and Gad owed a duty of fairness to Simon and Zevulun (respectively); Both Rueben and Gad breached the duty owed; and nevertheless, Rueben is subject to the legal sanction, while Gad is given no sanction (in this world). The question for our purposes is: Which part of the all-inclusive duty of fairness should the law cloak with a legal sanction – by creating a legal duty of fairness – and which part of the all-inclusive legal duty of fairness should the law leave to other systems of norms, like the educational system, the ruling culture, discussions among members of society, and the like.

And perhaps tomorrow I will be asked: Must the individual be fair to other individuals and to the government? Does the individual owe a duty of fairness to other individuals in society and to the government? My answer to that question will be unequivocally: Yes, the individual owes a duty of fairness. That, however, is not the question which currently troubles us. The question currently before us does not just concern the duty of fairness. It concerns the legal duty of fairness that the individual owes the government. We have yet to understand the nature of that duty, its content, and its way.

16. Our discussion so far: To say that the individual owes a (legal) duty of fairness to the government – by itself – is just a label on a jug, a formal legal-conceptual framework. Until we find out the criteria for creating this “duty of loyalty,” which beverage to pour into the jug, what is the formula for creating the beverage, we have as good as said nothing. To be precise: Because we have created the label – the label and not the content – it would not seem appropriate to discuss the existence of a general “duty of fairness.” After all, it is possible that, after determining the formula for creating the duty, we will learn that we have only the tail-end of a duty or the tip of fairness, such that it would be inappropriate and incorrect to talk about a “general duty of fairness.” As such, it would be misleading if, prior to determining the scope of the duty – prior to determining the criteria for outlining its borders – we were to talk about its existence. I therefore deny – with full force – the existence of a general duty of fairness owed by an individual to the government, until we learn what that duty is, what bounds have been set for it, and of what materials it is made.

 

On the Individual, the State, and the Individual’s Duty of Fairness to the State

17. I have been asked to hold that the individual owes a general duty of fairness to the government, and that the content of that duty will be determined periodically by the case law and by analyzing this or that set of facts. According to my colleague, Justice Zamir, the duty of fairness arises from the social contract at the foundation of the state, a contract which holds that the individual and the agency are not rivals but rather partners in a joint enterprise. And just as partners in a project owe each other a general duty of fairness, so do the government and its individuals owe a reciprocal duty of fairness. The general duty of fairness that the state owes its individuals is well-established, and now my colleague suggests that we impose a duty of fairness on the individual toward the government.

18. Section 12 of the Contract Law (General Part) tells us that, “In negotiations to form a contract, a person must behave in an acceptable way and in good faith.” In the Raviv case [42], the Court had to interpret this statutory provision and its applications on private bidding (in other words, bidding not held by a public agency). The question asked was what duty of good faith is imposed on individuals in negotiations between themselves to form a contract, how should the law be interpreted, how will the bounds of that duty be outlined. In short: On which track should we put the relationship between individuals in commercial negotiations they conduct. Using the metaphor that Thomas Hobbes created, my colleague, Justice Barak, held that this relationship would not be one in which “person to person – behaves like a wolf” (Homo Homini Lupus). At the same time, we will not put this relationship on the path of “person to person – behaves like an angel” (Homo Homini Deus (vel Angelus)). My colleague suggested that the relationship between people should move along the lines of “person to person – behaves like a person” (Homo Homini – Homo). We will, of course, agree; how could we not? We will not agree to establish a norm of behavior of person to person – behaves like a wolf (really, person to person, like a wolf to a lamb; we should recall that a wolf has no better friend than his or her fellow wolf who lives together in the same pack). At the same time, it would be inappropriate to establish that person to person – behaves like an angel. Establishing this standard of behavior would not be realistic, and there is no point in setting a norm by which people will not abide. The recommended and appropriate standard of behavior is therefore that person to person – behaves like a person.

I have established, and not just by the process of elimination, the formula for the duty of fairness between people: person to person – behaves like a person. This formula, however, like the formula for fairness, merely presents us with a label on an empty jug. We are now supposed to pour a beverage into the jug, because only then will we know the content of fairness. The question is: what norm will we establish for relationships between people? How should a person behave toward another person? What standard of behavior will we require that people use toward each other? What will be the content of the good faith established by law? We have returned to our starting point, and again, we must continue to grope around in the dark.

19. Before we touch on fairness itself, let us talk a bit about those who share in the duty of fairness, about the individual and about the government. My colleague, Justice Zamir, feels a certain discomfort in holding that the individual owes a duty of fairness to the “government.” The government is always the government, and the term “government” sounds to us like a body that rules us and instructs us what to do and what not to do. The determination that the individual owes a duty of fairness to the “government” grates on my colleague’s ears. Don’t call it the government, he tells us, but rather an agency, an administrative agency, the state. As if changing the name and switching the label will change the content. Of course, I will not object to calling the government an agency or an administrative agency, but I will add that, even after changing the name, we are talking about the government, about the relationship between the individual and the government, and about the duty of fairness that we are asked to impose on the individual toward the government. By the way: the term “agency” [also “authority” – trans.] is, in some ways, harsher than the term government. As the sages teach us: “Be wary of the government [authorities – trans.], for they get friendly with a person only for their own convenience; They look like friends when it is to their benefit, but they do not stand by a person when he is in need.” Mishnah, Avot 2:3 [g]. Pinhas Kehati interprets it to mean, “When dealing with the ruling powers, do not reveal to its agents too much of your affairs, and do not rely on their promises …” See also Mishnah, Avot 1:10 [g]: “Shemaiah says, ‘Love work. Hate authority. Don’t get friendly with the government.’” Is the relevance of this advice of our sages limited to the time at which they wrote it?

            20. We could or could not agree with the statement that people owe each other a duty of fairness. In either event, we understand what is being said to us. However, when we hear that a person owes a duty of fairness to an administrative agency, we struggle to understand the words. For all that concerns a prohibition on doing certain things, we can understand imposing this duty on the individual – whether the prohibition concerns other individuals or an administrative agency. A prohibition imposed on someone, from whatever source, sort of concentrates itself on the person bound by the prohibition, and therefore it can be understood to exist in its own right. The term “fairness” is different, because it is more than just a prohibition against doing certain things. “Fairness” implies – and it should imply – not just a prohibition against doing something but rather an obligation to do something, a positive obligation to do something for another person. The term “fairness” itself implicates the relationships people have with each other. A person may or may not be fair to another person, and he or she will still be a person. In this context, what content shall we pour into the statement that the individual owes a duty of fairness to the agency, if the agency is not a person at all? How can we impose a duty of fairness on a person to someone who is not a person at all?

            21. An administrative agency – every administrative agency, and we can add all the governmental powers, meaning the state itself – is just a term, a concept, the product of our thoughts. Furthermore, an administrative agency – like the state – is not a tool, a device, an instrument, for achieving certain purposes, like the wheel in the hand of a sailor and the axe in the hand of the woodworker. The state, as such, has no life of its own. We can agree that we could not exist without the framework of the state, but that statement of reality cannot make the state into something it is not. That is true of the state, and that is true of the administrative agency.

            An administrative agency charged with giving licenses in a certain field, for example, licenses to operate a business, seems like a machine, like the machines that dispense café au lait or bottles of cold drinks. Like the machine, the administrative agency has licenses to operate a business in its stomach. Press a series of buttons – one after the other in a certain order – pay what you are required to pay (a fee), and you get what you asked for. If you do not press the right buttons, or you press them in the wrong order, you will not get what you asked for: café au lait, a bottle of a cold drink, a license to operate a business. Indeed, in this way, an authorized agency may differ from a machine, because an agency is imparted with discretion, while it is difficult to grant discretion to a machine (is it?). Perhaps we should recall that a machine – unlike an authorized agency – does not operate arbitrarily, discriminatorily, or condescendingly. In any event, just as we would find it difficult to outline a duty of fairness owed a machine, so will we find it difficult to establish a duty of fairness toward an “agency” that is anything more than a legal concept.

            Perhaps you might say: Aren’t the “agency,” the “government,” indeed bodies to which we should owe a duty of fairness? After all, they are no more than virtual creations (although they can hurt an individual). And what about those who work for the agency, who are flesh-and-blood? Why shouldn’t we say that the individual owes a duty of fairness to them? The answer to that question is that those employees of the agency are just the agents of the (conceptual) agency, who do its bidding. They have nothing but what the agency has, because they do not operate for themselves but rather for the agency. And if we found it difficult to hold that the individual should owe a duty of fairness to an “agency,” we may not create something out of nothing by identifying the employees of the agency with the agency.

            22. To remove any doubt, I will quickly clarify that we should not identify state with “homeland” (with “society,” with “people,” or with “nation”). A homeland is the birthplace of a person: it is the land in which he or she grew up and was educated, it is the landscape of his or her childhood, it is the society in which he or she lives. A homeland is our home, a homeland is our family: “Love of the home is the mother of love for the homeland.” Someone who loves the homeland is a patriot. “Homeland” is not “state.” The term homeland is intangible, and therefore we must resort to symbols: the flag, the symbol. In the not-so-distant past, a person of authority called the state flag a stick with a rag stuck to it, and I had this to say about it:

The flag of Israel is not “just an expression of a stick with a blue-and-white rag stuck to it.” The flag of Israel is me and you, he and she, they, we, and our children. Even for those who have left and will not return to us, we, all of us, we are not a rag.

HC 8507/96 Orin v. State of Israel [44] at 277.

The state is a tool and an instrument to achieve certain purposes. It is not like my extended family, the homeland. Licenses to operate a business are given by the state – not the homeland – and we should therefore be careful not to confuse unlike things.

23. I will return to our subject and note – as an opening comment – that conceptually, I find it difficult to recognize the individual’s duty of fairness toward the administrative agency. That is just the beginning of the journey, however. After trampling for a long time through the hallway, the time has come for us to put ourselves into the drawing room and examine our surroundings.

24. Unlike my colleague, Justice Zamir, I do not think that the relationship between the individual and the government is a “friendly” relationship, as though the two were friends, between whom the duty of fairness would naturally arise. On my station of embarkation for the journey – the journey to discover the duties that the individual owes the government – hangs a sign, and on the sign, written in big letters, is the word, “freedom.” My view about the status of the individual in his or her relationship with government agencies and the administration is that the individual may and is entitled to do anything (or to omit doing anything) that he or she is not prohibited from doing (or required to do), unless he or she bears a duty to do it (or not to do it).Most of the duties that the law imposes on the individual are negative duties – don’t murder, don’t steal – and that is the minimal level required for a properly-functioning society. The individual may owe some positive legal duties, but the law explicitly sets out these duties, and they are few. Examples include: the duty to serve in the military; the duty to pay taxes; parents’ duties to their children under the Legal Capacity and Guardianship Law, 1962 and the Mandatory Education Law, 1949; the duty certain people owe protected persons; the duty to prevent a crime (sec. 262 of the Penal Law, 1977), and others.

Beyond those explicit negative and positive duties, the individual owes no legal duty to the government, and in my opinion, it would not be proper to obligate him or her with additional duties. The individual has a right to do as he or she pleases, and he or she acts on his or her own account. The individual has a right, a right of the highest virtue: a right to freedom and permission which has the virtue of law (or the virtue of a basic law). Cf. HC 3872/93 Mitral Ltd. v. Prime Minister and Religious Affairs Minister [45] at 29 and subsequent text. The individual is born free in the law and remains free in the law all the days of his or her life, until it is established that he or she owes some kind of duty. Someone who abstains from prohibited acts and performs the positive duties explicitly imposed on him fulfils his or her duty in law. He or she owes nothing to no one and nothing to the government. He or she is not a saint. He or she is not a righteous person. He or she does what is required of him or her. He or she is an ordinary citizen.

In my opinion, this is the liberal-democratic station of embarkation, and I personally think that we should adopt it and cultivate it. A healthy, appropriate society does not exist without volunteer works, altruism, and assistance to “the poor and the elderly,” but these exist – for the most part – outside the framework of law. Indeed, the law does sometimes adopt a duty that can be characterized as an altruistic duty, such as: the duty to offer assistance to the victim of a traffic accident and duties incident to it (sec. 64A of the Traffic Ordinance [New Version] and Regulations 144 and 146 of the Traffic Regulations, 1961); the duty to save lives at sea (sec. 39 of the Shipping Law (Sailors), 1973); the duty to offer assistance to a public servant under certain circumstances (sec. 491 of the Penal Law). See also, CrimA 119/93 Lawrence v. State of Israel [46] at 29 and subsequent text; A. Barak, Shikul Da’at Shiputi [78] at 463-64. These, however, are exceptions to the rule.

25. That is generally the case in law, and that is the case, in my opinion, of the relationship between the individual and the government. In principle, I am not prepared to recognize the duty of an individual toward the government, whether we call such duty a duty of fairness or something else, unless that duty is explicitly or implicitly required by law. Because of the Basic Laws, once a duty is established by law, that duty is supposed to adjust to the restrictions imposed by the Basic Laws. That is all. My colleague, Justice Zamir, will forgive me, but I am hard-pressed to shake off the impression that, in his opinion, he sketches a Utopian state of fairness, a state in which the majority breathes fairness, a state in which people hurry to inquire into the welfare of each other, a state in which the majority seeks the collective good, all the time. What can we do if we don’t live in a Utopian state of this kind? And since that is the case, in my opinion, it is inappropriate to impose a duty of fairness on the individual to the government, a duty that a Utopian state could impose on its individuals.

Moreover, the individual and the government do not have equal rights. They do not have equal powers, and they are not of equal status. Nor are they friends. The government has most of the power, most of the force, most of the wealth, such that the individual – however much power, force, and wealth he or she may have – is not in the same league. The government has nothing of its own; anything it has, it holds in trust – for the good and benefit of the individual. However, the normative-legal statement that this is the status of the government vis à vis the citizen cannot take away from the phenomenon we witness on a daily, hourly basis: the individual standing in line at the government counter, and the line winds and plods forward, longer and longer. Some call this phenomenon, “bureaucracy,” and others call it something else. Whatever its name, it is all-too-familiar to us all. This is why, in the past, the courts were called to the aid of the individual facing this huge machine – they were called in the past, are called today, and will continue to be called in the future. This is the reason that the courts established the principle of the trust that the government owes the individual. For the same reason, the case law has established a duty of fairness that the government owes the individual. This principle and this duty stem from the agency’s abundant authority, its excess power, and its ability to deprive the individual of a benefit which he or she could have enjoyed, had it not been prohibited.

The duty of fairness owed by the government to the individuals in society derives from the excess power that the government wields, from the tremendous force that the government holds. The duty of fairness is designed to serve, among other means, as a check on the power and a restraint of the force. Can we say the same thing about the individual vis à vis the government? The individual, after all, is Gulliver in the land of the giants: The giants surround the feast, and Gulliver stands on the dining table, the entire tiny length of him, every bone in his body, quivering in terror. He is like a salt shaker to them, like the stub of a carrot. One simple exhalation of breath, and Gulliver is no more. I could understand imposing a “duty of fairness” on the giants, owed to Gulliver. I find it difficult to understand imposing a duty of fairness – a matching duty – on Gulliver. Duties – including the duty of fairness – are intended to restrain power, force, wealth. What power does the individual have, relative to the government?

26. Consider a license required to establish and operate a business. Originally, the individual was permitted and allowed to engage in any business or profession in order to support himself or herself and his or her family. Abel shepherded his sheep without a shepherding license; Cain worked the land without a license to plough and plant; and Tubal-Cain forged instruments of bronze and iron (Genesis, 4:22 [h]), without having obtained a business license. It was their natural right, and “every person has a natural, imparted right to engage in the job or profession he or she chooses, so long as engaging in that job or profession is not prohibited by law.” HC 1/49 Bazherno v. Police Minister [47] at 82 (S.Z. Cheshin, J.). When the legislature forbad some professions unless certain preliminary conditions were met – it made its prohibition, and we must abide by it in letter and in spirit. However, that very prohibition and the exemption from the prohibition are what create the government’s duty to the individual, the duty of fairness and the other duties similar to it in form and character. The individual’s duty to equip himself or herself with a license to engage in a certain business, as well as the government’s ability to provide the individual with that license, are what create the duty of fairness owed by the government to the individual. Despite my searching and poking around, I found no source from which we could hew a duty of fairness owed by the individual to the government. The principle is the principle of individual liberty, and this principle – by itself – does not generate a duty of fairness.

27. A final word on the duty of fairness, a duty which I am not prepared to recognize. Because the proposed duty of fairness is a duty, violating the said duty is supposed to create a legal counter-action, a sanction that will be applied against the violator for violating a duty imposed on him or her. Because the individual’s duty is owed to the government, that would mean that the government could impose a sanction against the individual, if the latter violated his or her duty. It is as though we are being asked to equip the government with a kind of penal authority against an individual who violated a duty of fairness owed the government. For example: by suspending or revoking the license.

Indeed, in addition to other obstacles that this legal structure would create for us – problems entrenched in the principle of legality and the principle of separation of powers – this path would collide with a doctrine well-established in the case law. The doctrine is that an authorized agency may not take into account, as part of its considerations, the consideration that the individual acted with unclean hands. For example, in HC 192/61 Kalo v. City of Bat Yam, the petitioner opened a butcher shop without receiving a license. When he applied for a license, the municipality responded by saying that it would not consider his application because “he opened the butcher shop without a license, taking the law into his own hands.” The Court responded by saying that the doctrine of unclean hands is a consideration that the Court may consider – the Court and not the administrative agency. The Court held that:

The municipality is different from this court.  Section 7 of the Courts Law, 1957 authorizes this court to grant a remedy, at its discretion, while the municipality must consider an application submitted to it and make a decision on the merits, irrespective of the applicant’s behavior. I do not approve of the decision of the municipality’s licensing committee not to consider the applicant’s request because he opened the store without a license. Moreover, the applicant has already been subject to criminal proceedings for that deed, and he has been convicted of violating that ordinance. A local authority must serve as an example for its citizens by stringently abiding by the law, because if it fails to do so, the citizen will follow its example. The licensing committee’s June 25, 1961 decision disregards this duty …

HC 192/61, supra [48] at 1858 (Sussman, J.). See also HC 328/60 Musa v. Interior Minister [49] at 79 (Sussman, J.).

The difference between an act (or omission) that constitutes unclean hands and a breach of the duty of fairness – if you prefer, the difference between the clean-hands requirement and the duty of fairness – is minimal. It would not be difficult for us to locate a violation of the duty of fairness within the bounds of the doctrine of unclean hands. In other words, recognizing the proposed duty of fairness would seriously erode the doctrine well-established in the case law, namely that an agency cannot consider an applicant’s lack of clean hands. This would be done without giving the Kalo [48] doctrine an opportunity to defend itself and justify its continued applicability. And if we were to examine the matter a bit more closely, we would see that the Kalo [48] doctrine clearly and appropriately expresses the principle of separation of powers and the principle of legality. Would it be right for us to give up on this expression of principles lying at the base of the legal system?

            The Individual’s Duty of Fairness to the Government As Derived from the Agency’s Authority

28. My colleague, President Barak, disagrees with my colleague, Justice Zamir, about imposing a general duty of fairness on the individual, owed to the government. In his opinion, there is no appropriate legal source for this duty of fairness, and in any event, the duty has no place in Israeli law. So far, my colleague, the President, and I are traveling in the same carriage, side by side. However, at this point, we will part company, he to travel in his carriage, and I to continue in mine.

29. According to my colleague, the President, the individual does not owe a general duty of fairness to the government, but he or she may, in the balance of rights and duties between him or her and the government, owe certain duties to the government. For our purposes, as my colleague, the President says – meaning, in a system in which an individual requests any sort of license from the government – the individual owes a duty to the government. And what is that duty? The duty is to bring to the agency’s attention the facts that the agency needs in order to appropriately and properly exercise its lawful authority. The governmental decision, my colleague says, “must be based on the proper factual infrastructure. Hence, the agency has a duty to collect the factual data, assess them as necessary, and use them to determine … the factual infrastructure relevant to making the governmental decision.” This is the source from which we learn about the individual’s duty, which is the duty to “assist the governmental agency in building the factual infrastructure that serves as the basis for the governmental decision of whether or not to grant the license.” Therefore, an individual applying for a license or permit from the government bears a duty “to disclose the factual data material to the factual infrastructure which will serve as the basis of the government's exercise of discretion.” In a slightly different formulation, “If the individual requests a license or permit from the government, and in order to exercise its discretion, the government needs facts known to the individual, the individual bears the burden of disclosing those facts to the government …” Again, “The duty of disclosure I discuss … applies to licensing regimes through which an individual applies for a license. Under those circumstances, I accept that the individual should be required to disclose the facts he or she knows which are relevant to the exercise of governmental discretion.”

We therefore find that, instead of the all-encompassing duty that my colleague, Justice Zamir, seeks to impose on the individual vis à vis the government – the general duty of fairness – within a system in which an individual seeks a license from the government, my colleague, President Barak, seeks to impose a duty to disclose “the facts he or she knows which are relevant to the exercise of governmental discretion.” Instead of the duty that my colleague, Justice Zamir establishes – a duty that emanates a whiff of social morality – my colleague, the President, makes do with an ordinary duty belonging to the ranks of day-to-day administrative law. An ordinary duty – but a duty nonetheless.

30. To these ideas, I will add my own contribution: just as I found it difficult to accept the yoke of a general duty of fairness owed by the individual to the government, so do I find it difficult to add my support to a duty to make the appropriate disclosures of facts relevant to exercising discretion. If my opinion were to hold sway, the individual would owe the government neither a general duty of fairness nor a duty to disclose relevant facts. I am not saying that an individual is released from the yoke of any duty owed the government. I do, however, say that the individual’s duties to the government are far more limited than those that my colleagues – each in his own way – seek to impose. I will discuss those duties later. For now, I will try to explain why I find it difficult to concur with President Barak on the issue of a duty to disclose the facts relevant to the exercise of discretion.

31. We read the sign hung on the embarkation point of our journey, and I will remind you that engraved upon it is the word “freedom.” “Freedom” means that the individual owes no duty to the government other than the duties that a provision of law – including of case law – imposes upon him or her, whether it is a positive or negative duty. The penal code, for example, which is filled to the brim with negative duties, constitutes negative duties which are explicitly imposed by law (however they may be formulated), and they are the minimum duties that make a society human. These duties restrict the individual’s freedom, the freedom with which we began our journey. Alongside these negative duties reside positive duties which the law imposes on the individual. Examples of these duties include the duty to serve in the military and the duty to pay taxes. Other examples are the duties that parents owe their children and those that certain individuals owe to protected persons and to helpless persons. It is superfluous to note something which everyone knows – that there are far fewer positive duties than negative duties. That is not for naught. We have decided that, in principle, negative duties burden the individual less than positive duties, meaning that negative duties invade an individual’s area of freedom less than positive duties. In other words, consistent with liberal democracy and individual rights – among other things – it is easier to impose negative duties on the individual than positive duties. We learn from this that before imposing a positive duty on an individual, we must consider and reconsider whether our decision goes too far, whether we have exceeded what is appropriate and permissible under the basic perspective accepted in our society.

Why do I say all this? Because my colleague, President Barak, seeks to impose on a license or permit applicant a positive duty to disclose details relevant to the exercise of the authority imparted to the government. And I say that before imposing this positive duty on the individual, we carefully examine if we have exhausted other ways of achieving the goal we seek to achieve, without imposing a positive duty on the individual.

32. I personally found it difficult to understand where the duty of disclosure that my colleague, President Barak, seeks to impose on a license applicant came from. We all agree, of course, that an authorized agency which has the power to give – or to refuse to give – a license to an individual bears a primary duty to assemble all the relevant information necessary to lay a factual basis for exercising its discretion. However, this duty to assemble information is imposed on the agency, not on the individual seeking to receive a license. The agency is the trustee of the public, and as a faithful trustee, it must rest on its lees until is assembles all the information relevant to the issue, because only on a solid foundation can one build a house that will not collapse. What is the basis for saying, as does my colleague, President Barak, that, “The source of the duty of disclosure in the present case is the view that a proper exercise of governmental authority requires the individual to make appropriate disclosures to the government concerning material facts which serve as the basis for the governmental decision?” What does the duty imposed on the agency tell us about the duty imposed on the individual? Aren’t these two duties, in some ways, contradictory? What is the basis for saying that the duty imposed on the government in itself breeds a duty imposed on the individual?

Another Opinion

            33. I think that just one bridge can bridge the gap between the duty imposed on the agency and the duty that has been said to be imposed on the individual. The bridge is this: in the course of fulfilling its duty to assemble information, the governmental agency may – may, and even must – ask the license applicant to hand over the facts which he or she has (and of which the agency may not know from other sources). This is the case, for example, where the written law itself – the statute or regulations – sets pre-conditions for receiving a license. In our case, the law requires an applicant for a license to operate a licensing warehouse to possess a warehouse it owns, rents, or leases. Regulation 14 and the Sixth Addendum to the Customs Regulations. Once the law sets preconditions for applying for a license, it is elementary that the government agency can require the applicant to provide reliable information regarding the existence of those preconditions (unrelated to any duty of fairness). We should recall the holding that, if the law explicitly sets certain preconditions for granting a license, and the law does not impart the agency with additional discretion, the agency may not add conditions to the ones established. HC 43/76 Amitar Company, Ltd. v. Tourism Minister [50] at 559-60; HC 208/79 Ineis v. Health Ministry General Director [51] at 304; 1 B. Bracha, Mishpat Minhali [Administrative Law] [83], n.52 on p.164. If the agency lacks the authority to add conditions to the conditions, as a matter of course, it lacks the authority to demand information about those conditions which it has no authority to set for a license applicant.

            34. Therefore: where the law explicitly sets preconditions for granting a license, the agency has the authority and may – may and even must – require a license applicant to convince it that those conditions have been met, that it disclose the information necessary to prove that those conditions have been met. Another typical case is where the written law does not explicitly set preconditions for granting a license, but we know the scope of the agency’s discretion – meaning, the authority of the agency to set the conditions that must be met for it to grant the license – through the purpose of the statute. Once we know learn and discover that the agency’s discretion depends on certain considerations, we know for ourselves that the agency is authorized to collect information about those issues in order to fulfill its role. This authority to set conditions includes the secondary authority to require a license applicant to provide the requested information (unless the applicant has a right under the law not to disclose the information, and if that is the claim, the applicant bears the burden of establishing that right), because only if the license applicant fulfills that requirement, can the agency properly perform what the law requires of it. Section 17(b) of the Interpretation Law, under which “authority to do something or to require it to be done – means the secondary authorities necessary thereto, to an acceptable extent.” Authorizing a governmental agency to grant a license – or to refuse to grant a license – includes the secondary authority to demand information from the license applicant. This secondary authority is necessary for the agency “to an acceptable extent,” to allow it to exercise its discretion properly.

            35. This is the bridge that bridges the gap between the duty imposed on a governmental agency to exercise its discretion in the best way possible and the duty imposed on a license applicant to provide information to the agency; if receiving the information from the license applicant is necessary for the government agency to exercise its discretion properly, it has the authority, and it may require the individual – via a law, regulations, or internal regulations, or on a case-by-case basis – to provide information in the area of its exercise of discretion. When asked to provide information, the individual must provide the required information, to the extent it is required and in the way it is required. However, the government bears the burden of initiating the requirement – by setting preconditions normatively or on a case-by-case basis – and the individual bears no duty other than the duty to respond to the demands placed on him or her. I personally would not agree to impose a case-law duty on the individual – as my colleagues propose – whether it is a general duty of fairness, as my colleague, Justice Zamir proposes, or a duty of the individual to provide, at his or her own initiative, information relevant to the agency’s exercise of discretion, as my colleague, President Barak, suggests.

            36. The agency is the one with the experience, as its job is to grant license of the kind discussed: in our case, licenses to operate a licensing facility. In other case: a business license. In yet another situation: a driver’s license. The daily business of a governmental agency allows it to accumulate experience and knowledge about the requirements that it should impose on license applicants including the questions it should ask them. That is how the governmental agency acquires experience – precept upon precept, precept upon precept, line upon line, line upon line [Isaiah 28:10 – trans.] – and when a license applicant approaches it, it can ask him or her questions and demand answers and information. Who are we to impose a duty on the individual – be it a general duty of fairness or a duty to provide relevant information – when the agency, in the course of the proper fulfillment of its role, knows how to ask for the information it desires?

            Moreover, because it is experienced in its field, the governmental agency knows what relevant information it needs to exercise its discretion properly. On the other hand, how will the individual know what information the agency needs – meaning, what information is relevant – if the agency does not explicitly ask him or her to provide it? Doesn’t the individual have a right to assume that information which the agency does not explicitly request is not relevant information? Is it relevant that he was convicted of beating his wife ten years prior to submitting the application? Is it relevant that she has refused to make maintenance payments to dependents? And if the individual has not been explicitly asked to give the agency information about prior convictions, why should we require him or her to volunteer information that is embarrassing to him or her? May he or she not assume that such information is not relevant, because he or she was not asked to provide it to the agency? Furthermore, the duty to disclose information would be imposed on the individual only if the agency omitted something – did not fulfill its duty properly – and did not ask the individual to provide this or that important piece of information. If the agency omitted something by not demanding a certain piece of information from the individual, why should we require the individual to “know” that such information is relevant and to provide it to the agency at his or her initiative?

            37. In our case, a precondition for granting a license to operate a licensing warehouse is that the applicant possess a warehouse that he or she owns, rents, or leases for a particular time, from day X to day Y. Sixth Addendum to the Customs Regulations. The license applicant has a duty to give the agency information about the “warehouse” he or she possesses. The regulations explicitly provide, in detail and in a way that leaves no room for doubt, that the applicant must give the agency information about his or her rights in the warehouse. We have no need for a duty of fairness or any other case-law duty imposed on the individual to provide relevant information to the agency. The license applicant’s duty is explicitly written and established in the law, and we have no need to resort to a duty from any other source.

            To draw a comparison, assume, arguendo, that the Customs Regulations did not explicitly require – as they currently do – that an applicant for a license to operate a licensing warehouse possess a licensing warehouse which he or she owns, rents, or leases. Let us further assume that the agency does not explicitly require the applicant to prove ownership or a rental right in the licensing warehouse. Can we say that the applicant must – at his or her initiative – provide the agency with information about the warehouse or be viewed as someone who violated a duty owed, because the information is relevant information? I wonder.

            38. Here, we should differentiate between the duty of disclosure that the individual owes an agency and the duty of disclosure that the individual owes another individual with whom he or she is supposed to form a contract. Under section 15 of the Contract Law (General Part), someone who forms a contract because of a mistake stemming from the other party’s misrepresentation may void the contract. For this purpose, “misrepresentation” means: “nondisclosure of facts which the other party should have disclosed by law, by custom, or under the circumstances.” We learn about the scope of this duty that the law imposes on those about to enter into a contract from the positions that parties occupy in relation to each other. The two are not just “rivals,” but they are also supposed to have equal power. A priori, one may not require and has no authority to require the other to provide material or relevant information about the contract. This is the source of the duty which the law imposes on the parties – mutually – and the sanction it imposes for failing to fulfill such duty. On the other hand, the relationship between the individual and the government is different from North to South, if only because of the position of power which the government occupies in relation to the individual. When the individual applies for a license or permit from the government, the government has the right and authority to require the individual to provide information material and relevant to the license. Once the government has been granted this power, there is no need to impose a duty on the individual vis à vis the government.

More on the Individual’s Duty of Fairness to the Government

            39. In the Awad case [30], the petitioner was a member of the Rosh Haayin Religious Council and was even chosen to be its chairman. It became clear that the Minister of Religious Affairs agreed to the petitioner’s appointment without knowing that he had previously – in the context of his tenure as the treasurer of the Religious Council – been convinced of crimes of theft. Because of a prior petition submitted to the High Court of Justice, the Minister of Religious Affairs informed the petitioner that this appointment [as chairman – trans.] was terminated, as was his appointment as a member of the Religious Council, because it became clear that approval of the appointment to the Religious Council (the petitioner was the candidate of the local council) “was granted through a mistake and/or misrepresentation, namely concealment of the fact that the petitioner had been convicted of a crime of moral turpitude and therefore is not suited to serve as a member of the Religious Council.” Id at 490. In considering the Awad [30] petition challenging the decision of the Minister of Religious Affairs, the Court held that the prior conviction of a candidate for the Religious Council is an appropriate consideration in the question of whether or not to select him as a member. The Court then considered the next question, whether the minister could “revoke his approval of the petitioner’s candidacy as submitted by the local council, based on the claim that at the time he gave his approval, the minister did not know that the petitioner had committed a crime of moral turpitude?” Id.at 492. The Court held that the minister could revoke his approval. On this issue, Justice Barak wrote:

Personal integrity, the lack of a criminal past, etc. are considerations material to this issue. The minister arrived at his stance regarding these considerations by examining a set of facts that does not comport with reality. The minister knew nothing about the petitioner’s prior conviction. Moreover, under the circumstances, the petitioner had a duty to disclose the fact of his conviction to the local council, and both the local council and the petitioner had a duty to inform the minister of it. The duty of good faith and fairness require this step to be taken. Reg. v. Home Secretary, ex p. Zamir (1980) at 950. Therefore, we are dealing with a material mistake in the minister’s approval, because of a lack of information about facts which were required to be brought to the attention of the minister. The result is that an appointment was made which seriously undermines the integrity and image of the civil service, as well as public faith in it. I think the combined weight of these facts is another reason to allow the minister to revoke his approval. In the proper balance between the public interest in the integrity of the civil service and public faith in the public administration, on the one hand, and the public interest in the uninterrupted activities of the administrative agency and the petitioner’s personal interest in the continued validity of his appointment, on the other hand, the first interest trumps.

Id.

            My colleague, Justice Zamir, uses these words to establish, inter alia, the general duty of fairness which he tries to impose on someone who applies for a license from an agency. Para. 29 of his opinion. I wish to tarry and ponder this a bit.

            40. No one would disagree that a candidate for a Religious Council must be an honest person; the question of a candidate’s integrity – if you like, his criminal past – is a primary consideration in the authorities’ discretion whether or not to choose him as a member of the Religious Council. There is further agreement that – from the public’s perspective – a candidate for the position should disclose – at the beginning of the process – his unsavory past. The question is whether the candidate bears a legal duty to disclose his criminal past to the authorities selecting him; and if such a legal duty does exist, what sanction might the candidate bear if he omits fulfilling the duty imposed on him? It seems to me that the question of the duty – “the duty of good faith and fairness” – was not relevant in the Awad case [30], and to the extent it was relevant, it remained hidden in the margins.

            Justice Barak held that the question of Awad’s criminal conviction constituted an important factor in his appointment, and that the minister’s ignorance of that criminal past constituted a serious deficiency of discretion. As he held, “we are dealing with a material mistake in the minister’s approval … (emphasis added – M.Ch.).” I will, of course, agree. However, if that is the case, of what relevance is the duty of good faith and fairness? Let us assume, for example, that because of an omission or negligence, Awad was not asked about his criminal past, and the subject came up only by coincidence. In that case, wouldn’t the minister’s approval still be tainted by a “material mistake?” And in that case, wouldn’t Awad’s appointment as a member of the Religious Council still be an appointment which, in the words of Justice Barak, “seriously undermines the integrity and image of the civil service, as well as public faith in it?” If so, how is the “duty of good faith and fairness” relevant? Another case: assume, for example, that Awad was asked about his criminal past; that he responded honestly to the questions asked; but that his answers got lost somewhere on the way to the minister. In a case like that, wouldn’t his appointment still seriously undermine the integrity of the civil service and so forth? Wouldn’t the minister’s approval under these circumstances still be tainted by a material mistake? Indeed, in this last case, we might feel personal empathy for Awad, but I doubt it would change the conclusions and results of the court decision.

            41. From this we learn, in my opinion, that the primary question does not concern the duty of fairness that Awad owed the authorities but rather the material mistake they made in exercising their discretion. Once the agency learned that it had made a material mistake in its discretion, it was allowed – in principle – to revoke its decision, even if it doesn’t always have such power. See e.g. the Awad case [30] at 492; see also the citations in para. 15 of Justice Zamir’s opinion. The primary question concerns the substantive aspects of the discretion, as Justice Barak held:

We face the following question: May the Minister of Religious Affairs revoke his approval of the petitioner’s candidacy, as proposed by the local council, with the claim that at the time he gave his approval, the minister did not know that the petitioner had committed a crime of moral turpitude? In my opinion, the answer to that question is in the affirmative.

Id. at 492.

            Indeed, a candidate’s knowing concealment and denial of negative information about his character is likely to work to his disadvantage. It seems to me, however, that the main issue is not the duty of fairness or its violation, but rather the very fact that the authorized agency made a material mistake in exercising its discretion.

            42. The main point: in any case in which an authorized agency’s decision is tainted by a material mistake, the agency may and has the authority – as a matter of principle – to revoke the decision. The question of the duty of fairness that an individual owes (or does not owe) to the government is not relevant, because the agency’s mistake was and remains material, whether or not we say the individual owed a duty of fairness.

            43. In order to ground the duty of fairness owed by an individual to the government, Justice Zamir relies on Justice Barak’s comments in the Awad case [30] (see the citation in para. 39, supra). Justice Barak, for his part – in the Awad case [30] – extrapolated from the comments of Lord Wilberforce in Reg v. Home Secretary, Ex p. Zamir (1980) (hereinafter – the Zamir case [74]). In that case, Zamir, a citizen and resident of Pakistan, applied for an entrance visa to the United Kingdom, in order to join his father, who had been living in the United Kingdom for ten years. This took place in 1972. Zamir completed an application form for a visa and described himself as a bachelor, as he indeed was (at the time, he was 15 years old). His application was granted in 1975. In 1976, while still in Pakistan, Zamir married, and one month later, he traveled to the United Kingdom on the visa he had received. At the time he entered the United Kingdom, he did not disclose to the authorities that he had married, and he was not asked about his marital status. An immigration clerk approved Zamir’s entrance into the United Kingdom for an unlimited period of time. After a while – when Zamir’s wife and son applied to join him – the truth was discovered, and the agencies sought to deport Zamir from the United Kingdom. Zamir petitioned the court, challenging the decision to deport him, and his petition was rejected by two levels of the court system. His case now reached the House of Lords. The House of Lords also rejected Zamir’s petition. In the course of his opinion, Lord Wilberforce said:

It is clear on general principles of law that deception may arise from conduct, or from conduct accompanied by silence as to a material fact. It can be no answer to a claim that such deception has occurred to say that no question was asked... I would, indeed, go further than this – a point so far left open in the Court of Appeal. In my opinion an alien seeking entry to the United Kingdom owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance (emphasis added – M. Ch.).

Id.at 950. 

 

            In other words: Lord Wilberforce recognizes a duty of fairness owed by the individual to the government. “A positive duty of candour” means that the individual owes a duty to disclose information to the agency, even if he or she is not asked about it. My colleague, Justice Zamir, calls it the duty of fairness.

            44. However, this rule – in that formulation – did not last long. It was overruled (with the concurrence of Lord Wilberforce) four years after the Zamir case [74], in the decision made in Reg. v. Home Secretary, Ex p. Khawaja (1984) (hereinafter – the Khawaja case [75]). The facts in the the Khawaja case [75] were similar to the facts of the Zamir case [74], except that this time, the House of Lords rescinded the duty of fairness that Lord Wilberforce established in the Zamir case [74]. In the later case, the House of Lords held that a person applying for an entrance visa to the United Kingdom does not bear a duty to disclose material information (“duty of fairness”). The individual’s only duty is not to engage in fraud or deception. Regarding the Zamir case [74] (which was the law in the the Khawaja case [75]), the House of Lords held that Zamir’s behavior, in fact, rose to the level of deception (because in entering the United Kingdom, he implicitly presented himself as a bachelor, when he was in fact married). Lord Fraser says in his opinion (with which the other judges concurred) that Lord Wilberforce’s comments (cited above) in the Zamir case were dicta. He went on to hold that:

At the time when his [Lord Wilberforce’s – M. Ch.] speech was delivered I agreed with all of it ... but on further reflection, in the light of the arguments in the present appeal, has convinced me that it would be wrong to construe the Immigration Act 1971 as if it imposed on persons applying for leave to enter a duty of candour approximating to uberrima fides. But, of course, deception may arise from silence as to a material fact in some circumstances; for example, the silence of the appellant Khawaja about the fact of his marriage to Mrs. Butt and the fact that she had accompanied him on the flight to Manchester were, in my view, capable of constituting deception, even if he had not told any direct lies to the immigration officer.

Id. at 97.

            Lord Wilberforce himself agreed (Id.at 99) that his comments in the Zamir case [74] were dicta, and that the case in question had been a typical case of deceit (by Zamir). The other judges agreed with Lord Fraser. See Lord Bridge’s opinion at 118-19, 126; Lord Scarman’s opinion at 107, 108. Lord Scarman also expresses reservations about Lord Wilberforce’s comments in the Zamir case [74], and goes on to say the following: All agree that an applicant to enter the United Kingdom bears a duty to answer the questions he or she is asked honestly and to provide the information requested. He or she bears no additional duties. The applicant does not know which facts are material. The immigration clerk is the one who knows which facts are material to his or her decision, and therefore the individual should not bear a duty to provide material facts. Lord Scarman writes:

It is certainly an entrant’s duty to answer truthfully the questions put to him and to provide such information as is required of him... But the Act goes no further. He may, or may not, know what facts are material. The immigration officer does, or ought to, know the matters relevant to the decision he has to make. Immigration control is, no doubt, an important safeguard for our society... To allow officers to rely on an entrant honouring a duty of positive candour, by which is meant a duty to volunteer relevant information, would seem perhaps a disingenuous approach to the administration of control... The Immigration Act does impose a duty not to deceive the immigration officer. It makes no express provision for any higher or more comprehensive duty: nor is it possible, in my view, to imply any such duty. Accordingly I reject the view that there is a duty of positive candour imposed by the immigration laws and that mere non-disclosure by an entrant of material facts in the absence of fraud is a breach of the immigration laws.

Id. at 107-08.

            The English law perspective is clearly that the individual does not owe a “duty of fairness” to the government, and therefore, he or she does not owe a duty to disclose information. This is the case where the individual does not engage in an act of fraud and deceit.

            45. A note: Even though I express reservations about Lord Wilberforce’s comments in the Zamir case [74] regarding the duty the individual owes the government, I liked the comment he made in the Khawaja case [75] regarding his comments in the Zamir case [74]. In his opinion in the Khawaja case [75], Lord Wilberforce said that his comments in the Zamir case [74] about “a positive duty of candour” owed by the individual to the government were not necessary to reach the decision, because that case was “a case of clear deception.” He went on to say that:

I ventured the opinion that a system of consideration of individual cases for the privilege of admission to this country can only work humanely and efficiently on a basis of candour and good faith on the part of those seeking entry. If here I trespassed on to the ground of moral judgment, I am unrepentant.

Id. at 99.

            That is what we said in another place: there is a legal “duty of fairness” and there is a “duty of fairness” belonging to social morality, and the two are not the same. Lord Wilberforce sought to take a “duty of fairness” from the institution of social morality and bring it to the order of law. His intention was good – we all agree – but establishing the norm as he suggested would have the legal system adopt a mode of proper behavior that is best left to other normative orders.

            Lord Wilberforce concludes his comments with a statement the likes of which we are not accustomed to hearing in judgments of the House of Lords (or in judgments of other courts). If, in founding a duty of fairness in the Zamir case [74], he says – the same duty of fairness that the individual owes the government – I trespassed into the area of moral adjudication, I do not regret my words. Lord Wilberforce’s speech is among the noblest of any made in the United Kingdom at that time.

            By the way: There is reason to think that the duty of fairness that Lord Wilberforce discusses in the Zamir case [74] was not presented as an all-encompassing doctrine of law but rather as a duty limited to the subject of immigration. He alludes to that in his comments in the Zamir case [74], in which he presents immigrants as those requesting a privilege, meaning those who have a lower-ranked right. Id. at 950 (In Israel, the law is that someone who is not a citizen or an immigrant under the Law of Return, 1950, does not have a right to enter or remain in Israel except by permission. See e.g. HC 758/88 Kendel v. Interior Minister [52] at 520; HC 740/87 Bentali v. Interior Minister [53]; and citations therein). As a fundamental rule, the state does not owe a duty to foreigners seeking to settle in its territory. And if, in an immigrant’s first step on the territory of the homeland that adopted him or her, he or she tries to trick the authorities, we can understand – if not necessarily justify – the view that in doing so, the applicant forfeits his or her right to immigrate.

            46. My opinion, as noted, is that the individual does not owe a duty of fairness to the government. In other words, for our case, the individual need not disclose, at his or her initiative, material information that the agency needs to exercise its authority. Of course, that does not mean that the individual owes no duty whatsoever to the agency. It means only that such duty is limited to the duty not to deceive, to lie, to cheat, to mislead, to spin a web of lies about the agency. As it is written, “You shall not wrong one another, but you shall fear your God …” Leviticus 25:17 [b]. It goes without saying that I am referring not only to active deceit – such as when the individual gives the agency false information – but also to implied deceit, through silence or behavior. This was the case of the Pakistani citizen, Zamir, who in entering the United Kingdom, implicitly presented himself as single, knowing full well that his entrance was permitted under an entrance visa in which he presented himself as a single.

            The same is true of our case: the petitioner knew full well about the precondition it had to meet, namely that it possess the warehouse for which it sought a license as an owner or through a rental contract. From the outset, it was required to produce certain documents, including “a contract of rental or lease for the additional area.” Despite that requirement, the petitioner sent the Customs Authority documents that did not give it – as it knew – a right to rent or lease. The petitioner knew those documents did not meet the precondition required of it. The fact that the customs agents did not properly check what they were supposed to check and did not demand what they were supposed to demand, cannot absolve the petitioner of responsibility for the serious deed it did. As a matter of fact, the petitioner spun a web of lies about the Customs Authority, breaching the duty it owed the agency. When the agency therefore sought to revoke the license, the petitioner could not deny the act of misrepresentation it committed, and in any event, it could not raise a claim worth hearing. A license issued through an act of deception by the grantee is a license flawed from inception, and the necessary conclusion is that the agency had a right to revoke the license. There are exceptions to the rule, but these would be mandated by the special circumstances of a particular case. See e.g. HC 135/71 [25]. The main point of our case is that the petitioner complicated things for itself not just by failing to disclose information, meaning by breaching the duty of fairness that it allegedly owed the Customs Authority, but also by intentionally misleading it. The Regulations imposed a serious of preconditions which needed to be met before the petitioner could receive a license for a licensing facility; not only did the petitioner fail to meet those conditions, but it intentionally misled the agency about their fulfillment, exacerbating its sin.

            47. Thus far, we have discussed the duty of fairness. I now want to move on to the second issue that I wish to address, and it is the issue of a public agency’s authority to adjudicate a dispute between individuals.

On the Status of an Administrative Agency in a Dispute Between Individuals

            48. What is the status, and what is the authority, of an administrative agency to adjudicate – directly or indirectly – a dispute between individuals? An administrative authority is born and conceived in public law, its formation is a formation of public law, it breathes the air of public law, its gait is the gait of public law. Knowing all this, I will ask: When an administrative authority is called to address an issue within its authority, must it limit its considerations to public law considerations, or can we say, perhaps, that it may consider considerations from the field of private law? And if we take this latter path and say that the administrative agency may consider considerations from the field of private law, does this statement conceal a subsidiary statement that the administrative agency may and has the authority – as a derivative of its exercise of power– to adjudicate disputes between individuals?

            49. My colleague, Justice Zamir, tells us that, “it is an old precedent” that an agency authorized to grant a license is supposed to limit itself to considerations from the field of public law, and to take care not to cross into considerations from the field of private law. At first, I thought that the descriptive “old” refers to a dignified rule, like a fine wine which improves as it ages. However, upon further reading, I realized that my colleague was actually referring to the opposite. “Old” meant obsolete. That realization kept me up at night.

            50. We will never, never change a precedent nor apply a precedent without knowing where it comes from – who were its mother and father, in what environment it was born and grew up – and where it is headed. Know from where you come and to where you go. Let us recall that, if we only knew the force motivating precedent and law, we would know their boundaries and their limitations. Regarding precedent (but not law), we will add: cessante ratione legis cessat lex ipsa. When the reason of the precedent ceases, the precedent itself ceases. What is the precedent in our case, and what is the force urging it along its way? According to my colleague, what was the precedent in our case, and what was the force urging it forward, at the time?

            51. Personally, I have never encountered an all-encompassing rule that an administrative agency many not take into account, as part of its quorum of considerations, considerations from the field of private law. Reuben, a café owner, asks for permission to hire a band that will play and make his guests’ stay more pleasant. Can anyone say that the municipality may not clarify how much the playing will intrude upon the neighbors’ peace and quiet? Would we bar the municipality from considering this factor of the neighbors’ quality of life? Would we tell the municipality – and the neighbors – that the subject of the nuisance is a subject “from the field of private law” which the agency therefore must ignore, referring the irate neighbors to a civil court?  We have never encountered a case-law rule like this, if only because it has never been established. Indeed, a license that a municipality gives to hire a band in a café does not include a license to permit playing that rises to the level of nuisance. CA 186/52 Jerusalem “Eden” Hotel v. Dr. Gerzon [54] at 1132-33. This rule is self-evident, because a municipality does not have the legal authority to permit a nuisance. We would not hold that a municipality, at the outset, may not include, in its quorum of considerations, the possibility that the band’s playing will rise to the level of a nuisance. The case law has not held as such, and in my humble opinion, it should not hold as such. I would not know for what purpose a rule like this – were it established – would be designed, or what social or other objective it would serve. On the contrary: a rule like this, if established, would place the burden on the neighbors, and in the overall social balance, this burden is inappropriate and unjustified. This is true of a license to hire a band in a café, and it is true of any other administrative act. The rule is not – nor was it – that an administrative agency may not include, in its quorum of considerations, considerations from the field of private law simply because they are from the field of private law.

            By the way, “suitable environmental quality and the prevention of nuisances and hazards” is, today, one of the declared purposes of the Business Licensing Law, 1968 (sec. 1(a)(1)). The authorized agency therefore may – indeed, must – consider the issue of nuisance. Even if that were not part of the law – in the absence of an explicit prohibition – the agency may, and even must, consider the issue of a nuisance to the neighbors.  

            52. Similar things have been said about the traditional distinction between private and public law. We are told that times have changed, and that today – unlike in the past – the distinction between private and public law is not so clear and rigid. In the end, we are told, private and public law are one – they frequent the same places, and a natural process of osmosis takes place between them: principles and doctrines from one area penetrate and seep into the other, and on chance occasions, we discover that a rule from one area has made its way into the other. This integration of fields, we hear, breeds “hybrid creatures” – a kind of amphibian – and these creatures, at least some of them, take their orders from private and public law.

            I confess: These statements, and others like them – although I, too, have written them – have troubled me in the past, and they continue to trouble me today. Indeed, regarding the division of jurisdiction between the High Court of Justice and the civil courts, the legislature has forced us to divide the law into two. See e.g. HC 1921/94 Sukar v. Jerusalem District Committee on Construction, Residence, and Industry [55]. Regarding the substantive law, however, I see no difference between our era and bygone days. As a matter of fact, when was there a “clear and rigid” distinction between public and private law? The opposite is true: English common law jurists always took pride in the fact that in Britain, the common law ruled, and that administrative law is just an extension of the common law.

            53. Having said all that we have said, we cannot, of course, ignore the historic legal development, the development which presented us with the legal system as we have it today. The legal system is divided into families, and this division is designed to affect the content of the norms themselves. This is true of the family of contract law, the family of tort law, the family of property law, the family of administrative law, and other legal families. It is superfluous to note that, throughout the years, there have been intermarriages – an inevitable phenomenon within the areas of a single legal system – and “hybrid creatures” have been born. We cannot avoid determining, however, that this historic development has had a prominent effect on the formation of the legal system as we know it today.

            54. The division of the legal system into private and public law is similar – similar but not identical – to the internal division of private law into different branches of law. This is the case, for example, of the division between contract law and tort law. These two kinds of legal classifications, while not identical, bear a resemblance to each other. This is certainly true of the technique of division. I said as much in another context:

Classification imposes order on the primordial rules of law. The legal system's basic principles determine the categories of classification [… ed.] The doctrines applicable to the rules associated into one category (capacity, consideration, mitigating damages, etc.) derive from the classification, and the classification derives from them. At particular points in time, the classification is made based on equality of the doctrines that apply to particular rules of law. Once the classification is made, and once the doctrine has been created and applied to a particular section of law, the doctrine rules over those associated rules of law, because they are located in a single section of law. That is true, making the necessary adjustments, when a specific rule of law is born, which is included in a particular section of law (whether explicitly or via its “interpretation”), because it will then be ruled by that section’s doctrines. This, of course, is merely a presumption (sometimes, it is not the case). The different points of departure of a classification may bring about a change in the legal rule. The point of departure may be chosen, a priori or a postiari, and in the latter case, great importance attaches to the historical events that had a hand in shaping the legal system.

M. Cheshin, Mitaltilin Bidin Hanizikin [Chattel in Torts] [84], n. 2 on p. 161.

In Israeli law, because of the jurisdictional divide between the courts, the distinction between public and private law became particularly sharp. The general view was that the High Court of Justice specializes in public law, while the civil court specializes in private law. If you add a few doctrines that have always governed in the High Court of Justice (clean-hands, delay, taking the law into one’s own hands, a done deed, intervention “for reasons of justice,” etc.), you will understand why the classification between public and private law has been so deeply rooted. However, it is nearly certain that, if public law petitions were brought before the ordinary civil court, the division of law between private and public law would be similar – though not identical – to the division of the law between contract law and torts.

55. Let us return to the matter in question. As I noted above, I know of no doctrine prohibiting an administrative agency from benefiting from private law considerations, simply because they belong to private law. Does that mean that every administrative agency may consider every private law consideration for every issue it addresses? Of course that is not the law. In the Alspector case [1], the local council refused to give the petitioner – a tenant – a license to open a convenience store in his apartment. The reason for the refusal: the landlord did not agree to turn a room in the apartment into a store. The court held that this consideration by the local council was illegitimate, as Justice Berinson’s opinion stated:

We fail to see the validity of that explanation … while in opening a store in his apartment without the landlord’s approval, the applicant may violate his lease, if that is the case, the landlord may come and fight his fight with the applicant. None of that however, is the municipality’s concern, and it cannot serve as the basis for refusing to grant the license.

Id. at 664-65.

How are we to understand Justice Berinson’s comments? In my opinion, Justice Berinson did not intend to establish a doctrine that private law considerations, as such, are illegitimate considerations for an administrative agency to use. For if he intended to make that ruling, we would protest: what is the source of that doctrine, and what is the justification for it? The Court, however, did not make that ruling. The Court’s holding did not concern private law considerations as such, but rather an attempt by the administrative agency to decide a dispute that arose between landlord and tenant by refusing to give the tenant a license. The Court thought in the following way: it would seem as though the petitioner is entitled to a license to open a store, because he fulfilled all the preconditions established by law for opening a store. So? The landlord claims that operating the store would violate the lease he signed with the tenant? The landlord is welcome to come and sue in the court with the proper jurisdiction to hear the complaint. The agency is not authorized to decide the dispute between the parties, and once the petitioner has fulfilled all the preconditions necessary to open a store, it must approve his application.

56. We therefore find the following: at the very least, in the absence of explicit statutory authorization, it seems that an administrative agency may not adjudicate civil disputes between individuals. It would seem as though an administrative agency may not take a dispute between individuals into account as a consideration in its decision over whether or not to approve an application. The consideration of a dispute between the applicant and a third party is external to the agency’s decision-making process. We are not talking about invalidating a consideration because it belongs to private law. The rule is the following: an administrative agency may not take into account considerations which the statute does not permit it to consider, whether they originate in private or public law. And one of the forbidden considerations is that the agency may not adjudicate a dispute that has arisen between the petitioner and another individual.

To be precise: there is no doubt that, once the preconditions necessary to receive a license have been filled, the administrative agency must approve the application submitted. There is nothing remarkable about that, and what we just said falls under the category of idem per idem. The novelty is in the statement that adjudicating disputes between individuals would seem to be outside the administrative agency’s scope of activity, and that the consideration of a dispute of the kind discussed above is a consideration that will be summarily rejected.

            57. This rule – forbidding the administrative agency from deciding – even indirectly – disputes between individuals, has been accepted in the case law as a doctrine, and I have never found a reservation to it. See e.g. HC 9/49 [2]; HC 35/48 M. Breslov & Partners Ltd. v. Trade and Industry Minister [56]; HC 56/53, supra [3]; HC 132/57 First v. City of Lod [57]; HC 280/60 “Avik” Ltd. v. Voluntary Authority on Importation of Pharmaceutical Preparations (the Avik case [58]); HC 115/61 Yakiri v. City of Ramat Gan [59]; HC 27/62 Alt v. Tel Aviv-Jaffa Local Town Building and Planning Committee (the Alt case [60]); HC 278/62 Sarolovitch v. City of Jerusalem (the Sarolovitch case [61]); HC 329/64 Guri v. Bnei Brak Local Town Building and Planning Committee at 370.

 

            58. One extension of this rule is that the police may not eject someone from land on grounds of incursion unless the incursion is "recent." If the incursion is not "recent," the police must refer the complainant to the court authorized to grant a remedy. See e.g. HC 109/70 Orthodox Coptic Metropolitan in Jerusalem v. Police Minister (the Coptic Metropolitan case [63]) at 240-44 (Agranat, J.); HC 37/49 Goldstein v. Jaffa Guardian of Abandoned Property [64] at 726 (Agranat, J.). By the way, the same doctrine governs other areas of law, like a registrar clerk's duty to record the documented information given him or her into the Population Registry (like the fact of marriage), without the authority to investigate the legal validity of that information (for example: whether or not the marriage is valid). See HC 143/62 Schlesinger v. Interior Minister [65]; HC 58/68 Shalit On His Own Behalf and On Behalf of His Children v. Interior Minister [66].

 

            59. What is the logic of the rule? What motivates and maintains it all these years? In my opinion, the answer lies in our legal system's structural need to designate and to allocate the primary functions and areas of activity to each of the three branches of government. To express it in the negative: the structural need of our legal system and system of government – as a matter of principle – to remove the primary powers designated for one branch from the domain of the other two. When we place the three branches side-by-side, we know for certain that the judicial branch is designed to judge. As section 1(a) of the Basic Law: The Judiciary says, "These are the courts given the authority to judge …" The authority of the judiciary is to judge, meaning to decide disputes. See HC 5364/94 Welner v. Chair of Israeli Labor Party [67] at 786 (Barak, Dep. Pres.). Unlike the judiciary, the primary function of the government and the public administration is to execute. As section 1 of the Basic Law: The Government says, "The government is the executive branch of the state." For our purposes, we can say that the structural principle in our system is the need to designate the power to judge – the power to decide disputes – to the judiciary, and to deprive the executive branch of that power. Thus, for example, in the Alspector case [1] and in subsequent related cases, had we recognized the power of the administrative branch to refuse to grant a license to an applicant because a third party claimed – claimed, and may even have proven by documentation – that receipt of the license and operation of the business would lead to his right being violated, we would have augmented the powers of the administrative branch, equipping it with the authority to judge. Because we are bound by the presumption that, in the absence of explicit and unambiguous authorization, the courts – and only the courts – will judge, as a matter of course, we prohibit the administrative branch from making itself judge in a dispute outside its domain.

           

            For those who insist on precision, I will add that I am aware of the phenomenon that the borders separating the powers are not hermetic, and that a system of separation of powers is based on "checks and balances." I will recall, however, that the foundation is the principle of separation, and that those very "checks and balances" are built on that same foundation.

 

            60. I will further note that in the U.S. legal system, a similar question arises concerning Congress's authority to pass legislation imparting the executive branch with judicial powers. The question is whether such grant of authority undermines constitutional principles, according to which the power to judge rests with the court system. The development of the case law on this issue is a fascinating story in itself, but I will not expand on it here. See e.g. L.H. Tribe, Constitutional Choices [85]; L.H. Tribe, American Constitutional Law [86];  Commodity Futures Trading Comm’n v. Schor (1986) [70]; Thomas v. Union Carbide Agric. Products Co.[71].

 

            We negate the authority of administrative and governmental agencies to adjudicate and issue rulings – even temporarily – in a dispute between individuals for the principled reason of separation of powers (using “checks and balances”), and the main point of doing so is to prevent one branch from encroaching on the domain of another. That is the way to preserve the distinct function of the judiciary to judge, guaranteeing the right of litigants to a just trial conducted by an independent body. There is a supplemental reason – a daily reason – and it is that the executive branch lacks the appropriate work tools to issue rulings and adjudicate disputes. Each of the three branches has adapted to its environment and role – it has specialized in its area of activity and created work tools to execute its function to the best of its ability.  Just as the court lacks the appropriate tools to engage in execution, so does the executive branch lack the appropriate tools to judge. The (surviving) plants and animals have adapted to their environments, as have the three branches of government. The best way to adjudicate disputes is the court’s way, and we therefore prevent administrative and governmental agencies from adjudicating disputes. They were not trained for it, and they are not the ones who bear the burden of doing justice for individuals who have quarreled. As Justice Berinson wrote in the Alt case [60], regarding a local planning and construction committee:

 

The local committee – like the regional committee – is not a legal body for determining the rights of conflicting parties. Neither is capable of deciding factual and legal questions concerning the mutual rights and duties of the asset’s owners and the actual or potential harm they would suffer. Their considerations are considerations of town planning and construction, and no more. The possibility that the rights of another will be infringed by construction done pursuant to a license issued by the local committee is not for the respondents to address, unless the opposing party alleging the infringement of rights has direct legal standing in the subject of the hearing …”

Id. at 1334.

 

See also HC 305/82 Y. Mor v. Central District Regional Planning and Construction Committee [68] at 148-49 (Or, J.).

 

            62. My colleague, Justice Zamir, seeks to prove that private law considerations can affect the decision of an administrative agency, and that there is “nothing wrong with that.” Along those lines, he writes:

 

For example, is it illegitimate for a municipality to refuse to grant a license to operate a business, or for a planning and building committee to refuse to grant a license to erect a building, when it is clear that the license applicant has no rights to the land of which he or she has taken possession (emphasis added – M.Ch.)?

 

Later, my colleague addresses the subject of the petitioner, saying that “under the Regulations, the Customs Authority need not, and may not even be permitted, to give a license to a trespasser.”

 

63. Now I will say my opinion. I do not disagree with my colleague that private law considerations may enter into a governmental or administrative agency’s quorum of considerations. That is my position, too. I personally think that statement, to some extent, amounts to bringing apples to an orchard. Not only is there nothing wrong in it, but it may bring about a lot of good. I agree with my colleague concerning the example he cites, namely that where it is unambiguously clear that an applicant’s request is based on an obstruction of justice, the authorized agency may – may, and perhaps even must – reject the application. However, as a matter of methodology, we cannot, from this example, deduce the rule that my colleague seeks to deduce. The reason is simple: the example is an extreme one, and it wouldn’t be right to learn the median from the extreme.

 

Our sages teach us: “Fools cannot serve as an example.” Tractate Shabbat 104:2 [a]. The reason is self-evident: fools act differently than those who are not fools. Their thought processes are not like those of an ordinary person; they do things that ordinary people would not do. We therefore do not deduce examples from either their thought processes or from their acts and omissions, and we do not analogize from their behavior to the general behavior of people. Just as we do not draw generalizations from fools, so do we not draw generalizations from extreme events. An extreme, by nature, has no choice but to carry the mental or emotional baggage characteristic of an extreme. In trying to draw analogies from extreme to median, therefore, we are likely to be led astray by that same baggage which is relevant – perhaps even essential – to the extreme, but nonexistent in the median, because it is the median. The extreme is graced with the qualities of an extreme, its unique value is the value of an extreme, and the qualities of the median are not necessarily the qualities of the extreme. For the matter of our concern, it is interesting to note that the rule about a “recent” incursion (supra para. 58) is explicitly founded the extremity of the case, and the rule is therefore limited to that same extreme case. As Justice Agranat held in the Coptic Metropolitan case [63]:

 

The duty of the police to come to the aid of a person in the above situation and to help him or her extract the asset from the one who has seized it depends on two conditions, both of which must be met: (a) the request for police assistance is made at the time the incursion is still “recent”; (b) it is clear to the police that there is no doubt and no question about the fact of incursion without permission.

Id. at 240.

 

            Only in cases of a disturbance of the peace – as demonstrated by Justice Agranat’s comments – may (and even must) the police intervene in a dispute between individuals. And if the disturbance of the peace is not immediate or the fact of incursion is in doubt, the police may not intervene in a dispute between individuals. Justice Agranat made the same point, with the necessary adjustments, in the Avik case [54], supra, as did Justice Landau in the Sarolovitch case [61], p. 514, and it is applicable here, too.

 

            64. Finally: So far, we have discussed the principle of negating the authority of the governmental and administrative agencies to intervene in a civil dispute between individuals. The substantive authority of the agencies, on the other hand, depends on the law for the issue in question. The law sets the framework for the agency’s authority, which in turn determines the range in which it may operate and exercise discretion. The Alt case [60], for example, made that holding, distinguishing a prior ruling on the same issue (HC 107/59 Mei-Dan v. Tel-Aviv-Jaffa Local Planning and Construction Committee (the Mei-Dan case [69]) at 805). In the Mei-Dan case [69], because the law explicitly granted standing to the owner of the asset, the agency was permitted to include, within its quorum of considerations, “disputes” between the owner of the asset and its possessor. In the Alt case [60], on the other hand, the law, as interpreted by the Court, did not grant standing to the owner of the asset, and the Court therefore held that such disputes were outside the agency’s field.

 

            65. Returning the case at bar: We began our journey with section 70(b) of the Customs Ordinance [new version], according to which, “In the Regulations, the government may establish the conditions under which warehouse licenses will be granted …” I will discuss the broad consensus which the government enjoys to issue regulations concerning licensing warehouses, thus paving the road for understanding how to treat the Regulations. In addressing the Customs Regulations, we find (in Regulation 14(b)) that a license application “will be according to the formulation in the Sixth Addendum,” and the Sixth Addendum in effect establishes the preconditions which a person must fulfill in order to be awarded a license for the warehouse. We are primarily interested in Part 3 of the Sixth Addendum, according to which the license applicant must make, inter alia, the following declarations:

 

We declare that we own the warehouse, and that it is recorded in the Land Registry under the documentation Block number … Parcel … in our possession via a rental or lease contract with … for a period of … years, commencing on … and ending on … Attached is a scheme of the warehouse and markings of the areas of the requested warehouse, approved by Engineer … the address of the warehouse: …

 

            This tells us that the applicant must be the owner, renter, or lessee of the warehouse, and the applicant must prove as much to the Customs Authority. These conditions are reasonable and appropriate. A licensing warehouse is an extension of the Customs Authority itself, in all its dignity, because it stores goods on which customs have not been paid. This is the reason for the requirement of ownership, rental, or lease – a requirement declaring that the applicant possesses the warehouse by right.

 

            Should we understand from this that the Customs Authority can investigate an applicant’s right, as a court would? Indeed, the question of the applicant’s right in the warehouse is a relevant question. It would be wrong to grant a license – more precisely, to interpret the law as though it ordered the granting of a license – to a blatant trespasser or someone whose right in the warehouse is eroded on all sides. However, how deep may the Customs Authority go to clarify the applicant’s right? Do the Regulations mean that the applicant must prove his or her right in the asset beyond a reasonable doubt? By a preponderance of the evidence? Assume, for example, that Gad possesses a warehouse by virtue of a rental contract, but Naftali, the warehouse owner, claims that Gad violated the rental contract; that the contract is therefore terminated; and that Gad must vacate the warehouse immediately. May the agency refuse the application, based on the fact that Gad has not proven his right in the warehouse? Let us further assume that Naftali filed an eviction action against Gad, and that the action is pending at the time the application is submitted to the Authority. May the Authority refuse to grant the application for this reason alone?

 

            66. In our case, there is no dispute that the petitioner possesses and exercises control over the area, as the holder of a right should possess and exercise control over a licensing warehouse. As for the petitioner’s right to possess and exercise control over the area, we cannot say for certain that it is a blatant trespasser. Moreover, for now (even if that was not the case at the outset), the petitioner has, at the very least, preliminary evidence regarding its right to possess the area, in the form of the map that was exchanged between the petitioner[ ] [trans.] and the Port and Train Authority (PTA) marked with the words, “storage area.” Against this background, I will insist and ask: Did the Customs Authority have a right not to renew the petitioner’s license, a license that it itself issued to the petitioner? In other words, I agree that, at the outset, the Customs Authority could have refused to grant the petitioner’s request, because the petitioner did not prove its rights in the licensing warehouse. However, considering what transpired since the petitioner received the license, and considering our holding today, that the question is the renewal of the license, and not the issuance of a new license – couldn’t one claim that, as of today, for purposes of renewing the license, things have changed to the benefit of the petitioner? Furthermore, since we know that the PTA has sued the petitioner to vacate the area, and the suit is pending in the authorized court, doesn’t the Customs Authority’s decision not to renew the petitioner’s license constitute intervention in a dispute between the petitioner and the PTA? Can’t we add that we are witnessing not mere intervention in a civil dispute but rather an adjudication of that dispute (even temporarily)? I will go further: I personally found it difficult to avoid the impression that the Customs Authority was called to the aid of its good friend – the PTA – and that its failure to renew the license was intended to adjudicate, even temporarily, the civil dispute that arose between the petitioner and the PTA.  Indeed, the Customs Authority did not explain to us – it did not even try to explain – which state interests would likely suffer harm if the petitioner’s license were renewed, even just until the court ruled on the eviction action.

 

            6[7 – trans.]. I have explained my serious trepidations – from this angle – in joining the camp of my colleague, Justice Zamir. And if I decided, for now, to drag myself into my colleague’s camp, it is only because I couldn’t say that the Custom Authority’s considerations were flawed – or flawed enough – such that a court should intervene in its decision. Had the issue been a basic right of citizens and residents, I would hold otherwise. I imagine that my colleague, too, would reach a different holding.  However, the issue is not a basic right of citizens and residents but rather a statutory right that a person is requesting. The petitioner is asking to be the trustee of the Customs Authority, to be permitted to hold goods in the warehouse in trust for the Customs Authority. Where a person asks to be recognized as a trustee, asks to be permitted to stop by anytime as an insider in the Customs Authority’s house, I can’t say that it is inappropriate to undertake a meticulous investigation as to whether the preconditions have been met. A similar – but not identical – thing may be said about those immigrants who sought to adopt the United Kingdom as their homeland. Supra para. 45. “Draw me after you – let us make haste” [Song of Solomon 1:4 – trans.]. I was drawn, and I made haste after my colleague.

 

            6[8 – trans.]. The end: At the relevant time, I concurred that the petition should be denied. My concurrence remains as is.

 

 

 

The petition is therefore denied. The petitioner will pay court expenses in the sum of 25,000 NIS to Respondents 1-2 and 25,000 NIS to Respondent 3.

 

 

February 4, 1998.