Discretion

featured: 
No

The Movement for Quality in Government v. State of Israel

Case/docket number: 
HCJ 3094/93
HCJ 4319/93
HCJ 4478/93
AHC 4409/93
Date Decided: 
Wednesday, September 8, 1993
Decision Type: 
Original
Topics: 
Administrative Law
Discretion
Judicial review
Constitutional Law
Government
Judicial Review
Abstract: 

These petitions concern the continued tenure in office of the fourth respondent as a Minister in the Government, after he was charged with accepting a bribe, breach of trust on the part of a public servant, obtaining something by deceit under aggravating circumstances, false entry in corporate documents and stealing by a director

               

The petitioner in H.C. 4319, 3094/93, argued that proper legal and public norms demand an immediate end to the 4th respondent's tenure of office as a Minister. This petitioner's approach is similar to that of the third respondent, as expressed in his application to the second respondent. In the opinion of the second respondent he is not in duty bound by law to use the powers vested in him by section 2lA of the Basic Law: the Government in order to remove the 4th respondent from his office as a Minister. The second respondent drew attention to the letter which the fourth respondent had deposited with him before the fifth respondent had joined the Government, in which he undertook that "if and when an indictment be brought "against him in court, he would suspend himself from the Government of his own accord. The second respondent saw, and sees, this arrangement, as expressed in the said letter, not only as a unilateral undertaking by the 4th respondent, but also as a parallel undertaking on his part not to exercise his power under section 21A of the Basic Law: The Government unless the circumstantial conditions laid down in the letter are fulfilled.

 

According to the argument, the suspicions raised in the past against the fourth respondent, despite which he was elected to the Knesset, were no less serious than those contained in the indictment. It was argued, therefore, inter alia, that there was no real change of circumstances which justified the exercise of the power under the above section 21A, which is a discretionary power. It was argued further that the arrangment in the Basic Law: The Government with respect to Ministers and Deputy Ministers is a negative one - that is, there is no obligatory provision of law there.

               

The High Court held as follows:

               

A.      (1) In section 21 A of the Basic Law: The Government the 3rd respondent was given the power to transfer a Minister from office without being bound by any extraneous obligations while exercising his power in accordance with its legislative purpose.

 

          (2) An undertaking to restrict in advance the power to remove a person from office in the Knesset, the Government, a State service, an association established by law, a government company or any other public body, would be incompatible with the express and clear provisions of the Basic Law: The Government and would also not be consistent with the general principles of administrative law.

 

B.      (1) Section l3A of the Basic Law: the Government was intended, from the point of view of legislative purpose, to prevent agreement and under­takings expressive of faulty and invalid processes in political life in general and in parliamentary life in particular.

 

          (2) Section 13A(b) is intended to preserve and ensure the freedom of discretion of the holder of a statutory power in order to enable him to exercise his power to remove a person from office - when this is called for on the grounds of substantive considerations and all the more so when the law demands it. It is intended to prevent negation and cancellation in advance of the power of the authority, within the framework of a political deal.

 

          (3) Exercise of the power must be reviewed against existing conditions or conditions created at the time when the exercise of the power was under consideration. A promise in advance not to exercise a power means that the holder of the power cannot exercise it even when the circumstances make it necessary to do so, as he fettered himself in advance. In this manner the power would be deprived of content and purpose.

 

          (4) Where there are considerations which, in the light of all the data, require the exercise of the power to remove someone from office, it is unlawful for the holder of the power to refrain from exercising it because he has promised in advance that he would not do so even if the circumstances should demand it.

 

          (5) In the present circumstances the 4th respondent's undertaking, which can be seen to be an agreed bilateral arrangement, drastically defies the prohibitions in section 13A(2) of the Basic Law: The Government and should be deemed to be absolutely invalid.

 

C.      (1) The power conferred by section 21A(a) of the Basic Law: The Government is a discretionary one. Discretion is generally granted to any statutory authority in order that it may have freedom of action in fulfilling its variegated functions in circumstances which vary from time to time. In that way the authority is enabled to weigh up the circumstances in every problem brought before it and find an appropriate solution.

 

          (2) Insofar as exercising discretion is concerned there is no difference between exercising a power and refraining from exercising that power: not only can the unreasonable exercise of a power be invalidated, but also refraining to exercise a discretionary power for unreasonable reasons can lead to the conclusion that it was invalid.

 

          (3) Even when the legislator did not impose a duty to exercise a power in a defined manner, or when the duty to exercise a power does not follow from the substance of a matter, there is born and arises, together with the grant of a power, the duty to weight up also the very need and justification for exercising it.

 

D.      (1) When examining the possibility of exercising a power the statutory authority must take account of all the relevant elements: that is, of all the subjects which create a mosaic of the data before it, it being obvious that it cannot take account of extraneous circumstances.

 

          (2) Where parliamentary-political life is concerned, one cannot rule out taking account of circumstances which arise due to political considerations.

 

          (3) The question of whether the result was reasonable or not would depend, amongst other things, on whether proper weight was given to all the various considerations.

 

E.      (1) Discretionary power becomes a power which it is a duty to exercise when the factual circumstances are such that the basic values of our consti­tutional and legal system make failure to exercise it so unreasonable as to go to the root of the matter.

 

          (2) The power granted by section 21A of the Basic Law: The Government can be exercised in order to enable the government to function properly and to lead to the removal of a minister who does not fit in the  web of government policy or who defies the principle of collective responsibility. The power is vested also in order to enable a reaction, in the form of removal from office, to a serious event in which a member of the government is involved, when that event, be it either an act or an omission, reflects on the status of the government, on its public image, on its ability to provide, and serve as, an example, on its capacity to ingrain proper standards of conduct, land, mainly, when it has repercussions on the public's confidence in the system of government, on the values upon which the system of government and law is built, and on the duties of the ordinary citizen which arise from them.

 

          (3) This has no reference to moral norms which have no basis in law. The reference is to the law of the country according to which failure to exercise a power vested in a functionary converts the omission, in certain circumstances, into something extremely unreasonable.

 

 

F.       (1) The fact that the Government depends on the confidence of the Knesset, and that this gives transcendental expression to the broad public's confidence, does not make the exercise of the power under section 21 A of the Basic Law: The Government when the circumstances demand it, redundant.

 

          (2) Suspending a decision, following upon the revelation of serious offences on the part of a minister, because of the contention that there is no room for action on the part of the Prime Minister until the Knesset- if in fact it does - brings a vote of no-confidence in the Government in order to effect, indirectly, the dismissal of the minister, would amount to inter­preting the very meaningful legal provision in section 21A as a minor provision intended to promote internal disciplinary measures only. This is a mistaken estimate of the scope of the power given to the second respondent under this section.

 

          (3) In the present case the indictment against the fourth respondent includes allegations of corruption of an extremely serious nature. Even though it only reflects the prima facie evidence collected by the prosecution and even though it is not a judgment, insofar as continued office in the Government is concerned even the prima facie evidence collated in the indictment, and which has now become public knowledge, is of signi­ficance. There are circumstances which are significant from the point of view of reasonability, not only for purposes of judicial determination but also for establishing the nature of the acts attributed in the indictment.

 

G. (Per Justice E. Mazza):

 

          (1) The second respondent sought to take issue with the Attorney General concerning the very substance of the legal norm applicable to the subject of removing a minister from office and did not give expression to an independent public stand with the aid of his reasons.

 

          (2) The approach is contrary to the constitutional principle according to which the Attorney General is the person qualified to interpret the law vis-a-vis the executive.

 

          (3) Even after it has been explained to the second respondent that the agreement which he had made with the forth respondent was invalid ab initio, he had stuck to his original stand, while seeking to justify it with the aid of legal reasons which contradicted the binding legal opinion of the third respondent:

 

H.  (Per Justice D. Levin):

 

          (1) A minister who sits at the government table as a representative of a party or movement undoubtedly fulfills a political function. He gives expression thereby to opinions had points of view and to the political and social path of the public which elected him and of the movement which regards him as its representative in the government set-up.

 

          (2) When the minister fulfills an administrative function he is subject to review by the High Court of Justice. Within the framework of this review the court will examine whether the minister was punctilious about applying proper administrative procedures, whether he exercised his authority in accordance with the general principles laid down by law and judicial precedents and whether, when providing a service to the citizen as a public trustee, he behaved fairly, reasonably, equitably and without prejudice. If he sins against any of these principles then his political function should, generally, not serve as a defence. If that be the position in general, how much more so would it be the case when a minister errs and becomes tainted with the stain of an offence against the law.

 

          (3) If an indictment based on prima facie evidence is brought against a minister, indicating that he is suspected of serious offences which by their circumstantial nature and content involve ignominy, it would not be proper or reasonable for him to continue in office. It would be proper for the minister to reach this conclusion of his own accord for the sake of public hygiene and as a mark of respect for the principles of the rule of law, even if he be convinced of his own innocence and clean hands.

 

          (4) If the minister does not do this then the second respondent must weight up whether circumstances have not arisen which would demand the exercise of his power under section 21A(a) of the Basic Law: The Government to remove the minister from office.

 

          (5) When a demand that the exercise his discretion be made he may take into consideration parliamentary-political aspects, as it is only natural and understandable that the second respondent will seek to preserve his government and save it from collapsing. But the implications of the indictment cannot be ignored and the minister cannot be left in office as though nothing had occurred for the sake of the Government's survival and because of the desire to further government policy, however important this may be.

 

I. (Per Justice E. Goldberg):

 

          (1) One cannot deny the existence of a political aspect in the matter under consideration. But this aspect must not be regarded as divorced from public administration.

 

          (2) In any clash between the two aspects one cannot say that the public administration norm will not apply at all only because the functionary is a minister or deputy minister.

 

            (3) A balance between the two aspects makes it obligatory that the court's power to intervene in the exercise of discretion of whosoever is empowered by law to remove a minister or deputy minister from office be limited to cases in which the seriousness of the circumstances in which the alleged offence was committed cannot be reconciled with continuation in office.

Voting Justices: 
Shamgar, Meir
Primary Author
majority opinion
Barak, Aharon
majority opinion
Mazza, Eliahu
Author
concurrence
Levin, Dov
Author
concurrence
Goldberg, Eliezer
Author
concurrence
Full text of the opinion: 

H.C.J 3094/93

H.C.J 4319/93

H.C.J 4478/93

A.H.C. 4409/93

 

1. The Movement for Quality in Government in Israel

 (H.C. 3094/93, H.C. 4319/93).

2. Moshe Kirstein

 (H.C. 4478/93)

3.Adv. Zeev Trainin

 (A.H.C. 4409/93)

v.

1. State of Israel

2. Prime Minister

3. Attorney General

4. Rabbi Arye Deri

5. Shas, International Organization of Tora Observant Sepharadic Jews

 

In the Supreme Court Sitting as High Court of Justice

[September 8, 93]

Shamgar P., Barak J., D. Levin, J. Goldeberg J., Mazza J.

           

Editor's Summary*

 

                These petitions concern the continued tenure in office of the fourth respondent as a Minister in the Government, after he was charged with accepting a bribe, breach of trust on the part of a public servant, obtaining something by deceit under aggravating circumstances, false entry in corporate documents and stealing by a director

               

                The petitioner in H.C. 4319, 3094/93, argued that proper legal and public norms demand an immediate end to the 4th respondent's tenure of office as a Minister. This petitioner's approach is similar to that of the third respondent, as expressed in his application to the second respondent. In the opinion of the second respondent he is not in duty bound by law to use the powers vested in him by section 2lA of the Basic Law: the Government in order to remove the 4th respondent from his office as a Minister. The second respondent drew attention to the letter which the fourth respondent had deposited with him before the fifth respondent had joined the Government, in which he undertook that "if and when an indictment be brought "against him in court, he would suspend himself from the Government of his own accord. The second respondent saw, and sees, this arrangement, as expressed in the said letter, not only as a unilateral undertaking by the 4th respondent, but also as a parallel undertaking on his part not to exercise his power under section 21A of the Basic Law: The Government unless the circumstantial conditions laid down in the letter are fulfilled.

 

                According to the argument, the suspicions raised in the past against the fourth respondent, despite which he was elected to the Knesset, were no less serious than those contained in the indictment. It was argued, therefore, inter alia, that there was no real change of circumstances which justified the exercise of the power under the above section 21A, which is a discretionary power. It was argued further that the arrangment in the Basic Law: The Government with respect to Ministers and Deputy Ministers is a negative one - that is, there is no obligatory provision of law there.

               

                The High Court held as follows:

               

A.      (l)       In section 21 A of the Basic Law: The Government the 3rd respondent was given the power to transfer a Minister from office without being bound by any extraneous obligations while exercising his power in accordance with its legislative purpose.

 

          (2)     An undertaking to restrict in advance the power to remove a person from office in the Knesset, the Government, a State service, an association established by law, a government company or any other public body, would be incompatible with the express and clear provisions of the Basic Law: The Government and would also not be consistent with the general principles of administrative law.

 

B.      (l)       Section l3A of the Basic Law: the Government was intended, from the point of view of legislative purpose, to prevent agreement and under­takings expressive of faulty and invalid processes in political life in general and in parliamentary life in particular.

 

          (2)     Section 13A(b) is intended to preserve and ensure the freedom of discretion of the holder of a statutory power in order to enable him to exercise his power to remove a person from office - when this is called for on the grounds of substantive considerations and all the more so when the law demands it. It is intended to prevent negation and cancellation in advance of the power of the authority, within the framework of a political deal.

 

          (3)     Exercise of the power must be reviewed against existing conditions or conditions created at the time when the exercise of the power was under consideration. A promise in advance not to exercise a power means that the holder of the power cannot exercise it even when the circumstances make it necessary to do so, as he fettered himself in advance. In this manner the power would be deprived of content and purpose.

 

          (4)     Where there are considerations which, in the light of all the data, require the exercise of the power to remove someone from office, it is unlawful for the holder of the power to refrain from exercising it because he has promised in advance that he would not do so even if the circumstances should demand it.

 

          (5)     In the present circumstances the 4th respondent's undertaking, which can be seen to be an agreed bilateral arrangement, drastically defies the prohibitions in section 13A(2) of the Basic Law: The Government and should be deemed to be absolutely invalid.

 

C.      (I)      The power conferred by section 21A(a) of the Basic Law: The Government is a discretionary one. Discretion is generally granted to any statutory authority in order that it may have freedom of action in fulfilling its variegated functions in circumstances which vary from time to time. In that way the authority is enabled to weigh up the circumstances in every problem brought before it and find an appropriate solution.

 

          (2)     Insofar as exercising discretion is concerned there is no difference between exercising a power and refraining from exercising that power: not only can the unreasonable exercise of a power be invalidated, but also refraining to exercise a discretionary power for unreasonable reasons can lead to the conclusion that it was invalid.

 

          (3)     Even when the legislator did not impose a duty to exercise a power in a defined manner, or when the duty to exercise a power does not follow from the substance of a matter, there is born and arises, together with the grant of a power, the duty to weight up also the very need and justification for exercising it.

 

D.      (l)       When examining the possibility of exercising a power the statutory authority must take account of all the relevant elements: that is, of all the subjects which create a mosaic of the data before it, it being obvious that it cannot take account of extraneous circumstances.

 

          (2)     Where parliamentary-political life is concerned, one cannot rule out taking account of circumstances which arise due to political considerations.

 

          (3)     The question of whether the result was reasonable or not would depend, amongst other things, on whether proper weight was given to all the various considerations.

 

E.      (I)      Discretionary power becomes a power which it is a duty to exercise when the factual circumstances are such that the basic values of our consti­tutional and legal system make failure to exercise it so unreasonable as to go to the root of the matter.

 

          (2)     The power granted by section 21A of the Basic Law: The Government can be exercised in order to enable the government to function properly and to lead to the removal of a minister who does not fit in the  web of government policy or who defies the principle of collective responsibility. The power is vested also in order to enable a reaction, in the form of removal from office, to a serious event in which a member of the government is involved, when that event, be it either an act or an omission, reflects on the status of the government, on its public image, on its ability to provide, and serve as, an example, on its capacity to ingrain proper standards of conduct, land, mainly, when it has repercussions on the public's confidence in the system of government, on the values upon which the system of government and law is built, and on the duties of the ordinary citizen which arise from them.

 

          (3)     This has no reference to moral norms which have no basis in law. The reference is to the law of the country according to which failure to exercise a power vested in a functionary converts the omission, in certain circumstances, into something extremely unreasonable.

 

 

F.       (l)       The fact that the Government depends on the confidence of the Knesset, and that this gives transcendental expression to the broad public's confidence, does not make the exercise of the power under section 21 A of the Basic Law: The Government when the circumstances demand it, redundant.

 

          (2)     Suspending a decision, following upon the revelation of serious offences on the part of a minister, because of the contention that there is no room for action on the part of the Prime Minister until the Knesset- if in fact it does - brings a vote of no-confidence in the Government in order to effect, indirectly, the dismissal of the minister, would amount to inter­preting the very meaningful legal provision in section 21A as a minor provision intended to promote internal disciplinary measures only. This is a mistaken estimate of the scope of the power given to the second respondent under this section.

 

          (3)     In the present case the indictment against the fourth respondent includes allegations of corruption of an extremely serious nature. Even though it only reflects the prima facie evidence collected by the prosecution and even though it is not a judgment, insofar as continued office in the Government is concerned even the prima facie evidence collated in the indictment, and which has now become public knowledge, is of signi­ficance. There are circumstances which are significant from the point of view of reasonability, not only for purposes of judicial determination but also for establishing the nature of the acts attributed in the indictment.

 

G.      (Per Justice E. Mazza):

 

          (l)       The second respondent sought to take issue with the Attorney General concerning the very substance of the legal norm applicable to the subject of removing a minister from office and did not give expression to an independent public stand with the aid of his reasons.

 

          (2)     The approach is contrary to the constitutional principle according to which the Attorney General is the person qualified to interpret the law vis-a-vis the executive.

 

          (3)     Even after it has been explained to the second respondent that the agreement which he had made with the forth respondent was invalid ab initio, he had stuck to his original stand, while seeking to justify it with the aid of legal reasons which contradicted the binding legal opinion of the third respondent:

 

H.      (Per Justice D. Levin):

 

          (I)      A minister who sits at the government table as a representative of a party or movement undoubtedly fulfills a political function. He gives expression thereby to opinions had points of view and to the political and social path of the public which elected him and of the movement which regards him as its representative in the government set-up.

 

          (2)     When the minister fulfills an administrative function he is subject to review by the High Court of Justice. Within the framework of this review the court will examine whether the minister was punctilious about applying proper administrative procedures, whether he exercised his authority in accordance with the general principles laid down by law and judicial precedents and whether, when providing a service to the citizen as a public trustee, he behaved fairly, reasonably, equitably and without prejudice. If he sins against any of these principles then his political function should, generally, not serve as a defence. If that be the position in general, how much more so would it be the case when a minister errs and becomes tainted with the stain of an offence against the law.

 

          (3)     If an indictment based on prima facie evidence is brought against a minister, indicating that he is suspected of serious offences which by their circumstantial nature and content involve ignominy, it would not be proper or reasonable for him to continue in office. It would be proper for the minister to reach this conclusion of his own accord for the sake of public hygiene and as a mark of respect for the principles of the rule of law, even if he be convinced of his own innocence and clean hands.

 

          (4)     If the minister does not do this then the second respondent must weight up whether circumstances have not arisen which would demand the exercise of his power under section 21A(a) of the Basic Law: The Government to remove the minister from office.

 

          (5)     When a demand that the exercise his discretion be made he may take into consideration parliamentary-political aspects, as it is only natural and understandable that the second respondent will seek to preserve his government and save it from collapsing. But the implications of the indictment cannot be ignored and the minister cannot be left in office as though nothing had occurred for the sake of the Government's survival and because of the desire to further government policy, however important this may be.

 

I.       (Per Justice E. Goldberg):

 

          (1)     One cannot deny the existence of a political aspect in the matter under consideration. But this aspect must not be regarded as divorced from public administration.

 

          (2)     In any clash between the two aspects one cannot say that the public administration norm will not apply at all only because the functionary is a minister or deputy minister.

 

          (3)     A balance between the two aspects makes it obligatory that the court's power to intervene in the exercise of discretion of whosoever is empowered by law to remove a minister or deputy minister from office be limited to cases in which the seriousness of the circumstances in which the alleged offence was committed cannot be reconciled with continuation in office.

 

Israel Supreme Court Cases Cited:

[1]   Election Appeals 2,3/84 Neimann v. Chairman of Central Elections Committee for the llth Knesset; Avni v. The Same 39 (2) P.D. 225.

[2]        H.C. 1523, 1540/90 Levi v. The Prime Minister 44 (2) P.D. 213.

[3]        H.C. 1635/90 Jarjevsky v. The Prime Minister 45 (1) P.D. 749.

[4]        H.C. 142/70 Shapira v. The Israel Bar, Jerusalem 25 (1) P.D. 325.

[5]        H.C. 4566/90 Dekel v. The Minister of Finance 45 (1) P.D. 28.

[6]        F.H. 16/61 Register of Companies v. Kardosh 16 P.D. 1209.

[7]        H.C. 297/82 Berger v. Minister of the Interior 37 (3) P.D. 29.

[8]        H.C. 156/75 Daka v. Minister of Transport 30(2) P.D. 94.

[9]        H.C. 190/57 Asaig v. Minister of Defence 12 P.D. 52.

[10]      H.C. 2/80 Bat v. Minister of Religious Affairs 34(3) P.D. 144.

[11]      H.C. 596/75 Maccabi Tel-Aviv v. Broadcasting Authority 30 (1) P.D. 772.

 

[12] H.C. 542/76, 103/77 Int. Consortium v. Director General, Ministry of Communications 31 (3) P.D. 477.

[13]      H.C. 653/79 Azriel v. Director of Licensing Department 35 (2) P.D. 85

[14]      H.C. 376/81 Lugassi v. Minister of Communications 36 (2) P.D. 499.

[15]      H.C. 4267, 4287, 4634/93 "Amitay" v. The Prime Minister 47 (5) P.D. 441.

[16] H.C. 6177, 6163/92 Eisenberg v. Minister of Construction and Housing 47 (2) P.D. 229.

 

English Cases Cited:

[17]      Rex v. Robert. Ex parte Scurr [1924] 2 K.B. 695 (C.A.)

 

E. Shraga, E. Shapira - for the petitioners in H.C. 3094/93 and H.C. 4319/93;

The Petitoner in H.C. 4478/93 - appeared on his own behalf;

D. Beinish, N. Arad- For the First three respondents in H.C. 3094/93, H.C. 4319/93 and H.C. 4478/93.

Z. Agmon, Y. Hirch - for the 4th, 5th respondents in H.C. 3094/93, H.C. 4319/93 and H.C. 4478/93;

The Applicant in A.H.C. 4409/93 - appeared on his own behalf.

 

JUDGMENT

The President:

 

The petitions

 

            1. These petitions are aimed against Rabbi Arye Deri's continuing to serve as a member of the Government in his capacity as the Minister of the Interior.

 

            The petition in H.C. 4319/93 evolves directly from the fact that an indictment was filed against Minister Arye Deri; that in H.C. 3094/ 93, which preceded the former petition, deals with the chain of events before the indictment. In the course of proceedings the petition in H.C. 3094/93 was waived, as the petition in H.C. 4319/93 took its place. The petition in H.C. 3094/93 is therefore cancelled.

           

            The petitions in A.H.C. 4409/93 and H.C. 4478/93 are applications to be joined as respondent and petitioner, respectively, in the main petition.

 

            2. (a) The indictment against Minister Arye Deri was submitted to the Knesset on August 2, 1993. It was accompanied by a request that the question of lifting Minister Deri's immunity in accordance with the provisions of section 13 of the Immunity, Rights and Duties of Knesset Members Law, 1951, be considered. The Knesset Committee discussed the said request already on 3.8.93 and decided to continue their deliberations on 26.9.93.

           

            (b) The Indictment

           

            The indictment contains the following offences against the law:

           

            (1) Accepting a bribe contrary to section 290 of the Penal Code, 1977 (hereinafter "the Code").

           

            (2) Breach of trust on the part of a public servant, contrary to section 284 of the Code.

           

            (3) Obtaining by deceit under aggravating circumstances, contrary to the last part of section 415 of the Code.

           

            (4) False entry in corporate documents, contrary to section 423 of the Code.

           

            (5) Stealing by a director, contrary to section 392 of the Code.

           

            Each of the above provisions of the Code embrace a substantial number of acts and not only an isolated one.

           

            (c) The facts, whose legal headlines appear above, and which reflect the prima facie evidence in the hands of the prosecution, are described in detail in an indictment which consists of 50 pages. The events dealt with in the indictment concern Minister Deri's exploitation of his office and standing, at first when he served as an assistant to the Minister of the Interior and in charge of his office, in his capacity as the Director-General of the Ministry of the Interior, and afterwards as Minister of the Interior. He fraudulently caused money to flow from state funds to various societies in which he was either active himself or was otherwise involved; these societies transferred to him, either directly, or by making payments to others on his behalf, over a long period of time and on many occasions, bribe money, in exchange for his assistance in getting funds for them. The sum total of these bribes was NIS 135,000 (at the time of payment their value was about $ 71,000). In addition there were sums of money, whose value then was about $95,000, which were transferred in other ways, as well as other gratuities.

 

            Another section deals with the use of the respondent's position and connections, as an official of the Interior Ministry, in order to further the granting of a sum of NIS 500,000 to a society in which he was active, by moving the Ministry of Religious Affairs through false representations. This money was used in a deceitful manner and not for the declared purpose, with the aid of fraudulent records and various misrepresentations.

           

            A third section deals with conspiring to move government bodies to grant land to persons, who had bought plots in Nebi Samuel from one of the above societies, when it transpired that the society in question could not fulfil its obligations towards them. The respondent acted in a manner involving an absolute clash of interests, concealed facts and made false representations in order to receive privileges and money - for his societies - and through them for himself.

           

            Within the framework of his activities for the purpose of forwarding the affairs of the societies which paid him bribe money in exchange for his services, the respondent initiated a grant of NIS 200,000 from the Jerusalem Municipality to one of these societies. For this purpose an extraordinary sum was budgeted, contrary to Interior Ministry practices.

           

            An additional matter concerns the appointment of Moshe Weinberg, his accomplice in most of the above offences, to the post of chairman of the appointed Local Council of Lehavim, in order to enable him to draw a salary and have an official car. This Weinberg had previously been a real estate and haulage agent and for some time had been the respondent's driver. Weinberg was heavily debt-ridden and his appointment to public office was intended to rescue him from his troubles.

 

3. The Parties' Arguments

 

            From the parties 'written and oral arguments before us it would appear that the petitioners maintain that proper legal and public norms demand an immediate end to Minister Arye Deri's tenure of office. This approach is consistent with that of the Attorney General who told the Prime Minister, both in writing and verbally, that once the above indictment had been submitted to the Knesset, on August 2, 1993, it was only proper that Minister Deri's tenure of office be terminated. Mr. Harish, the Attorney General, said the following in a letter dated August 6, 1993:

           

"From now and until the end of his trial it would be contrary to the basic principles of law and government, and also unethical, for Mr. Deri to continue to serve as a Minister in the Government."

 

            In written arguments the Attorney General added further details and summed up his stand as follows:

           

            "(a) The letter containing the undertaking which Minister Deri deposited with the Prime Minister (a document to which we shall refer later - M.S.) made his tenure of office as a Minister in the Government and a member thereof basically conditional; and, therefore, nothing is being taken away from him today, only the question of granting a conditional right to his very tenure as Minister of the Interior in the Government, being at issue.

           

            (b) From the moment that Minister Deri signed his letter the circumstances changed, mainly because the suspicions and evidence that had not been thoroughly examined before then became embodied, in a clear and concrete indictment, into offences involving ignominy for the person accused of them.

           

            (c) As long as there is a weighty suspicion that Minister Deri committed these offences, his trustworthiness as a person in charge of public money on behalf of the government is questionable; and in this I find even the fear of a conflict of interests insofar as his function as Minister of the Interior is concerned, mainly with respect to the manner in which he exercises his discretion in matters connected to subjects bound up with the suspicions against him.

           

            (d) Insofar as the allegations in the indictment and the offences of which he is suspected are concerned, the indictment which is before the Knesset today must be seen as having progressed beyond the corridors of the court, and Minister Deri must therefore immediately honour his undertaking to suspend himself from the Government. In this matter the process of lifting his immunity will not serve as a stumbling-block in the way of the duty to terminate his tenure of office as a Minister in the Government."

           

            4. Minister Arye Deri informed the court , through the learned counsel for the International Organization of Torah Observant Sepharadic Jews (Shas) (the 5th respondent), that he saw no room for appearing and putting his case before us personally as expression would be given to his stand in the arguments brought on behalf of the 5th respondent, whom he represents in the Government. He added that he would of course honour any decision of the court.

           

            5. The stand of the Prime Minister, as conveyed to us by the Attorney General and which can also be gathered from the written material submitted by the Attorney General, is that he is not obliged by force of law to exercise the power vested in him by section 21A of the Basic Law: The Government to remove Minister Deri from office .

           

            In this context the Prime Minister referred, in his letter of August 22, 1993, to the Attorney General, to the course of events in the matter before us which accompanied the formation of the Government in July, 1992: about a year ago, in a letter dated July 2, 1992, the Attorney General brought the Prime Minister's attention to the fact that an investigation was being conducted by the police against Minister Deri. In his letter the Attorney General spoke of "heavy suspicion of criminal acts which have not yet been thoroughly examined and clarified" and mentioned the use to which Minister Deri had put his right to remain silent. On July 6, 1992, there was a meeting between the Prime Minister and the Attorney General, and on the strength of what was agreed there, with the consensus of the Attorney General, Minister Deri deposited a letter with the Prime Minister in the following language:

 

"If Shas joins the Government which you will head, and if Shas decides that I should be a member of the Government, and in the light of the Attorney General's letter to me concerning my affairs, and on the strength of your request to me, I hereby inform you that if and when an indictment is brought against me in court I will suspend myself from the Government of my own accord."

 

            The Prime Minister saw, and sees, in the arrangement to which expression is given in the above letter, not only a unilateral undertaking by Minister Deri but a parallel undertaking on his part not to exercise his power under section 2IA of the Basic Law: The Government, unless the circumstantial conditions laid down in the above letter ("...when and if an indictment is brought...in court") are fulfilled.

           

            In July, 1992, a Government was formed which included Minister Deri. His letter was brought at the time to the notice of the Knesset, as required by section 13B of the Basic Law: The Government, and exposed openly to the public.

           

            In the Prime Minister's letter of August 22, 1993, to the Attorney General, which is in the nature of a reply to the detailed and reasoned opinion of the Attorney General, of August 6, 1993, a substantive part of which was quoted above, he notes that he does not accept the Attorney General's approach, in accordance with which, since July, 1992, there had occurred a change of circumstances expressed centrally in the submission of the indictment to the Knesset, for the following reasons: in the meantime Minister Deri had abandoned his right of silence and answered his interrogators' questions; the suspicions of July, 1992, were no less serious than those embodied now in the indictment, and perhaps even the opposite was the case; the fear of a conflict of interests raised by the Attorney General in his above letter was exposed and known at the time the Government was formed.

           

            It was argued further that cognisance should be taken of the fact that in the matter of removal from office the legislature had laid down express provisions for electees and for functionaries other than ministers or deputy ministers, as can be seen in the State Service (Discipline) Law, 1963, in section 42B of the Basic Law: the Knesset, in section 20 of the Local Authorities (Election and Tenure of Head and Deputy Heads) Law, 1975, etc. On the other hand, the Basic Law: The Government makes no provision for the suspension of ministers and deputy ministers or their removal from office because of suspicions, investigations or criminal charges. Which means that when the legislature saw fit to enact obligatory provisions for the removal from office on account of criminal acts, it did so by law. The arrangement in the Basic Law: The Government, in respect of ministers and deputy ministers, is a negative one, which means that there is no similar obligatory provision of law there.

           

            As stated in the Prime Minister's letter of 22.8.93:

           

"In this serious matter there exists, according to the law, a fundamental and substantive difference between electees and functionaries. And it was not only incidentally that the legislature enacted different provisions for these two categories. The electee serves by virtue of the confidence of the public which elected him in a democratic process, and which has the power to remove him from office in the same manner if he is found to be tainted. There must, therefore, be very serious reasons for removing an electee from office or suspending him, such as a criminal conviction of an ignominious nature, a prison sentence, etc. - which does not apply to ordinary functionaries."

 

            The Prime Minister also referred to the precedent which was created, in his opinion, in the case of Aharon Abuhazeira, who continued to serve in the Government while two criminal actions were being conducted against him, and the then Attorney General, Professor I. Zamir, took no action whatsoever.

 

            As noted, it is argued that there is no legal norm for the matter before us, and that the opinion of the Attorney General is based on public norms pertaining to the confidence of the public in the system of government. But according to the Prime Minister this should be countered by a norm of no less public importance - that is, confidence in the Prime Minister, who formed a Government on the strength of an undertaking which received the approval of the Attorney General, and who is now asked to breach his undertaking on a public and personal plane without any real change in the circumstances. The Prime Minister sums this up in the following manner:

 

"The matter before us is unique and special, as it has nothing whatsoever to do with the question of interpreting a law but concerns a confrontation between two public norms. And this is particularly so after I made an undertaking in this matter, and even acted upon it, on the strength of your opinion given me only about a year ago, and for dishonouring which undertaking I can find no possibility, reason or justification."

 

            6. The 5th respondent, in a written declaration and in the arguments before us by its learned counsel, Advocate Zvi Agmon, also supported the idea that there is no binding law concerning the removal of a minister from office because he has been indicted. Insofar as a member of the Knesset who is also a member of the Government is concerned, he was of the opinion that what was operative here was the Knesset's confidence in the Government. Section 21A of the Basic Law: The Government was enacted only in 1991 and until then the Prime Minister had no power to dismiss a minister, the termination of whose tenure of office could be effected only by his resignation or by the resignation of the whole Government. This section, he argued further, was intended mainly for the purpose of preventing "irregularities" in the Government's actions. At any rate its application in any particular instance came entirely within the discretion of the Prime Minister.

           

            Advocate Agmon, whose arguments paralleled to a great extent the stand of the Prime Minister, as apparent from his letters and from the speeches of the State Attorney who appeared on his behalf before us, referred also, for the purpose of comparison, to express laws concerning removal from office of other functionaries and sought thereby to bolster his conclusion that the absence of legislation concerning ministers is not coincidental. He found this interpretational conclusion to be logical for the following reason: according to the constitutional construction of the regime in Israel, the Government rules by virtue of the confidence of the Knesset, and is collectively responsible to the Knesset. The Knesset is the elected representative of the people as a whole and it can decide when a minister's tenure of office should be terminated, and when not, by using its sovereign power to express a lack of confidence in the Government and, indirectly, in a minister serving in the Government.

 

            In the course of proceedings before us the learned counsel for the 5th respondent agreed that the above section 21A could possibly be applied in the case before us, but added that just as its application should be reasonable so could a decision concerning its non-application be reasonable.

           

            7. Advocate Zeev Trainin, the petitioner in A.H.C. 4409/93, argued before us that the court should take into account the party-political repercussions of any decision concerning Minister Deri's removal from office. Mr. Moshe Kirstein, the petitioner in H.C. 4478/93, who asked to be joined as an additional petitioner, and in whose case no order nisi was given, argued that this court must not intervene in the dismissal of a minister as long as there is no express provision of law on the subject.

           

            8. The Legal Subjects On Which The Proceedings Were Based

           

            We shall now proceed to analyse the arguments before us. Two central legal problems were raised before us. The first is the legal validity of the undertaking which the Prime Minister claimed he had imposed upon himself when Minister Arye Deri signed the letter of July 6, 1992, (the contents of which were given in full above) before him.

 

            The second question bears on the nature of the Prime Minister's powers under section 21A of the Basic Law: The Government, which deals with removal of a minister from office.

           

            We shall commence with the question of the undertaking of July 6, 1992.

           

            9. Undertaking not to Remove a Minister from Office

           

            According to the simple wording of the letter of July 6, 1992, it contains a declaration by Minister Arye Deri, dressed as an undertaking on his part, that in the given circumstances, as set out there, he would suspend himself of his own accord from the Government. This declaration was bound up with negotiations for forming a Government , and came following upon a letter from the Attorney General in which he sought to inform the Prime Minister of the existence of an investigation against Minister Deri and of the general substance of the investigation. The Attorney General's letter did not only convey information, but it also contained expressions of doubt concerning the advisability of including in the Government someone concerning whom, at the time, investigations, as described in the said letter, were being conducted. In this context the letter said that it was advisable that the Prime Minister take account of the facts described when weighing up - if at all - the question of the candidacy of Minister Deri for office in the Government which he (the first respondent) was about to form.

           

            After the first respondent had given due consideration to the contents of the Attorney General's letter and had decided to include Minister Deri in the Government, on the basis of the written undertaking of July 6, 1992, and following upon it, it is reasonable to conclude that what was contained in the above undertaking was acceptable to both parties: that is, that the yardstick provided for in the undertaking would guide both Minister Deri and the Prime Minister. In other words, just as the one undertook to leave the Government in given circumstances, as described in the under­taking, so did the other, who had decided to include Minister Deri in the Government, take it upon himself to honour the condition concerning the timing of the resignation from office contained in the undertaking. From a legal point of view the conclusion is, therefore, that the Prime Minister agreed not to remove Minister Deri from office as long as the conditions laid down in the above undertaking of Minister Deri had not been met.

           

            10. An undertaking to restrict in advance the power to remove a person from office in the Knesset, the Government, state service, an association established by law, a government company or any other public body, would be incompatible with the express and clear provisions of the Basic Law: The Government, and would also not be consistent with the general principles of administrative law. Fettering the power clashes with the legislative purpose of vesting the power, in accordance with which the Prime Minister may remove (a person) from office when the circumstances brought to his attention justify or demand this, and there is no reservation or condition attached to this save for the substantive necessity to exercise this power for its legislative purpose.

           

            11. (a) The relevant provision of enacted law is contained in section 13A(b) of the Basic Law: The Government, which states that:

           

            "Where, by law, power is given to remove a person from office in the Knesset, in the Government, in state service, in an association established by law, in a government company or in any other public body - no agreement and no undertaking concerning the non-removal of that person from office may be made."

           

            The "power to remove a person from office" is, in the case under consideration, the power of the Prime Minister by virtue of section 21A of the Basic Law. The prohibition against giving an undertaking in connection therewith, as contained in section 13A, is unequivocal.

           

            In other words, while section 21A of the Basic Law: The Government vests the Prime Minister with the power to remove a minister from office, without being tied to any extraneous undertaking and while exercising his power within the confines of the aim of the law (see E.A. 2,3/84 [1], at p. 252, opposite A) an undertaking not to exercise this power to remove from office, unless the conditions contained in the above letter have been met, is equivalent to an undertaking on the part of the Prime Minister to limit in advance his statutory power, whatever the factual circumstances which might occur.

           

            The said section 13A was added to the Basic Law: The Government on the strength of the Basic Law: The Knesset (12th amendment) which came into force on 22.2.91; that is, only one-and-a-half years before the above undertaking, signed by Minister Deri, was given. The amendment to the law came at the initiative of the Constitution, Law and Justice Committee of the Knesset and it is patently clear from its content, including what is contained in sections 13A (a) and (c), that this addendum to the law is a sequel to what was held by this court in H.C. 1523, 1540/90 [2], and an echo of the problems raised in the proceedings in H.C. 1635/90 [3].

           

            (b) From the point of view of legislative purpose, section 13A , with all three of its sub-sections, is intended to prevent agreements and undertakings expressive of faulty and invalid processes in political life in general and in parliamentary life in particular.

           

            (c) Subsection 13A(a) deals with an agreement containing an undertaking concerning the office of a minister or deputy minister, and is intended to prevent the acquisition of support from a member of the Knesset who belongs to another party, in exchange for a promise to appoint a minister or deputy minister.

           

            (d) Subsection 13A(b), with which we are concerned here, is intended to preserve and ensure the freedom of discretion of the holder of a statutory power, in order to enable him to exercise his power to remove a person from office - when this is called for on the grounds of substantive considerations, and all the more so when the law requires it. It is intended to prevent negation and cancellation in advance, in the framework of a political deal, of the power of the authority.

           

            The legal power to appoint and the legal power to remove from office were granted by law to any particular functionary in order to enable him to carry out the administrative duties within his charge, in accordance with the law which granted him the power and subject to the conditions, if any, attached to it by the legislature. Exercise of the power must be reviewed against existing conditions or conditions created at the time when the exercise of the power is weighed up. A promise in advance not to exercise a power means that the holder of the power cannot use it even when the circumstances make it necessary to do so, as he fettered himself in advance. In this manner the power would be deprived of content and purpose.

 

            What is said above flows from the standing and duties of a public functionary, either elected or appointed, and is encompassed in them. The powers of a functionary in public service are intended to be used for the general good. Every electee and every holder of office is a servant of the general public (H.C. 4566/ 90,[5]). As we have explained on more than one occasion , this means that the power to appoint or to remove from office should be exercised fairly, without extraneous considerations and for the good of the public.

           

            In every instance when the exercise of such power is required it is only right that the said exercise be reviewed in the light of the circumstances and of all the factors, and while striking a proper and reasonable balance between the various considerations. But, according to the provisions of section 13A(b), the holder of the power is forbidden, inter alia, to fetter his considerations in advance in order to give preference thereby to the political-party consideration whatever the weight of the other factors may be. That is to say, where considerations arise which, in the light of all the data, require the exercise of the power to remove (a person) from office (a subject to which we will return and discuss later) it is unlawful for the holder of the power to refrain from exercising it because he has promised in advance that he would not do so even if the circumstances should demand it.

           

            (e) The last subsection of section 13A - subsection(c) - deals directly with the circumstances which were examined and disqualified by this court in H.C. 1523, 1540/90, [2], above, (financial guarantees) and there is no need to discuss it in detail here.

           

            (f) To sum up, section 13A as a whole comes to prohibit limitation of freedom of action on the part of an authority. It demarcates the boundaries of what is permissible and what is forbidden in the matters described here, in order to cultivate public integrity and to limit the things which can be used, lawfully, as rewards in political deals. Section I3A seeks to ensure that a statutory power conferred on a functionary for the purpose of carrying out his duties will be used by him for the general good. Furthermore, section 13A clothes in legal-statutory dress desirable and obligatory public norms and the prohibitions laid down by law which complement them.

 

            As mentioned above, it was already held by this court, before the enactment of section 13A, that the acts described in it are contrary to the general principles of law.

           

            12. In the light of the thesis propounded by the first and fifth respondents, in accordance with which it is not a unilateral obligation on the part of Minister Deri which we are dealing with, but a bilateral agreement - which is a reasonable conclusion, per se, in the light of all the circumstances - the bilateral obligation which emerges from Minister Deri's letter of July 6, 1992, quoted above, should be seen as an obligation which drastically defies the prohibition in the above section 13A(b). It must, therefore, be deemed to be absolutely invalid: it does not contain any valid limitation of the Prime Minister's power to exercise the right vested in him by section 21A of the Basic Law.

           

            13. It must be understood that the question of whether the parties to the agreement had been aware of the existence of section 13A(b), or not, is irrelevant insofar as the validity of the obligation is concerned. The question of this validity depends entirely on the clear wording of section 13A(b) and nothing further need be added.

           

            In the course of proceedings we were asked to draw the Prime Minister's attention to the provisions of the above section 13A(b), and following upon this the State Attorney informed us that the Prime Minister had in fact not been aware at the time of the existence of the above provision in the Basic Law: The Government, but that this did not affect his stand on the substance of the matter. In his opinion he was not in duty bound to exercise the power vested in him by sections 20 and 21A(a) of the Basic Law, for the reasons already quoted above , without there being any connection with the legality of the above undertaking.

           

            We must, therefore, proceed to examine the second question, which is that of a Prime Minister's exercise of his power to remove a Minister from office, within the meaning of section 21A(a) of the Basic Law.

           

            14. The Power to Remove a Minister from Office

           

            (a) Section 21A(a) provides that:

           

            "The Prime Minister may, after informing the Government of his intention to do so, remove a Minister from office; the Minister's tenure of office is terminated 48 hours after the notice of removal from office has been handed to him , save if the Prime Minister changes his mind before then."

           

            The power conferred by section 21A(a) is a discretionary one. Discretion is generally granted to any statutory authority in order that it may have freedom of action in fulfilling its variegated functions in circumstances which vary and change from time to time. In that way the authority is enabled to weigh up the circumstances in every problem brought before it and find an appropriate solution. (F.H. 16/61 [6], at p. 1215).

           

            But, even when the power is a discretionary one it still has a normative framework. The usual rules regarding reasonability, fairness, good faith, integrity, absence of arbitrariness and discrimination, etc., apply to every exercise of administrative discretion (see my esteemed colleague, Justice Barak, in H.C. 297/82 [7], at p. 34).

           

            (b) Furthermore, as already noted in the past, there is no difference for purposes of the matter before us - that is for purposes of the exercise of discretion - between exercising a power and refraining from exercising that power: where the preliminary conditions required for exercising the power exist it is incumbent upon the statutory authority to act. It follows that even when the authority refrains from exercising its discretionary power its decision to do so is subject to the usual criteria applicable to statutory powers, that is, it can be reviewed to discover whether it was based on reasonable considerations or whether the combination of circumstances did not in fact demand the exercise of the power.

The decision can also be reviewed to see whether it was not unreasonable or was not based on arbitrariness or discrimination, which could disqualify the acts or omissions of the authority. That is to say, not only the unreasonable exercise of a power can be invalidated, but also refraining to exercise a discretionary power for unreasonable reasons can lead to the conclusion that it was invalid.

 

            (c) In this context I said, in the above H.C. 297/82 [7], that laying down initial arrangements in a law which vest a particular functionary with the ability to exercise a power in certain defined circumstances, does not only mean giving power and authority, but also means ascribing fundamental meanings to the power which include a duty with respect to the manner in which it is used.

           

            So that attached to the grant of power there is, inter alia, the duty to weigh up whether it is necessary to exercise it and the proper measures to be taken in this context. Secondly, it is understandable and well-known that from the grant of power to a particular functionary there evolves the duty to deal with petitions and requests aimed at moving the holder of the power to exercise it in one way or another. Finally, insofar as examining and dealing with requests in the context of exercising a power is concerned, the nature and content of the manner in which this is done must be consistent with the basic standards laid down in judgments of this court, and any departure therefrom could have repercussions on the validity of any decision. In other words, even when the "may" is not necessarily "must", that is, even when the legislator did not impose a duty to exercise a power in a defined manner, or when the duty to exercise a power does not follow from the substance of a matter, there is born and arises, together with the grant of a power, the duty to weigh up also the very need and justification for exercising it.

           

            (d) I will add that the holder of a power has the discretion to decide on a matter despite the existence of a decision in principle on the subject-matter of the power. For this latter decision may require re-evaluation in general or with respect to the concrete case. H.W.R. Wade, in discussing this subject, had the following to say, under the heading "Over Rigid Policies" (Administrative Law, p. 330):

 

"An authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance".

           

            That does not mean that a fundamental decision, which provides for a desirable policy or method of operation, should not be adopted, but that decision must also be the fruit of an orderly process, and even then every concrete case deserves substantive consideration in order to examine whether to apply to it, either positively or negatively, the guiding rule according to which the authority acts.

           

            Till now we have discussed what was said in H.C. 297/82 [7] in connection with the duty to weigh up , in every ordinary case, all the data and circumstances, before deciding whether to exercise a power or refrain from doing so.

           

            15. When there is a possibility of exercising a power, the statutory authority must give its mind to all the relevant elements, that is to all the subjects which create a mosaic of the data before it. But it is obvious that it cannot take account of extraneous circumstances. However, in order to remove all doubt I will add that where parliamentary-political life is concerned one cannot deny taking account considerations which arise due to political considerations. But, as my esteemed colleague, Justice Goldberg, pointed out in H.C. 1635/90 [3], quoted above, (at p. 866) it should be remembered that we are not dealing, in the context of the case before us, with the binding validity of a political agreement, but with the question of whether an act carried out, or due to be carried out, following upon an agreement, is unlawful or invalid according to the norms of administrative law recognised by us: that is, whether the content of the act is consistent with the basic principles of an enlightened State.

           

            Therefore, the question of whether the result was reasonable or not would depend, amongst other things, on whether proper weight was given to all the various considerations. When certain considerations are given preference over others to an unreasonable extent, a decision would be invalid. In other words, as long as every element is given due and reasonable weight, in the circumstances of the case, there can be no complaints. But, when one consideration is preferred over another, despite the fact that the weight, substance or content of the rejected consideration clearly and obviously indicated that it should have been the preferred one, or that the scales were weighted in its favour, then the decision would be stamped with unreasonableness.

 

            I said, in H.C. 156/75 [8], at p. 105, that there could be circumstances in which the statutory authority did not give weight to any extraneous consideration and only took relevant considera­tions into account, but nevertheless gave the latter so little weight as to make the final conclusion invalid.

           

            That is the rule with respect to "good faith" on the part of a statutory authority. Unreasonableness can be discovered even when there was good faith at the basis of a decision. As Judge Scrutton remarked: "Some of the most honest people are the most unreasonable" (R. v. Roberts, Ex Parte Scurr (l924) [17], at p. 719).

           

            16. In the framework of the arguments before us some of the respondents referred repeatedly to other laws dealing with functionaries other than ministers and deputy ministers, containing detailed provisions concerning their removal from office. They sought to learn from the positive arrangements in other laws that there is a negative arrangement in the case of ministers and deputy ministers: that is, that for them there is no provision of law laying down in advance the circumstances in which the power to remove them must be exercised. There is no legal basis for this argument. There are laws which detail the circumstances in which removal from office is allowed or required. But there is nothing in that to indicate a negative arrangement for removal from office of a minister or deputy minister. The matter of removal from office of a minister is anchored today in the above section 21A of the Basic Law and the absence of any detailed circumstances in which this is permitted or required only goes to show that the law, for this purpose, is the general law concerning statutory powers. The main rules for exercising such powers have already been explained above, and will still be enlarged upon. Furthermore, the absence of detailed provisions permits of the removal from office in a wider diversity of cases than those detailed in the laws dealing with other electees or appointed functionaries. At a later stage we shall deal with those circumstances in which there is a legal duty to exercise the power of removal.

 

            17. Against the background of a general description of the relevant provisions of the law we shall now deal directly with the case before us. There are occasions when discretionary power becomes a power which it is a duty to exercise. (H.C. 190/57 [9]; H.C. 2/80 [10], at p. 146, and see also Professor B. Bracha, "Administrative Law" (Schocken Publications, 1986), 149). That is, there are circumstances in which the conclusion may be drawn - with respect also to a discretionary power - that refraining from exercising a power is so unreasonable as to descend to the roots of the matter (H.C.596/75 [11]; H.C. 542/76, 103/77 [12], at p. 483). In order to adapt this to the case before us: an authority is in duty bound to exercise a power when the factual circumstances are such that the basic values of our constitutional and legal system make the failure to exercise it so unreasonable as to go to the root of the matter.

           

            Unreasonableness which goes to the root of the matter invalidates a decision of an administrative authority (see H.C. 297/82 [7] above; H.C. 653/79 [13]; H.C. 376/81, [14]).

           

            It is true that the power under section 21A above can be exercised in order to enable the government to function properly and to lead to the removal of a minister who does not fit in with the web of government policy or who defies the principle of collective responsibility. Those are, of course, only examples of what is commonly known as "irregularities". But this does not amount to a comprehensive description of the borderlines of the power under section 21A, the general nature of which points to its breadth and depth. This also does not constitute a description of the complete legislative purpose of the provision in this section of the law. The said provision of law is intended also to enable a reaction, in the form of removal from office, to a serious event in which a member of the government is involved, when that event, be it either an act or an omission, reflects on the status of the government, on its public image, on its ability to provide and serve as an example, on its capacity to ingrain proper standards of conduct and, mainly, when it has repercussions on the public's confidence in our system of government, on the values upon which our system of government and law is built and on the duties of the ordinary citizen which arise from them.

 

            In order to remove all doubt I will add that what is said here has no reference to moral norms which have no basis in law. We are talking here about the law which exists here and according to which failure to exercise a power vested in a functionary converts the omission, in certain given circumstances, to something extremely unreasonable. This is a conclusion based on law and not one which is anchored only on abstract values without any legal basis, as could have been imagined from some of the arguments propounded before us.

           

            It was argued at length before us that the Government depends on the confidence of the Knesset and that this gives transcendental expression to the broad public's confidence in the Government. I am prepared to accept this. I am also prepared to accept the distinction between a public servant and a public electee (see H.C. 4287/93 [15], in the case of Deputy Minister Pinchasi). But the confidence of the Knesset does not make the exercise of the power under section 21A, when the circumstances demand it, redundant. Furthermore, the constitutional reciprocal bond between the Government and the Knesset, and from there to the public, is a two-way one. The Government must also serve as a drafter of norms of governmental behaviour and must act in a manner which creates confidence. Suspending a decision following upon the revelation of serious offences on the part of a minister, because of the contention that there is no room for action on the part of the Prime Minister until the Knesset - if in fact it does - brings a vote of no-confidence in the government in order to effect, indirectly, the dismissal of the minister, would amount to interpreting the very meaningful legal provision in section 21A as a minor key provision intended to promote internal disciplinary measures only. This is a mistaken estimate of the scope of the power given to the Prime Minister under section 21A and constitutes unreasonable refrainment from exercising a power granted by the legislator.

 

            18. At this stage a short pause in the presentation of the legal background is called for, in order to return to the facts of the case. We described above the main points of the indictment presented to the Knesset. The indictment includes extremely serious allegations concerning corruption. The indictment is not a judgment. It only reflects the prima facie evidence collected by the prosecution. But, insofar as continued office in the Government is concerned, even the prima facie evidence collated in the indictment, and which has now become public knowledge, is of significance. There are circumstances which are significant from the point of view of reasonability, not only for purposes of judicial determination but also for judging the acts attributed to an individual, as clothed in the official dress of an accusation ready for presentation to the judicial instances.

           

            In the case under consideration the lifting of immunity is also required as it affects a member of the Knesset. But the proceedings for lifting immunity do not change the content and significance of the indictment and what is alleged in it. If a minister who is charged with receiving hundreds of thousands of shekels in bribes and of abuse, in other ways, of government office, continues to serve in the Government this would reflect in a far-reaching manner on the image of government in Israel, and on its good faith and integrity. This has a direct effect on the question of reasonability according to the provisions of law (for changes flowing from the differentiation between a public servant and a minister - see also H.C. 6177, 6163/92 [6]).

           

            19. It was pointed out in the arguments before us that there is a precedent for the continued service of a minister in the Government despite the fact that indictments containing serious charges against him were brought.

           

            In my opinion no precedent was established. There was in the past an invalid omission which does not consecrate the system. A past invalid act or omission only demonstrates to what extent each individual act of political convenience becomes harmful, from the aspect of obligatory standards of conduct, as people will seek to learn from it, to imitate it and to regard it, for some reason or other, as a precedent.

           

            In our constitutional history there are more esteemable instances of reactions following upon criminal allegations which it would be preferable to copy.

           

            20. I can now sum up my opinion in the case before us:

            (a) The power under section 21A is a discretionary power.

           

            (b) A government promise not to remove a functionary from office has no validity.

           

            (c) The authority must weigh up whether to exercise its power, when this is demanded or is obligatory, in an orderly and systematic manner, and must use it for the purpose for which it is granted while refraining from applying extraneous considerations.

           

            (d) Parliamentary-political considerations can be legitimate in certain circumstances, but they must be examined with an eye to finding a fine balance with other considerations. When the fact that there is prima facie evidence that a criminal offence has been committed by a member of the Government is one of the other considerations, then the seriousness of the (alleged) offence is a relevant factor. The more serious the offence the less weighty would the other considerations be. I will add that in the context of the matter before us I saw no cause for dealing with the more general subjects discussed in the judgment of my esteemed colleague, Justice D. Levin.

           

            (e) Whoever exercises discretion must keep in mind all the relevant and influential components and factors and must find a reasonable balance amongst them. Giving undue weight to one component or another, can invalidate a decision.

           

            (f) There are circumstances which make the exercise of a discretionary power obligatory. Failure to exercise the power in such circumstances can be found to be so unreasonable as to go to the root of the matter.

           

            (g) An invalid act in the past demands prevention of perpetuation, and not imitation. A blunder in the past does not give a license for the future.

           

            (h) The offences attributed to Minister Deri are outstandingly serious and failure to exercise the power to remove him from office is unreasonable to an extreme extent. Reliance in this case on an undertaking which is inconsistent with the provisions of section 13 A of the Basic Law, has no place.

           

            The damage to confidence in the government as a result of the failure to remove from office a person accused of the crime of corruption is far more serious than the damage to confidence as a result of failure to honour an undertaking which is prohibited by law. As already explained, we are not dealing here with the question of confidence as a moral norm, but with the provisions of law which deal with the reasonableness of failure to exercise a power.

           

            21. I am of the opinion, therefore, that we should declare that the Prime Minister is required by law to exercise his power under section 21A of the Basic Law: The Government to terminate the tenure of office of Minister Deri. In this sense the order nisi should be made absolute.

           

Justice A. Barak: I concur.

Justice A. Mazza:

 

            I concur with the judgment of my esteemed colleague, the President.

           

            The stand adopted by the Prime Minister in the matter before us was based, for the main part, on the existence of a political agreement with Minister Deri, made at the advice of the Attorney General, on the eve of the formation of the Government. And having failed to be convinced of the justice of the Attorney General's argument that there had been a substantive change in the circumstances since the agreement was reached, the Prime Minister decided that he had to choose between two norms of at least equal weight: one, on the basis of which the Attorney General had argued that as long as Minister Deri was not cleared of the suspicions levelled against him with the tabling of the indictment against him in the Knesset he could not continue in office in the Government; and the other, which is connected with the fear of a blow to his trustworthiness, as Prime Minister, in the eyes of the public, of he did not honour his part of the agreement with the Minister. There was, therefore, a basis for assuming that unless the Prime Minister was mistaken in thinking that his obligation to Minister Deri was a valid one and that his credibility in the eyes of the public depended upon his honouring it, he would have refrained from taking the stand which led to the petititoners' application to this court for a remedy on behalf of the public. But this was not the case.

 

 

            From the Prime Minister's letter of 22. 8. 93 to the Attorney General, a copy of which was submitted to us during the course of proceedings, it appears that even after his attention was called to the provisions of section 13A(b) of the Basic Law: The Government, his stand remained substantively the same, on the basis of other reasons enumerated in the letter, in which he takes issue with the Attorney General's approach (as detailed in the letter of 6.8.93 to the Prime Minister). In his letter the Prime Minister indicated that there was, in his opinion, a difference between elected functionaries and appointed public servants and he referred also to the case of Minister Abu-Hazeira, as though this were a precedent. But the main reason given by the Prime Minister for not acting on the opinion of the Attorney General was his reliance on his obligation towards Minister Deri, upon the honouring of which his credibility in the eyes of the public ostensibly depended.

           

            The distinction between the principal and the secondary in the Prime Minister's reasons can be seen from a reading of his letter. But there is also a fundamental difference in the content of the reasons: a fear of harm to his credibility in the eyes of the public is a reason with public significance. In presenting this reason the Prime Minister relied on the assumption (albeit a mistaken one) that there existed a political agreement by which he was bound. This reason, even though not legally admissible, is at least understandable. This is not the case insofar as the Prime Minister's other reasons are concerned. The Prime Minister did not give expression to an independent public stand with the aid of these reasons, but sought to take issue with the opinion of the Attorney General concerning the very substance of the legal norm applicable to the subject of removing a minister from office.

 

            This approach is contrary to the constitutional principle, long since accepted in our system of law, according to which the Attorney General is the person qualified to interpret the law vis-a-vis the executive (see paragraph 42 of the judgment of my esteemed colleague, Justice Barak, in the Pinhasi case, H.C. 4287/93 [15]). And the Prime Minister, with all due respect, could not be heard at all on the grounds of these reasons. I was, therefore, sorry to learn that even after it had been explained to the Prime Minister that the agreement which he had made with Minister Deri had been invalid ab initio, he had stuck to his original stand while seeking to justify it with the aid of legal reasons which contradicted the binding legal opinion of the Attorney General.

 

            As to the question of what is the legal norm applicable to the case before us, the decision lies clearly with the Attorney General. There is, therefore, no cause for enlarging on it. Only recently did Justice Barak explain what the proper legal norm is, in H.C. 6163/92 [16] and again in the Pinhasi case [15]. And also from the reasons contained in the judgment of my esteemed colleague, the President, the conclusion must be drawn that the law applicable to the continued tenure in office of Minister Deri is no different, if not even more apt.

 

Justice D. Levin:

 

            I agree with the conclusions of the President and I am party to the main points in his legal analysis and to the approach taken towards the central matters at the focus of the proceedings before us, on the basis of which the required result is obvious and obligatory in the circumstances of the case.

           

            However, I would like to add some comments on the subjects which were under discussion and which, in my opinion, call for further enlargement and emphasis.

           

            (a) I agree that a member of the Knesset earns his status by virtue of the confidence placed in him by the voting public, which saw in him someone who faithfully represents its sentiments and viewpoints - either politically or because of his attitude to social and economic matters and his approach to matters of faith and culture. Once he has been elected by this particular public, then it is only natural that he should regard himself as being in duty bound to remain faithful to his electors. If, heaven forbid, he should disappoint them, if the confidence which they placed in him should be shattered, for any reason, then when the time comes he would have to face, politically, the judgment of the electors.

 

            (b) The situation is different when an elected member of the Knesset takes upon himself, on behalf of the faction to which he belongs and which he represents, an official duty within the framework of the executive, as a member of the Government and a minister in charge of a government office, or as a deputy minister.

           

            He then owes a duty of loyalty and a greater degree of responsibility to his electors, to the Knesset which gave him its confidence and to an even greater extent to the general public which he is called upon to serve faithfully.

           

            For, whoever is given executive power by force of law will be found to influence by his acts, or, heaven forbid, by his omissions, for good or for bad, the rights of the general body of citizens and residents of the country. He is their trustee and he must behave towards all of them with fidelity, honesty and fairness and without discrimination. That is the challenge and he will be judged in accordance with how he meets it.

           

            (c) A minister who sits at the government table as a representative of a party or movement undoubtedly fulfills a political function. He gives expression thereby to opinions and points of view, and to the political and social paths of the public which elected him and of the movement which regards him as its representative in the governmental set-up. But, in my opinion, when fulfilling his administrative function, as a minister or even as a deputy minister, as one in charge of a government office and directing its operation, then his political function must give precedence to his administrative function, which has its own rules of conduct.

           

            When fulfilling this function he is subject to review by the High Court of Justice, when moved to do so. Within tile framework of this review the court will examine whether the minister was punctilious about applying proper administrative procedures, whether he exercised his authority in accordance with the general principles laid down by law and judicial precedents, and whether, when providing a service to the citizen as a public trustee, he behaved fairly, reasonably, equitably and without prejudice.

 

            If he sins against any of these principles then his political function should, generally, not serve as a defence. He would have to face the said review and, if the circumstances warrant it, be indicted and stand trial.

           

            If that is the position in general, how much more so is it the case when, heaven forbid, a minister errs and becomes tainted with the stain of an offence against the law. The nature of the offence and of the circumstances in which it was committed could make the possibility of his continuing in office questionable.

           

            I do not suggest that we lay down any hard and fast rules on this subject and decide in a sweeping manner when and how conclusions should be drawn. For, first and foremost, it is the political system which must react, within the framework of the proper political-democratic process. But there may be exceptional situations, such as the one before us, when our intervention is required in order to lay down specific, obligatory norms of behaviour.

           

            (d) It seems to me, for example, that if, heaven forbid, an indictment based on prima facie evidence is brought against a minister, indicating that he is suspected of serious offences which by their circumstantial nature and content involve ignominy - such as, for example, if a minister is charged with accepting bribes, with fraud, with cheating state authorities, with lying or making false entries in documents - then it would not be proper or reasonable for him to continue in office.

           

            I would think, if this should unfortunately occur, that it would be proper for the minister to reach this conclusion of his own accord for the sake of public hygiene and as a mark of respect for the principles of the rule of law, even if he is convinced of his own innocence and clean hands. He should allow the process of establishing the truth to be exhausted and await comprehensive clarification of the matter.

 

            (e) If he does not do this then the Prime Minister must weigh up whether circumstances have not arisen which would demand the exercise of his power, under section 21A(a) of the Basic Law: The Government, to remove a minister from office. As this power is a discretionary one, the Prime Minister may exercise it but is not, on the face of it, in duty bound to do so.

           

            When a demand that he exercise his discretion be brought, he can take into consideration parliamentary-political aspects, since, as already noted, a minister has a twofold function, both political and administrative. It is only natural and understandable, in my opinion, that the Prime Minister will seek to preserve his government and save it from collapsing. For the sake of ensuring so important and vital a need he can, on an appropriate occasion, forgive "irregularities" in the conduct or pronouncements of a minister, and even opposition to binding decisions of the Government, as all this would come within the confines of the minister's political function, which would be examined and criticised on the credibility plane before the Knesset and the voters.

           

            This is not the case, in my opinion, when the question is one of a minister who sinned against integrity, and who committed offences involving ignominy, such as the examples given above, especially when the offences attributed to him were allegedly committed in the process of fulfilling his office. In such cases the credibility of the Government and its ministers in the eyes of the public must take precedence over any other consideration.

           

            I dismiss out of hand the argument that for the sake of the survival of the Government and the coalition at its base, and because of the desire to further government policy, however important it may be, the implications of the presentation of the above indictment can be ignored, everyday proceedings can be continued, and the minister can be left in office as though nothing occurred.

           

            (f) I think that in our case, too, the Prime Minister actually realised that if Minister Deri should be indicted on the charges being investigated when he was appointed, he would have to suspend himself, and that if he did not do so, he, the Prime Minister, would have to exercise his authority to suspend him.

 

            I would like to assume that the Prime Minister saw this as an inevitable consequence, not only because he faced coalition pressure, but also because, as someone responsible for the existence of an enlightened regime, he thought, to the best of his conscience, that that was what he had to do.

           

            I do not think that there is any difference, or that there should be any difference, from the normative aspect, between an indictment which has already been brought before a court and one which, at some stage, has only been presented to the Knesset Committee for purposes of lifting immunity.

           

            (g) In the course of proceedings before us we heard from counsel for the fifth respondent (Shas), albeit in muted terms, that Minister Arye Deri had earned the confidence of his electors despite the lengthy police investigation conducted against him, and despite the suspicions which hovered above him. It can be assumed that this occurred because they honestly believed that the candidate whom they favoured was innocent, clean and pure of the suspicions against him.

           

            One cannot know if they would have behaved similarly if, heaven forbid, the charge against him had been proved in a court of law or even if the indictment against him, containing allegations of serious offences, was pending in court.

           

            But I do not see any importance in this and there is nothing in it to indicate anything, as this is not the main issue, the main issue being the need for our democratic and enlightened "camp" to remain pure and that persons tainted with corruption and crimes of the nature indicated above do not harm government morality.

           

            It should be emphasised, in order to avoid any mis­understanding, that what I have said on this last subject is purely theoretical. There is nothing in what I have said which can, heaven forbid, establish facts and hand down judgment in the case of Minister Arye Deri, which must still be decided within the framework authorised to do so and be thoroughly cleared up, so that the factual truth may come to light.

 

            As already stated, I concur with the conclusion suggested by the President in his judgment.

           

Justice E. Goldberg:

 

            In contradistinction to public servants, to whom the State Service (Appointments) Law, 1959, applies, a minister and a deputy minister are not appointed to office only because of their skills, qualities and personal standards. Party and coalition interests are at the centre of their appointments, and the texture of public life is not affected by the appointment of a minister or deputy minister who is not exactly blessed with characteristics of the highest quality. The question is whether the confidence of the public in the government is harmed when a minister or deputy minister, against whom an indictment containing an offence involving ignominy has been framed, remains in office.

           

            The answer to this question is not simple or unambiguous. For if we should say that in every such case the confidence of the public in government institutions would inevitably be harmed, we should also have to say that such harm would be caused when a member of the Knesset is found guilty of an offence involving ignominy and is sentenced to imprisonment. For such member of the Knesset would not only participate in legislation, and serve in a quasi-judicial capacity when considering the lifting of another Knesset member's immunity, but it is possible that he would also be a member of one of the Knesset committees, be it the Finance Committee, which deals with the public's money, or the Knesset Control Committee, whose task it is to fix norms of proper management, or any other committee, which deals with public matters of first importance. And, nevertheless, the legislature was not afraid that the public's confidence in the Knesset would be harmed because of this, and provided, in section 6 of the Basic Law: The Knesset, that every citizen is entitled to be elected to the Knesset save "if a court denies him this right by law, or if he is given a prison sentence of five years or more for an offence against the security of the State, as laid down in the Elections to the Knesset Law, and five years have not elapsed since the day he completed this sentence."

 

            Is it not a fact that when a person elected by the public is the issue then the democratic principle takes precedence over any other public interest, even though a Knesset member also fulfills a public service and the Knesset is one of the authorities of the State.

           

            As a minister and deputy minister fulfil political functions, as already stated, could it not be said, in a case where an indictment containing an offence involving ignominy is brought against one of them, that it is the "price of democracy" and that criticism of his appointment belongs to the Knesset, which can pass a vote of no-confidence in the Government for making an appointment which in its, the Knesset's, opinion is not proper.

           

            Furthermore, would not our (the High Court's) intervention in such a matter be interference in "the composition" of the Government and upset the balance between the authorities? One cannot, therefore, deny the existence of a political aspect in the matter before us. But, on the other hand, this aspect must not be regarded as divorced from public administration. I am of the opinion that in any clash between the two aspects we cannot say that the public administration norm, which we have already held is applicable to a public servant (see H.C. 6163/92 [16]), will not apply at all, only because the functionary is a minister or deputy minister. Such a consequence would not only constitute a 'double standard", but would also mean the application of double and conflicting legal norms - one for the ordinary public servant and another for the politician who holds office - which is a violation of the principle of equality before the law.

           

            The clash between the two aspects does not mean that the one must supersede the other. All that is required is that a balance should be found between them. This balance makes it obligatory that the court's intervention in the exercise of discretion of whosoever is empowered by law to remove a minister or deputy minister from office be in small measure, and that it be restricted to cases in which the seriousness of the circumstances in which the alleged offence was committed cannot be reconciled with continuation in office. In other words, our intervention would occur, save in such cases, only when the administrative authority, which has been given the discretionary power, departs, in the circumstances of the case, radically from reasonability by leaving the minister, or deputy minister, in office.

 

            I am of the opinion that the seriousness of the circumstances, in the case before us, as is evident from the indictment, tips the scales and makes the removal from office of the minister obligatory. I therefore concur with the judgment of the President, on all counts.

           

            Decided as held in the President's judgment.

           

Judgment handed down on 8.9.93.

 

*               Edited by Prof. A. Enker

Full opinion: 
PDF icon Movement for Quality in Government in Israel v. State of Israel.pdf

The Movement for Quality Government in Israel v. The Prime Minister, Mr. Ariel Sharon

Case/docket number: 
HCJ 1993/03
Date Decided: 
Thursday, October 9, 2003
Decision Type: 
Original
Topics: 
Administrative Law
Discretion
Judicial review
Constitutional Law
Government
Abstract: 

Facts: The Prime Minister appointed respondent 3 to the position of Minister of Public Security. Petitioner asks that the High Court of Justice order the Prime Minister to refrain from making the appointment.

 

Held: The Court, by majority vote, held that it would not intervene in the Prime Minister’s decision to appoint respondent 3 to the position of Minister of Public Security.

 

Voting Justices: 
Rivlin, Eliezer
Primary Author
majority opinion
Mazza, Eliahu
Author
concurrence
Turkel, Jacob
Author
concurrence
Dorner, Dalia
Author
concurrence
Or, Theodor
Author
concurrence
Beinisch, Dorit
Author
dissent
Cheshin, Mishael
Author
dissent
Full text of the opinion: 

HCJ 1993/03

 

The Movement for Quality Government in Israel

v.

  1. The Prime Minister, Mr. Ariel Sharon
  2. The Attorney-General, Mr. Elyakim Rubenstein
  3. The Minister for Public Security, Mr. Tzahi Hanegbi

 

The Supreme Court Sitting as the High Court of Justice

[October 9, 2003]

Before Vice-President T. Or, Justices E. Mazza, M. Cheshin, D. Dorner, J. Türkel, D. Beinish, and E. Rivlin

 

Objection to an order nisi.

 

Facts: The Prime Minister appointed respondent 3 to the position of Minister of Public Security. Petitioner asks that the High Court of Justice order the Prime Minister to refrain from making the appointment.

 

Held: The Court, by majority vote, held that it would not intervene in the Prime Minister’s decision to appoint respondent 3 to the position of Minister of Public Security.

 

Basic Laws Cited:

Basic Law: The Government, 2001

Basic Law: The Government, 1992

Basic Law: The Government, 1968

 

Statutes Cited:

Police Ordinance (New Version), 1971, § 7

Criminal Register and Rehabilitation of Offenders Law, 1981, §§ 14, 16

Knesset Members Immunity Law (Rights and Duties), 1951

 

Israeli Supreme Court Cases Cited:

[1]HCJ 3846/91 Maoz v. The Attorney-General, IsrSC 46(5) 423

[2]HCJ 2534/97 MK Yona Yahav v. State Attorney, IsrSC 51(3) 1

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

[4]HCJ 2624/97, 2827/97, 2830/97Yedid Ronal, Adv. v. The Government of Israel, IsrSC 51(3) 71

[5]HCJ 4267/93, 4287/93 and 4634/93Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel, IsrSC 47(5) 441

[6]HCJ 6163/92 Eisenberg v. Minister of Construction & Housing, IsrSC 47(2) 229

[7]HCJ 727/88 Awad v. The Minister of Religious Affairs, IsrSC 42(4) 487

[8]HCJ 5167/00 Weiss v. The Prime Minister of Israel, IsrSC 55(2) 455

[9]HCJ 325/85 MK Muhammad Miari v. Knesset Speaker Shlomo Hillel, IsrSC 39(3) 122

[10]HCJ 1843/93 Pinhasi v. Knesset Israel, IsrSC 49(1) 661

[11]428/86 Barzilai v. The Government of Israel, IsrSC 40(3) 505

[12]HCJ 73/85 Kach Faction v.The Knesset Speaker, IsrSC 39(3) 141

[13]HCJ 306/81 Platto-Sharon v. Knesset Committee, IsrSC 35(4) 118

[14]HCJ 403/71 Alcourdi v. The National Labor Court, IsrSC 26(2) 66

[15]HCJ 222/68 Chugim Le’umiyim Agudah Reshuma v. Police Minister, IsrSC 24(2) 141

[16]HCJ 758/88 Kendel v. The Minister of Internal Affairs, IsrSC 46(4) 505

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

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

[19]HCJ 652/81 MK Yossi Sarid v. Knesset Speaker Menachem Svidor, IsrSC 36(2) 197

[20]HCJ 2136/95 Gutman v. Knesset Speaker Prof. Shevach Weiss, IsrSC 49(4) 845

[21]HCJ 3872/93 Mitrael Ltd. v. The Prime Minister and Minister of Religious Affairs, IsrSC 47(5) 485

[22]HCJ 935/89 Uri Ganor, Adv. v. Attorney-General, IsrSC 44(2) 485

[23]HCJ 4140/95 Superpharm (Israel) Ltd. v. Customs and Excise Administration, IsrSC 54(1) 49

[24]HCJ 620/85 Miari v. Knesset Speaker Shlomo Hillel, IsrSC 41(4) 169

[25]CA 6821/93 United Mizrahi Bank v. Migdal Agricultural Cooperative, IsrSC 49(4) 221

[26]HCJ 3434/96 Dr. Menachem Hoffnung v. The Knesset Speaker, IsrSC 50(3) 57

[27]HCJ 7111/95 The Center for Local Government v. The Knesset, IsrSC 50(3) 485

[28]CA 492/73 Schpeizer v. Israeli Sports Betting Council, IsrSC 29(1) 22

[29]HCJ 162/72 Dr. Kinross v. The State of Israel, IsrSC 27(1) 238

[30]APP 7440/97, LCA 6172 State of Israel v. Golan, IsrSC 52(1) 1

[31]RAP 1088/86 Mahmud v. Local Council for the Planning and Construction of the Eastern Galilee, IsrSC 44(2) 417

[32]HCJ 98/54 Lazerovitz v. Food Inspector, Jerusalem, IsrSC 10 40

[33]HCJ 4769/90 Zidan v. The Minister of Labor and Social –Welfare, IsrSC 47(2) 147

[34]CA 184/80 Eigler v. Magen Insurance Company, IsrSC 35(3) 518

[35]HCJ 3687/00 Ashkenazi v. Prime Minister Ehud Barak, IsrSC (unreported decision)

[36]HCJ 6029/99 Jonathan Pollard v. Prime Minister and Defense Minister Ehud Barak, IsrSC 54(1) 241

[37]HCJ 4769/95 Ron Menachem v. The Minister of Transportation, IsrSC

[38]HCJ 561/75 Ashkenazi v. The Minister of Defense, IsrSC 30(3) 309

[39]HCJ 4354/92 Temple Mount Faithful v. The Prime Minister, IsrSC 47(1) 37

[40]HCJ 8666/99 Temple Mount Faithful Movement v. The Attorney-General, IsrSC 54(1) 199

[41]HCJ 46/00 Ayalon Jordan, Adv. v. The Prime Minister, (unreported decision)

[42]HCJ 6057/99 Victims of Terror Staff v. The Government of Israel (unreported decision)

[43]HCJ 7307/98 Pollack v. The Government of Israel (unreported decision)

[44]HCJ 2455/94 “B’tzedek” Organization v. The Government of Israel (unreported decision)

[45]HCJ 4877/93 Victims of Arab Terror v. State of Israel (unreported decision)

[46]HCJ 65/51 Jabotinsky v. The President of Israel 5 801

[47]3094/93 Movement for Quality in Government in Israel v. State of Israel, IsrSC 47(5) 404

[48]HCJ 194/93 MK Gonen Segev v. Minister of Foreign Affairs, IsrSC 49(5) 57

[49]HCJ 251/88 Wajia Udeh v. The Head of the Jaljulia Local Council, IsrSC 42(4) 837

[50]Dis.App. 4123/95 Or v. State of Israel – Civil Service Commissioner, IsrSC 49(5) 184

[51]HCJ 7367/97 The Movement for Quality Government in Israel v. Attorney-General, IsrSC 52(4) 547

[52]CA 6763/98 Ram Carmi v. State of Israel, IsrSC 55(1) 418

[53]HCJ 531/79 Likud Faction of Petah Tikva v. City Council of Petah Tikva, IsrSC 34(2) 566

[54]HCJ 244/86 Revivo v. The Head of the Ofakim Local Council, IsrSC 42(3) 183

[55]CA 6983/94 Shimon Pachima v. Michael Peretz, IsrSC 51(5) 829

[56]HCJ 7805/00 Roni Aloni v. Comptroller of the Jerusalem Municipality, IsrSC 57(4) 577

[57]HCJ 3975/95 Prof. Shmuel Caniel v. The Government of Israel, IsrSC 53(5) 459

[58]HCJ 4566/90 Dekel v. Minister of Finance, IsrSC 45(1) 28

[59]HCJ 6673/01 The Movement for Quality Government v. The Minister of Transportation, IsrSC 56(1) 799

[60]HCJ 142/70 Shapira v. Local Committee of Chamber of Advocates, IsrSC 25(1) 325

[61]HCJ 2671/98 Women’s Lobby v. The Minister of Labor and Welfare, IsrSC 52(3) 630

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

[63]HCJ 7256/95 Fishler v. The Inspector General of the Israel Police, IsrSC 50(5) 1

[64]HCJ 2682/98 Appel v. The State Attorney, IsrSC 55(3) 134

[65]HCJ 4539/92 Kablero v. The Attorney-General, IsrSC 50(3) 50

[66]HCJ 442/71 Lanski v. Minister of the Interior, IsrSC 26(2) 337

[67]CA 5709/95 Ben-Shlomo v. Director of The Value Added Tax Authority, IsrSC 52(4) 241

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

[69]HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, IsrSC 48(5) 412

[70]HCJ 1227/98 Malevsky v. Minister of the Interior, IsrSC 52(4) 690

[71]HCJ 932/99 The Movement for Quality Government in Israel v. Chairman of the Committee for the Examination of Appointments, IsrSC 53(3) 769

[72]HCJ 4668/01 MK Yossi Sarid v. Prime Minister Ariel Sharon, IsrSC 56(2) 265

[73]HCJ 5795/97 MK Yossi Sarid v. Minister of Defense, IsrSC 51(4) 799

[74]HCJ 1635/90 Zersevsky v The Prime Minister, IsrSC 45(1) 749

[75]HCJ 5364/94 Velner v. Chairman of the Israeli Labor Party, IsrSC 49(1) 758

[76]CA 4012/96 Benny Shachaf Freights and Investments (1976) Ltd v. First International Bank of Israel, IsrSC 55(1) 492

[77]CA 3602/97 Income Tax and Property Tax Commissioner, Minister of Finance, State of Israel v. Daniel Shachar, IsrSC 56(2) 297

[78]HCJ 7279/98 MK Sarid v. The Government of Israel, IsrSC 55(1) 740

[79]HCJ 595/89 Shimon v. Appointee of Ministry of the Interior, Southern District, IsrSC 44(1) 409

[80]HCJ 1715/97 The Israel Association of Investment Managers v. The Minister of Finance, IsrSC 51(4) 367

[81]HCJ 288/00 Israel Union for Environmental Defense v. Minister of the Interior, IsrSC 55(5) 673

[82]CrimA State of Israel v. Zeguri, IsrSC 56(4) 401

[83]CrimA 6251/94 Ben-Ari v. State of Israel, IsrSC 49(3) 45

[84]HCJ 3679/94 National Association of Directors and Authorized Signatories of the First International Bank of Israel v. Tel Aviv-Jaffa District Labor Court, IsrSC 49(1) 573

[85]HCJ 279/60 Gil Theaters v. Ya’ari, IsrSC 15 673

[86]HCJ 6499/99 The National Religious Party v. Rabbi Shlomo Ben-Ezra, IsrSC 53(5) 606

[87]CrimA 2831/95 Elba v. The State of Israel, IsrSC 50(5) 221

[88]HCJ 320/96 Yael German v. The Municipal Council of Herzliya, IsrSC 52(2) 222

[89]CrimApp 8087/95 Za’ada v. The State of Israel, IsrSC 50(2) 133

[90]HCJ 3132/92 Mushlav v. The District Committee for Planning and Building, Northern District, IsrSC 47(3) 741

 

United States Cases:

[91]Marbury v. Madison

[92]Rostker v. Goldberg, 453 U.S. 57 (1981)

[93]INS v. Chadha, 462 U.S. 919 (1983)

 

Israeli Books Cited

[94]Aharon Barak, Interpretation in Law – Statutory Interpretation (1995)

[95]I Itzchak Zamir, Administrative Authority (1996)

[96]Aharon Barak, Interpretation in Law – Constitutional Interpretation (1995)

[97]II Amnon Rubinstein, Constitutional Law in the State of Israel 687 (5th ed. 1997)

 

Israeli Articles Cited:

[98]Aharon Barak, Judicial Review of the Constitutionality of Law, 3 Mishpat Umimshal 408 (1996)

[99]Aharon Barak, Judicial Review of Regulations  , 21 HaPraklit 463 (1965)

[100]Itzchak Zamir, Law and Politics, in Klinghoffer, Public Law 209 (1993)

[101]Itzchak Zamir, Political Appointments, 20 Mishpatim 23 (1990)

[102]Avigdor Klagsbald, Public Duty, ‘Criminal Past’ and Administrative Evidence, 2 HaMishpat 93 (1995)

[103]Daphne Barak-Erez, The High Court of Justice as Attorney-General, 5(2) Plilim 219 (1997)

[104]Aharon Barak, On Power and Values in Israel, in I A Collection of Writings 382 (H. H. Cohen & Y. Zamir ed. 2000)

[105]Aharon Barak, Conflict of Interest in the Performance of Office, 10 Mishpatim 11 (1980)

[106]Itzchak Zamir, Ethics in Politics, 17 Mishpatim 255-58 (1988)

 

Foreign Books Cited:

[107]Glanville Williams, Criminal Law 22 (2d ed. 1961)

 

Jewish Law Sources Cited:

[108]Babylonian Talmud, Tractate Shabbat 114A

[109]Maimonides, Laws of the Sanhedrin, 10:1

[110]Exodus 31:2, 35:30

[111]Babylonian Talmud, Tractate Berakhot 55a

[112]Shulkhan Arukh, Choshen Hamishpat, 3:4

[113]Arukh Hashulkhan, Choshen Hamishpat, 3:8

[114]Ribash, Responsa 271

[115]Rabbi A.Y. Kook, Be’er Eliyahu

[116]Babylonian Talmud, Tractate Sanhedrin 7b

[117]Maimonides, Laws of Temple Vessels, 4:21

[118]Maimonides Reponsa, Chapter 111

[119]Shulkhan Arukh, Chosen Hamishpat, 53:25

[120]Zaken Abraham Responsa, Yoreh Deah, 30

 

 

 

 

JUDGMENT

Justice E. Rivlin

1. This petition was submitted by the Movement for Quality Government in Israel. Petitioner seeks to prevent the appointment of respondent 3, Mr. Tzahi Hanegbi, to the office of Minister of Public Security. Petitioner’s central assertion is that, because of his connection to four specific affairs, Hanegbi is unfit to serve in this capacity. The details of these affairs are described below.

The Facts and the Petition

2. The elections to the Sixteenth Knesset took place at the beginning of 2003. After the elections, respondent 1, in his capacity as Prime Minister, was charged by the President with the task of forming a new government. Respondent 1 decided to appoint respondent 3 as Minister of Public Security. Once the intentions of respondent 1 were made public, but before the new government had been sworn in, this petition was submitted. The petition asked that we order the Prime Minister not to appoint respondent 3. Petitioner further sought an interim order against this appointment.

The petition details several affairs in which respondent 3 was involved and which, it is asserted, make him unfit to serve as Minister of Public Security.

The first affair occurred in 1982. The affair culminated in the filing of an indictment against Hanegbi, who was subsequently convicted. At the time, Hanegbi was a student at the Hebrew University of Jerusalem and was involved in an altercation on campus. The Magistrate Court convicted Hanegbi of brawling in a public place, and imposed a suspended prison sentence and a fine.

The details of the second affair were described at length in HCJ 3846/91 Pinchas Maoz v. The Attorney-General [1], at 423. In 1982, Hanegbi, together with three others, filed a complaint with the police. The complaint alleged that several members of the Student Union and the International Israel Youth and Student Travel Company (ISTA) had carried out “the greatest fraud in the history of Israeli aviation.” After the police investigation, a number of people were criminally charged, including Pinchas Maoz, who had been serving as external legal advisor to ISTA. Maoz was subsequently acquitted by the Magistrate Court. Hanegbi had been a witness in the case and, according to the court’s opinion, “factual truth was not always a guiding light” in his testimony. The court noted that “the witness did not provide precise answers and avoided topics that did not square with his version of the events.” After this court case, Maoz and others attempted to have Hanegbi indicted for perjury, relaying misleading information, or presenting conflicting testimonies. The Attorney-General decided that the chance of conviction was too small to warrant an indictment. Similarly, this Court decided, “after a great deal of hesitation – literally by a hairsbreadth,” that it would not intervene in the decision of the Attorney-General.

The third affair concerns Hanegbi’s appointment of Roni Bar-On to the office of Attorney-General. At the time, Hanegbi was serving as Minister of Justice. It was alleged that Hanegbi had misled the Government and the Prime Minister about the opinion of the President of the Supreme Court regarding the appointment. The police recommended that Hanegbi be prosecuted for fraud and breach of trust. However, the Attorney-General decided to close the case for lack of evidence. A memorandum of the State Attorney’s Office criticized Hanegbi’s conduct and characterized it as “a deviation from acceptable standards of behavior.” The State Attorney’s Office, however, did not believe that Hanegbi’s actions amounted to a criminal offense. For a more extensive treatment of this affair and its ramifications, see HCJ 2534/97 MK Yona Yahav v. The State Attorney’s Office [2], at 1; HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel [hereinafter – Bar-On [3]], at 46; HCJ 2624/97, 2827/97, and 2830/97 Yedid Ronal, Adv. v. The Government of Israel [4], at 71.

At this point it is important to mention that, in Bar-On  [3], petitioner requested that Hanegbi be removed from his position as Minister of Justice. That petition made claims that are very similar to those asserted here. That petition was rejected, and we shall expand on the significance of that case and its ramifications for the current petition.

Finally, we come to the fourth affair, and the most important. It constitutes the chief addition to the facts already laid out in Bar-On [3]. The affair involved the actions of Hanegbi who, at the time, was serving as the head of the “Derech Tzleha” association. As in the previous affairs, here, too, a decision was made not to indict Hanegbi. The Attorney-General, however, saw fit to publish a “public report” on the issue detailing the findings of the police investigation. It described how, in 1994, Hanegbi and MK Avraham Burg prepared a private bill in the Knesset, entitled “The National Campaign Against Traffic Accidents Bill.” The purpose of the draft legislation was to improve road safety and, to further this goal, government body would be established to spearhead the campaign against traffic accidents. The bill was placed before the Knesset and passed a preliminary reading. It was then transferred to the Knesset Finance Committee for consideration. The Committee established a subcommittee, with Hanegbi at its head, with the task of preparing the bill for the next stages of legislation.

While he worked for the enactment of the National Campaign Against Traffic Accidents Bill, Hanegbi founded a non-profit organization called Derech Tzleha. At first he served as chairman of the organization, and later he became its director-general. He received a salary and benefits for his work. According to the police findings detailed in the report, “MK Hanegbi received from the organization, directly or indirectly, the vast majority of the sum [raised by the organization – amounting to approximately NIS 375,000] in the form of his salary, a company car, reimbursement of expenses, a cellular phone, as well as in the form of a notice of support which was published three days before the Likud primaries.” After his appointment to the office of Health Minister in 1996, Hanegbi resigned as director-general of the organization.

Hanegbi was examined by the Knesset Ethics Committee regarding his involvement in the Derech Tzleha affair. The Committee concluded that Hanegbi had placed himself in a situation involving a conflict of interests, and had benefited from work performed outside of his work at the Knesset. Hanegbi was censured by the Committee and his pay docked for two months.

3. Hanegbi’s actions in the Derech Tzleha affair were fully investigated by the police. The police recommended prosecuting Hanegbi for accepting a bribe, fraud, breach of trust, and other offenses. Even the State Attorney’s Office held initially that, while Hanegbi could not be indicted for accepting a bribe, he could be indicted for fraud and breach of trust, fraud and breach of trust by a corporation, obtaining by fraud, and falsifying corporate documents. A hearing was held and, following a chain of events not relevant to this case, the Attorney-General decided that, lack of evidence, and in line with the opinion of the State Attorney, no indictment could be filed against Hanegbi. In the report, the Attorney-General summarized his opinion:

In summary, we believed that the circumstances warranted an investigation, and we even considered filing an indictment. However, there must be a reasonable likelihood of a conviction, and this requirement, with the final preparation of the file, was ultimately not satisfied.

 

The Attorney-General became aware of Hanegbi’s possible appointment to the post of Minister of Public Security. At this point, he presented his opinion to the Prime Minister:

Although according to statute and judicial precedent there appears to be no legal impediment to the appointment, the appointment itself is prima facie problematic from a civic perspective.

 

      Despite the Attorney-General’s counsel, the Prime Minister decided to follow through with Hanegbi’s appointment to the office of Minister of Public Security. It should be noted that, during his previous term as Prime Minister, after the elections to the Fifteenth Knesset, Sharon had resolved not to appoint Hanegbi to serve as a minister in any office responsible for law enforcement. This was in accordance with “advice mainly from a civic perspective,” which he had received from the Attorney-General.

4.   Petitioner asserts that, in all of the above affairs, as well as in other situations of lesser significance, Hanegbi fell afoul of the law and of ethical principles. It is true that, aside from the brawling affair in 1982, Hanegbi was never actually served with an indictment. However, petitioner believes that Hanegbi’s involvement in each of the above affairs, certainly when these are viewed in aggregate, makes the Prime Minister’s decision to appoint him to the office of Minister of Public Security unreasonable in the extreme. In this context, it is necessary to give added weight to the decision of the Ethics Committee regarding Hanegbi and the reports published by the State Attorney’s Office and the Attorney-General regarding the role Hanegbi played in the Bar-On and Derech Tzleha affairs. Petitioner argues that the facts that emerge from all the above affairs establish grounds for intervening in the decision of the Prime Minister in keeping with the “rule of administrative evidence.” In relation to Hanegbi’s appointment to the position of Minister of Public Security, the provisions of criminal law are not the only parameter. Petitioner further argues that Hanegbi’s appointment would damage the effectiveness of the police and its public image.

Petitioner further argued that Hanegbi was investigated on more than one occasion by the police, who recommended that he be served with an indictment. This being the case, petitioner alleges, it is reasonable to expect that “innumerable situations involving a conflict of interest will arise should Hanegbi serve in that capacity.” In particular, a conflict of interest would undoubtedly arise in considerations of promotion for any police officers responsible for investigating him in the past, or when setting budgets for various divisions of the police.

5.   Respondents, by contrast, are of the opinion that there are no grounds for interfering with the Prime Minister’s decision to appoint Hanegbi to the office of Minister of Public Security. The Prime Minister acted within the parameters of his authority, and the affairs raised by petitioner do not establish that his decision was unreasonable in the extreme. The Prime Minister, they point out, diligently weighed all of the pertinent issues. He considered Hanegbi’s professional abilities, his vast experience, his suitability for the job, as well as the view of the Attorney-General concerning the appointment. The Prime Minister also took into account parliamentary and political factors relating to the formation of the government. Respondents argued that the balance struck by the Prime Minister among these various considerations does not deviate from the decisions of this Court.

Respondents emphasize the wide “range of reasonableness” afforded by the courts to a decision of the Prime Minister in a case of this sort. They point out that, as opposed to earlier cases where this Court did order the Prime Minister to remove a minister or deputy-minister from office, in our case no indictment has been filed against Hanegbi since 1982. With regards to the Derech Tzleha affair, as with the other affairs in Bar-On [3], the case was closed for lack of evidence. Therefore, Respondent 3 is presumed innocent until proven guilty. In any event, there is no justification for arriving at a conclusion different than the one reached by the Court in Bar-On [3]. This is especially pertinent in light of the fact that the current version of Basic Law: The Government, as opposed to the previous version of that law, contains an explicit provision for terminating the office of a minister convicted of an offense involving moral turpitude. The respondents further point out that the decision to appoint Hanegbi as Minister of Public Security was approved by a vote of confidence in the Knesset.

Regarding the petitioner’s concerns that the appointment will raise a conflict of interest concerning the police officers who investigated him, Hanegbi stresses that he bears no grudge against those officers. Respondents maintain that there are no conflicting interests whatsoever. It cannot be claimed that the hypothetical fear of negative sentiments between Hanegbi and his investigators warrants intervention in a decision of the Prime Minister. Furthermore, Israel Police is an autonomous body, and the decisions of the minister regarding the appointment of senior officers are subject to the rules of administrative law.

The petition asks us to order the Prime Minister not to appoint respondent 3 to the office of Minister of Public Security. Petitioner requested an injunction to prevent Hanegbi from serving in this capacity. This was rejected. The petition concentrates on his eligibility for such appointment. However, since Hanegbi has been serving in this function for some time now, the petition actually focuses on whether he should continue to hold the office. There is a difference between appointment and termination of office. However, this difference is in fact irrelevant when examining the Prime Minister’s discretion, as we shall explain. See also HCJ 4267/93, 4287/93 and 4634/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel [hereinafter – Pinhasi], [5] at 469.

On March 10, 2003, a panel of three judges heard the parties’ arguments and an order nisi was issued against the Prime Minister. On August 11, 2003 we decided to expand the panel hearing the case, and final arguments were heard by the expanded bench on August 26, 2003.

In my opinion, the petition should be denied.

The Normative Framework

6.   The Government is composed of a Prime Minister and other ministers – section 5(a) of Basic Law: The Government. Section 7(a) of the Basic Law sets down that:

When a new Government has to be constituted, the President of the State shall, after consultation with representatives of party groups in the Knesset, assign the task of forming a Government to a Knesset Member who has notified him that he is prepared to accept the task.

 

Once the Government has been formed, it presents itself to the Knesset, announces the basic lines of its policy, its composition and the distribution of functions among the ministers, and asks for a vote of confidence from the Knesset. After the vote of confidence, the Government has been formed, and the ministers assume office. Section 13(d) of the Basic Law. The Knesset Member who formed the Government becomes its head. Section 13(c) of the Basic Law.

 

We see from here that the task of forming the Government is assigned by the President to the Knesset Member who is the designated Prime Minister. We further see that the Government is formed once the Knesset approves it.

 

The Basic Law adds that the Government may appoint an additional minister. The Government must notify the Knesset of this and, upon receiving the approval of the Knesset, the additional minister assumes office. Section 15 of the Basic Law. The Prime Minister is further authorized to remove a minister from his post, as stated in section 22(b) of the Basic Law:

 

The Prime Minister may, after notifying the Government of his intention to do so, remove a minister from his post.

 

7.   Section 6 of the Basic Law lists a number of criteria for ministers to be considered fit to hold office. These include:

(c)(1) A person who was convicted of an offense and sentenced to imprisonment, and seven years have not yet passed since the day on which he finished serving his term of imprisonment or since the handing down of his sentence – whichever was later, shall not be appointed minister, unless the Chairman of the Central Elections Committee rules that the circumstances of the offense do not involve moral turpitude.

(2) The Chairman of the Central Elections Committee shall not so rule if a court has determined that the offense involved moral turpitude.

 

Likewise, we find in section 23(b):

 

Should a minister be convicted by a court, it shall state in its verdict whether the offense involves moral turpitude; should the court so state, the minister’s tenure shall cease on the date of such verdict.

 

We find a similar provision for the service of a deputy-minister in section 27 of the Basic Law. It should be noted that section 16(b) of the 1992 version of the Basic Law: The Government, provided that:

A person convicted of an offense involving moral turpitude, and ten years not having passed since the date on which he finished serving his period of imprisonment, may not be appointed as a minister.

However, the 1992 Basic Law contained no provision requiring the removal of a minister convicted of an offense involving moral turpitude.

A careful examination of the provisions of the Basic Law reveals, therefore, that the Prime Minister is given the principal authority in the formation of the Government. He has the responsibility of choosing the Government’s ministers, of adding ministers and removing them. Nonetheless, the ministers assume their offices only after an expression of confidence in the Government. A conviction may prevent the appointment of a minister, or his continuation in office, as per sections 6(c) and 23(b) of the Basic Law, as detailed above.

Returning to the case at hand, no one disputes that none of the criteria that would render Hanegbi unfit for office, set out in sections 6(c) and 23(b), have been met. These criteria, as we have seen, deal with a person who has been convicted of a crime. Hanegbi, however, was never convicted – or even indicted – except for the brawling affair in 1982. This affair does not constitute an impediment to assuming office according to the Basic Law. As such no issue of authority or “statutory eligibility” is at stake here. The only issue is Prime Ministerial discretion: Was there a flaw in the Prime Minister’s decision to appoint Hanegbi as Minister of Public Security which warrants the intervention of this Court? On this question this Court has previously ruled:

 

We must distinguish between questions of competence, (or authority), and questions of discretion. The absence of an express statutory provision regarding the fitness of someone with a criminal past establishes the candidate’s competence. However, 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 even obligated to take into account before making the appointment.

 

See HCJ 6163/92 Eisenberg v. Minister of Construction & Housing [6], at 256-57.

 

8. As such, even though there is no legal impediment to the appointment of Hanegbi as Minister of Public Security, this alone does not render superfluous the need to examine the Prime Minister’s discretion to choose Hanegbi. “Fitness is one issue; discretion quite another.” See Pinhasi [5], at 457; see also HCJ 727/88 Awad v. The Minister of Religious Affairs [7], at 491, and HCJ 5167/00 Weiss v. The Prime Minister of Israel [8], at 477. Nevertheless, it is appropriate to note that the criteria for eligibility laid down by the legislature are not irrelevant to the discretion granted to the Prime Minister. The more we depart from the statutory criteria, the more difficult it will be to find justification for interfering with the Prime Minister’s discretion. Indeed, the legislature has established that it is specifically the conviction of a minister of an offense involving moral turpitude which renders him unfit to continue in office. It would not be a simple matter, therefore, for the Court to rule that the minister should also be rendered unfit in situations where he was acquitted of wrongdoing, or when it was even decided not to indict him. We shall return to this point later.

 

The petition calls for an examination of the Prime Minister’s judgment in appointing Hanegbi to the position of Minister of Public Security. However, before undertaking this examination, we must first delineate the criteria for judicial review of such decisions.

 

Judicial Review

 

9. All organs of government are subject to judicial review. See HCJ 325/85 MK Muhammad Miari v. Knesset Speaker Shlomo Hillel [9], at 127-28. The power of judicial review over decisions of the Knesset, the Government, and the other governing institutions is the cornerstone of a democracy which upholds the rule of law. It reflects the formal rule of law, meaning that all of the organs of government are subordinate to the law. It also means that everything is subject to judicial review, which is intended to guarantee that the law is kept. See HCJ 1843/93 Pinhasi v. Knesset Israel [10], at 698. The law governs all matters. “The reach of Government is high, but the law reaches higher than all.” 428/86 Barzilai v. The Government of Israel [11], at 585. The rule of law prevails, not the rule of man. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) [91]. The rule of law requires us to balance the diverse values, principles, and interests of a democratic society. The government is empowered to exercise its discretion in a manner that ensures a just balance of the appropriate considerations. See Eisenberg [6].

 

This perception of the purpose of judicial review is reflected in the ideal relationship between the three branches of government. Each branch is separate and enjoys freedom to fulfill its role. However, each branch is also framed by – and subordinate to – the constitution and the law.

 

The function of the judicial branch is to ensure that none of the other branches overstep their bounds, and that they act in accordance with the normative provisions by which they are bound.

 

See HCJ 1843/93, [10] at 699; HCJ 73/85 Kach Faction v.The Knesset Speaker [12], at 141.

 

The doctrine of the separation of powers does not imply that each branch may act as it wishes. Separation of powers means that each branch is independent in dealing with its own affairs, so long as it operates within the bounds of its authority.

 

Aharon Barak, Judicial Review of the Constitutionality of Law, 3 Mishpat Umimshal 408 (1996) [98]. See also II Aharon Barak, Interpretation in Law: Constitutional Interpretation 256-57 (1993) [96]; HCJ 306/81 Platto-Sharon v. Knesset Committee [13], at 141. The Court’s power to review other government bodies is a corollary of the fact that it is the branch responsible for the interpretation of the law, see Kach [12], at 152.

 

All of these principles – the rule of law, the separation of powers, the checks and balances that accompany this separation, the power of judicial review, and the other mechanisms of democracy – form the central pillars of a democratic society. They constitute the essential conditions for the preservation of human rights. They form the nucleus of any democratic society that strives to promote human welfare.

 

In light of the above, it has been stated on more than one occasion that this Court is charged with overseeing the legality and reasonableness of the activities of the State. See HCJ 403/71 Alcourdi v. The National Labor Court [14], at 72. The Court’s powers of judgment and judicial review of government authorities constitute “an integral part of a truly democratic society, and anyone undermining this is liable to topple one of the pillars of the state.” HCJ 222/68 Chugim Le’umiyim Agudah Reshuma v. Police Minister [15], at 172. This is because:

 

Absolutism, however benevolent, is the enemy of freedom. We are free people, and one who is born free or knows freedom will subjugate himself neither to another person nor to an absolute opinion.

 

See HCJ 758/88 Kendel v. The Minister of Internal Affairs [16], at 528 (Cheshin, J).

 

10. At the same time, care must be taken to distinguish between the power of the Court to exercise judicial review over other branches of the government – a power which, as stated above, is extremely broad in nature – and the Court’s readiness to interfere with the decisions of the other branches within the spheres of their authority. The question of the actual existence of judicial review is separate from the issue of when judicial review should be exercised. See Miari [9], at 128; HCJ 9070/00 MK Livnat v. Chairman of the Constitution, Law and Justice Committee [17], at 809. This Court has adopted different principles in a variety of cases pertaining to the judicial review of actions and decisions of government authorities. The common denominator among these principles is an attempt to exhibit judicial self-restraint. Among these principles we may specify the “range of reasonableness,” the “presumption of suitability,” the “presumption of lawfulness,” the principle that the Court will not overrule the discretion of one branch of government, and the limits set by administrative law. These principles are not mere lip service to the limitations on judicial review. Rather, they are an indivisible and necessary part of it. Their application depends on the type of body under review and the power that has been exercised.

 

11. To be sure, the decision whether to exercise judicial review will depend on an examination of the authority being reviewed. See Livnat [17], at 809. To this end one must take into account the status of the body in question, its position in the system of government, the extent and nature of the powers granted to it, whether the body was elected or appointed, and other similar factors. Thus, for example, when the Court proceeds to review decisions of the Knesset, it takes into account the special status of this body, and acts with the required caution and self-restraint necessitated by this status. After all, the Knesset is the elected body of the State. It is elected by the citizens of the State, and it has the power to legislate laws and enact a constitution for the State. See HCJ 971/99 The Movement for Quality Government in Israel v. The Knesset Committee [18], at 548; and HCJ 652/81 MK Yossi Sarid v. Knesset Speaker Menachem Svidor [19], at 197.

 

The special status of the Knesset, as set forth in the Basic Laws and in the structure of our democracy, requires that the Court exercise its discretion in performing judicial review of its actions with caution and self-restraint.

 

See Livnat [17], at 809. See also 2136/95 Gutman v. Knesset Speaker Prof. Shevach Weiss [20], at 851. Similar sentiments have been voiced regarding decisions of the Government:

 

The status of the Government as the executive branch of the State is special, for it executes the will of the State, as provided in section 1 of Basic Law: The Government.

 

See HCJ 3872/93 Mitrael Ltd. v. The Prime Minister and Minister of Religious Affairs [21], at 497.

 

12. The criteria for the exercise of judicial review are derived not only from the identity of the body subject to review. They are also derived from the character of the decision under scrutiny. See Livnat [17], at 809. The nature of the power which was or was not exercised is especially significant for setting the limits of judicial review. See Sarid [19], at 201. In one case, Justice Zamir expanded on this:

 

The question of whether an administrative decision is unreasonable in the extreme depends on the limits of the range of reasonableness. This delineates the extent to which the administrative authority may employ its discretion for the purpose of making decisions. The range of reasonableness of every administrative authority depends on the nature of its power, the language and purpose of its authorizing law, the identity of the authorized body, the issue addressed by the power, and whether the power is exercised mainly on the basis of factual considerations, policy considerations, or professional criteria, such as medical or engineering evaluations. The range of reasonableness varies according to these factors: it may widen or narrow depending on the circumstances.

Bar-On [3], at 57. Similar sentiments were expressed by Vice-President (then Justice) Or:

The range of reasonableness delineates the area within which the decisions of an authority are reasonable, meaning that there are no grounds for the intervention of the Court. Yet this area is not uniform in all cases. It may change in accordance with the circumstances of the specific case. It is derived from the nature of the subject being judged. It is derived from the nature of the relevant values in any given matter.

See Yahav [2], at 28.

In other words, the “range of reasonableness” is influenced by the “bounds of deference.” Reasonableness is a normative concept. It may be defined as the identification of the relevant considerations and the balance which is struck between these considerations according to their weight. See HCJ 935/89 Uri Ganor, Adv. v. Attorney-General [22], at 513. When reviewing an act of the executive branch, the Court determines whether a reasonable authority would have been permitted to act in a similar manner. Often enough there is more than one decision which a reasonable authority could make. In these circumstances, the authority may act within the “range of reasonableness.” Any decision that comes within the range of reasonableness will not be subject to the Court’s intervention. The Court may only intervene in those decisions which deviate in an extreme manner from the range of reasonableness. Ganor [22], at 514.

Deference, by contrast, is an institutional concept. Deference means that, in examining decisions of other authorities acting within the boundaries of their authority, the Court will not evaluate the wisdom of these decisions or overrule their discretion. The Court does not regard itself as a supra-governing body. See 1843/93 [10], at 499; see also Rostker v. Goldberg, 453 U.S. 57, 68 (1981) [92]; INS v. Chadha, 462 U.S. 919, 944 (1983) [93]. This Court recognizes the fact that:

The Knesset and the Government were elected by the public. They were allocated certain areas within which they are empowered to act in the name of the public. The Court recognizes that these areas were allocated to the Knesset and the Government, and not to the Court. It is also cognizant of the fact that in these areas preference was given to the Knesset and the Government over the Court. The body entrusted with the promulgation of laws is the Knesset. Likewise, the authority to determine social and economic policies, as well as the authority to execute laws, was given to the Government. The underlying principles of democracy, among them the separation of powers, require that the Court not trespass the boundaries of the Knesset and the Government.

See I Itzchak Zamir, Administrative Authority 89-90 (1996) [95].

13. Judicial review thus requires striking a balance between respecting decisions of government authorities within their area of power and the need to preserve the rule of law and protect human rights. This is one of the axioms of democracy. This balance is not static, but changes according to the character of the power under discussion.

While the Court has determined that it holds the power to scrutinize the legality of the decisions of the Knesset, it has itself curtailed this power: It does not intervene in the decisions of the Knesset, even when these run contrary to law, unless they are capable of harming the fabric of parliamentary life or the foundations of the constitution. Likewise, the Court is generally reluctant to substitute its own discretion for the discretion of the Government or any other administrative authority. For the most part, the Court refrains from intervening in matters of policy. This includes not only foreign policy, but also social and economic policy. Only in extreme circumstances is the Court willing to invalidate administrative decisions due to a lack of reasonableness.

See [95], at 90. See also HCJ 4140/95 Superpharm (Israel) Ltd. v. Customs and Excise Administration [23], at 69.

Based on the above, this Court held, in HCJ 971/99 [18] that, in determining the character of judicial review, a thorough analysis of the act of government under review should be undertaken. In that judgment we dealt with the judicial review of Knesset decisions. We defined three broad categories of decisions: completed acts of legislation; intra-parliamentary processes; and quasi-judicial decisions. The Court held that, when dealing with quasi-judicial activity of the Knesset, its judicial review will be “ordinary.” In such situations, the Knesset does not differ from  any other quasi-judicial body. See HCJ 1843/93, [10] at 701; HCJ 652/81, [19] at 202; HCJ 620/85 Miari v. Knesset Speaker Shlomo Hillel [24], at 195. In quasi-judicial decisions, the Knesset is involved neither in “political” activity nor in its own internal legislative processes, and the need to preserve the basic fairness of the parliamentary process prevails.

The situation is different when we review intra-parliamentary processes of the Knesset – decisions affecting the Knesset’s own internal guidelines and working procedures. Judicial review may be exercised here only with caution. A balance must be struck between the rule of law, which requires every political entity to respect the law, and the principle that the internal workings of the Knesset are its own affairs, that “belong to the legislative authority under the separation of powers doctrine.” See Sarid [19], at 202-03. Therefore, the Court will intervene in such decisions only where significant harm is caused to the fabric of parliamentary life and the foundations of the constitution. HCJ 652/81 [19] at 204; HCJ 1843/93, [10], at 700.

In reviewing the constitutionality of a law passed by the Knesset, however, additional principles also come into play. Ordinary legislation must respect those human rights enshrined in the Basic Laws, and may not violate these except according to the guidelines of those Basic Laws. Legislation will be presumed to be constitutional; this is a consequence of the requirement not to blur the boundaries between the authorities. See CA 6821/93 United Mizrahi Bank v. Migdal Agricultural Cooperative, [25] at 574. This presumption of constitutionality, however, does not apply to the issue of whether a law that does infringe a constitutional right fulfills the requirements of the Limitations Clause. See Aharon Barak, Interpretation in Law – Constitutional Interpretation (1995) [96]. This Court must  respect the law, as an expression of the will of the people. Therefore, before this Court strikes down a law, it must thoroughly scrutinize its language as well as its purpose. It must be stringent and must be completely convinced that the law is irreparably flawed. See HCJ 3434/96 Dr. Menachem Hoffnung v. The Knesset Speaker [26], at 57. This Court will only strike down a law in a clear case of significant damage to fundamental rights or values. See HCJ 7111/95 The Center for Local Government v. The Knesset [27], at 485.

Therefore, when reviewing the decisions of other government authorities, this Court takes into account the status and function of the body under review, along with the character of its decision. These, in turn, influence how we exercise judicial review and the criteria that guide it. Our statements in HCJ 971/99 [18] regarding the Knesset and its committees can also be applied to decisions of the executive branch and the Prime Minister.

14. Judicial Review of Decisions of the Government and the Prime Minister

Any government is subject to judicial review… Therefore the Court must ask itself – when reviewing the reasonableness and proportionality of the government’s decisions – whether the decision is one that a reasonable government would be permitted to make. The Court should not ask itself what decision it would have made had it been in the government’s place.

See Weiss [8], at 470.

We review decisions of the government and the Prime Minister, just as we review decisions of any other administrative body.

The government’s discretion, like the discretion of any minister within the government or any other authority, is constrained by legal guidelines, and the Court is charged with upholding these guidelines. Among other things, the government must exercise its authority based on relevant considerations, not on external factors. These must fall within the range of reasonableness and proportionality.

Id, at 477-78. Any authority may at some point make a decision which is not reasonable or is not in line with administrative law. The government is no exception. See CA 492/73 Schpeizer v. Israeli Sports Betting Council [28], at 22, 26.

Much authority is vested in the hands of the government. The exercise of its powers is examined by the Court, pursuant to the principles of administrative and public law. As with the legislature, here too the extent of our review depends both on the status of the body under review as well as on the character of the decision being scrutinized.

With regard to the status of the body under review:  This Court must be mindful of the status of the government. This is especially true when speaking of the “core” meaning of the term “government” – “government in the sense of ‘Cabinet,’ or group of ministers; the  body that is  responsible for defining the policy of the executive branch.” See II Amnon Rubinstein, Constitutional Law in the State of Israel 687 (5th ed. 1997) [97]. The government is the executive arm of the State. See section 1 of Basic Law: The Government. In examining the discretion of the government, the Prime Minister, and other ministers, this Court must consider their status at the highest tier of the executive branch. See Mitrael [21], at 497; HCJ 162/72 Dr. Kinross v. The State of Israel [29], at 238. Similarly, this Court must delve deeply into the nature of the action or decision under judicial review. The bounds of the “range of reasonableness” regarding decisions of the government or any of its members widen or narrow depending on the type of the power exercised. See APP 7440/97, LCA 6172 State of Israel v. Golan [30], at 17-18. Indeed, at the outset of any judicial review of decisions or actions of the government, this Court adjusts its sights according to the act. Hence, in certain contexts, the power of judicial review is exercised with great caution.

Thus, for example, all governmental acts enjoy a presumption of legality, see RAP 1088/86 Mahmud v. Local Council for the Planning and Construction of the Eastern Galilee [31], at 417. This assumption applies with even greater force to regulations. See HCJ 98/54 Lazerovitz v. Food Inspector, Jerusalem [32], at 48; compare Aharon Barak, Judicial Review of Regulations  , 21 HaPraklit 463 (1965) [99]. The courts have developed different principles for review.

The purpose of these principles, at the heart of judicial policy, is to protect the constitutional standards laid down by an administrative authority. Their purpose is also to protect the expectations of the general public which created these standards.

See HCJ 4769/90 Zidan v. The Minister of Labor and Social –Welfare [33], at 171-2.

The Court will not rush to strike down regulations as unreasonable, and will not usurp the place of another authority. Therefore, this Court will strike down regulations only if they are found to be totally unreasonable. Id. See also CA 184/80 Eigler v. Magen Insurance Company [34], at 523; Kinross [29].

On another level, when this Court examines the working methods of the government and its committees, it must act similar to when it reviews the Knesset’s intra-parliamentary processes. Regarding the working methods of the government, see section 31(e) and (f) of the Basic Law. See also Rubinstein, [99] at 720-24. This being an internal matter of the government, and in light of the political implications that the issue may have, this Court only exercises judicial review with the utmost caution.

15. Such caution is also employed when dealing with basic matters of policy. The Court is not accustomed to intervening in “patently political matters.” See HCJ 3687/00 Ashkenazi v. Prime Minister Ehud Barak [35], at 1040. The Court is not a part of the government, and it will not manage its affairs.  See HCJ 6029/99 Jonathan Pollard v. Prime Minister and Defense Minister Ehud Barak [36], at 241. This is especially true concerning the power of the government to manage foreign policy and the security of the State.

The strength of the government’s authority, and the nature of the issue at hand – foreign relations and security, war and peace – imply that the judiciary must grant the government wide latitude in such areas. Within that range the Court will not substitute the government’s discretion with  its own.

See Weiss [8], at 471-72.

With respect to decisions on political matters, or decisions pertaining to economic policy, the Court will intervene only in very exceptional circumstances. For the most part it will leave these matters to the political arena.

The choice between different policies is a matter for the government, and policy is clearly the Knesset’s domain. A choice which falls within the range of reasonableness is not a matter for the Court .

See Weiss [8]. Therefore,

The Court will not instruct the Prime Minister or the members of his government to adopt a policy of privatization or nationalization. A matter that lies within the government’s power is a matter for the government and its ministers to decide, not for the Court.

Id. See HCJ 4769/95 Ron Menachem v. The Minister of Transportation [37], at 235; HCJ 561/75 Ashkenazi v. The Minister of Defense [38], at 309; HCJ 4354/92 Temple Mount Faithful v. The Prime Minister [39], at 37; HCJ 8666/99 Temple Mount Faithful Movement v. The Attorney-General [40], at 199; HCJ 46/00 Ayalon Jordan, Adv. v. The Prime Minister [41], at 5; HCJ 6057/99 Victims of Terror Staff v. The Government of Israel [42], at 284; HCJ 7307/98 Pollack v. The Government of Israel [43], at 424; HCJ 2455/94 “B’tzedek” Organization v. The Government of Israel [44], at 292; HCJ 4877/93 Victims of Arab Terror v. State of Israel [45], at 257; Itzchak Zamir, “Law and Politics,” in Klinghoffer’s work on Public Law 209 (1993) [100].

16. This brings us to another matter, where this Court has only limited powers of intervention. I refer to the formation of a government. This includes the building of a coalition, the appointment of ministers and deputy-ministers, the addition and removal of ministers, the distribution of tasks among the ministers, the transfer of power from one minister to another, the consolidation, division, termination and formation of ministries, and the transfer of responsibilities from one ministry to another. See section 31 of the Basic Law. Compare  HCJ 65/51 Jabotinsky v. The President of Israel [46], at 814 (Smoira, J.). We will focus on one of these powers – the power of the Prime Minister to choose ministers and assign them roles.

Judicial Review of Decisions Relating to the Formation of the Government

17. The discretion of the Prime Minister regarding the appointment of a minister is certainly subject to the review of this Court. This applies to any kind of appointment. In terms of the fundamental power of judicial review, the selection of a minister is no different from any decision made by the Prime Minister, or any other minister or public authority. All these decisions are examined in light of the principles of administrative law. It should be noted that:

Not only the exercise of authority in unreasonable circumstances, but also the failure to exercise a discretionary power due to unreasonable considerations, can lead to the conclusion that the decision is invalid.

See 3094/93 Movement for Quality in Government in Israel v. State of Israel [hereinafter: Deri [47]], at 419-20. Therefore, both the Prime Minister’s decision to appoint a person and his decision not to remove one from office are subject to the accepted standards of reasonableness, integrity, proportionality, good faith, and the absence of arbitrariness or discrimination.

The importance of judicial review in this context stems from the fact that the Prime Minister’s decision that a particular individual shall serve in a particular position, or that one person shall replace another, may have a large influence both on the functioning of a public authority and the public’s confidence in that authority. With respect to the latter, it has already been held that:

The key to the existence of a public service worthy of the title is the public’s confidence in its integrity… Public confidence is the backbone of public authorities, and it enables them to fulfill their function.

See Eisenberg [6], at 261 (Barak, P.); see also Itzchak Zamir, Political Appointments, 20 Mishpatim 23 (1990) [101]. It was therefore held that:

The appointment of a person with a criminal past – especially a serious criminal past, such as a person who committed an offense involving moral turpitude – harms the essential interests of the public service. It undermines its proper functioning. 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 for the organs of government.

See Eisenberg [6], at 261. It is therefore clear that a person’s criminal past is an important consideration concerning his suitability for public office. Eisenberg [6] addressed the government’s decision to appoint Yosef Ginosar as director-general of the Ministry of Construction & Housing, despite his involvement in the “Bus 300” and Nafso affairs. The judgment referred to the trustee status of public authorities, and their duty to consider the criminal past of a potential public servant.

A public authority is a trustee and it has a duty to consider the criminal past of a candidate before making an appointment. The appointment of a public servant with a criminal past affects the functioning of a public authority and the attitude of the public to it. It has both direct and indirect ramifications on the public’s confidence in the authority. The authority making the appointment must take these considerations into account … A public authority does not run like a business, and it has a duty of trust to the public. It may employ workers with a criminal past, and the consideration of rehabilitating the criminal should be taken into account. Nonetheless, it is not the only consideration. The public authority must review 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.

Id. at 258 (Barak, P). In another case, which dealt with the appointment of Itamar Rabinovitz as Israeli ambassador to the United States, the Court ruled:

A criminal past does not disqualify the candidate. It merely influences the decision of the appointing authority. See HCJ 727/88 Awad v. Minister of Religious Affairs [7], at 491. When exercising its discretion, the appointing authority – the Prime Minister in the present case – must take into account a host of factors. Assuming that the candidate is fit for the post in all other respects, the appointing authority must also give weight to the criminal past of the candidate.

The weight given to a criminal past is not set in stone. It varies according to the nature of the criminal past and its circumstances on the one hand, and the nature of the office and its essential objectives on the other. When the different considerations point in different directions, balance must be sought according to the basic axioms of Israeli law… Sometimes the case is a borderline one. The criminal past is weighed against all the other considerations. In such cases, any decision made by the appointing authority is legitimate, and this Court will not substitute the discretion of the public authority with its own.

See HCJ 194/93 MK Gonen Segev v. Minister of Foreign Affairs [48], at 61-62.

18. The same applies when considering the candidacy of an publicly elected official for the office of minister or deputy-minister. There, too, the Prime Minister is entitled – and at times even required – to take into account the candidate’s involvement in criminal proceedings. This was noted in Pinhasi [5]:

We accept that an elected public official is not the same as a civil servant. The elected official is chosen by the people and is subject to their evaluation. The civil servant is chosen by the people’s representatives and is subject to their evaluation. However, this does not mean that the elected official is accountable to the voter alone and is not bound by the law. The opinion of the voters does not influence the evaluation of the courts, and it is unable to change this evaluation. The very fact that he is chosen by the people requires him to act in a more exacting and ethical manner than a ‘regular’ civil servant. Someone elected by the people must be a model citizen. He must be accountable to the public and deserving of the trust the people place in him. Therefore, when a government authority is granted the power to terminate an office, it must exercise this power where the official undermines the public’s trust in the authority. This applies whether the official is elected – as in a Member of Knesset serving as a deputy-minister – or is a public servant who may be dismissed by a minister.

Id. at 470 (Barak, P). Therefore:

The differentiation between an elected official and a public servant, though important, does not grant the elected official immunity against the termination of his tenure if he is suspected of committing serious crimes.

Id. at 472. The efficient functioning of the government, the integrity of its members, and the confidence of the public in them, are all cornerstones of Israel’s system of governance.

In an enlightened democratic society, public officials, who are elected by the people and enjoy the confidence of the people, are required to conform to a high standard of ethical behavior – both on the personal and public planes – to enable them to continue to serve in office.

See HCJ 251/88 Wajia Udeh v. The Head of the Jaljulia Local Council [49], at 839. These fundamental concepts also received expression in the words of President Shamgar, regarding the objectives of the version of the Basic Law: The Government which was current at that time, which granted the Prime Minister the power to remove a minister from office.

The provisions of the said law are also intended to facilitate a proper response – through removal from office – to a serious affair in which the minister was involved. This applies when the incident, being an act or a failure to act, has ramifications for the status of the government or the public’s perception of it. It also applies if the affair undermines the government’s ability to lead and serve as an example, or its ability to instill fitting modes of conduct. Most importantly, the provisions apply when the affair has ramifications for the public’s trust in the system of governance and law, its values, and the duties which the average citizen must fulfill as a result.

See Deri [47], at 404.

The powers granted to the Prime Minister to appoint and dismiss ministers thus serve to improve the government’s image and functioning, and public confidence in it. A radical deviation from the range of reasonableness in the exercise or non-exercise of these powers constitutes grounds for judicial intervention.

19. There is no doubt that the range of reasonableness afforded to Prime Minister when determining the composition of his government is very wide. This is due both to the status of the Prime Minister as head of the executive branch and the nature of the power with which we are dealing. The wide leeway afforded to the Prime Minister in this regard is a direct result of the lack of legal principles which are effective tools in the administration of the executive branches in the modern state.

The power of the Prime Minister to determine the composition of his government is a:

[S]pecial type of power, due to both the Prime Minister’s role in the formation of the government and to the political character of the government. It encompasses a vast array of considerations and spans a wide range of reasonableness.

Bar-On  [3] at 58 (Zamir, J.). After all, who could be better placed than the Prime Minister to divide up the appointments in the government he is forming? Who other than the Prime Minister could take into account all the delicate balances and differing needs of forming a government? Who other than the Prime Minister could weigh all the parliamentary, political, and factional considerations which are an inextricable part of the process? On the last question, it has been remarked:

Parliamentary and political considerations may be legitimate under certain circumstances, though they must be examined as part of a proper balance of the other considerations.

Deri [47], at 423 (Shamgar, P). To these words, Justice Levin added:

When the Prime Minister is required to exercise his discretion [regarding the dismissal of a minister – E.R.], he may consider parliamentary and political aspects. As stated above, the function of a minister is both political and administrative. I consider it natural and self-evident that the Prime Minister will seek to preserve his government from disintegration. For the sake of this vital aim he may, in an appropriate case, overlook ‘deviations’ in the conduct of his ministers, such as outbursts against the binding decisions of the government and even antagonism towards such decisions. These things are a function of politics whose credibility is examined by the Knesset and the voter.

Id. at 427. In the same case it was noted:

As distinct from civil servants, who are subject to the State Service Law (Appointments), 1959, ministers and deputy-ministers are not appointed solely on the basis of their abilities, talents and personal qualities. Rather, party and coalition interests are at the basis of these appointments. The structure of public life is not weakened by the appointment of a minister or deputy-minister who is not endowed with especially superior character traits, or who is not appropriate for the position.

Id. at 428 (Goldberg, J). In a similar vein:

The discretion granted in the Basic Law: The Government regarding the dismissal of a deputy-minister is extremely wide. Among other considerations, the authority holder is permitted, and even obligated, to consider the deputy-minister’s performance and success in the job. “Political” considerations, which may be invalid in other contexts, are appropriate reasons for dismissing a deputy-minister. The need to form a coalition and to guarantee the continuing confidence of the Knesset is certainly a pertinent consideration.

See Pinhasi [5], at 463 (Barak, P).

20. The Prime Minister is thus empowered with the authority to form the government. This is the law, as evidenced clearly by sections 7, 13 and 22 of the Basic Law, and it is also the natural state of affairs. The power to appoint and dismiss ministers is a discretionary one. This discretion is wide, as it encompasses a host of considerations and a significant political dimension. It is regarding such discretion that the Court recognizes a wide “range of deference.”

Accordingly, the Court must set itself a narrow range of intervention regarding the Prime Minister’s decisions on the formation of his government, and exercise its powers of judicial review with caution.

The balance necessitates that this Court’s intervention in the discretion of those authorized to remove a minister or deputy-minister from office should be sparing and limited to those situations where the gravity of the offense cannot be reconciled with his continued service.

See Deri [47], at 429 (Goldberg, J.). This is how the appropriateness of intervention should be decided. The Prime Minister’s discretion, so long as there is no radical deviation from the standard of reasonableness, should not be scrutinized by the Court. The public should examine the Prime Minister’s discretion using the means available to it in a democratic society, as should the Knesset, via the powers granted it by law. Justice Zamir noted this in Bar-On  [3]:

The section which grants the Prime Minister the power to remove a minister from office is intended mainly to prevent “corruption” in the government. For this purpose the law has afforded the Prime Minister discretion so wide that any decision to dismiss a minister whose conduct has deviated from the norm will fall, generally speaking, within the range of reasonableness. The Court will not intervene in such a decision. Similarly, the Prime Minister’s decision not to remove a minister from office will also generally fall within the range of reasonableness. In such cases the Court will also not intervene in this decision. Both of these decisions were entrusted by law to the Prime Minister, and not to the Court. The Prime Minister will be held accountable for his decision by the Knesset and by the public, and they may respond, should they so desire, via avenues which the law opens to them.

Id. at 59-60.

It should be emphasized that appointments of government ministers must be approved by the Knesset, as provided in section 13(d) of the Basic Law. This states that:

The government is constituted when the Knesset has expressed confidence in it, and the ministers shall then assume office.

The fact that every minister’s appointment has received parliamentary approval should not be discounted.

Improper Conduct of a Minister

21. We stated above that the range of prime ministerial discretion with regard to the formation of a government is wide. In contrast, the place for judicial intervention in this discretion is narrow. Nevertheless, the Court’s powers of intervention in a decision of the Prime Minister to appoint or dismiss a minister whose conduct has been improper are not limited to a case where the minister has actually been convicted of an offense. Nor are they limited to cases where an indictment was filed against the minister or where he was the subject of a police investigation. The Court has held:

The possibility cannot be ruled out that the conduct of a minister or deputy-minister in a specific case may be so serious that it would be extremely unreasonable to permit him to continue his tenure. This could apply even in cases when no criminal offense was actually committed.

Bar-On  [3], at 64. However, it is clear that a conviction of a serious crime cannot be compared to a conviction of a minor crime. It is also clear that being convicted is not the same as being indicted, and being indicted is not the same as being investigated by the police. Finally, none of these are comparable to situations in which it is found that no grounds exist for prosecuting an individual, or where the actions attributed to that individual are within public ethical norms. The balance between the various considerations depends on the severity of the acts attributed to the candidate, and whether the suspicion is sufficient to warrant a charge or conviction. As was noted in Eisenberg [6]:

Someone who committed an offense in his childhood cannot be compared with someone who committed an offense as an adult; someone who committed one offense cannot be compared with someone who committed many offenses; someone who committed a minor offense cannot be compared with someone who committed a serious offense; someone who committed an offense in mitigating circumstances cannot be compared with someone who committed an offense in aggravating circumstances; someone who committed an offense and expressed regret cannot be compared with someone who committed an offense and did not express any regret for it; someone who committed a ‘technical’ offense cannot be compared with someone who committed an offense involving moral turpitude; someone who committed an offense many years ago cannot be compared with someone who committed an offense only recently; someone who committed an offense in order to further his own agenda cannot be compared with someone who committed an offense in the service of the State.

 

Id. at 261 (Barak, P.). In the two cases where this Court determined that the Prime Minister had an obligation to dismiss a minister or deputy-minister, an indictment alleging serious crimes had been filed against that minister or deputy-minister. Thus, in Deri [47], it was determined that the Prime Minister’s failure to remove Arye Deri from the post of Minister of the Interior constituted extreme unreasonableness. An indictment had in fact been filed against Deri, accusing him of corruption which was “extremely severe.” In that case, the Court noted that a guilty verdict had not yet been handed down against Deri.

 

An indictment is not a judgment. It only reflects the prima facie evidence collated by the prosecution. However, as far as continued office in the government is concerned, even the prima facie evidence collated in the indictment, which has now become public knowledge, is of significance. There are circumstances which are significant in terms of the reasonableness [of continuing office], not just a conclusive judicial ruling but also the nature of the actions attributed to someone, since they wear the official dress of an accusation ready for presentation to the court.

[I]f a minister who is charged with receiving hundreds of thousands of shekels in bribes, and other forms of abuse of public office, continues to serve in the government, this could have serious ramifications for the image of government in Israel, and for its good faith and integrity. This has a direct effect on the question of reasonableness pursuant to the provisions of law.

Id. at 422-23. Justice Levin commented on this issue:

There are situations in which, due to the nature of the offense and the circumstances in which it was committed, it must be asked whether [the minister] should continue serving in his position.

I do not suggest that we lay down any hard and fast rules on this subject and decide in a sweeping manner when and how conclusions should be drawn. For, first and foremost, it is the political system which must react, within the framework of the proper political-democratic process. But there may be exceptional situations, such as the one before us, when our intervention is required, in order to lay down specific standards of conduct.      

It seems to me, for example, that if, heaven forbid, an indictment based on prima facie evidence is brought against a minister, indicating that he is suspected of serious offenses ignominious in nature and circumstance – such as, purely for illustration purposes, if a minister is charged with accepting bribes, with fraud, with cheating state authorities, with lying or with making falsifying documents – then it would not be proper or reasonable for him to continue in office.

Id. at 426-27.

22. The Pinhasi case [5] also concerned the continuation of tenure of a deputy-minister who was indicted for allegedly making false entries in corporate documents, false testimony, and an attempt to receive goods by fraud. The Court related to the impact of an indictment upon the discretion of the Prime Minister:

Clearly a public servant who has been convicted of an offense is not the same as one who has only been indicted. The difference is expressed in the weight to be attached to considerations of public confidence, but not in the actual requirement to take such a consideration into account.

Id. at 462 (Barak, P). Furthermore:

Weight must be attached to the consideration of the public’s confidence in the public authorities when a public servant is convicted or confesses to the deeds attributed to him. But this differs from the weight attached when the issue is merely the filing of an indictment in a case where the accused insists on his innocence. Nonetheless, this should not be the deciding consideration. The issue at hand concerns the act of termination of office by the government authority. No criminal conviction is necessary to substantiate this act. The pressumption of innocence granted to every accused does not prevent the termination of tenure of a government official. The only condition is that the government authority making the decision must have evidence which, in light of the circumstances, is such that “any reasonable person would see its probative value and would rely on it.”

Id. at 467-68. Indeed, in that case, it was determined that the offenses allegedly committed by the deputy-minister indicated a “moral defect” in his conduct. Therefore, it was held, the offenses could be classified as “offenses of moral turpitude in the particular circumstances.” In light of this, it was concluded that for the deputy-minister to continue in his tenure, after being charged with such serious offenses, would harm both the respect that the citizen feels towards the government and the public’s confidence in the government authorities. The government’s paradigm of leadership would be undermined, and the credibility of the deputy-minister would be significantly damaged. The Court therefore determined that the only reasonable recourse was to terminate the deputy-minister’s tenure. Id. at 469. See also Avigdor Klagsbald, Public Duty, ‘Criminal Past’ and Administrative Evidence, 2 HaMishpat 93 (1995) [102].

The conclusion which follows from all this is that, even though an indictment carries less weight than a conviction, indictment for a serious offense may obligate the Prime Minister to dismiss a minister or deputy-minister. Deri and Pinhasi show that the existence of an indictment alleging serious offenses, based on prima facie evidence, is sufficient to harm the public’s trust and the integrity of the public service and, as such, necessitates the dismissal of the minister or deputy-minister.

23. What, therefore, would the law be in those cases in which no indictment was filed? This Court could be required to review the Prime Minister’s discretion concerning the tenure of an individual guilty of unacceptable, but not criminal, conduct. Before us we have a case in which the law enforcement authorities have decided not to press charges against a minister due to the lack of a reasonable chance of a conviction. To the best of their professional knowledge, the defendant would be acquitted in court if there was an indictment. In such cases, I am of the opinion that it would require truly extreme and exceptional circumstances in order for the Court to obligate the Prime Minister to refrain from making an appointment or to terminate one.

It is worth pointing out here that, as we have already detailed, the Basic Law: The Government outlines, in subsections 6(c) and 23(b), the concerning the appointment and dismissal of a minister. These sections explicitly provide the ramifications of a minister’s conviction of an offense. The Deri and Pinhasi cases also set out the law governing the termination of tenure. When those cases were decided, the 1997 version of the Basic Law, which contained no provision requiring the dismissal of a minister convicted of a crime involving moral turpitude, was in effect. The Court, in making these rulings, acted without recourse to any of the statutory criteria which now exist. Sections 6(c) and 23(b) of the Basic Law of 2001 pertain to the fitness of a minister to serve. As we have seen, these sections do not rule out judicial review of the Prime Minister’s discretion even in cases that do not fall within the categories mentioned. Therefore, the precedents of Deri and Pinhasi still stand.

In this manner, the court has created a fine balance between the obligation of deference which applies to situations such as these, and the other considerations with which this Court is charged. However, the further we depart from the statutory criteria of fitness, the harder it will be, according to the existing law, to regard the appointment of a minister, or the non-termination of his tenure, as an extreme deviation from the range of reasonableness. The loss inherent to expanding the limits of the precedents set by this Court is liable to be greater than the gain.

24. In examining the Prime Minister’s discretion to appoint a minister who was investigated but not indicted, we need not look far for a precedent. Respondent 3, Mr. Tzahi Hanegbi, was himself the subject of a ruling of this Court approximately six years ago, in Bar-On [3]. At that time, the same petitioner requested that we order the Prime Minister to dismiss Hanegbi from the post of Minister of Justice. As explained above, Hanegbi’s name was at that time linked to three out of the four affairs which petitioner brings against him today, namely: the “brawling affair” of 1982; the ISTA affair, which lasted from 1982 to 1992; and the Bar-On affair of 1997. No one argues that there is any material difference between the Ministry of Justice, which Hanegbi led during Bar-On [3], and the Ministry of Public Security, which he now heads. Therefore we can shed light on the case at hand using the previous ruling.

In Bar-On [3] this Court determined that:

There never was and never will be a situation in which a sullied reputation is enough to obligate the Prime Minister by law to remove a minister from his position.

Id. at 57 (Zamir, J.). The Court further expounded:

There is no doubt that it is legitimate to demonstrate disapproval of a minister’s conduct if it diverges from the standards of what is right and proper. The public expects that every minister, as a leader of the public, shall set an example of proper conduct. This applies even more to the public’s expectations of the Minister of Justice.

Id. at 59 (Zamir, J.). As emphasized by Justice Zamir, the power to appoint ministers belongs to the Prime Minister and it is an undeniably broad power. The Prime Minister may decide to dismiss a minister whose conduct diverges from acceptable standards, or he may decide to retain such a minister. Both decisions will generally be within the range of reasonableness.

The responsibility for either of these decisions was entrusted by the law to the Prime Minister, and not to the Court. The Prime Minister is held accountable for his decisions by the Knesset and by the public, and these bodies may respond, if they so desire, using the means provided by law.

Id. at 60. Moreover:

The Court may refrain from intervening in the Prime Minister’s decision on whether or not to remove a minister on account of unacceptable conduct. However, by so doing the Court does not imply that the Prime Minister’s decision is correct and appropriate, any more than it implies that the minister’s conduct itself is appropriate. The Court merely affirms that the Prime Minister’s decision and the minister’s conduct have not broken the law. It does not mean that they are not unethical. It is certainly possible that were the Court in the Prime Minister’s shoes, it would made a different decision, and it is also possible that the Court does not approve of the minister’s conduct. However, the ethical responsibility for the administrative authority, as well as the responsibility for its efficiency and wisdom, as distinct from its legal responsibility, is not entrusted to the Court.

Id. at 61 (Zamir, J.). Furthermore:

The court system aspires, by means of legislation and precedent, to raise the ethical standards of society, and also improve the conduct of the public administration. This is its purpose. It is a worthwhile purpose and one it performs well. It has succeeded in promoting values and inculcating the standards of a civilized society.

However, the law cannot and should not replace ethics – except to a limited extent, on a case-by-case basis, in a controlled and cautious manner…

The same applies regarding the conduct of publicly elected officials. The law does not respond to the conduct of elected public officials except in very serious situations, where unethical conduct is likely to become illegal conduct…

The Court’s decision that a minister or deputy-minister is unfit for service creates tension between the law and the democratic system. The law is built, to a large extent, on values, whereas democracy is built, first and foremost, on representation… The Court is required to achieve a balance between these two interests.

Id. at 62-63. In a different context Justice Zamir emphasized:

The Court must also take into account the fact that every so often the public desires to be represented by an individual who is known not to be of sterling character.

See Dis.App. 4123/95 Or v. State of Israel – Civil Service Commissioner [50], at 190.

25. Similar sentiments were expressed by Justice Dorner, in a separate case concerning the eligibility of MK Pinhasi to serve as chairman of the Knesset Committee. Pinhasi had been convicted of crimes involving moral turpitude. Justice Dorner pointed out that:

It is indeed legitimate for there to be a review of the reasons why respondent, who has been convicted of crimes involving moral turpitude, was elected chairman of a committee which possesses quasi-judicial powers.

It is possible that this choice carries an undesirable message. But this is a matter of taste, which is given over to the discretion of the Knesset Committee. And when the time comes this discretion will be subject to the public’s approval.

See HCJ 7367/97 The Movement for Quality Government in Israel v. Attorney-General [51], at 557-58. It was also noted:

The issue is not whether the Knesset Committee’s decision to appoint MK Pinhasi as its chairman was a good one or not. This is a matter of rights and obligations, authorities and powers. It is true that the Knesset Committee’s decision sent shockwaves beyond the realm of the Knesset; but these shockwaves are still too weak to require the exercise of power in the judicial realm.

Id. at 562-63 (Cheshin, J).

26. It is clearly no simple matter for the law to deal with conduct that is improper but not illegal. It is even more of a stretch to impose an obligation on the Prime Minister, on grounds of reasonableness, to remove a minister accused of such conduct from office. As Justice Zamir pointed out in Bar-On [3], the balance that must be struck is substantive and not mechanical in nature. Therefore, we must not ignore the possibility – albeit a remote one in my eyes – that even conduct of a minister or deputy-minister that does not amount to a criminal offense, can obligate the Prime Minister to remove him from office. However, in order for this Court to rule in this manner, the conduct of this minister must be

[S]o extremely severe as to be extremely unreasonable to permit him to continue in office.

Id. at 63-64. In order for the Court to conclude that it must order the Prime Minister to remove a minister from office, despite the fact that the latter has not been convicted or even indicted, the circumstances must be exceptional and extreme.

There exists a vast difference between an extreme situation like this, which forms an exception to the law, and a broad ruling which would render unfit any minister or deputy-minister whose conduct deviates from acceptable standards. The proposal to expand the existing ruling so that such conduct would obligate the Prime Minister to dismiss the minister or deputy-minister, even though it has good intentions, is not appropriate. It is likely to do more harm than good.

Id. And in the same case, it was also noted:

Only in the most extreme cases would the Court require the Prime Minister to exercise his power [to remove a minister from his position]. These cases would involve the existence of administrative evidence of serious criminal offenses. Such a situation would constitute a serious risk to public confidence in the government authorities. To this might also be added cases of extreme deviation from the integrity required of individuals in the high office of minister.

Id. at 68 (Or, V.P.).

Do Tzahi Hanegbi’s actions constitute such extreme circumstances?

Hanegbi’s Actions

27. I have repeated dicta from Bar-On [3] concerning the Prime Minister’s decision to retain Hanegbi as Minister of Justice. I did so because I believe that there is no alternative other than to reach a similar conclusion in the case at hand.

As stated above, four affairs have been cited to discredit Hanegbi. The brawling affair resulted in Hanegbi’s conviction in 1982 for brawling in a public place, for which he received a suspended prison sentence and a fine. There is no doubt that for our purposes this is a trivial and ancient affair. The events at the basis of the “ISTA affair” also occurred more than twenty years ago, and culminated in the Attorney-General’s decision not to prosecute Hanegbi. The Court did not see fit to intervene in this decision. See Maoz [1], at 423. With regard to these two affairs, the words of President Barak in Eisenberg [6] are enlightening:

The lapse of time between the offense and the proposed appointment is an important factor. The more years that have passed, the weaker the link between the person and his crime. His appointment to public office will therefore not harm its functioning and the public’s confidence in him and the civil service. Indeed, a criminal past, even with regard to a serious offense, is not an absolute bar to appointment to public office. This applies even to a senior position. Time heals wounds. The candidate is rehabilitated. The “enlightened public” will no longer feel that his appointment harms the integrity of the service and its ability to function, but rather [that his disqualification is] a vindictive and inappropriate execution of “judgment.” In such circumstances, there can be no basis for regarding the appointment of such a candidate to public office as unreasonable. The period of time that must pass between the crime and serving the sentence and the appointment varies according to the circumstances.

Id. at 267. The third affair, the Bar-On affair, also did not culminate in an indictment against Hanegbi, due to lack of evidence. The State Attorney’s Office published its opinion, in which it condemned Hanegbi’s behavior, calling it “a deviation from the accepted standards of conduct.” Nonetheless, it concluded that such conduct did not amount to a criminal offense.

The point is that all three affairs were presented to the Court in Bar-On [3]. Yet the Court concluded that there was no reason to intervene in the Prime Minister’s decision not to remove Hanegbi from the office of Minister of Justice.

28. This leaves us with the fourth affair, the “Derech Tzleha” affair. We should recall that Hanegbi faced a Knesset Ethics Committee hearing on this matter, and as a result he was censured and his pay docked for two months. In terms of the criminal investigation, it was decided not to prosecute Hanegbi since the Attorney-General believed that there was no reasonable chance of a conviction, not even for breach of trust. In his report, the Attorney-General revealed that:

The scenario did, in our opinion, justify an inquiry, and we even considered that grounds existed for an indictment. However, there had to be a reasonable likelihood of a conviction, which, with the completion of the file, was ultimately not the case.

 

It should also be noted that the Derech Tzleha investigation of Hanegbi took place while he was still Minister of Justice. For our purposes, the major differences between then and now are the final decision not to prosecute Hanegbi and the passage of time since the affair.

 

Under these circumstances, I believe that there is no justification whatsoever for differing from the conclusions of Bar-On [3]. It is true that the Derech Tzleha affair occurred since then, but this affair, like the Bar-On affair, did not culminate in an indictment. It may therefore be stated that the only thing that has changed since the ruling on Bar-On [3], is that once again the decision was made not to indict Hanegbi. This fact alone, based on the previous judgment concerning Hanegbi, is not sufficient to render a candidate unfit to serve as a minister. It seems to me, therefore, that if we are to follow the course charted by this Court – not so long ago and in a case pertaining to Hanegbi himself – in this case we must not intervene in the Prime Minister’s decision.

The Derech Tzleha affair concluded with a “public report” published by the Attorney-General. The question must be asked: How else should the conclusions of the public report be acted upon, if not through the voter’s discretion in casting his vote, and the Prime Minister’s discretion to appoint the members of his government? The Derech Tzleha affair did not culminate in an indictment. It is therefore fitting that Hanegbi’s involvement in it should be resolved on the political level.

In any event, this affair does not constitute the necessary “extreme and exceptional circumstances” which would obligate the Court to intervene and order the Prime Minister to remove the minister. It should be emphasized that we do not turn a blind eye to the affairs in which Hanegbi has been involved. Not everything that we have seen pleases us. However, we must always remember that the public is also watching. Hanegbi’s actions, and the Prime Minister’s decisions regarding these, are under public scrutiny. The public will ultimately have its say about all it has seen.

29. Petitioner alleges that the cumulative force of these affairs is enough to push the Prime Minister’s decision regarding Hanegbi outside the range of reasonableness. This claim raises the question – what is this “cumulative force” which can topple the appointment of a minister? The cumulative force of the brawling affair, the ISTA affair and the Bar-On affair was not enough to render Hanegbi unfit to serve as Minister of Justice. Why then, when the weight of the Derech Tzleha affair is added, are the scales tipped towards the invalidation of Hanegbi’s appointment as Minister of Public Security? No one can claim that this fine line is clearly demarcated. And it is apparent that in such cases we should aspire to find a guiding line. This line should, on the one hand, be flexible and enable a substantive examination of cases which arise in the future. On the other hand, its criteria must be as clear as possible, so that they may be applied in the future and acted upon accordingly. It is wrong to send a message which is unclear. Rather we ought to strive for a general precedent which will pave the way for future rulings. Therefore, we must be fully convinced that the situation requires the candidate be disqualified in order to interfere with the Prime Minister’s power to appoint ministers. The Court is not required to give its stamp of approval to the appointment of every public official who has behaved improperly or is suspected of such conduct. Nor is the candidate required to seek this approval before assuming the office designated by the Prime Minister.

30. It is noteworthy that the circumstances of Hanegbi’s involvement in the Derech Tzleha affair, as well as the Attorney-General’s opinion regarding his appointment as a minister, were brought to the Prime Minister’s attention after the elections for the Fifteenth Knesset. At that time the Prime Minister accepted the Attorney-General’s counsel – “counsel which was mainly from a civic perspective” – and refrained from appointing Hanegbi as a minister in any ministry responsible for law enforcement. After the elections for the Sixteenth Knesset, the Attorney-General once again offered his opinion to the Prime Minister. He stated that even though there existed no legal impediment to the appointment of Hanegbi as Minister of Public Security, from a civic perspective, “the appointment itself is prima facie problematic.” After weighing all the considerations, the Prime Minister did decide to appoint Hanegbi to that office, and the reasons for his decision are detailed in his affidavit. The Prime Minister believed that Hanegbi had a number of points in his favor, including natural talents, vast knowledge and experience amassed during many years in senior public and state positions, and professional accomplishments. Additionally, the Prime Minister believed that Hanegbi’s personal philosophy and the nature of the position, besides the political and coalition considerations, made him the preferred candidate for Minister of Public Security.

The Prime Minister explained that he considered the various affairs to which Hanegbi’s name was linked, as well as allegations of the danger of a conflict of interest were Hanegbi to serve as Minister of Public Security. According to his affidavit, the Prime Minister also considered the Attorney-General’s position regarding the prima facie problem with the appointment. According to the Attorney-General, this problem remains from a civic perspective. Compare Daphne Barak-Erez, The High Court of Justice as Attorney-General, 5(2) Plilim 219 (1997) [103]. According to the Prime Minister, the scales were ultimately tipped in favor of appointing Hanegbi as Minister of Public Security. The appointment was then approved by the Knesset, as provided in section 13(d) of Basic Law: The Government.

31. It is true, of course, that that the Court’s scales could have tipped the other way. The weight attached by the Court to the various considerations taken into account by the Prime Minister could have been different. But this Court is not a “supra-prime minister.” It is not for the Court to decide those matters which the Prime Minister is authorized to decide. The Court will not substitute its own discretion for that of the authorized power. The Court will not ask itself whether it would have acted in the same manner if the power were in its hands. The Court does not scrutinize the wisdom of the other government authorities, only the legality of their actions. See also Aharon Barak, On Power and Values in Israel, in I A Collection of Writings 382 (H. H. Cohen & Y. Zamir ed. 2000) [104]. When the Court examines the reasonableness of the Prime Minister’s decisions regarding the formation of his government, it recognizes that only in exceptional and rare cases should the Prime Minister’s discretion be replaced by that of the Court. The case at hand does not fall into that category.

32. Petitioner focuses on two reasons why Hanegbi should be dismissed: first, the possible damage to public confidence as a result of his appointment as minister in charge of public security and the police; and second, the risk of a conflict of interest in performing certain duties of the minister. With regard to the first reason, this is not enough to constitute grounds for intervention in the Prime Minister’s decision. We related to this above, and we would only add here that petitioner takes issue specifically with Hanegbi’s appointment as Minister of Public Security. As far as this line of reasoning is concerned, there is nothing to stop Hanegbi from being appointed as a minister in a different ministry – except, perhaps, the Ministry of Justice. This position raises a difficulty. It is hard to imagine that an individual whose appointment as Minister of Public Security would cause such severe damage to the public’s trust that we must strike down the Prime Minister’s decision to appoint him, would be able to head another ministry – such as the Ministry of Education or the Finance Ministry. It is difficult to accept that an individual who is so patently unfit to serve in a ministry responsible for law enforcement could, without any hindrance, serve in a ministry entrusted with the state’s foreign policy or its security.

We thus come to the second part of this petition, the concern regarding a conflict of interest. We shall assume that petitioner’s only claim against Hanegbi’s appointment specifically as Minister of Public Security is the fear of a conflict of interest in context of the minister’s role. Petitioner takes issue with Hanegbi’s ability to function as Minister of Public Security in light of his drastic change in status – from being interrogated by the police to leading the police as Minister of Public Security. Petitioner is of the opinion that ill will may remain between Hanegbi and those who investigated him. This being the case, the appointment of Hanegbi as overseer of his investigators may do irreparable harm to the functioning of the police, along with the public’s faith in it. Petitioner raises the possibility of a conflict of interest if and when the minister exercises his power regarding senior appointments in the Investigations Branch, as pursuant to section 7 of the Police Ordinance (New Version), 1971.

33. We would first state that respondents have raised doubts as to whether petitioner’s claim actually constitutes a conflict of interest. Indeed, this category is usually reserved for cases in which an individual has been entrusted with a certain interest, and there exists a substantial possibility of conflict between this interest and another. This could be either a proprietary or personal interest of his own, or another interest with which he has been entrusted. See CA 6763/98 Ram Carmi v. State of Israel [52], at 427-28; HCJ 531/79 Likud Faction of Petah Tikva v. City Council of Petah Tikva [53], at 566; Aharon Barak, Conflict of interest in the Performance of Office, 10 Mishpatim 11 (1980) [105].

The principle regarding conflicts of interest, as interpreted by the courts, prohibits a public servant from being in a situation of conflict between a government interest and a personal interest, or between two different government interests. See HCJ 244/86 Revivo v. The Head of the Ofakim Local Council [54], at 183. Apparently, in our case, petitioner’s allegation does not relate to an interest in conflict with the minister’s public duty. Rather, it relates to the possibility that Hanegbi may harbor a grudge against his investigators. Such feelings might influence decisions made by him concerning those investigators.

It should be made clear that the prohibition against conflicts of interest is intended to prevent decisions which are influenced by conflicting interests:

The fundamental purpose of the prohibition of conflict of interest is to guarantee public duty’s are fulfilled out of relevant considerations of the public good alone, and not out of outside influences and considerations. It also aims to ensure that the public’s confidence in the public authority is not damaged because the latter’s actions are liable to be influenced by outside considerations.

CA 6983/94 Shimon Pachima v. Michael Peretz [55], at 835. The following explains the reasoning behind the rule concerning conflicting interests:

First of all, there is a pragmatic reason. The public servant who has been entrusted with a certain power is required to exercise that power after reviewing all relevant considerations – and only these considerations. When the public servant is put into a situation of a conflict of interest, there is a concern that he may also take into account the conflicting interest when exercising his power. This may result in an improper use of the power. The law is designed to prevent this risk. Secondly, there is a matter of values. The existence of an orderly, fair and responsible public service requires the public’s faith that decisions taken by civil servants are germane and honest. A civil servant found in a situation of conflicting interests damages the public’s faith in the system of governance. The public begins to suspect that outside considerations are influencing civil servants and his faith in the system of governance is shaken. The law is designed to prevent this.

See Likud [53] at 571. It is clear that there exists a link between a conflict of interests and outside considerations.

When a public official is involved in a conflict of interest, the concern is raised that outside considerations may be guiding him. These outside considerations are likely to influence the functioning of the body he leads; to sway his decisions through irrelevant considerations; and cause him to stray from the path of proper administration.

HCJ 7805/00 Roni Aloni v. Comptroller of the Jerusalem Municipality [56], at 1121. The prohibition against conflicting interests comes, in other words, to prevent the damage caused by outside considerations, which stem from the conflicting interest.  Situations of possible conflicts of interests are frequently examined, and when there exists a reasonable concern of such a conflict, the result tends to be termination of office. “The goal is to prevent the trouble before it occurs.” See Likud [53], at 572.

On the other hand, there are situations where there is no concern of a conflict of interests, but only of an outside consideration which does not flow from a conflicting interest. In such cases, a post factum check will be performed. In general, we do not speak of a “concern (in advance) of outside considerations,” but rather of a post factum examination of whether the considerations behind the decision or action were appropriate or extraneous. See, Ron Menachem [37], at 235; HCJ 3975/95 Prof. Shmuel Caniel v. The Government of Israel [57], at 459. Regarding appointments to the civil service the Court has stated:

When a public official appoints a civil servant out of extraneous considerations of party-political interests, this appointment is invalid. It constitutes a betrayal of the public which authorized the appointing power.

HCJ 4566/90 Dekel v. Minister of Finance [58], at 35; see also HCJ 6673/01 The Movement for Quality Government v. The Minister of Transportation [59], at 808-9. The same applies with respect to outside considerations of vengefulness or grudges. There exists a dichotomy between the prevention of conflicting interests and the post factum inquiry into extraneous considerations. And the case at hand would apparently fall into the category of extraneous considerations.

However, regardless of whether we classify the case before us as a conflict of interests or a more general concern for outside considerations influencing the decisions of a minister – the end result will be the same. This is because it is clear to us that, in this case, petitioner’s claim does not carry the required weight to render the Prime Minister’s decision unreasonable.

We are not saying that vengefulness or a personal grudge, which influences the decision of an authority to appoint an individual to a particular position, does not constitute an extraneous consideration. It certainly is an extraneous consideration, and may thus cause the decision to be struck down. It is true that Hanegbi was investigated in the past by the police, who recommended he be tried. However, it is also true that the Attorney-General did not adopt the recommendation because he concluded that there was no reasonable chance of a conviction. This being the case, the facts are unable to substantiate a genuine concern – which is not merely theoretical – of any outside considerations guiding Hanegbi’s actions. We are not entitled to assume the existence of such a concern, which would render the Prime Minister’s decision unreasonable in the extreme.

A person’s anger can fester into a grudge, and a grudge into to feelings of vengefulness towards the object of the anger. By the same token, satisfaction with the conduct of a person or body can result in gratitude, which could lead to partiality and favoritism. But this is a mere possibility, and not a certainty. We have determined that the circumstances of this petition are not substantial enough to establish a factual presumption of any real concern that future actions of respondent 3 , will be tainted by extraneous considerations. In the absence of any evidence to substantiate the petitioner’s concern, there is no reason for this Court’s intervention.

Respondent 3 wishes to reinforce this conclusion with a theoretical example. Assume that the police investigated a case and reach the conclusion that there was nothing untoward in the actions of the individual under investigation. It would be ludicrous to argue, claims Hanegbi, that this person should not be appointed as the minister in charge of his former investigators, due to the concern that he might show partiality towards them. This example is somewhat divorced from the case at hand. It could be more closely likened to a case where an individual was prosecuted by the Public Prosecutor and was acquitted. The appointment of the acquitted individual to the position of Minister of Justice, the minister in charge of the Public Prosecutor, is not merely a  theoretical example. It has happened. And no one claimed that the appointment could not stand.

Hanegbi was not prosecuted. The reason for this was that the Attorney-General believed that he would have been acquitted. He notified the Prime Minister of his opinion. He also informed the Prime Minister that there was no legal impediment to the appointment of Hanegbi to the position of Minister of Public Security. The Prime Minister refused to adopt the Attorney-General’s “civic” recommendation. This was his prerogative and does not constitute a cause for intervention under the circumstances.

We have already stated that the considerations which play a part in the decision to appoint a minister to a particular governmental position are many and varied. A sizeable portion of these are political considerations. The Court does not put itself in the Prime Minister’s shoes. It does not scrutinize the wisdom of the decision, it merely reviews its legality. In the circumstances of the case at hand, pursuant to the law as interpreted in previous rulings, we find it difficult to point to any illegality.

34. This decision also takes into account the nature of the minister’s powers in the matter at hand. We must not demean or belittle the importance of these powers. However, the Minister of Public Security is not a “supra-director-general,” and in the context relevant to this case he has powers of supervision, authorization and the determination of policy. In its response to the petition, the state points out that with regard to the process of appointing high-ranking police officers, the minister’s exercise of his power is:

[S]ubject to the principles of administrative law. As such it is contingent on obligatory consultation, and consideration of the opinion the inspector-general of the police and additional professional bodies, prior to the appointment. As a rule, it is the police inspector-general who makes recommendations to the minister with respect to the

 

candidates for each and every position. This is because the inspector-general, as the head of the police system, will need to work with the officer who is appointed. The minister may only reject the inspector-general’s candidate, or the appointment of an individual to a position against the inspector-general’s recommendation, for very serious reasons. Such reasons are subject to judicial review.

It goes without saying that if, in the future, anyone should feel that a certain decision of Hanegbi regarding a particular officer was tainted by an administrative defect, such as a conflict of interest, partiality, or extraneous considerations, the doors of this Court are open to him.

35. In conclusion, we have not been convinced that the Prime Minister’s decision regarding Hanegbi’s appointment as Minister of Public Security was extremely unreasonable to a degree that would warrant the Court’s intervention. As a result, we have no choice but to reject the petition. Under the circumstances, I would make no order for costs.

Vice-President T. Or

I have studied the opinion of my colleague, Justice Rivlin, in depth, and I concur with his conclusion. My colleague set forth a broad thesis addressing the principles guiding the exercise of judicial review over administrative bodies. I agree with the majority of his findings. However, I wish to condense the scope of his thesis and apply it to the case at hand.

1. The petition before us was filed by the Movement for Quality Government in Israel. The petition is directed against the decision of respondent 1, the Prime Minster, to appoint respondent 3, Mr. Tzahi Hanegbi, to the position of Minister of Public Security in the government formed after the elections for the Sixteenth Knesset. The central question of the petition is whether this Court should intervene in the Prime Minister’s decision and annul the appointment. It should be emphasized that the key word here is “intervention.” Our purpose here is not to decide whether the appointment of Hanegbi as Minister of Public Security was appropriate. That role is entrusted by law to the Prime Minister. Our task is to decide whether the appointment was flawed, in which case we have no choice other than to intervene and revoke it.

Factual Basis and Essence of the Petition

2. The facts as the basis of the petition have been detailed in the opinion of my colleague, Justice Rivlin. For sake of convenience, I shall briefly review these. Petitioner alleges that Hanegbi’s involvement in the four main affairs described in the petition makes him unfit to serve as Minister of Public Security.

The first affair occurred in 1979. Respondent 3 was involved in a skirmish between students, as a result of which he was convicted, in 1982, of brawling in a public place. Hanegbi was fined and given a suspended prison sentence.

The second affair pertains to a complaint filed with the police in 1982 by Hanegbi and others. The complaint alleged that a number of leaders of the Student’s Union and of the International Israel Youth and Student Travel Company (ISTA) had perpetrated an act of fraud. As a result, a number of individuals were prosecuted, among them advocate Pinchas Maoz, who at the time served as external legal advisor to ISTA. Maoz was acquitted of all charges. In its judgment, the court related to the lack of credibility of Hanegbi’s testimony. As a result, Maoz and others asked that respondent 3 be charged with perjury. The Attorney-General decided not to file an indictment due to the small chance of a conviction. A petition against this decision was dismissed by this Court “after a great deal of hesitation – literally by a hairsbreadth.” See HCJ 3846/91 Maoz v. The Attorney-General [1], at 439.

The third affair relates to the appointment of advocate Roni Bar-On to the position of Attorney-General. Respondent served at the time as Minster of Justice. As a result of allegations against Hanegbi regarding his involvement in this appointment, the police recommended that that Hanegbi be prosecuted for fraud and breach of trust. The Attorney-General decided to close the file for lack of evidence. The State Attorney’s Office issued a public report on the matter, criticizing respondent’s conduct. Nevertheless, it too maintained that his actions did not constitute a criminal offense. As a result of this affair, petitioner petitioned this Court requesting respondent’s removal from his position as Minister of Justice. The petition was rejected. See HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [Bar-On [3]], at 46.

The fourth affair focuses on a non-profit organization by the name of Derech Tzleha which was headed by respondent. In a public report, the Attorney-General summarized the affair as follows: In 1994, respondent and MK Avraham Burg prepared a private bill aiming to enhance road safety. The draft legislation was placed before the Knesset and passed a preliminary reading, and was then transferred to the Finance Committee for deliberation. The committee put together a sub-committee, headed by Hanegbi, to work on the bill. While working to enact the National Campaign Against Traffic Accidents Law, respondent established Derech Tzleha, which also promoted road safety. Initially, respondent served as chairman of the organization and at later became its director-general. For this he received a salary and other benefits from the organization. Directly and indirectly he ultimately pocketed most of the funds it had raised – some NIS 375,000. Hanegbi’s conduct in this matter was the subject of a hearing by the Knesset Ethics Committee. The committee decided that respondent had placed himself in a situation of conflicting interests and had benefited from work outside the Knesset while serving as an MK. Hanegbi was accordingly censured and his salary was frozen for two months.

Respondent’s actions were also investigated by the police, who recommended Hanegbi be indicted on several counts. Initially, the Attorney-General and the State Attorney maintained that respondent should be prosecuted for other offenses as well. However, following a further chain of events, the Attorney-General decided, with the consent of the State Attorney, not to file an indictment due to a lack of evidence.

In an amendment to its petition, petitioner detailed two further affairs in which the respondent was allegedly involved. One pertained to an advertisement in a propaganda newspaper disseminated to members of the Likud Party in the run-up to the elections for the Sixteenth Knesset. The ad praised Hanegbi’s efforts to appoint members of the Likud Party and Likud Central Committee to senior positions in the Ministry of the Environment. The other affair concerned a proposal which respondent brought before the government, while serving as Minister of Justice, regarding the appointment of members of the National Estates Commission. This proposal was adopted by the government. Petitioner maintains that respondent concealed the fact that those candidates had been declared unfit by the Appointments Review Committee. No order nisi was issued in either of the above two affairs. Furthermore, the factual basis that was presented before us was not sufficient to justify a detailed examination of the affairs.

3. Based on the above affairs, petitioner makes two central arguments against respondent’s appointment to the office of Minister of Public Security. Its first claim is that through his involvement in these affairs, respondent violated principles of ethics and sound administration, and therefore the Prime Minister’s decision to appoint him as Minister of Public Security was extremely unreasonable. Petitioner points to the affairs as a whole, alleging that their cumulative weight attests to respondent’s unfitness for the post of Minister of Public Security.

Its second claim is that as Minister of Public Security, respondent may find himself in a conflict of interest. He was investigated on more than one occasion by the police, who actually recommended that he be prosecuted – though this recommendation was not adopted by the Attorney-General. A conflict could arise if the minister were to find himself deciding the question of promotion for any of his former investigators. It would also arise when he has to allocate funds to various police departments and divisions under the charge of his investigators.

The Normative Framework

4. The normative framework for evaluating petitioner’s claims has been elucidated by my colleague, Justice Rivlin. In this matter too, I do not intend to repeat all that has been said, but only the essential parts necessary for a decision in this matter.

The task of forming a government is assigned by the President to the Member of Knesset who is the designated Prime Minister. The constitution of the government and the assumption of office by the ministers take effect when the Knesset expresses its confidence in the government. See sections 7(a), 13(c) and, 13(d) of Basic Law: The Government. Section 6 of Basic Law: The Government lists a number of criteria for the eligibility of ministers. See also section 23(b). None of the criteria for unfitness provided by the law have been found to apply to respondent. Nevertheless, the statutory criteria provided by law do not constitute an exhaustive list of causes for rendering a person unfit to be a minister. The appointing body must take into account a candidate’s criminal history and past conduct when considering whether or not to appoint them as minister, or to any other public position. See HCJ 6177, 6163/92 Eisenberg v. Minister of Construction and Housing [6], at 261-67. Should the appointing body ignore the relevant considerations, or ascribe inappropriate weight to all or some of them, this may be indicative of extreme unreasonableness, and the decision may be struck down by the Court on grounds of unlawfulness.

Whether the Court intervenes in an administrative decision or refrains from such intervention depends on the status and role of the body under review. The nature of the decision under scrutiny is also a consideration. The Court addressed this in Bar-On [3], where it stated:

The range of reasonableness of every administrative authority depends on the nature of its power, the language and purpose of its authorizing law, the identity of the authorized body, the issue addressed by the power, and whether the power is exercised mainly on the basis of factual considerations, policy considerations, or professional criteria, such as medical or engineering evaluations. The range of reasonableness varies according to these factors: it may widen or narrow depending on the circumstances. In accordance with this the judicial review varies as well. Even though the principle of reasonableness which governs the exercise of judicial review is the same with respect to each and every authority, the application of the principle may vary from authority to authority, depending on the range of reasonableness. The wider the range of reasonableness, the more limited will be the review.

Id. at 57; see also HCJ 2534/97 MK Yona Yahav v. State Attorney [2],  at 28-32; HCJ 2624/97 Ronel Yedid. v. State of Israel [4], at 71.

5. No one disputes that the Prime Minister’s authority to form a government is discretionary in character and thus subject to the review of this Court. See HCJ 4267/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel, at 441 [Pinhasi [5]]; HCJ 3094/93 The Movement for Quality Government in Israel v. The Government of Israel [Deri [47]], at 404. However, there is also no dispute that when the Prime Minister exercises his discretion to appoint a minister, there exists an extremely wide range of reasonableness within which the Court will not intervene. This is due both to the Prime Minister’s status as a publicly elected official and the head of the executive body, and the nature of this authority.

The unique character of a prime ministerial decision on the makeup of the government and its ramifications for the scope of judicial review were discussed in Bar-On [3] in connection to the dismissal of a minister. That case determined that the Prime Minister’s authority is one-of-a-kind, both due to the status of the Prime Minister in forming the government and the political character of the government. When exercising this authority, a plethora of considerations are taken into account. Id. 58-59. See also Yahav [2], at 28-32; and Deri [47] (Shamgar, P. and Levine, J. ).

We further note that, in the present case, the appointing authority was elected by the public and stands on the top rung of executive ladder. Additionally, his appointment of a minister requires the approval of the Knesset. In the case at hand, the Knesset expressed confidence in the government and caused the appointment to take effect. The judicial review is thus applied to a decision of the Prime Minister that has received the approval of the Knesset. As a result, the scope of the judicial review of this decision is narrow and restricted. Nonetheless, in cases where this Court is convinced that the Prime Minister’s decision showed extreme lack of reasonableness, it will not hesitate to exercise its powers of review.

Moving from the general to the specific, we will first evaluate the reasonableness of the Prime Minister’s decision in light of the past affairs in which respondent 3 was involved. We will then discuss the claim that respondent could find himself in a conflict of interest while occupying the position of Minister of Public Security.

Reasonableness of the Decision – Previous Affairs

7. In order to evaluate the reasonableness of the decision in the case at hand, we will first present the Prime Minister’s reasons for appointing Hanegbi as Minister of Public Security. These considerations, detailed in his affadavit, were as follows:

16. My decision to appoint Minister Hanegbi to the office of Minister of Public Security was made after I had evaluated all the relevant considerations, including the advice of the Attorney-General and the basis of this advice… and I struck a proper balance among these considerations. Among other factors, I took into account the minister’s many talents, his many years of experience in various demanding public and state offices, the gravity of the role of head of the Ministry of Public Security, as well as other coalition-related considerations, all of which are now detailed.

17. Minister Tzahi Hanegbi has served, over a continuous period of many years, in a number of high-ranking and demanding public and governmental offices. These have included: Director-General of the Prime Minister’s Office; Minister of Health; Minister of the Environment; Minister of Transportation; Member of the Twelfth through Sixteenth Knessets inclusive; Chairman of the Knesset Finance Committee; Member of the Foreign Affairs and Defense Committee; and Member of the Constitution, Law and Justice Committee.

In addition, for a period of approximately three years, between 1996 and 1999, Hanegbi served as Minister of Justice, within which framework he served as a member of the Ministerial Committee for National Security Affairs – the so-called “State Security Cabinet”; as Chairman of the Ministerial Committee for Legislation and Law Enforcement; as Chairman of the Committee for the Selection of Judges; as a Member of the Committee for the Selection of Military Judges; and as a Member of the Ministerial Committee for Privatization.

Over the last two decades, I have become personally acquainted with the abilities and talents of Minister Hanegbi. In view of Hanegbi’s many professional achievements in all of the offices in which he served as minister, I have chosen him to serve as the Minister of Public Security, an office which currently faces unique and extremely important challenges.

Minister Hanegbi has a broad national perspective, which was expressed during his years as Minister of Justice, notwithstanding his investigation during that term regarding the Derech Tzleha affair. He has a wealth of experience in the management of complex ministries; and a broad knowledge in the field of security, which he gained in a variety of public roles, as listed above. It is my belief that all this qualifies him to successfully run the Ministry of Public Security.

In my view, the nature of the position offered to Minister Hanegbi and the particular powers exercised by the Minister of Public Security do not create any significant concern of conflicts of interest which might affect the minister’s conduct or impair his professionalism and the integrity of his discretion when exercising his authority … We need to remember that the Minister of Public Security is not a “supra-Inspector-General” who wields direct control over all matters pertaining to Israel Police, and this is true especially insofar as the Investigations Branch is concerned…

…

At the time of making the decision, I considered the position of the Attorney-General with respect to the Derech Tzleha affair. The Attorney-General regarded Hanegbi’s appointment as being prima facie problematic from a civic perspective, though from the strictly legal standpoint, according to statutes and case law, there appears to be no legal impediment to the appointment.

In this regard, it should be noted that the actions attributed to Minister Hanegbi occurred between 1994 and the beginning of 1996. When Minister Hanegbi was interrogated, he did not take advantage of his right to silence. Rather he cooperated in full with his investigators. In my view, these facts were significant to the decision not to indict Hanegbi and for public confidence in him.

18. I have taken into account all of the relevant considerations, which include  the qualifications and abilities required of the Minister of Public Security, the Attorney-General’s position, and Minister Hanegbi’s actions in the Derech Tzleha affair and the other affairs, Hanegbi’s capabilities and his experience, as well as political and coalition considerations. After giving these considerations their appropriate weight,, it cannot be said that the decision to appoint Hanegbi deviates in an extreme manner from the standard of reasonableness (emphasis not in the original).

As such, we see that the Prime Minister did not ignore respondent’s involvement in the various affairs cited by petitioner, including the Derech Tzleha affair. However, after he weighed respondent’s role in these affairs against other considerations, which included respondent’s qualifications, coalition-related needs, and other considerations mentioned by him, he decided to appoint respondent.

8. Among the considerations that an administrative authority, including the Prime Minister, must take into account when appointing a public official is the candidate’s criminal past. Clearly a criminal conviction is not required in order to justify a decision not to appoint a particular person. Convincing administrative evidence of serious crimes which pose a genuine risk to public confidence is all that is required. Moreover, an administrative authority must also consider behavior of the candidate that deviates from the norms of sound administration and ethics, even if these do not amount to a criminal offense. Nonetheless, the existence of administrative evidence of a crime, or of conduct that deviates from public norms or ethical principles, is not necessarily enough to force the administrative authority to not to make the appointment. The authority must consider the nature and severity of the acts attributed to the candidate and balance this against other considerations, such as the abilities of the candidate and his suitability for the position. See para. 17 of the decision of my colleague, Justice Rivlin.

There may be situations in which evidence exists of serious criminal offenses committed by a candidate and, as a result, his abilities or qualifications, manifold as these may be, do not justify his appointment as a minister. Therefore, the central question in this case is whether, in light of the evidence submitted by petitioner regarding the conduct of respondent 3, the Prime Minister’s decision to appoint him as Minister of Public Security is marred by an extreme lack of reasonableness and requires our intervention.

My answer to this is negative. I will now examine each piece of evidence adduced by petitioner. Later I will examine whether the cumulative weight of all the evidence should have caused the Prime Minister to decide against the appointment.   

9. With respect to the decision of conviction in the brawling affair, I concur with the conclusion of my colleague, Justice Rivlin, that it is an “ancient and trivial affair.” The crime which respondent was  convicted of took place 24 years ago and he has served his sentence. The offense did not involve moral turpitude or lack of integrity. This conviction has been erased from legal memory. See sections 14 and 16 of the Criminal Register and Rehabilitation of Offenders Law, 1981.

Similarly, more than twenty years have elapsed since the ISTA affair, and it has been relegated to the history books. As stated above, the Attorney-General decided at the time not to prosecute respondent over the affair, and we did not see fit to intervene with his decision. In light of more than two decades of wide and varied public activity by respondent since then, including his appointment as Minister of Justice, I believe that the affair does not invalidate respondent’s appointment as Minister of Public Security. 

10. We now consider the Bar-On affair. As was stated above, due to respondent’s involvement in this affair the police recommended that Hanegbi be charged with fraud and breach of trust. Ultimately the Attorney-General decided not to indict respondent. The State Attorney issued an opinion on the matter, noting that “even among us [in the State Attorney’s Office] there were those who maintained that there were grounds for prosecuting the Minister of Justice.” However, in the end, after evaluating the evidence, the final conclusion was that “respondent’s conduct did not amount to a criminal offense.”  Nevertheless, the State Attorney saw fit to express her own opinion regarding one of the affairs examined, saying that it was not a crime “even though it was a deviation from the norms of proper conduct.”

All of the evidence presented by petitioner in the case at hand was examined by this Court in Bar-On [3]. Yet, the Court decided, in light of the circumstances, that the Prime Minister’s decision not to dismiss respondent as Minister of Justice did not deviate from the range of reasonableness, and did not justify intervention.

As an interim conclusion, we note that none of the three affairs discussed until this point, whether viewed individually or cumulatively, disqualify respondent from service as a minister, not even as Minister of Justice or Public Security. This is clear in light of this Court’s decision in Bar-On [3].

We have yet to evaluate the fourth affair, the Derech Tzleha affair. This affair is most relevant to the case at hand, being the only addition to the factual basis which was previously presented to this Court in Bar-On [3]. Regarding this affair, petitioner adduces two pieces of administrative evidence which the Prime Minister should have considered when evaluating respondent’s candidacy for a ministerial position in his government. These are the opinion of the Attorney-General and the decision of the Knesset Ethics Committee. Is this evidence sufficient to justify respondent’s removal from the office of Minister of Public Security? We shall first consider the opinion of the Attorney-General.

12. At a certain point during the Derech Tzleha affair, the relevant bodies maintained that grounds existed for indicting respondent. The police recommended that respondent be charged with taking bribes, fraud, breach of trust, and other offenses. The evidence was examined by the State Attorney who decided to prosecute respondent for the offenses of fraud and breach of trust, fraud and breach of trust by a corporation, and falsifying corporate documents. After hearing respondent’s version of events, the Attorney-General, with the State Attorney’s consent, decided to prosecute respondent for fraud and breach of trust, as well as other offenses. The file was transferred to the Jerusalem District Attorney for the final preparation of the charge sheet. At this point, difficulties arose in proving the various elements of the crime and a decision was made not to prosecute respondent. In the report written by the Attorney-General on this matter, he summarizes his opinion as follows:

13. At the end of the day, the evidence was insufficient to prove to the degree required in a criminal case, that the conflict of interest was strong enough to amount to a “corrupt” breach of trust which damages public confidence according to the criteria provided in the clause on the need for proof of suspected crimes. This is especially true regarding proof of the criminal intent required in these offenses, that MK Hanegbi was aware that he was acting in a corrupt manner which was detrimental to the public.

 

14. These evidentiary difficulties are primarily the result of the fact that the organization from which Hanegbi received benefit, which he had established with the aid of his friends and long-time associates, had no interests independent of his own, and certainly none which conflicted with his own. During the period of its operations, Hanegbi served as its chairman and subsequently as its director-general, and he dictated the agenda. Similarly, there is no evidence at all which indicates that the organization ever pressured Hanegbi regarding his activities as an MK nor was there even a suspicion of such pressure, which could have indicated the existence of a corrupt conflict of interest. On the contrary, it was MK Hanegbi who directed the other members of the organization in different activities.

 

15. In particular, an evidential doubt still remains regarding the criminal intent. The question is whether, by receiving benefits from the organization, Hanegbi was aware that he was placing himself in a conflict of interest which amounted to a corrupt breach of trust, in connection with the Campaign Against Traffic Accidents Law, which Hanegbi initiated and promoted over a long period of time. Furthermore, assuming that the suspicion is that Hanegbi had “bribed himself” using the organization, it is impossible to prove beyond all reasonable doubt that it fulfills the criteria of a crime by an MK in a matter related to advancing legislation in the Knesset. There is evidence of breach of trust, but it is weak…

 

19. All of the above deals with suspicions against MK Hanegbi even though the evidence was insufficient to substantiate a blatant conflict of interest – a criminal conflict of interest – in order to prove the crimes of fraud and breach of trust. An MK established an organization for an important public cause. He raised money which, as director-general of the organization, he was supposed to channel towards that public cause. Instead, with the consent of the organization’s members – who are his friends – he used most of the funds raised by the organization for his own benefit, in order to fund activities he performed in his capacity as an MK… Even so, regarding the aspect of intent of the offense, this was not the only organization that served as a tool for earning salary or benefits in the public sector. Moreover, MK Hanegbi reported his income from the organization to both the Knesset Speaker and the Knesset legal advisor, and this creates difficulties in proving the necessary criminal intent.

 

20. It should be noted that at that time, pursuant to the Knesset Members Immunity Law (Rights and Duties), 1951, a Knesset Member was permitted to receive a salary for “an additional occupation” provided that it did not exceed half of his salary as an MK. The law stipulated that such payment should not engender “a potential conflict of interest between the additional occupation and his role as an MK.” In 1998, the section was amended and today it is prohibited for an MK to engage in any additional occupation for remuneration.

 

21. In summary, we believed that the circumstances warranted an investigation, and we even considered filing an indictment. However, there must be a reasonable likelihood of a conviction, and this requirement, with the final preparation of the file, was ultimately not satisfied. (emphasis not in the original).

 

The facts of the affair demonstrate the shifting position of the prosecution regarding whether to prosecute respondent 3 for his involvement in the Derech Tzleha affair. This indicates that the case was reviewed and reconsidered by the prosecuting bodies. No doubt it was a difficult decision. But at the end of the day it was decided not to indict respondent. Petitioner is not challenging this decision –not even indirectly. Nor is petitioner arguing that, the Prime Minister, based on the facts he was presented, should have concluded that respondent had committed crimes during this affair. In any event, it is not likely that the Court would accept a claim that the Prime Minister should have reached a conclusion different from the Attorney-General. After all, the Prime Minister is not expected to study all of the complex investigative material in order to reach an independent conclusion in this matter. He was entitled to rely on the opinion of the Attorney-General, who possesses the authority and the appropriate tools to analyze the evidence and draw the necessary legal conclusions. The Attorney-General’s report indicates that the difficulty in proving that a crime was committed stemmed primarily from the need to show criminal intent. It is presumed that the Attorney-General’s decision not to prosecute respondent was grounded in the evidence – which he reviewed in full, unlike this Court. Under those circumstances he decided that the small chance of proving criminal intent meant that an indictment was unjustified.

 

It seems to me, therefore, that based on the facts before us we must assume that respondent committed no crime in the Derech Tzleha affair. Petitioner does not claim otherwise. But this does not mean the case is closed. Petitioner claims that the conduct attributed to respondent in the Derech Tzleha affair, as reflected in the Attorney-General’s public report and in the decision of the Knesset Ethics Committee, violated the principles of sound administration and ethics. Despite this, the Prime Minister maintained that respondent was fit for office. In my opinion, this conclusion does not warrant the Court’s intervention. I shall now explain why.

13. The case at hand is similar to Pinhasi [5] and Deri [47]. All these cases deal with setting the boundaries between law and ethics. In this matter I refer to Bar-On [3] which explained that “the law cannot and need not replace ethics, except in part, on a case by case basis, in a cautious and controlled way.” Id. at 62 (Zamir, J.). The same applies to the conduct of publicly elected officials. A judicial decision whether to intervene in the discretion of a public body depends on the balance between the interest of representation – allowing the public to be represented as it wishes – and the ethical interest of preserving appropriate ethical standards among elected officials. See Or  v. State of Israel – Civil Service Commissioner [50], at 191. This balance is not technical but rather substantive in nature. See Bar-On [3], at 63; Pinhasi [5], at 474 (Barak, J.).

In Bar-On, it was added:

Because the test is substantive and not merely formalistic in nature, it cannot be stated categorically that that only an indictment for a serious crime, or at least an investigation into such a crime, will justify termination of office. The possibility cannot be ruled out that the conduct of a minister or deputy-minister in a specific case, even if it does not amount to a criminal offense, may be so very severe that it would be extremely unreasonable to allow him to remain in office. However it is still a long way between an extreme case of this sort, which would be exceptional, and a comprehensive rule which rendered unfit any minister or deputy-minister in case of conduct that deviated from proper behavioral norms. The proposal to expand the existing law, so that such conduct would obligate the Prime Minister to dismiss a minister or deputy-minister, although well-intentioned, is inappropriate and liable to do more harm than good.

Id. at 63-64 (Zamir, J.).

14. It is true that when deciding whether or not to appoint respondent as Minister of Public Security the Prime Minister should have considered respondent’s conduct in the Derech Tzleha affair, even if it did not amount to a criminal offense. However, in my opinion, the conduct was not severe enough for us to declare the Prime Minister’s decision to appoint respondent as Minister of Public Security extremely unreasonable, and strike it down. It should be recalled that the Attorney-General’s report determined: “At the end of the day, the evidence was insufficient to prove, to the degree required in a criminal case, that the conflict of interest was strong enough to amount to a ‘corrupt’ breach of trust which damages public confidence according to the criteria provided in the clause on the need for proof of suspected crimes.” See para. 13.

Furthermore, the Attorney-General makes it clear that respondent, in his capacity as MK, had no conflicting interest, and certainly none that conflicted with the interests of the organization which he headed. It was also noted that respondent reported his activities and income to the relevant authorities. The Attorney-General also emphasized that, at that time, a Member of Knesset was not barred from having an additional occupation. In terms of this report, it cannot be concluded that respondent’s conduct was severe enough to render him unfit, to assume the office of Minister of Public Security. There may be pros and cons regarding a particular individual’s appointment as minister. However, unless, that appointment deviates from the range of reasonableness in an extreme way, the decision is left to the Prime Minister, and the Court should not intervene. Only in extreme cases is it appropriate for the Court to intervene in the Prime Minister’s task of forming a government.

15. To this we add that the reasonableness of the Prime Minister’s decision is supported by the position presented to him by the Attorney-General prior to respondent’s appointment. It was the Attorney-General’s opinion that “despite the fact that according to statute and case law there appears to be no legal impediment to the appointment, the appointment is still problematic from a civic perspective...” See para. 15 of the Prime Minister’s affidavit. This may be understood to mean that, legally speaking, there is no impediment to respondent’s appointment, even though his conduct warrants criticism. The point is that the Attorney-General informed the Prime Minister that, in terms of the law, the appointment was legitimate. The Attorney-General reiterated this stance before the Court. The Prime Minister ultimately relied on the Attorney-General’s opinion, regarding both  the lack of “sufficient evidence of a criminal offense by respondent in the Derech Tzleha affair,” and the legality of respondent’s appointment in light of his conduct. Obviously if we were to conclude that the Attorney-General’s opinion was inappropriate and without basis, things would be different. However this is not our position.

16. The Knesset Ethics Committee addressed this case as follows:

20.A. MK Hanegbi served simultaneously as chairman, and subsequently director-general, of the Derech Tzleha organization and as Chairman of the Economics Committee. This created the possibility of a conflict of interest between the additional occupation and the his role as a Knesset Member, in violation of the provisions of section 13A(a)(3) of the Knesset Members Immunity (Rights and Obligations) Law, 1951, as worded at that time.

B. MK Hanegbi received material benefit as chairman, and subsequently director-general, of Derech Tzleha, which had as one of its principle objectives the advancement of a law which Hanegbi himself had initiated. In doing so, he violated section 4 of the Rules of Ethics for Knesset Members, which prohibits a Member of Knesset from receiving any material benefit for an activities performed outside of the Knesset in his capacity as Knesset Member.

C. Towards the end of the term of the Thirteenth Knesset, MK Hanegbi returned to his position as Chairman of the Finance Committee. As such, a potential conflict of interest was created relating to the Fuel Economy Law, since MK Hanegbi was receiving benefits from Derech Tzleha, which had accepted contributions from major fuel corporations. In this situation, MK Hanegbi should have transferred the bill to another MK and, by failing to do so, violated the provisions of section 13A(a)(3) of the Immunity Law, as worded at that time.

    D. As a result of the above, the Ethics Committee reprimands MK Tzahi Hanegbi and deprives him of his salary for a period of two months…

See The Decision of the Knesset Ethics Committee regarding the complaints of MKs Eli Goldschmidt and Haim Oron, and regarding the complaint of Justice Minister Tzahi Hanegbi against MK Eli Goldschmidt, dated May 24, 1999.

It is my opinion that the above decision does not justify our intervention in the Prime Minister’s decision. This decision concerns the realm of ethics. Respondent’s conduct as described by the Ethics Committee is clearly unsatisfactory and deserving of criticism. However, it does not constitute the kind of severe deviation that would justify the intervention of this Court in the respondent’s appointment as Minister of Public Security.

17. Does the cumulative weight of the four affairs involving Hanegbi render the Prime Minister’s decision extremely unreasonable, even though no affair on its own is sufficient? Petitioner asserts that respondent’s conduct, as reflected in all the affairs put together, shows that he is unfit to serve as Minister of Public Security.

It is true that when an administrative authority considers a public appointment, it must weigh not only each individual piece of administrative evidence that the candidate committed a crime, but also the cumulative weight of the evidence. It is possible in certain cases that the sum total of the evidence will be greater than its parts. The appointing authority must take this extra weight into account during its deliberations. The Court will intervene in an authority’s decision only if the cumulative weight of all of the evidence undoubtedly has extra weight which, if ignored, renders its decision extremely unreasonable. This is not true of the present case. The brawling and ISTA affairs were too long ago to have any bearing on the later affairs. Regarding the Bar-On affair, this Court has already decided that it is no impediment to respondent’s remaining in the position of Minister of Justice. In my opinion, the cumulative evidence in the Derech Tzleha affair does not justify the intervention of the Court in the Prime Minister’s decision under the stated criteria for such intervention. I reiterate that the key term in this case is “intervention.” The question is not what the Court would have done in the Prime Minister’s stead. Rather it is whether the Court is obligated to intervene in the Prime Minister’s decision to appoint respondent as Minister of Public Security in light of the four affairs. Under the circumstance, my answer is no.

Claim of Conflict of Interest

18. As stated above, petitioner claims that respondent should not be appointed as Minister of Public Security for the additional reason that his appointment will create a potential conflict of interest. The source of this claim is that respondent was investigated by the police regarding the Bar-On affair and the Derech Tzleha affair. In both of these cases, the police recommended that Hanegbi be prosecuted, though this course was not adopted by the Attorney-General. In petitioner’s opinion, a conflict of interest is liable to arise with respect to promotions for high-ranking police officers  who have previously investigated him. A conflict may also arise when the minister allocates budgets to police departments under the charge of his former investigators. In other words, petitioner claims that respondent may not handle certain promotions or budgets objectively. He may not base his decisions only on the relevant and legitimate considerations and the best interests of the police. Instead he is liable to be swayed by his own personal “interest” which is to “get even” with his former investigators and to avenge himself on them.

Before we evaluate this claim, we note that respondents raised doubts as to the correct classification of this claim. They say that there is no conflict of interest since a “desire for revenge” does not constitute an interest that conflicts with Hanegbi’s public duties as minister. The concern is rather that extraneous considerations will play a part in Hanegbi’s decisions. On the other hand, it could be argued that if a minister wishes to get even with his investigators this can be construed as an interest in the broad sense of the word. Anyone serving in a public office is forbidden to enter a situation involving potential conflict of interest. This is to ensure that the official will be able to fulfill his duties according to those considerations and interests which are relevant to his role. He must not be influenced by potentially conflicting considerations, such as personal interests or those pertaining to another public post occupied by him. Therefore, a conflict of interest could arise where the official is prejudiced against certain people, where there exists a genuine risk that he will act on this prejudice, and where this conflicts with the interest of fulfilling his role properly. This would be a known and foreseeable risk that the official will be unable to ignore extraneous considerations in certain situations.

Returning to our case, at issue here is whether there is a genuine risk that respondent will find himself in a conflict of interest as Minister of Public Security. The person who fills this role wields considerable power over police appointments and budgets. Is a genuine risk posed by the fact that he was investigated by the police and his investigators recommended he be prosecuted? Is there a real concern that his decisions will not be based exclusively on relevant considerations, since they will directly affect his investigators?

19. My answer to this is no. Generally speaking, investigators do not embark on “crusades” against their subjects. They are not interested in harming them. Investigators do not deliberately choose, for non-material reasons, to investigate any particular individual. While conducting their investigation they perform their duties pursuant to the law. They exercise their professional discretion. In general, if they recommend that a suspect be prosecuted this stems not from their desire to unjustly or cruelly maltreat him, but to exercise their professional judgment to the best of their ability. Everyone, including respondent, presumably understands this situation. A suspect is presumed to understand that his investigators are just doing their job, and are fulfilling duties which must be performed. Therefore, the concern that a suspect will bear a grudge against his investigators is remote and weak. It does not justify the disqualification of the appointment.

Needless to say, the situation could be different if, during the investigation of the potential Minister of Public Security, the suspect had developed animosity towards his investigators. Such a case could be if the suspect claimed, during or following the investigation, that his investigators treated him in an unlawful manner or harassed him, or other similar claims. Under such circumstances, the risk of a conflict of interest is real, and various solutions would have to be considered for neutralizing that concern.

According to the evidence before us, this is not the case with respect to respondent. Despite the passage of years since his investigation, no such claim was ever made by him against his investigators, either prior to or following his appointment as Minister of Public Security. On the contrary, respondent states the following in his affidavit:

4. The concern that I might interfere with the appointment of one of my investigators, impede his advancement, or plot against him, is spurious. I have made it clear on more than one occasion, including to my investigators themselves, that I have no complaints about them, and that I respect their duty to fully investigate every case. This is certainly true since the Attorney-General instructed the police to open an investigation. Moreover, my investigators treated me in a sensitive and respectful manner.

5. The concern that due to a conflict of interest I will deprive any particular division of the Ministry of Public Security of its budget is neither reasonable nor realistic. The budget proposal is prepared by the ministry’s planning department, in conjunction with National Headquarters, under the supervision of the Police Inspector-General and in coordination with the Budgets Division of the Finance Ministry. The ministry’s budget requires the approval of the government, the Finance Committee and the Knesset plenum. Therefore, there is no basis for the concern that I might use the budget in order to “get even” with one division or other. Neither could I consider any extraneous factors whatsoever in connection with the ministry’s budget, whose preparation, approval, and execution are handled by so many bodies.

Petitioner fails to bring any evidence whatsoever to refute this claim, or to point to any action or statement of respondent that contradicts his stated position. Under these circumstances, there is no cause for intervention in the Prime Minister’s decision to appoint respondent as Minister of Public Security. No genuine concern of a conflict of interest or extraneous considerations can be inferred solely from the fact that he was investigated in the past by the police.

In conclusion, I concur with the position of my colleague, Justice

 

Rivlin, according to which the petition is denied.

 

Justice M. Cheshin

 

1. I have read the opinions of my colleagues Justice Rivlin and Vice President Or. The comprehensive opinion of my colleague, Justice Rivlin, elucidates the basic principles governing the relationship between the judicial branch, the legislative branch, and the executive branch. It focuses on judicial intervention – specifically that of the High Court of Justice – in acts of the Knesset and the government. My description of some of these principles might have been structured differently, but on the substantive level I concur with my colleague and my reservations are secondary. Apparently, this was also the position of my colleague, the Vice President. However, I was unable to concur with my colleagues’ application of these principles to the case before us, and I therefore decided to write my own opinion.

2. This petition seeks to prevent the appointment of respondent 3, Mr. Tzahi Hanegbi, to the office of Minister of Public Security, due to his involvement in four separate affairs, especially the Derech Tzleha affair. Hanegbi was indicted in only one of these four affairs, the earliest and the least serious of the four. Petitioner claims, however, that the effect of the cases must be considered cumulatively and points out that, as Minister of Public Security, Hanegbi will be in charge of the police officers who investigated his involvement and who recommended his indictment. They also note that the Attorney-General recommended that the Prime Minister withhold the appointment. All of these factors create a “critical mass” that render Hanegbi unfit to serve as minister in charge of the system of investigation and law enforcement in Israel. Petitioner therefore requests that we order the Prime Minister to not appoint Hanegbi to the position of Minister of Public Security.

 

The Principal Facts

 

3.   Following the election of the Sixteenth Knesset on 28 January, 2003, and pursuant to section 7 of Basic Law: The Government, 2001, the President charged the incumbent Prime Minister and Knesset Member, Ariel Sharon, with the formation of a government. Once the ministers of the new government had been designated, the public was informed that Hanegbi, who had served as the Minister of Justice between 1996 and 1999, and as the Minister of the Environment in the previous government, was to be Minister of Public Security – the minister in charge of the Israeli Police.

4.   When the planned appointment of respondent as Minister of Public Security became public knowledge – prior to the establishment of the government – this petition was filed. Petitioners requested this Court to issue an order nisi and an injunction instructing the Prime Minister to abstain from making the appointment. Petitioner further requested an order instructing the Attorney-General to direct the Prime Minister not to make the appointment. The Court did not issue an injunction but, on March 10, 2003, several days after the formation of the government and Hanegbi’s induction as Minister of Public Security, the Court issued an order nisi against the Prime Minister instructing him to justify Hanegbi’s appointment. No order was issued against the Attorney-General.

5.   Petitioner argues that Hanegbi is not fit to serve as Minister of Public Security, primarily due to his involvement in four separate affairs. Petitioner also cites two additional dealings that came to light while the respondent was serving as Minister of Justice and as Minister of the Environment. Neither had criminal implications. These are of secondary importance, however, and we will not lump them together with the other four affairs upon which we now focus.

6. The first affair takes us back to 1982, when respondent stood trial and was convicted of brawling in a public place following a fight that he was involved in as a student. The Court imposed a suspended prison sentence and a fine. Today, the case is of marginal importance, due to both the passage of time as well Hanegbi’s age at the time of the offense. Notably, this is the only case in which Hanegbi stood trial and was convicted or sentenced.

7.   The second case, known as the “ISTA Affair,” began in 1980 and continued until 1992. It is described at length in HCJ 3846/91 Pinchas Maoz v. The Attorney-General [1], at 423. For our purposes, these are the relevant facts: Respondent and others filed a complaint with the police that certain leaders of the Students Union and of the International Israel Youth and Student Travel Company (ISTA) had committed “the greatest act of fraud in the history of Israeli aviation.” [1], at 426. The complaint led to a police investigation, which culminated in the indictment of seven people, including Pinchas Maoz, an experienced advocate and law lecturer who also served as the external legal advisor to ISTA at the time. Maoz was acquitted of all charges by the Magistrate’s Court, and in its judgment the court noted with regard to Hanegbi that “factual truth was not always a guiding light in his testimony … the witness did not provide precise answers and avoided topics that did not square with his version of the events.” [1], at 428. Advocate Maoz then asked the Attorney-General to indict Hanegbi for lying under oath, for relaying misleading information, and for presenting contradictory testimonies, but the Attorney-General decided that the chances of conviction were too low to warrant a trial. Maoz petitioned the decision of the Attorney-General to the High Court of Justice. On December 7, 1992, the Court ruled “after a great deal of hesitation – literally by a hairsbreadth” that while an indictment could reasonably have been filed against respondent, it would not intervene in the Attorney General’s decision:

 

The Attorney-General weighed all of the facts and, in deciding whether or not to indict Hanegbi, and concluded that the small chance of a conviction did not warrant an indictment. On the basis of our comments above, it is easy to form the impression that, had he decided to indict Hanegbi, we would have regarded this as reasonable. But the question before us is not what this Court, or any of its judges, would have decided in the Attorney-General’s place.

Id. at 439 (Or, J).

 

8.   The third affair, known as the “Bar-On affair,” concerned the appointment of Advocate Roni Bar-On to the position of Attorney-General. It is alleged that respondent, then Minister of Justice, behaved unlawfully during the appointment process, and even misled the government and the Prime Minister regarding the position of the President of the Supreme Court on the appointment. The facts of the case were described at length in three Supreme Court judgments. See HCJ 2534/97 MK Yona Yahav v. State Attorney [2]; HCJ 2533/97 The Movement for Quality Government in Israel v. The Israeli Government [hereinafter: Bar-on [3]]; HCJ 2624/97 Ronal v. The Government of Israel [4].

 

For our purposes we will content ourselves with a brief account of the principal elements. Respondent was suspected of fraud and breach of trust. The police recommended that an indictment be filed against him. The Attorney-General, however, with the consent of the State Attorney, recommended that the investigation file be closed for lack of evidence. The affair also dealt with the appointment of Bar-On as Attorney-General, and we shall now cite part of the State Attorney’s opinion on this matter, as quoted in Bar-on [3]:

 

The Minister of Justice [the respondent here] was aware that Bar-On’s name had been mentioned in the Prime Minister’s Office, prior to Michael Ben-Yair’s [the previous Attorney-General] notice of resignation. The Minister of Justice also knew that, within the Prime Minister’s Office, Bar-on was not considered the natural candidate, due his factional affiliation in the Likud.

No doubt the Minister of Justice had an interest in the appointment of Bar-On, who was his mentor and friend. Hanegbi also claims that, in his opinion, Bar-On was qualified for the position.

The Minister of Justice’s engineering of Bar-On’s appointment was concealed from the public eye at the time. Government ministers were apprised of it at a cabinet meeting, leaving them no time to conduct any discussions or investigation. The Minister of Justice repeatedly emphasized that, in the past, Attorney-Generals had been appointed in a similar manner, without the name of the candidate being presented to the cabinet.

The Minister of Justice received information from the President of the Supreme Court, A. Barak, that could have disqualified Bar-On, information that required consideration. He failed to present the true significance of these comments to the Prime Minister and merely informed the cabinet that President Barak was aware of the appointment. His manner of mentioning the subject could have led to the conclusion that President Barak had nothing to say about the appointment, and perhaps even assented to it. The truth, of course, was otherwise.

Id. at 50-51. It was further noted:

In our case, the Minister of Justice [the respondent here] failed to inform the cabinet of the Supreme Court President’s negative view of the appointment of Bar-On as Attorney-General. In this context, the State Attorney stated:

“During the Cabinet meeting, Minister Kahalani asked the Minister of Justice whether the Prime Minister had approved the appointment. Hanegbi replied, saying: ‘Yes. I also brought it to the attention of the President of the Supreme Court, and, naturally, also to the Attorney-General, who gave his approval’

Minister David Levi was asked how he had understood these words. He reported that his understanding was that the Minister of Justice had mentioned the names of Barak and Ben-Yair in order to show that the appointment had passed through conventional channels.

Considering what President Barak actually said about Bar-On’s appointment, merely mentioning that Barak had been informed of it, without reporting what he had actually said about it, is problematic. This statement creates the impression that President Barak had nothing to say about the appointment, or at least that he did not say anything which mattered one way or another.”

Id. at 65-66 (Goldberg, J.). As stated, the Attorney-General and the State Attorney decided that this evidence was insufficient to charge respondent with a criminal offense. But, at the same time, the State Attorney criticized respondent’s conduct, writing that this constituted a “deviation from appropriate norms of conduct” and that it was not “above criticism.” Id. at 52. Nonetheless, the State Attorney did not believe that respondent’s conduct amounted to a criminal offense.

These harsh words triggered a public outcry, which led to the filing of three petitions with the High Court of Justice. We will complete our review of the Bar-On affair by noting that the arguments made in Bar-On [3] – a petition which sought to remove respondent from the office of Minister of Justice – bear a striking resemblance to the arguments raised in the petition before us. The main difference lies in the addition of the Derech Tzleha affair to the previous three affairs.

9.   The Derech Tzleha affair began in July 1997. The case concerned respondent’s actions as the head of the non-profit organization known as Derech Tzleha. The facts were detailed at length in an opinion of the Attorney-General, which was published on March 6, 2001, following his decision not to indict respondent. We will present some of the comments stated in the report:

The Findings of the Investigation

h. In 1994, MK Hanegbi and MK Abraham Burg prepared a private bill in the Knesset entitled “The National Campaign Against Traffic Accidents Law.” The purpose of the draft legislation was to improve road safety, particularly by the establishment of a government body, which would consolidate all of the authorities, units and governmental bodies involved in the battle against traffic accidents. The bill was placed before the Knesset on July 25, 1994 and, on October 12, 1994, it passed a preliminary reading. It was then transferred to the Finance Committee for deliberation. A sub-committee was established, with Hanegbi as its chairman, with the task of preparing the bill for the next stages.

i. Concurrently, and in the framework of his public activities for the enactment of the Campaign Against Traffic Accidents Law, MK Hanegbi established Derech Tzleha, which he and his colleagues registered as a non-profit organization on October 12, 1994. The object of the organization, according to its by-laws, was to reduce the carnage on the roads through education, public activism, and legislation. In practice, its principal and perhaps chief object was the promotion of the Traffic Accidents Law by public activism and enlisting the support of Knesset Members and ministers.

j. The organization’s activities were limited, comprising the following: sending letters to MKs, cabinet ministers, council heads, and other public figures, persuading them to support the Traffic Accidents Law; the production of three advertisements in support of the law; the publication of a pamphlet which brought together the protocols of the sub-committee headed by Hanegbi, and its dissemination among the Knesset Members; one-time correspondence with a medical organization regarding the establishment of a fund for road-accident victims; planning demonstrations; setting up a signing booth; initiating and organizing a special meeting of the Knesset Finance Committee on the Modi’in road; sending requests to hundreds of “famous” people from a number of fields, asking them to add their names to an advertisement in support of the law; and publication of a newspaper advertisement in support, after the law had passed the first reading.

 

The rules of the organization prohibited the distribution of profits or benefits to members, whose activities were supposed to be voluntary. Hanegbi initially served, until September 12, 1995, as chairman of the organization. On October 1, 1995, he resigned his membership of the organization, and was appointed as director, and began receiving a salary and other benefits. As a result, the vast majority of the organization’s resources went to his wages, company car, and expenses, all of these being related to Hanegbi’s public activities as an MK. After his appointment as Minister of Health following the elections to the Fourteenth Knesset in 1996, Hanegbi resigned from his position as director. A short time later, the organization entered into voluntary liquidation.

 

k. The organization raised approximately NIS 375,000. The findings of the investigation indicated that MK Hanegbi received the vast majority of this amount through his salary, company car, expenses, and cellular phone, as well as in the form of a notice of support which was published three days before the Likud primaries.

 

The report continues with a chapter entitled “Suspicions” where we read the following:

 

Suspicions

 

13. The investigation raised suspicions that MK Hanegbi received these benefits as payment for his activities as a Member of the Knesset, and especially for his efforts in promoting the Traffic Accidents Law. If this was found to be true, he would have been guilty of bribery, fraud, and breach of trust, and offenses connected to the management of a corporation.

 

After examining the evidence, we found that, while serving as an MK, Hanegbi functioned both as the chairman of the Finance Committee of the Knesset, and as the chairman of the sub-committee that was engaged in the promotion of a law. Concurrently, he also held a central position in the organization, whose main object was the enactment of the Traffic Accidents Law. This situation created a prima facie conflict of interests. While he did declare his income from the organization to the Knesset Speaker, Hanegbi failed to inform the committee members that he was both one of the founders of the organization and its chief. And, as we already stated, while serving as chairman of the sub-committee charged with the advancing the Traffic Accidents Law, and in his capacity as a Member of the Knesset, he was receiving a salary and significant benefits from the organization that he had established. Nonetheless, at the end of the day, the evidence was insufficient to prove, to the degree required in a criminal case, that the conflict of interest amounted to a “corrupt” breach of trust. This is especially true regarding proof of the criminal intent required in these offenses: that MK Hanegbi was aware that he was acting in a corrupt manner which was detrimental to the public.

 

14. These evidentiary difficulties result primarily from  the fact that the organization from which Hanegbi received benefits, which he had established with the aid of his friends and long-time associates, had no interests independent of his own, and certainly none which conflicted with his own. During the period of its operations, Hanegbi served as the organization’s chairman and subsequently as its director-general, and he dictated the agenda. Similarly, there is no evidence at all that the organization ever pressured Hanegbi regarding his activities as an MK, nor was there even a suspicion of such pressure, which could have indicated the existence of a corrupt conflict of interest. On the contrary, it was MK Hanegbi who directed the other members of the organization in its different activities.

 

15. In particular, an evidentiary doubt still remains regarding the criminal intent. The question is whether, by receiving benefits from the organization, Hanegbi was aware that he was placing himself in a conflict of interest which amounted to a corrupt breach of trust, in connection with the Campaign Against Traffic Accidents Law, which Hanegbi initiated and promoted over a long period of time. Furthermore, assuming that the suspicion is that Hanegbi had “bribed himself” using the organization, it is impossible to prove beyond all reasonable doubt that this fulfills the criteria of a crime by an MK in a matter related to advancing legislation in the Knesset. The case law regards the offence of “breach of trust” as a consciously corrupt conflict of interests. In the case at hand, however, there is insufficient evidence of that kind of conflicting interest. Moreover, the organization did not represent any particular, sectarian-interest group; its purpose was rather to rouse public interest in the battle against road accidents.

 

16. Fuel Economy Law – MK Hanegbi served in rotation with MK Gideon Pat as the chairman of the Knesset Finance Committee. This committee dealt, among other things, with the Fuel Economy Law. During the period in which MK Pat served as committee chairman, two months before MK Hanegbi became committee chairman, the organization received contributions from fuel companies.  The sum received amounted to about 10% of the total contributions received by the organization. According to the findings of the investigation, the overwhelming majority of the representatives of the fuel companies were unaware of Hanegbi’s involvement in the organization. None of them knew that Hanegbi was receiving benefits from the association to which they were contributing. Under these circumstances, it is impossible to prove that Hanegbi felt any sense of obligation to these companies. The intensity of the conflict of interests is therefore considerably weakened. Furthermore, during the relevant period, there was no chance of promoting the enactment of the Fuel Economy Law in view of the government’s opposition to that law. No evidence was found of Hanegbi having influenced the handling of the law.

 

17. The Knesset Ethics Committee reviewed two complaints concerning the benefits that Hanegbi received from the organization. It was alleged that the salary he received from the organization created a conflict of interest. This was in violation of the provisions of the Knesset Members Immunity Law, which forbids a Knesset Member from engaging in any occupation or additional occupation which creates a possible conflicting interests. It also contravened the Rules of Ethics for Members of the Knesset, which prohibit a Knesset Member from receiving, whether directly or indirectly, any material benefit for an act that he has performed within the framework of his duties or his status as a Member of the Knesset. On May 24, 1999, following its deliberations, the Ethics Committee found Hanegbi guilty. It ruled that the chairman of a Knesset Committee could not preside over deliberations of a particular issue while simultaneously occupying a key position in an organization whose chief aim was to promote that issue. This is true even if his duties in the organization were voluntary. The Committee further determined that the fact that MK Hanegbi was chairman and director-general of the organization while also serving as the chairman of the Finance Committee created the possibility of a conflict of interest between his additional occupation and his role as a Knesset Member. The Ethics Committee accordingly censured Hanegbi and docked his salary for two months.

 

18. However, the criteria for conviction in criminal proceedings differ from those governing disciplinary proceedings. People are frequently the target of disciplinary proceedings even when the allegations against them are not overtly criminal. The findings of the Ethics Committee, in accordance with the facts upon which they were based and the additional evidence gathered by the police, are insufficient to prove the offenses of fraud and breach of trust. Here, an MK dealing with the legislative arrangement for a particular cause was simultaneously the recipient of a salary and benefits from an organization which spearheaded the same cause, albeit with the association’s approval. It has long been our opinion that these facts may involve a breach of trust. However this is difficult to prove. We now confront the issue again, in view of the report given to the Knesset Speaker and his legal advisor, as detailed below.

 

19. The evidence against Hangebi was insufficient to substantiate a criminal conflict of interest in order to prove the crimes of fraud and breach of trust. An MK established an organization for an important public cause. He raised money for that cause which, as director-general of an organization, he was supposed to channel towards that public cause. Instead, with the consent of the organization’s members – who were his friends – he used most of the funds raised for his own benefit, in order to fund activities he performs in his capacity as an MK. All of this occurred after Hanegbi had submitted a private bill, which he believed to be tremendously important, as he admitted during investigations, and while he was receiving a salary in his capacity as an MK.  Even so, regarding the mens rea of the offense, this was not the only organization that served as a tool for earning salary or benefits in the public sector. Moreover, MK Hanegbi reported his income from the organization to both the Knesset Speaker and the Knesset legal advisor, and this creates difficulties in proving the necessary criminal intent.

 

20. It should be noted that, at that time, pursuant to the Knesset Members Immunity Law (Rights and Duties), 1951, a Knesset Member was permitted to receive salary for “an additional occupation” provided that it did not exceed half of his salary as an MK. The law stipulated that such payment should not engender “a potential conflict of interest between the additional occupation and his role as an MK.” In 1998, the section was amended and today it is prohibited for an MK to engage in any additional occupation for remuneration.

 

10. As stated in the Attorney-General’s report, respondent’s actions in the Derech Tzleha affair led to disciplinary proceedings in the Knesset Ethics Committee. The committee determined that Hanegbi had placed himself in a conflict of interest, in contravention of the Ethics Rules, and therefore imposed two penalties on him: a reprimand and a two-month salary freeze. In its decision of May 24, 1999, the committee wrote:

 

20.A. MK Hanegbi served simultaneously as chairman, and subsequently as director-general, of the Derech Tzleha organization, and as chairman of the Economics Committee. This created the possibility of a conflict of interest between the additional occupation and his role as a Knesset Member, in violation of the provisions of section 13A(a)(3) of the Knesset Members Immunity (Rights and Obligations) Law, 1951.

 

B. MK Hanegbi received material benefit as chairman, and subsequently director-general, of Derech Tzleha, which had as one of its principle objectives the advancement of a law which Hanegbi himself had initiated. In doing so, he violated section 4 of the Rules of Ethics for Knesset Members, which prohibits a Member of Knesset from receiving any material benefit for an activities performed outside of the Knesset in his capacity as Knesset Member.

C. Towards the end of the term of the Thirteenth Knesset, MK Hanegbi returned to his position as chairman of the Finance Committee. This gave rise to a potential conflict of interest concerning the Fuel Economy Law, since MK Hanegbi was receiving benefits from Derech Tzleha, which had accepted contributions from major fuel corporations. In this situation, MK Hanegbi should have transferred the bill to another MK, and by failing to do so, violated the provisions of section 13A(a)(3) of the Immunity Law, as worded at that time.

11. Hanegbi’s actions in the Derech Tzleha affair were investigated by the police. In June 1999, they recommended to the State Attorney’s Office that Hanegbi be indicted for accepting a bribe, fraud, breach of trust, and related offenses. The evidentiary material gathered by the police was examined and considered by the Attorney-General and the State Attorney. At the beginning of 2000, the decision was taken to indict respondent for fraud and breach of trust, fraud and breach of trust by a corporation, and falsifying corporate documents, all subject to a preliminary hearing. The Attorney-General decided, with the consent of the State Attorney, that “after extensive legal deliberation … grounds exist to indict MK Hanegbi for fraud, breach of trust and additional offenses.”

In anticipation of the proceedings to remove Hanegbi’s immunity as a Member of Knesset, the file was transferred to the Jerusalem District Attorney’s Office. It was here that the tables turned. In the words of the Attorney-General in his report: “At this stage of the process, difficulties arose once again regarding proof of the components of the various offenses, primarily regarding fraud and breach of trust. In view of our doubts regarding the reasonable probability of a conviction, the State Attorney and I decided to close the file.”

As such, no indictment was filed; instead, a public report was issued. This report gave a detailed account of the circumstances of the case. Its first section stated: “We would emphasize that the events, for which MK Hanegbi was both convicted and penalized by the Knesset Ethics Committee in 1999, indicated impropriety which, in our view, reached the level of an offense. However, we ultimately decided that there was no reasonable chance of obtaining a conviction.” In conclusion, the Attorney-General wrote:

In summary, we believed that the circumstances warranted an investigation, and we even considered that there ought to be an indictment. However, there must be a reasonable likelihood of a conviction, and this requirement, with the final preparation of the file, was ultimately not satisfied.

 

12. This concludes our review of the four cases upon which this petition is based.

13. The Attorney-General’s view was that respondent’s involvement in the Derech Tzleha affair made it inappropriate to appoint him as Minister of Public Security or to other positions connected with law enforcement. Accordingly, when he became aware of the intention to appoint Hanegbi as Minister of Public Security, the Attorney-General advised the Prime Minister to refrain from making the appointment, because “[a]lthough, according to statute and case law there appears to be no legal impediment to the appointment, the appointment itself is prima facie problematic from a civic perspective.” Notwithstanding this advice, the Prime Minister decided that it was appropriate to appoint Hanegbi as Minister of Public Security. Notably, when the previous government was appointed in 2001, and in the direct aftermath of the Derech Tzleha case, the Attorney-General also advised the Prime Minister against appointing respondent to any ministry entrusted with law enforcement. The advice was given “primarily from a civic perspective” and, on that occasion, the Prime Minister accepted the advice.

 

The Dispute

 

14. We are confronted with three principal affairs: the ISTA affair, the Bar-On affair and Derech Tzleha affair. In all of these cases, Hanegbi was suspected of criminal offenses and, in the latter two, the police recommended that he be indicted. However, he was never actually indicted and, as such, he was not convicted. The question therefore arises: Can a person be prevented from serving as a cabinet minister on account of suspected criminal offenses? If so, can Hanegbi be prevented from serving as a cabinet minister because of his involvement in these affairs? Petitioner does not contest Hanegbi’s appointment as a cabinet minister per se. Rather, the claim is that he is unfit for service as a minister charged with law enforcement and, for our purposes, as Minister of Public Security. This, in turn, raises the following question: Assuming that Hanegbi is fit to serve as a member of the cabinet and a minister, is he nonetheless unfit to be Minister of Public Security? Is the Prime Minister’s decision to appoint Hanegbi as Minister of Public Security so unreasonable as to require this Court’s intervention? Even at this early stage I would state that there is no dispute between the parties regarding facts or the law. They dispute, however, the application of the law to Hanegbi.

15. Petitioner’s claim, in brief, is that, under the circumstances, there is a legal impediment to Hanegbi’s appointment as Minister of Public Security. Though Hanegbi was not indicted in any of the three cases, his involvement in them makes the Prime Minister’s decision to appoint him as the “Police Minister” blatantly unreasonable. Petitioner argues that the appointment irreparably damage the public’s confidence in the system of government and the police. Furthermore, there is also a serious chance that the appointment will cause irreversible damage to the functioning of the police, even if only because of the “bad blood” between Hanegbi and the police officers who investigated him and recommended his indictment. Furthermore, the Police Ordinance (New Version), 1971, grants the Minister of Public Security extensive powers over the police. For example, the appointment and promotion of senior officers (section 7 of the ordinance), which includes the ability to appoint the Inspector-General of Israel Police. See section 8A (stating that the government appoints the Inspector-General pursuant to the recommendation of the Minister of Public Security). Respondent may frequently find himself in a serious conflict of interest when handling the promotion of those who investigated him and who recommended his indictment. The latter will fear, and rightly so, that he will take revenge even if they have discharged their duties properly. Therefore, maintains petitioner, the Prime Minister’s decision to appoint Hanegbi as Minister of Public Security, is unreasonable.

16. Respondents to the petition – the Prime Minister, Mr. Hanegbi, and the Attorney-General – oppose petitioner’s request. In their view, Basic Law: The Government grants the Prime Minister particularly broad discretion regarding the appointment and removal of ministers. Furthermore, there is an inverse relationship between the breadth of the Prime Minister’s discretion and the constraints upon the High Court’s power to instruct him how to act. It is true that, in special circumstances, the Court can order the Prime Minister to remove a minister from his post, but an examination of the case law indicates that the Court can only exercise that power in rare and exceptional cases. See HCJ 3094/93 The Movement for Quality Government in Israel v. The Government of Israel, at 404 [hereinafter: Deri [47]]; HCJ 4267/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel, at 441 [hereinafter: Pinhasi [5]]; and Bar-On [3]. These are cases where indictments – indictments alleging particularly serious offenses – were filed against a minister.

The Prime Minister and Attorney-General on the one hand, and Hanegbi on the other, continue to assert, each in their own way, that this is not one of those rare cases in which the Court will intervene with the Prime Minister’s discretion. How so? Hanegbi was not even indicted and, as such, was certainly not convicted. Consequently, there are no legal grounds for preventing him serving as a cabinet minister. Hanegbi is presumed innocent until proven guilty. To prevent him from serving in any particular position without having stood trial violates the principles of justice, even if only because he has never been given the opportunity to prove his innocence (and especially since he is under no obligation to do so). The appointment may indeed be “problematic on the civic level” (in the words of the Attorney-General). However, the Prime Minister was aware of this, and having considered all of the pertinent factors, he decided that Hanegbi, with his variety of talents and experience, was the best candidate for the job. With regard to concerns over conflicting interests in relation to those police officers who interrogated him, we have Hanegbi’s assurance that that he bears against them no grudge. Furthermore, adds Hanegbi, his power to intervene in the professional decisions of the police is limited. The conclusion dictated by all of the above is that the Prime Minister exercised his powers lawfully; his decision was a reasonable one, and, in any event, it does not deviate from the range of reasonableness.

 

17. This concludes our review of the basic issues in dispute and the central claims of the parties.

 

The Legal Framework

 

18. We must first establish the legal point of reference from which to begin our investigation. We were requested to order the Prime Minister to remove respondent from his position as Minister of Public Security. Two questions present themselves in this regard. First: is the Prime Minister empowered to remove Hanegbi from acting as the Minister of Public Security? Second: if so, should the Court, under the circumstances, order the Prime Minister to remove Hanegbi from his position? These questions raise the issue of fitness to serve as a minister. We will now address the concept of “fitness” in its broadest sense.

19.             The current version of Basic Law: The Government, the 2001 version, contains provisions concerning the fitness – or, more precisely the unfitness – of persons with a criminal record to serve as ministers. These provisions address a person’s non-appointment as a minister, as well as their dismissal. The unfitness of a person with a criminal past is regulated by section 6(c) of the Basic Law:

Fitness of Ministers

6. (a) …

…………….

(c) (1) A person who was convicted of an offense and sentenced to prison, and seven years have not yet passed since the day on which he finished serving his term of imprisonment or since the handing down of his sentence – whichever was later  – shall not be appointed minister, unless the Chairman of the Central Election Committee states that the circumstances of the offense do not involve moral turpitude.

(2) The Chairman of the Central Elections Committee shall not so rule if a court has determined that the offense involved moral turpitude.

 

As such, where a person was imprisoned for a crime involving moral turpitude, and seven years have not yet passed since the completion of the sentence (or the sentencing) – the conviction will prevent his appointment as a minister. Parenthetically, we would add that this provision replaced section 16(b) of Basic Law: The Government, 1992, which was even more stringent about membership in the cabinet.

 

Furthermore, pursuant to section 23(b) of the Basic Law: The Government, 2001, the office of a minister is terminated when he is convicted of an offense of moral turpitude.

 

Termination of the Tenure of a Minister Pursuant to an Offense

23. (a) …

(b) Should a minister be convicted by the court, it shall state in its verdict whether the offense involves moral turpitude; should the court so state, the minister’s tenure shall cease on the day of such verdict.

 

The language of the statute is unequivocal: Conviction of an offense involving moral turpitude means the termination of tenure, with no reservation or discretion. The statutory provision acts as a guillotine: once certain “objective” conditions exist, the law itself prevents the minister from continuing to serve in that capacity.

 

These are the explicit statutory provisions governing unfitness to serve as a minister due to criminal involvement.

 

20. Together with the above explicit statutory provisions, there are also provisions regulating the Prime Minister’s power to terminate the tenure of a minister. Section 22(b) of Basic Law: The Government, 2001 provides:

 

Termination of the Tenure of a Minister

22. (a) …

(b) The Prime Minister may, by way of written notification, remove a minister from his post; the removal of a minister will take effect 48 hours after the letter notifying thereof was given to the minister, unless the Prime Minister retracts it prior to such time.

 

This statutory provision, with minor differences, was also contained in section 21A of Basic Law: The Government, 1968, following its amendment of 1981, and in section 35(b) of Basic Law: The Government of 1992.

 

  1. In light of these statutory provisions, the question is whether the unfitness provisions of sections 6(c) and 23(b) of Basic Law: The Government, 2001, limit the discretion afforded to the Prime Minister under section 22(b) of the Basic Law? In other words, with respect to a minister or ministerial candidate with a criminal past, do sections 6(c) and 23(b) of the Basic Law provide the sole and exclusive framework for the Prime Minister’s authority? It could be argued, for example, that the legislature went out of its way to specify certain preconditions to disqualify a minister with a criminal past from office. Can a negative inference be drawn from this that a minister will not be regarded as unfit to serve unless the statutory preconditions for unfitness are satisfied? Also, regarding a minister’s criminal past which does not fulfill the statutory conditions of unfitness specified in section 23(b) of Basic Law: The Government, 2001, does the Prime Minister have no authority to terminate a minister’s tenure? If so, does it not follow that the person is a fit candidate for a ministerial post?

 

The above questions were discussed at length in Deri [47] and in Bar-On [3]. Pinhasi [5] discussed the same issues in relation to a deputy-minister. The Court’s answer was clear and unequivocal: the explicit statutory provisions cited above in no way restrict the Prime Minister’s discretion or the Court’s discretion to review the Prime Minister’s decision. It will be recalled that those cases involved the judicial review of the Prime Minister’s decision not to terminate the tenure of a minister. The Court ruled as follows: the Prime Minister is vested with the power to terminate, or retain, the tenure of a minister (or deputy-minister); the statutory provisions do not restrict the Prime Minister’s discretion to dismiss a minister; the additional statutory provisions do not limit the scope of section 21A of Basic Law: The Government (1968-1981; currently section 22(b) of Basic Law: The Government, 2001); and no negative inference can be drawn from the absence of provisions governing the termination of tenure. See Deri [47], at 421; Pinhasi [5], at 456-57.

 

In this context the Court distinguished between unfitness for a particular office and discretion concerning an appointment to office or removal from office. Sections 6(c) and 23(b) of the Basic Law deal with “fitness” and, as such, do not restrict the Prime Minister’s discretion regarding the non-appointment of a person to a particular office, or his removal:

 

We must distinguish between questions of fitness (or authority), and questions of discretion. The absence of any express statutory provision regarding the unfitness of someone with a criminal past establishes the candidate’s fitness. However, 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 even obligated to take into account.

 

HCJ 6163/92, 6177 Eisenberg v. Minister of Construction and Housing, at 256-57 [6]. This rule was actually established prior to the enactment of section 23(b) of Basic Law: The Government, 2001. However, not only does this statutory provision not touch on the issue of discretion – the wording of the law makes clear that the termination of tenure occurs automatically under certain circumstances – but the logic behind the law sheds light on our case.

 

22.             The general principle is, therefore, that the Prime Minister is empowered to refrain from appointing a person as a minister, or to dismiss a minister, even in cases not covered by the stringent conditions expressly stated in the law. Once it has been established that the Prime Minister has the power to remove a minister from office, it follows automatically, as a matter of principle, that this discretion is subject to the judicial review of the High Court of Justice.

 
The Exercise of Discretion
 
The Prime Minister and Cabinet Ministers as Public Trustees

 

23. This brings us to the main point. There is no explicit statutory provision (not even in section 22(b) of Basic Law: The Government) that sets out criteria governing prime ministerial discretion in determining the composition of the government. This is true of both appointments and dismissals. Nor is there any statutory restriction of the Prime Minister’s discretion. The discretion of the Prime Minister may therefore be based upon a variety of pertinent considerations. But, like any other legal discretion, it is constrained by the basic principles of administrative law, which form the foundation of public administration and inform it at all levels. First and foremost among these principles is the principle of trusteeship. All those empowered on behalf of the state are believed to exercise their powers for the good of all, and their status obligates them to act as trustees in the exercise of their powers. In the canonical words of Justice Cohen:

 

[T]he private sector differs from the public sector, for while the former acts as it pleases, giving and taking at will, the latter exists solely for the purpose of serving the public, and possesses nothing of its own. Whatever it has it owns as a trustee, and it has no rights or obligations in addition to, or distinct from, the rights of the trusteeship or those conferred or imposed by statutory provisions.

 

HCJ 142/70 Shapira v. Local Committee of Chamber of Advocates [60], at 331. See also Deri [47], at 417; Pinhasi [5], at 461-63; Bar-On [3], at 55-56; HCJ 4566/90 Dekel v. Minister of Finance [58], at 33.

 

24. In other words: Those exercising authority on behalf of the state or any other public authority – in our case, the Prime Minister and the Minister of Public Security – must constantly be aware that their affairs are not their own. They are dealing with matters that concern others and are obligated to conduct themselves with fairness and integrity, in strict compliance with the principles of public administration. Within the area of private law the individual can behave with a measure of the “caprice,” though such “caprice” is not what it used to be, nor should it be. But in the realm of public law – constitutional and administrative law – caprice is a terminal illness. Those who wield authority conferred on them by law, however insignificant that authority may be, must strictly scrutinize all their decisions and actions. They must never forget that all their decisions and actions are on behalf of others, not their own interests. Fortunate is the community whose leaders understand not only the prerogatives but also the limitations of their power. As the High Court recently stated:

 

When acting in the domain of public law, the appointing authority operates in the capacity of a public trustee. Just as a trustee possesses nothing of his own, so too, the appointing authority possesses nothing of its own. It must conduct itself in the manner of the trustee: acting with integrity and fairness, considering only relevant factors, acting with reasonableness, equality, and without discrimination.

 

Those with the power to appoint or decide must therefore act with integrity and fairness, without considering irrelevant factors, guided by principles of reasonableness and equality, and without discrimination. Any failure to discharge this duty opens the door to inappropriate appointments or decisions. The wrong people are appointed and the right people overlooked, and the public good is harmed. But the necessity of imposing these obligations on persons with the powers to make appointments or decisions relating to particular individuals extends beyond the propriety or legality of particular appointments or choices. The scourge of inappropriate appointments must be stopped, in order to preserve the very existence of the public service. Moreover, those appointed illegally are liable to adopt similarly illegal methods when they have to make appointments themselves. The fathers have eaten sour grapes and the sons who witnessed their fathers will also eat sour grapes. Cf. Ezekiel 18:2. And, we all know where this path leads.

 

HCJ 2671/98 Women’s Lobby v. The Minister of Labor and Welfare, [61] at 649-50. These words deal with appointments to the public service (specifically the deputy director-general of the National Insurance Institute), but also they also apply, under different circumstances, to the case before us.

 

25. We have seen that the Prime Minister and all ministers are in fact trustees, holding their offices in trust for the public. We can further infer from this that, when considering the appointment, or the continued service, of a minister with a criminal past, the Prime Minister must conduct himself as a trustee dealing with the public’s affairs. How does a trustee ensure the propriety of his conduct? My colleagues have elucidated the guiding principles, wisely and at length; adding to their comments would be superfluous. I will cite just a few of the comments made by them in this context, which will be instructive for our purposes. For example:

 

The statutory provision [empowering the Prime Minister to dismiss a minister] is also intended to constitute a response, in the form of removal from office, to a serious incident involving a minister. This applies when that occurrence, whether act or omission, affects the stature of the government, its public image, its ability to lead and serve as a role model and its capacity to inculcate proper behavioral norms. It applies primarily when the incident impacts the public’s confidence in our system of government, on the constitutive values of our system of government and law, and on the duties of the ordinary citizen which arise from them.

 

Deri [47], at 422 (Shamgar, P). Furthermore:

 

The Prime Minister, the government, and all of its ministers are in the position of trustees. This position requires them to consider whether to terminate the tenure of a deputy-minister against whom an indictment has been filed, the offenses being particularly grave. The Attorney-General may decide that there is sufficient evidence for an indictment. Under these circumstances, the continued service of this minister is liable to diminish public confidence in the ruling authorities. The authorities must therefore consider the matter with the utmost gravity. For it must be remembered: the government’s ability to rule is based on the confidence of the public. Without public confidence, the government cannot function.

 

Pinhasi [5], at 461 (Barak, J). Similarly:

 

An elected public official is like a cantor leading the prayers. The cantor is the community’s mouthpiece. He presents himself as impoverished in deeds, humble and frightened. So, too, the public servant. Like the prayer leader, he possesses nothing of his own. What he has belongs to the community he serves. Decency, honesty, and purity of heart are the hallmark of a worthy cantor, and this is the pillar of fire which guides the public servant in his path. This is the only way in which he can properly serve the community that chose him as its leader, and the only way for him to win the public’s confidence. It is well known that if the nation lacks confidence in its leaders, disorder prevails and society disintegrates. The higher they ascend the ladder of leadership, the greater our demand for honesty and integrity from our leaders.

 

HCJ 103/96 Pinchas Cohen, Adv.  v. The Attorney-General [62], at 326.

 

The same applies to the government, which enjoys a particular status and image in the public eye. It must maintain public confidence in the Israeli system of governance and in our constitutive values. There is an inherent need for the government and the administration to conduct themselves in a manner that is ethical, decent and dignified. Hence, under certain circumstances, the duty of the Prime Minister to remove a minister from office becomes a duty, a power that the Prime Minister is obligated to exercise. What then are the particular circumstances that transform the Prime Minister’s power to dismiss a minister into a duty?

Indictment of a Public Trustee: Trusteeship and Public Confidence

26. In Deri [47], an indictment was filed against the Minister of the Interior, Aryeh Deri, for the offenses of bribery, breach of trust by a public servant, the fraudulent receipt of goods in aggravated circumstances, and falsifying corporate documents and theft by a director. See Deri [47], at 410. In Pinhasi [5] an indictment was filed against the Deputy-Minister of Religious Affairs, Raphael Pinhasi, for falsifying corporate documents, false testimony and attempting to receive goods by fraud. See Pinhasi [5], at 447. In both cases the Court was required to decide whether the indictments were sufficiently grave to compel the Prime Minister to remove the minister and the deputy-minister from office. The Court decided in the affirmative in both cases:

 

In summary, based on the Deri and Pinhasi cases, the rule is that where an indictment for a serious offense is filed against a minister or a deputy-minister, the Prime Minister is duty-bound to remove the minister or deputy-minister from their post. Under these circumstances, the Prime Minister’s refusal to discharge that duty will be regarded as unreasonable in the extreme. Consequently, in the event of such a refusal, the Court can order the Prime Minister to exercise his power to remove the minister or deputy-minister from his position. Today, too, the Prime Minister’s refusal to remove a minister or deputy-minister who has been indicted for a serious offense will be regarded as extremely unreasonable, justifying this Court’s intervention.

 

See Bar-On [3], at 56 (Zamir, J.). The rule is crystal clear: “The Prime Minister’s refusal to remove from office a minister or deputy-minister who has been indicted for a serious offense will be regarded as extremely unreasonable, justifying this Court’s intervention.”

 

27. The duty of trusteeship owed by the Prime Minister and other ministers is inextricably linked to public confidence in the government. A trustee who behaves appropriately wins trust; a trustee who does not live up to the required standards will not enjoy the public’s confidence. The government needs the trust both of the Knesset and of the public as a whole. If it behaves as a trustee should, it becomes the repository of public confidence. Where the government betrays its trusteeship, public confidence in the government is shattered, and the Court will intervene. This is what the Court did when it forced the Prime Minister to dismiss Minister Deri and Deputy-Minister Pinhasi.

 

One might ask: why should the Court trouble itself with the question of public confidence in the government by directing the Prime Minister to remove officials from their positions, as it did in Deri [47] and Pinhasi [5]? The public will presumably express its loss of confidence in the government at the ballot box. Why then should the Court issue orders concerning the relationship between the people and the government? Furthermore, the principle of decentralization and the relationship of respect owed by the judiciary to the executive and legislative branches, especially with respect to the internal management of these branches, obligates the Court to distance itself from the question of the composition of the government. This is the government’s exclusive domain, and it ought to remain that way, subject to the express provisions of the law.

 

28. This narrow conception of the relationship between the judiciary and the other authorities is one possible view – possible but undesirable. The Supreme Court rejected it – and rightly so – in Deri [47], Pinhasi [5], and Bar-On [3]. The Court premised its decisions on the issue of public confidence, and this too was the right path. The Court explained its position as follows:

 

Without public confidence in the public authorities, the latter become an empty vessel. Public confidence is the mainstay of the public authorities and enables them to discharge their functions.

 

Eisenberg [6], at 262 (Barak, J.). Later, in discussing public confidence in the government, the Court dealt with past actions that may tarnish the image of a candidate to public office:

 

Public confidence in the organs of government is one of the most important assets of the governing authority and of the state. When the public loses confidence in the ruling authorities, it also loses its belief in the social contract of communal life. Paramount importance ought to be given to maintaining, preserving, and promoting the feeling that public servants are not masters and that they discharge their duties for the sake of the public, honestly and incorruptibly. The purity of the service and of its members is the foundation of the civil service and the basis of our social structure …. This consideration is central and must therefore be accorded significant weight in the overall decision regarding the appointment of a candidate with a criminal past.

 

Id. at 262. This ruling was reaffirmed in Deri [47], Pinhasi [5], and Bar-On [3]. As stated in Pinchas Cohen [62]: “[I]t is well known that if the nation lacks confidence in its leaders, disorder prevails and society disintegrates.” Therefore, when confronted with a concern that a particular act or omission will severely impair the public’s confidence in its leadership, the Court cannot stand idly by, claiming that this matter is not its concern. Judicial intervention in such cases is a form of self-defense – the self-defense of the entire state, of which the judiciary itself is part. How would this Court respond if it was accused of being silent in the face of such a travesty? This was our holding in both Deri [47] and Pinhasi [5], and we will be guided by it.

 

Indictment and Evidence in Support of the Indictment; Evidence without an Indictment

 

29. As we have already observed, the law provides that where an indictment for a serious offense is filed against a minister, the Prime Minister is obligated to remove that minister from office. By extension, his refusal to remove the minister under those circumstances is considered to be unreasonable in the extreme and warrants judicial intervention. Now, it could be asked: is this, in fact, the correct interpretation of the law?

 

30. An indictment is no more than a document bearing the signature of an attorney, the Attorney-General, or any other authority. The signatory affirms that to the best of his understanding, the police file contains prima facie evidence that the accused committed the offenses in the indictment. An indictment effectively amounts to an expert opinion of its signatory that, prima facie, the defendant has committed the offenses specified in the indictment. And the question necessarily arises: Is this sufficient? In other words, is the understanding of the signatory – however elevated his status may be – that a person has, prima facie, committed various offenses, sufficient to compel the minister or deputy-minister to step down, without giving them the  chance to present their case? Were this to be provided by statute, we would accept it (subject, of course, to the basic principles of fair procedure). However, should we make this our holding: that an indictment for serious offenses obligates the Prime Minister to remove a minister and deputy-minister from office? Was this the impact of the ruling in Deri [47] and Pinhasi [5]? It is clear to us that this is not the law and that this was not the Court’s intention in those cases.

31. In our opinion, a correct understanding of those cases is that we cannot rely upon an indictment, even if it bears the signature of so exalted a personage as the Attorney-General himself. Rather, the indictment is a document that consolidates the evidence collected in the police file, evidence that prima facie incriminates the accused of the offenses ascribed to him. The indictment may be likened to a container with a label that attests to its contents. Its essence is the evidence gathered in the police file, and the basic assumption is that the indictment is a proper summation of that evidence. In both the Deri [47] and Pinhasi [5], the Court was careful to emphasize this point. In Deri [47] the Court enumerated the offenses of which Deri was suspected, declaring immediately afterward that: “The facts, which reflect the prima facie evidence in the hands of the prosecution, are described at length in the indictment spanning 50 pages.” Id. at 410. The Court added:

 

We described the main points of the indictment presented to the Knesset in the case at hand. The indictment includes particularly serious allegations of corruption, but it is not a judgment. It only reflects the prima facie evidence collected by the prosecution. But, for the purpose of continued service in the government, significance is also attached to prima facie evidence collected in the indictment, which has now become public knowledge. In terms of the reasonableness of certain actions, circumstances are not assessed solely in terms of their ability to generate a hard and fast judicial determination. It is also significant what type of actions have been attributed to an individual, when clad in the official dress of an indictment ready for filing before the courts.

 

Id. at 422-23. It was added:

 

[A]nd if, heaven forbid, an indictment is filed against a minister, based on prima facie evidence, which ascribes to the minister serious offenses that involve moral turpitude both by definition and under the circumstances – e.g. where a minister is charged with accepting bribes, fraud, deceiving state authorities, lying, or making false reports – then it would be neither appropriate nor reasonable for him to continue in office.

 

Id. at 427 (Levin, J.). In both Deri [47] and Pinhasi [5], the basic assumption was that there was prima facie evidence in support of the accusations. The import of Deri [47] and Pinhasi [5] is that, where there is evidence in the police file in support of an indictment filed against a minister or deputy-minister for serious offenses, then such evidence may obligate the Prime Minister to remove the minister or deputy-minister from office. The salient element is not the indictment as such, but rather the prima facie evidence that has crystallized into an indictment.

 

32. This interpretation of the ruling is unavoidable. The other interpretation – that an indictment alone is sufficient to remove a minister from office – would deviate from basic legal principles of fairness and justice. Consider the case of a minister who is a candidate for removal exclusively because of the indictment filed against him for serious offenses. He wishes to argue that the indictment was based upon a mistaken understanding of the evidence collected in the police file, and that the charges against him are groundless. The most basic principles of justice require the Court to listen to his claims, and not to refer him to the criminal proceedings to assert his claims. Any other response would undermine the fundamental respect enjoyed by the Court. Furthermore, to confer on an indictment the status of a conclusive document, in terms of the termination of a minister’s office, is tantamount to divesting the Court of its discretionary power, and transferring this power to the attorney who signed the indictment. Such a divestment of judicial power is unacceptable. The Court cannot divest itself of its power to adjudicate and rule in accordance with the evidence submitted to it. Discretion in judicial proceedings belongs exclusively to the Court and the fundamental principle in that context is that the Court cannot delegate its discretion to others, be it to the Attorney-General, or to any of the attorneys in the State Attorney’s Office. By extension, it will not regard an indictment as an irrefutable, conclusive document. The indictment per se will not determine the fate of a minister.

 

33. To summarize: the rule is that an indictment for serious offenses may lead to a minister’s removal from office. The proper interpretation of this rule is that an indictment constitutes an expert opinion that the police file contains evidence which adequately supports the charges against the minister. It is the supporting evidence behind the indictment that weighs against the minister, and not the indictment itself. Concededly, the indictment adds a certain degree of weight to the probative power of the evidence in the police file, but it is by no means conclusive. An indictment for serious offenses, even particularly serious offenses, does not tip the scales against the minister. But, as we shall shortly observe, the reverse true is not true either – the absence of an indictment does not tip the scales in his favor.

 

34. We have established that the conclusive element – whether to the minister’s detriment or to his advantage – is not the indictment per se. Consequently, we must examine the evidence itself, and assess its importance for the case at hand. And we must also discharge another duty: an examination of the reasons and circumstances that convinced the Attorney-General, or the State Attorney’s Office, not to file an indictment. Consider a case in which the evidence collected justified an indictment for a particularly serious offense, but the key witness absconded from the country, as a result of which the Attorney-General refrained from filing an indictment. In that kind of case, can one say that the Court may in good conscience refuse to address the matter, and release itself from all responsibility, for the simple reason that no indictment was filed? I think not.

35. The above would also apply to a decision not to file an indictment, and even to a decision to close a police file. It will be recalled that police files are closed for a variety of reasons, and closing a police file without filing an indictment in no way indicates that no offense was committed, or that there is no evidence attesting to guilt. Thus, for example, the category of closing a file “for lack of evidence,” includes cases in which the prosecutor has evidence that connects a particular person with the commission of an offense, only that such evidence is insufficient to prove the commission of an offense beyond all reasonable doubt, the requirement in criminal law. This Court addressed this question in HCJ 7256/95 Fishler v. The Inspector General of the Israel Police [63]:

 

[F]iles which are closed for lack of sufficient evidence also include investigations of serious and even extremely serious offenses. There are cases in which the investigative bodies have information that leads to the re-opening of a file which was previously closed. This was referred to in the memorandum on the Crime Register and Rehabilitation of Offenders (Various Amendments) Law, 1996, which wasrecently disseminated by the Ministry of Justice:

 

Where prosecuting authorities close a file for lack of evidence, this does not mean that they have concluded that the suspect did not commit the offense. Closing a file on those grounds may occasionally be purely the result of technical factors, such as a doubt as to whether particular evidence will constitute corroboration, or where the key witness has left the country or otherwise absconded. Accordingly, information contained in these files may still be relevant for those bodies entitled to receive information on closed files, just as information regarding files closed on other grounds is relevant to such bodies.

 

Id. at 9-10, (Goldberg, J.). A similar argument was expressed in a later case:

 

On January 2, 1994, the State Attorney issued guidelines regarding the exercise of discretion (Guideline No. 1.3 “The Closure of Files Due to Insufficient Evidence and Due to Lack of Guilt.” The Guidelines clarify the procedure of closing a file due to insufficient evidence. Within the basic framework which governs the closure of files on the statutory grounds of “insufficient evidence,” the guidelines establish a secondary category – the grounds of “lack of guilt.” According to the Guidelines, when a prosecuting attorney concludes “…that there is evidence in the investigation file which raises the suspicion that a person has committed a certain offense, but the evidence is not sufficient for proof of guilt, and is therefore insufficient for indictment – the file regarding that suspect will be closed on the grounds of ‘insufficient evidence,’ and the reason for closing the file will be recorded accordingly.” (para. 2). Where, however, the attorney is convinced “that no offense was committed in the same matter, or that there is no trace of evidence as to its commission, the file will be closed due to a ‘lack of guilt,’ and not due to ‘insufficient evidence’” (para. 6). The Guidelines clarify that the closure of a file due to a lack of guilt – a category not mentioned in the statute – is intended “to prevent the perception of there being any element of doubt as to the innocence of a person suspected of a particular matter, which would cause him unjustified harm” (para. 7). This Court adopted the distinction between a file closed due to “insufficient evidence” and a file closed due to “lack of guilt,” and has ruled that it is justified to close a file for “insufficient evidence” and not “lack of guilt” when the existing evidence leaves a reasonable doubt regarding the suspect’s innocence.

HCJ 2682/98 Appel v. The State Attorney [64], at 137-38 (Strasbourg-Cohen, J.). Compare HCJ 4539/92 Kablero v. The Attorney-General [65], at 56. As stated above: the Court will decide, based on the evidence before it, and not merely because an indictment was filed. Similarly, the Court will examine the reason for not filing an indictment, and this reason will be an apposite consideration in its examination of the entirety of considerations, but no more than that.

36. The rule is that the power to remove a minister from office – which may occasionally become mandatory – is not restricted to cases in which an indictment was filed against the minister. As stated in Pinhasi [5]:

[C]ircumstances may arise in which the mere opening of an investigation justifies the termination of tenure. By contrast, circumstances may arise in which even a conviction does not justify the termination of tenure. In this respect, the particular section under which the indictment is filed is not conclusive. The determinative factors are the circumstances surrounding the commission of the offense and the other circumstances of the case.

Id. at 474 (Barak, J.). In Bar-On [3] it was noted:

 

Because the test is substantive and not merely formalistic in nature, it cannot be stated categorically that that only an indictment issued with respect to a serious crime, or at least an investigation with respect to the performance of such a crime, are capable of justifying termination of office. The possibility cannot be ruled out that the conduct of a minister or deputy-minister in a specific case, even if it does not amount to a criminal offense, may be so very severe, to the point that it would be extremely unreasonable to allow him to continue in office.

 

Id. at 63-64 (Zamir, J.). But these comments were soon qualified:

 

But there exists a vast difference between an extreme situation like this, which forms an exception to the law, and a broad ruling which would render unfit any minister or deputy-minister whose conduct deviates from acceptable standards. The proposal to expand the existing ruling so that such conduct would obligate the Prime Minister to dismiss the minister or deputy-minister, even though that proposal is motivated by good intentions, is not appropriate. It is likely to do more harm than good.

 

Id. (Zamir, J.). We unreservedly concur with these comments, but every case must be determined according to its particular circumstances. We must distinguish between two different types of cases. The first is of a minister or deputy-minister “whose conduct deviates from acceptable standards.” On this basis alone, he cannot be allowed to remain in office. The second is of a minister who has not been indicted due to lack of evidence, even though there exists reliable administrative evidence that he committed a particularly serious offense. The reason he was not indicted was because in the offense could not be proved beyond all reasonable doubt.

Administrative Discretion; Administrative Evidence; “Criminal Past”; Presumption of Innocence

37. Our position is that the evidence in the police file is the primary determinant of the parameters of discretion. This places us firmly in the realm of administrative discretion and judicial review of the discretion exercised by a competent authority. To avoid any suspicion of intentional disregard, we would hasten to add the following: we are aware that the procedure confronting us is not a regular administrative procedure, like the denial of a license to grow cabbage (a subject of great importance to the applicant). And yet, the guiding principles are identical, whether the case is momentous or trivial in nature. The manner of implementation may change, as we will shortly show, but the principles are the same.

38. It is well known that the rules of evidence in administrative law differ from the rules of evidence in criminal and civil law. An administrative authority is entitled, and indeed obligated, to consider evidence that would not be admissible in a criminal or civil proceeding. For example, where a person’s candidacy is being considered for an office or a job, the reasonableness of the appointment will be assessed in accordance with the rules of administrative evidence. These rules of evidence are less strict than their counterparts in civil and criminal judicial procedures. Administrative evidence is evidence which “any reasonable person would regard as having probative value and would rely upon to any particular degree.” See HCJ 442/71 Lanski v. Minister of the Interior [66], at 357. The well of potential evidence is bottomless, and clearly includes evidence that is not admissible in criminal or civil judicial proceedings. Compare Lanski [66]; CA 5709/95 Ben-Shlomo v. Director of The Value Added Tax Authority [67], at 251; II Itzchak Zamir, Administrative Authority 751 (1996).

This type of framework is capable of accommodating findings in a judgment made against a third party, to which the candidate himself was not a party. Compare Eisenberg [6], at 272. This includes findings of a police investigation, and decisions of the State Attorney which did not crystallize into an indictment. Compare Fishler [63], Kablero [65], and Appel [64]. The question is whether the competent authority was presented with “sufficient evidence on which a reasonable person could rely, under the circumstances, in order to adopt the decision in question.” See HCJ 164/97 Kontram Ltd. v. Ministry of Finance [68], at 332.

In the administrative realm, therefore, the litmus test is neither technical-legal nor mechanical in nature. The test is one of reasonableness, of common sense. This applies both to the selection of the information on which the authority chooses to rely, and to the weight of the various factors under consideration. This point has been noted by the Court:

In order for an authority to rely on a particular piece of information, the latter must satisfy the test of admissibility for administrative evidence. This test is a flexible one. It allows the administrative authority to consider evidence that is not admissible in court, such as hearsay. Even so, not every wild rumor provides sufficient basis to substantiate a finding. The test is therefore one of reasonableness: the administrative authority is entitled to rely on information that relates to a matter on which a reasonable person (or more precisely – a reasonable authority) would rely in order to reach a decision regarding the matter in question.

The relevant information, which is the information that satisfies the test of administrative evidence, becomes the foundation of the decision. This foundation must be sufficiently sturdy to support the decision. What is the meaning of “sufficiently” for this purpose? Here, too, the determination of what constitutes sufficient evidence is a question of reasonableness. In other words, the nature of the facts must be such that a reasonable authority would rely upon it in order to adopt the decision.

HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, [69] at 424-25 (Zamir, J.). Regarding the distinction between the filing of an indictment and a conviction, compare Deri [47], at 422-23, and Pinhasi [5], at 462.

39. The boundaries of administrative evidence also cover a person’s “criminal past.” As is well known, in criminal proceedings, at the crucial sentencing stage importance is often attached to the offender’s past criminal convictions in order to show his “criminal past.” This is not the case in administrative procedure: a person’s “criminal past” can also be proven on the basis of administrative evidence, not just a judicial conviction. This point was made in Bar-On [3]:

Only in the most extreme cases will the Court compel the Prime Minister to exercise this power [to remove a minister from office]. These are cases in which there is administrative evidence of the commission of serious criminal offenses and a threat of serious damage to public confidence in the government authorities. One could perhaps add cases of extreme deviation from the moral integrity required of a person serving as a minister.

Id. at 68 (Or, J.). The Court related to this again more recently:

 

Generally, an administrative authority establishes facts on the basis of administrative evidence. Administrative evidence is evidence that a reasonable person (or reasonable administrative authority) would rely upon under the circumstances. This rule was established long ago and is now generally applied in all matters. The Court has also affirmed its application in various contexts with regard to the proving a person’s criminal past or criminal conduct. The Court has affirmed its application regarding decisions of the Parole Boards to revoke a prisoner’s leave pass, due to the commission of an offense; regarding the decision of a military commander to destroy a building following a murder; regarding the President’s power to pardon “criminals;” and similarly regarding the appointment of a person with a criminal past to public office.

HCJ 1227/98 Malevsky v. Minister of the Interior [70], at 715-16.

As we have already determined, these rules fully apply to an appointment to a public office, and in this context, ex hypothesi, there is no room for a strict application of the “presumption of innocence.” This presumption informs us that a person is presumed innocent until convicted. It applies to the criminal procedure and to the punishment of an offender in the manner set out by law. As for the administrative procedure when an authority is required to rule regarding a person’s “criminal past,” it can do so on the basis of administrative evidence, without a criminal conviction. This rule was dealt with at length in Eisenberg [6], where the Court distinguished between a criminal conviction, and a person’s “criminal past” under administrative law. The Court stated:

 

A criminal past for purposes of a particular appointment is not to be identified with a criminal conviction. We are dealing with an administrative decision of the government to appoint a particular person to a public position. This is not a decision to a statutory penalty. While there can be no criminal punishment without a conviction, this does not apply to an appointment. With respect to an appointment, it is the factual picture with which the appointing authority was presented that is relevant. The relevant question is, therefore, given the facts as presented to the authority, could a reasonable authority have deduced the commission of a criminal offense? If so, this would be sufficient in order to establish “a criminal past” for purposes of deciding the reasonableness of the appointment. Of course, for purposes of determining the reasonableness of the administrative decision, the commission of the criminal offenses attributed to the candidate is the decisive factor. A criminal conviction is clearly sufficient “evidence” of this, but there are other forms of evidence, such as a confession before a competent authority.

The applicable rule in the case before us is the “principle of administrative evidence.” A governmental authority is permitted to base its findings upon evidence which, under the circumstances, is such that “any reasonable person would have regard to its probative value and would have relied upon it.” An administrative finding may be based upon “material whose evidential value is such that reasonable people would regard it as sufficient to draw conclusions regarding the nature and occupations of the persons concerned.”

Id. at 268. This ruling has embedded itself deep within Israeli law. See  HCJ 932/99 The Movement for Quality Government in Israel v. Chairman of the Committee for the Examination of Appointments [71], at 769; HCJ 4668/01 MK Yossi Sarid v. Prime Minister Ariel Sharon [hereinafter: Bus 300 [72]], at 265; HCJ 5795/97 MK Yossi Sarid v. Minister of Defense [73], at 799. And, in accordance with Deri [47] and Pinhasi [5], this is also the rule for the examination of appointments and the tenure of ministers and deputy-ministers:

[W]e must consider the fact that we are only concerned with an indictment prepared by the Attorney-General. Deputy-Minister Pinhasi has not been convicted, and continues to protest his innocence. The weight attached to the concern for the public’s confidence in the authorities when a public figure has been convicted or admits to an offense is not the same as the weight of that consideration when there is only an indictment, and when the accused protests his innocence. Even so, this consideration should not be given conclusive weight. Our concern is with a governmental act of termination of office. In order to justify such an act, there is no need for a criminal conviction. While every accused person enjoys a presumption of innocence, that presumption does not prevent the termination of the office held by the accused. The only condition is that the governmental authority making the decision must have evidence, which under the circumstances is such that “any reasonable person would regard it as having probative weight and would rely upon it.” Justice Shamgar also made this point, ruling that an administrative finding can be based on:

“ [M]aterial whose evidential value is such that reasonable people would regard it as sufficient for drawing conclusions regarding the character and conduct of the persons concerned.”

And Justice Sussman commented in a similar vein:

“[T]he rule that a person is presumed innocent in the absence of evidence to the contrary, does not imply – and nor am I aware of any other legal principle which implies – that an administrative authority which must be convinced of a person’s criminal past may only determine that he has a criminal past if he was convicted by the courts.

Should we strike down the commissioner’s refusal to appoint a candidate as a civil servant when such refusal was based on reasonable evidence of a criminal past, simply due to the lack of a conviction? Let us assume that this applicant desired to be accepted into the public service, and the Commissioner refused to accept him for the above reasons. Would we force the Commissioner to accept him due to the lack of a conviction?

An administrative authority is empowered to make a decision regarding an individual’s personal history, but is not empowered to swear in witnesses and collect evidence in the manner that it is collected in court. Therefore there it is appropriate that its decision be based on evidence which would persuade a reasonable person as to the applicant’s past. This will apply even where the evidence is not admissible in a court of law, and even where it lacks significance in judicial proceedings.”

I also addressed this issue in Eisenberg, at 268:

“[W]hen assessing the reasonableness of a decision of an appointing governmental authority, the decisive factor is the criminal offenses attributed to the candidate. A criminal conviction is certainly an appropriate “proof,” but there are other means of proof.

       The relevant principle in our case is the “principle of administrative evidence.”

Pinhasi [5] at 467-69.

40. In this context we would do well to recall respondent’s claim regarding the presumption of innocence. Respondent informs us:

The presumption of innocence is one of the most basic rights conferred on all citizens in any democratic regime. It is intended to protect a person who has not yet been convicted from restrictions and sanctions which express his status as a criminal. The principle is well-known and well-established. Any determination regarding Hanegbi’s unfitness to serve in particular positions necessarily expresses at least a limited presumption of his guilt, and diminishes the presumption of his innocence.

Moreover, respondent claims that it is an elementary human right that a person be allowed to defend himself against an accusation. Respondent claims:

[T]his elementary right, “a person’s lawful right to defend himself,” was effectively denied to Minister Hanegbi due to the decision not to file an indictment or try him. Paradoxically, if petitioner’s claim is accepted, the result will be that this decision was the most damaging of all, because he no longer has the legal means to prove his innocence.

Respondent here confuses two distinct issues, and hence his conclusion is mistaken. A clear distinction must be made between respondent as a private individual, and respondent as a minister. Furthermore, he is not just any minister, but the Minister for Public Security, in charge of law enforcement. The presumption of innocence resembles the right to silence. Both are granted to a person as a private individual. Consequently, as long as a person’s guilt has not been proven beyond all reasonable doubt, and with due legal process, he is presumed to be innocent of any crime, and no penal sanction may be imposed upon him. But there is no connection between criminal proceedings – the object of which is the imposition of sanctions – and a person’s appointment as a public official. Is the mere fact that a person has not been indicted sufficient, in and of itself, to render him “fit” to be a minister? From the legal standpoint, surely more is required? If this is respondent’s view, then it contradicts the law. “The presumption of innocence – enjoyed by every accused person – does not prevent the termination of service of a public official.” See Pinhasi [5], at 468. Following this holding, I declare that, for our purposes, there is no requirement for evidence beyond all reasonable doubt in order to render a person unfit for service as a minister. As noted in Bar-On:

It cannot be stated in an unequivocal manner that a person’s removal from office can only be justified where an indictment has been filed or an investigation has begun.

Id. at 63. Even evidence of less import than that obtained in a criminal investigation may be sufficient. This is even more true in our case, especially when we consider two elements. First, the cumulative effect of the accumulated cases against respondent. Second, the fact that the Prime Minister insists that respondent not only be a minister, but specifically the Minister of Public Security, the minister in charge of the police and law enforcement.

 “Political” Considerations; Intervention in the Prime Minister’s Discretion

41. Until now we have referred to considerations of a person’s “criminal past.” But these are just a small part of the whole picture that the Prime Minister must consider when making a ministerial appointment, or when considering whether to remove a person from office. We all know that a person’s “criminal past” is not the only factor which the Prime Minister is permitted and obligated to consider when deciding whether a particular person will be a minister, or will be removed from office. Furthermore, in the political reality with which all are familiar, these are not even the main considerations. The parameters of the Prime Minister’s discretion are very broad, and take in a wide array of considerations, among them the candidate’s suitability for the office, the best interests of the public in the broad sense, and others.

42. In this question – whether to appoint or dismiss a minister – the Prime Minister is entitled to consider a wide range of factors. Furthermore, the political context of the appointment means that the Prime Minister’s considerations also include “political” considerations such as the formation of a stable and viable coalition. For our purposes, these considerations are entirely legitimate. In fact, these considerations are central to the establishment of a government and its continued existence. In this regard, Justice Barak stated the following:

“Political” considerations – which may be illegitimate in other contexts – are appropriate when considering the removal of a deputy-minister from office. The need to maintain a coalition and to secure the continued confidence of the Knesset is certainly a relevant consideration. Similarly, weight must be given to the fact that the deputy-minister has not been convicted in court. All that there is against him is an indictment, and an indictment does not amount to a conviction.

Pinhasi [5], at 463. See also Deri [47], at 423, 427, 429.

43. The range of reasonableness is as broad as the power itself, and the court’s power to intervene in the Prime Minister’s discretion is limited to the same degree. Accordingly, deciding whether the Prime Minister deviated from the range of reasonableness is particularly difficult. In fact, it is only in rare and exceptional cases that the Court will see fit to intervene in the acts of the executive regarding cabinet appointments.

The breadth of the Prime Minister’s discretion requires our special attention. His power is unique. Compare Bar-On [3], at 57-59. The scope of judicial intervention is inversely related to the scope of the Prime Ministerial discretion; the latter expands as the former contracts. The fact that we do not agree with the Prime Minister’s decision to appoint a particular individual as a minister or to a particular ministry is not enough to strike down the decision. It is not our role, nor is it within our power, to evaluate the merits of a decision. We must confine ourselves to the question of its legality. Accordingly, the Court may only strike down a prime ministerial decision concerning the removal or retention of a minister allegedly involved in criminal acts in unusual and exceptional circumstances.

44. It is certainly conceivable that the Court might be averse to a particular decision of the executive branch. But it is incumbent upon us to make a clear distinction between those acts and omissions which belong to the ethical realm and do not enter the realm of the law, and those that belong to both the ethical and legal realms. The latter are acts and omissions flawed by extreme unreasonableness which may thus be subject to judicial annulment. Particular acts or omissions of the executive branch may be ethically problematic, but the Court will not interfere with them unless they are also illegal. “[T]he law cannot, and should not replace ethics, except to limited extent, on a case-by-case basis, in a controlled and cautious process.” See Bar-On [3], at 62. Hence, where a decision is unethical, but remains a matter of ethics, we are not empowered to intervene. Compare also Itzchak Zamir, Ethics in Politics, 17 Mishpatim 255-58 (1988) [106].

We must remember that the judicial branch is charged exclusively with upholding the law and of those ethical areas that have been incorporated into the law. See Bar-On [3], at 61; HCJ 1635/90 Zersevsky v The Prime Minister [74], at 764; HCJ 1843/93 Pinhasi v. Knesset Israel [10], at 698-99; HCJ 5364/94 Velner v. Chairman of the Israeli Labor Party [75], at 818; HCJ 7367/97 The Movement for Quality Government in Israel v. The Attorney-General [51], at 561.

“It’s Not Done”

45. All the same, it must be remembered that the intensity and the scope of judicial intervention in acts of the executive depends on the executive’s conduct. Ideally, a government is meant to operate in compliance with the principle that “it’s not done.” This is essentially a concept of governmental culture as distinct from a legal concept. What it means is that there are certain things that the executive should not do simply because they are not done, according to the appropriate norms of conduct in society. A person who is act in contravention of these norms is to be condemned. As the scope of “it’s not done” expands, the scope for judicial intervention contracts. Fortunate is the society whose government has internalized the culture of “it’s not done.” Fortunate is the Court that is not required to decide matters relating to the culture of “it’s not done.”

From the General to the Specific

46. This completes our discussion of the basic legal framework. Applying these principles to respondent’s case, we ask ourselves the following question: was his appointment as Minister of Public Security so flawed that it must be regarded as an invalid appointment, or an appointment which should be invalidated? Was the respondent’s appointment as Minister of Public Security so extreme a deviation from the range of reasonableness as to warrant a ruling that, from the legal standpoint, respondent is not worthy of continuing to hold that office?

47. This Court issued an order nisi directing the Prime Minister to explain his reasons for appointing respondent as Minister of Public Security despite the fact that, from a legal standpoint, the appointment was fundamentally flawed. Both the Prime Minister and respondent replied to the order nisi, but the Prime Minister’s response is the crucial one. In our comments above we surveyed the principle factors that should govern the Prime Minister’s discretion when deciding on the appointment of a minister, or on his removal from office. We will now examine the considerations that led the Prime Minister to appoint Hanegbi as Minister of Public Security, and why, in his opinion, Hanegbi is fit to continue serving in that capacity. However, instead of describing and summarizing the Prime Minister’s comments, we will let the Prime Minister speak for himself, and we will simply listen. In his affidavit to the Court, the Prime Minister informed us as follows:

 

16. My decision to appoint Minister Hanegbi to the office of Minister of Public Security was made after I had evaluated all the relevant considerations, including the advice of the Attorney-General and the basis of this advice, as detailed above, and I struck a proper balance among these considerations. Among other factors, I took into account the minister’s many talents, his many years of experience in various demanding public and state offices, the gravity of the role of head of the Ministry of Public Security, as well as other coalition-related considerations, all of which are now detailed.

 

17. Minister Tzahi Hanegbi has served, over a continuous period of many years, in a number of high-ranking and demanding public and governmental offices. These have included: Director-General of the Prime Minister’s Office; Minister of Health; Minister of the Environment; Minister of Transportation; Member of the twelfth through sixteenth Knessets inclusive; Chairman of the Knesset Finance Committee; Member of the Foreign Affairs and Defense Committee; and Member of the Constitution, Law and Justice Committee.

In addition, for a period of approximately three years, between 1996 and 1999, Hanegbi served as Minister of Justice, within which framework he served as a member of the Ministerial Committee for National Security Affairs – the so-called “State Security Cabinet”; as Chairman of the Ministerial Committee for Legislation and Law Enforcement; as Chairman of the Committee for the Selection of Judges; as a member of the Committee for the Selection of Military Judges; and as a member of the Ministerial Committee for Privatization.

Over the last two decades, I have become personally acquainted with the abilities and talents of Minister Hanegbi. In view of Hanegbi’s many professional achievements in all of the offices in which he served as minister, I have chosen him to serve as the Minister of Public Security, an office currently faces unique and extremely important challenges.

Minister Hanegbi has a broad national perspective, which was expressed during his years as Minister of Justice, notwithstanding his investigation during that term regarding the Derech Tzleha affair. He has a wealth of experience in the management of complex ministries; and a broad knowledge in the field of security, which he gained in a variety of public roles, as listed above. It is my belief that all this qualifies him to successfully run the Ministry of Public Security.

In my view, the nature of the position offered to Minister Hanegbi and the particular powers exercised by the Minister of Public Security do not create any significant concern of conflicts of interest which might affect the minister’s conduct or impair his professionalism and the integrity of his discretion when exercising his authority … We need to remember that the Minister of Public Security is not a “supra-Inspector-General” who wields direct control over all matters pertaining to Israel Police, and this is true especially insofar as the Investigations Branch is concerned. The minister’s powers consist of broad powers of supervision, approval, planning, and the provision of guidance where necessary. In discharging his duties it is essential that there be a close and ongoing connection with police bodies. The decisions and actions of the Minister of Public Security are not the product of his personal preferences; they are the product of cautious and calculated discretion, backed up by extensive data provided by the police bodies. With respect to investigations, the minister is not involved in specific cases; his concern is exclusively with matters of policy.

At the time of making the decision, I considered the position of the Attorney-General with respect to the Derech Tzleha affair. The Attorney-General regarded Hanegbi’s appointment as being prima facie problematic from a civic perspective, though from the strictly legal standpoint, according to existing statutes and case law, there appears to be no legal impediment to the appointment.

In this regard, it should be noted that the events relating to Minister Hanegbi occurred between 1994 and the beginning of 1996. When Minister Hanegbi was interrogated, he did not take advantage of his right to silence. Rather he cooperated in full with his investigators. In my view, these facts were significant to the decision not to indict Hanegbi and for public confidence in him.

18. I have taken into account all of the relevant considerations, which include  the qualifications and abilities required of the Minister of Public Security, the Attorney-General’s position, and Minister Hanegbi’s actions in the Derech Tzleha affair and the other affairs, Hanegbi’s capabilities and his experience, as well as political and coalition considerations. After giving these considerations their appropriate weight, it cannot be said that the decision to appoint Hanegbi deviates in an extreme manner from the standard of reasonableness.

48.The Prime Minister thus informs us that he considered Hanegbi’s manifold talents, his many years of experience in demanding public and government offices, and his professional achievements in all of his roles. The Prime Minister expresses his confidence that there is no real concern of a conflict of interest in Hanegbi’s duties as Minister of Public Security, and in this context he also explains that the Minister of Public Security, is not a “supra-Inspector-General.” The Prime Minister also informs us took the Derech Tzleha case into consideration, but he did not find it to be an impediment to Hanegbi’s appointment as Minister of Public Security. As for the concern that Hanegbi will face a conflict of interest as Minister of Public Security, the Prime Minister refers to the numerous statutory supervisory mechanisms, and faithfully assures us that this fear has no basis. Once again, we will let the Prime Minister speak for himself:

21. Regarding the claim of conflicting interests: petitioner is concerned that a possible conflict of interest will arise whenever the promotion of any of Hanegbi’s investigators is on the agenda, when allocating budgets for certain branches or departments, and in relation to the disciplinary powers conferred upon the minister. In this context, it should be mentioned that during the entire period of Hanegbi’s service as Minister of Justice, no claim was ever made which could have substantiated the fear raised by petitioner.

First, it should be made clear that ever since the 1988 Amendment to the Police Ordinance (Amendment No. 9), the Minister of Public Security does not have any powers in matters of disciplinary adjudication.

It should be emphasized that, notwithstanding the minister’s overall ministerial responsibility, which finds expression in various provisions of the Police Ordinance, the Israel Police and those at its helm are managerially independent. This is evidenced both in explicit provisions, such as section 9 of the Ordinance, and on a practical level – in working procedures which express the principle of the independence of the police.

Regarding the appointment process, section 7 of the Police Ordinance establishes and regulates the minister’s power to appoint a senior police officer, i.e. an officer from the rank of deputy commander upwards. The manner of exercising the power is subject to the rules of administrative law, including the duty of consultation with the Inspector-General of the police and additional professional bodies, prior to making the appointment. As a rule, the Inspector-General of the police submits his own candidates to the minister for each particular role; for as head of the system, it is the Inspector-General who has to work with the particular officer who is chosen. Rejection of the Inspector-General’s candidate and appointments that are made against the Inspector-General’s judgment, require weighty considerations, all of which are subject to judicial review in accordance with the principles of administrative law.

Regarding the budgetary issue, section 9 of the Ordinance makes the Inspector-General responsible for all expenditures connected to the administration and operation of the police. Besides this section, the provisions of the Foundations of the Budget Law, establish the responsibility of the Minister of Public Security, like any other minister, for the budget of the ministry over which he is charged. For our purposes, this also includes responsibility for the budgets of auxiliary units – Israel Police and the Prison Services.

The Ministry of Public Security’s Director-General, through the Planning, Budgeting and Inspection Department, is charged with the formulation of the ministry’s budget. Before preparing the budget proposal, the minister and the Inspector-General determine the priorities and policies for the coming year. They work closely together on this task. On the basis of these policies, the budget proposal is prepared by the planning division in coordination with the various police departments. The budget proposal is then presented for the approval of the Inspector-General, the Director-General and the minister.

Like the Director-General and the Inspector-General, the minister does not interfere with the budget’s particulars. Their role is to assess whether the budget proposal that was prepared in fact expresses the policies and the priorities determined by them.

Once the budgetary framework for each department has been fixed, the head of each police branch is responsible for the allocation of the budget within his branch, and within its auxiliary and subordinate units, down to the level of the individual police station and the individual policeman. In this respect, the head of a police branch has independent discretion.

The coordination required between the Inspector-General and the minister at the level of policy and priorities, together with the independent discretion of the police in budgetary details, remove any basis for concerns of conflicts of interest, or inappropriate considerations.

Therefore, there exists an array of internal mechanisms governing all matters relating to the minister’s functions. Respondents wish to reiterate that with respect to investigations, the Minister of Public Security deals exclusively with matters of policy, and does not interfere with specific investigations.

49. Hangebi also made various declarations similar to those of the Prime Minister and, like the Prime Minister, he stresses that his role is to set out policy. He does not regard himself as authorized to interfere with the decisions of the police taken at the professional level. In the words of his affidavit:

The internal management of the Israel Police and its head [the Inspector-General] is totally independent of the Minister of Public Security has ministerial responsibility for the police, but he is not a “supra-Inspector-General”; he has no disciplinary powers of adjudication, and no power to intervene in particular investigations. The police budget proposal is drawn up by the planning division in cooperation and coordination with headquarters and the budget division of the Finance Ministry. In addition to the minister’s approval, the ministry budget also requires the approval of the Finance Committee and the Knesset.

50. Respondents’ claims – both those of the Prime Minister and of Hanegbi himself – aim to minimize  respondent’s authority as the Minister of Public Security as much as possible. In support of their position they cite the lack of authority for disciplinary adjudication, the Inspector-General’s independence with respect to the management of the police, the fact that ministerial powers are subject to consultation, consideration of the views of the Inspector-General and other professional bodies, and the extreme difficulty of making any appointment without the Inspector-General’s consent. Regarding the budget, the planning division handles its preparation, with the cooperation of the other police departments; the Inspector-General is responsible for supervision of expenditure; and he does not intervene in the details of the budget. On the policy level, there must be coordination between the minister and the Inspector-General. Regarding investigations, the minister deals exclusively with determinations of policy. These claims attempt to demonstrate that there is no fear that the minister will act illegally.

Hanegbi further informed us that he bears no grudge against those police officers who investigated him, and that he has no intention of impeding their promotion or harming them in any other way. In his own words:

 

The concern that I might interfere with the appointment of one of my investigators, impede his advancement, or plot against him, is spurious. I have made it clear on more than one occasion, including to my investigators themselves, that I have no complaints about them, and that I respect their duty to fully investigate every case. This is certainly true since the Attorney-General instructed the police to open an investigation. Moreover, my investigators treated me in a sensitive and respectful manner.

51. Do the Prime Minister’s words, reinforced by Hanegbi’s own comments, place Hanegbi’s appointment as Minister of Public Security within the legal range of reasonableness? Do Hanegbi’s virtues, combined with his accumulated achievements in public office, tip the scale in his favor? When assessing pros and cons, duties and responsibilities, we must remember that the scope of discretion here is particularly broad, comprising a wide range of legitimate considerations, including “political” considerations, such as the candidate’s electoral power and the ability to put together a coalition and establish a government. In Bar-On [3] we stated:

Petitioner claims that the Justice Minister’s “was found to have behaved in contravention of the standards of proper public administration by applying defective criteria which violate the principles of integrity.” Petitioner claims that “a minister may have no blot on his character,” especially the Minister of Justice. Petitioner concludes, therefore, that since the Minister of Justice is tainted, the Prime Minister is obligated to remove him from office.

Without deciding whether petitioner’s presentation reflects the desirable law, it is definitely an incorrect presentation of the existing law. In our less-than-ideal world, the mere fact that a minister’s record is blemished is not sufficient to legally obligate the Prime Minster to remove him from office. The Prime Minister is only obligated to dismiss a minister, under section 35(b) of Basic Law: The Government, when his refusal to do so would be unreasonable in the extreme.

Id. at 57 (Zamir, J.). Evidently, a blemished record is not sufficient in this case. The blemish must be serious, perhaps even a permanent stain, in order to obligate the Prime Minister to refrain from appointing a minister or to remove a minister from office. Personally, I am not certain I can give my unreserved agreement to this formulation. “A respected scholar whose cloak is stained – is liable to the death penalty.” Babylonian Talmud, Tractate Shabbat 114A [108]. A minister must be above reproach. In this context we should recall that not just a conviction, or a pending indictment, but also less severe circumstances may obligate the Prime Minister to refrain from appointing that person as a minister, or to remove a minister from office. See para. 22 above.

52.The Prime Minister’s affidavit (and also Hanegbi’s) contains a lengthy description of Hanegbi’s virtues and merits, and only relates sparingly to his faults and failures. Regarding the Derech Tzleha case, the Prime Minister informs us as follows:

15. As indicated in the Attorney-General’s opinion of 2001, which is appended in full to this affidavit, the events at the basis of the Derech Tzleha case, occurred between 1994 and 1996. In 1999, the Knesset Ethics Committee found Hanegbi to be at fault, and he was punished. The Attorney-General claimed that these acts indicated impropriety, which according to those concerned, constituted an offense. At the end of the day, the decision was made that there was no reasonable chance of conviction, and it was decided to close the file for lack of evidence. Notably, the entire investigation was conducted at a time when Hanegbi was serving as Minister of Justice.

In March 2001, immediately prior to the formation of the government (following the elections of February 2001), the Attorney-General informed the Prime Minister of Minister Hanegbi’s involvement in the Derech Tzleha case. He advised the Prime Minister, for reasons primarily from a civic perspective, not to appoint Hanegbi to any of the ministries dealing with law enforcement. The reason for this was that the file had been closed relatively recently. At that time, I did not appoint Minister Hanegbi to one of these offices.

This time around, immediately after being informed, post factum, of the decision to appoint Hanegbi as the Minister of Public Security, the Attorney-General appraised Dov Weisglas, Director-General of the Prime Minister’s Office, of his position regarding the appointment. The Attorney-General said that while strictly speaking there was no legal impediment to the appointment, it was nonetheless problematic, prima facie, from a civic perspective. The Attorney-General also discussed the matter with Minister Hanegbi, and heard his position that there were no grounds for blocking the appointment, since the closure of the file for lack of evidence had prevented him from proving his innocence. He further stressed that the Minister of Public Security is not responsible for specific investigations and does not interfere with them.

It should be clarified here that, it is part of the role of the Attorney-General to express his opinion about governmental deliberations, orally or in writing, regarding public ethical issues, including non-legal matters. It is then up to the executive branch to take this position into consideration.

The other three affairs are only mentioned in the Prime Minister’s affidavit, in the context of an assortment of legally related claims. One can only wonder, is a police recommendation to indict a minister a regular every-day situation? Does the Attorney-General make a habit of writing long and detailed opinions regarding his decision not to indict a minister? It would have been appropriate for the Prime Minister to elaborate and explain his decision to ignore the Attorney-General’s recommendation, just as he elaborated on Hanegbi’s talents and merits. Ultimately, this matter is not a formal legal issue. Rather it is a matter of basics principles, running deep to the very foundations of our self-image. Our way of life as individuals and as a society depends on such a decision.

53. All agree that the realm of politics differs from the realm of law. The considerations may be the same in each realm, but the weight given to these considerations. “We accept that the Court should be guided by the formula of what is ”just and efficienct,” except that justice must precede efficiency.” See CA 4012/96 Benny Shachaf Freights and Investments (1976) Ltd v. First International Bank of Israel [76], at 505; CA 3602/97 Income Tax and Property Tax Commissioner, Minister of Finance, State of Israel v. Daniel Shachar [77], at 331-32. This principle holds in the realm of law, but not in the realm of politics. This is clearly evidenced in the Prime Minister’s affidavit, which elaborates on the appointment, while devoting minimal attention to the principle of justice in its broader sense. Here we must add that a person’s efficiency and his broad experience in government service are certainly valid and appropriate considerations. However, they do not necessarily tip the scales when weighed against serious considerations concerning improper actions on a public-ethical level. The Court made this point in Bus 300 [72]:

Where there is a clear and direct connection between past offenses committed by the candidate, and the post he is designated to fill, the conclusion may be that his criminal past renders him absolutely unfit for that particular position. Under these circumstances, considerations that might have been regarded as supporting his appointment had he been a candidate for another position (for example the passage of time since the execution of the offense, his regret, his efficient functioning since the offense, and his professional talents) will be of no avail, and his candidacy will be rejected. In determining whether such a connection exists, the considerations cannot be limited to the essence of the offenses and their circumstances, the position in which he committed the offenses and the position now designated for him. Consideration must also be given to the gravity of the moral blemish of the offense. In other words, a connection which renders a candidate unfit is not only a function of the weight ascribed to his criminal past in assessing his professional ability to serve in the new position, but also of his moral stature in respect to the position. Where a close connection exists between the candidate’s criminal past and the position for which he is a candidate, his candidacy should be disqualified, unless there is a real and pressing state of emergency that necessitates his appointment as a uniquely qualified candidate.

See also HCJ 7279/98 MK Sarid v. The Government of Israel [78], at 762.

54. I confess that respondent’s case bothers me deeply. I cannot agree with the Prime Minister and the Attorney-General, and certainly not with respondent, that the matter is clear from a legal standpoint. I cannot agree that judicial intervention in the Prime Minister’s decision is forbidden by law. At the same time, even if our intervention is permitted, we will not rush to instruct the Prime Minister what to do and what not to do. During these proceedings it has been mentioned on a number of occasions that a “cloud” hovers over respondent’s appointment as Minister of Public Security. But a single cloud is insufficient to strike down a person’s appointment as minister. A gathering of many dark and threatening clouds is necessary. 

55. Are there dark clouds gathered over respondent? Regarding his manifold and proven executive talents, as manifested by his years in the public service, I have no quarrel with the Prime Minister. The Prime Minister believes that respondent has proven himself as an effective executive figure. Petitioner did not contest this assertion, and we too can accept it. This assessment, however, relates only to his executive capabilities; it does not reflect the ethical problems with respondent’s actions, which we dealt with at length above. When assessing the undisputed acts of respondent, even if the Attorney-General does not consider them sufficient for a criminal conviction, I have difficulty in agreeing with my colleague, Justice Rivlin, that there is absolutely no justification for interfering with the Prime Minister’s discretion. We can accept the Attorney-General’s determination that there was insufficient evidence in the police file for a conviction in court, but we have difficulty in accepting that there is no hard and convincing administrative evidence for the purposes of this case. In this context, it is appropriate for us to recall comments made in Eisenberg [6]:

 

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 (such as murder, robbery, or rape) but also the foundations of government structure (such as bribery, fraud and breach of trust, perjury, fabricating evidence, or 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 which 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.

 

Id. at 266.

 

56. This is the general rule guiding the judicial assessment of respondent’s actions. And it is even more true when applied to the complex relationship between respondent and the police. In this respect, we should recall the police investigations that led to the recommendations to indict him.

 

The cases against respondent, and their cumulative weight in particular, enjoin us from ignoring the “critical mass” that was created by the Derech Tzleha affair, which came to light after the Bar-On case was closed. Even if we ignore the first affair (the brawling), the cumulative weight of the other three cases, and especially the last two, removes the question of respondent’s appointment from the realm of ethics and public morality, and places it squarely in the realm of law. There exist considerations which may necessitate the termination of a minister’s service in the government, such as the stature of the government and its public image, public confidence in the government, and the need for the government and the administration to conduct itself in a manner which is honorable, fair and worthy of respect. The more we examine these cases, the harder it is to understand how respondent can function as Minister of Public Security. In making these comments we also take into consideration the gradual deterioration of the standards of conduct of public figures and leaders, a decline that has led to desensitization and the lowering of national standards of public morality.

57.We are also witness to a conflict between considerations of efficiency and executive abilities on the one hand, and the morality of respondent’s actions, his stature and his dealings with the police, on the other hand. Which of these considerations outweighs the others? Is there a possibility for some kind of compromise between the conflicting considerations? We should remember that the Court is not empowered to decide; that role belongs to others. The Court’s role rather is to supervise and review compliance with principles of law and justice.

 

58. As for the judicial evaluation of respondent’s actions, we will not add any further explanations of the affairs. We will concentrate primarily on the relations between respondent and the upper echelons of Israel Police, particularly with the Investigations Branch. As noted above, the police investigated respondent and, on more than one occasion, recommended that he be indicted. Respondent informs us that he bears no grudge against the investigators. Regarding the future, respondent adds that all of his actions will be closely watched, and that there will be no abatement of public scrutiny. Respondent declares in his affidavit:

 

In the event that any of my future actions provide any substantial concern regarding a conflict of interest or the involvement of extraneous considerations in my decisions, I am absolutely certain that the doors of this Court will be open to petitioners. My actions will be the test. I see no reason for discussing hypothetical and far-fetched possibilities at this time. We will cross each bridge as we come to it. From that perspective, the petition is premature and theoretical, and should be dismissed.

 

This is a fine declaration, and it is correct, on the whole. Nevertheless, the fact remains that respondent was until recently the subject of a police investigation, in which evidence was collected, and which culminated in the investigators’ recommendation to indict him for offenses involving moral turpitude. This being the case, we cannot agree that he should now be placed in charge of the police, including his investigators and their superiors. Presumably, police investigators are uncomfortable when requested to investigate a minister suspected of committing an offense, whether by act or omission. I need not explain why. However, the entire matter becomes surreal when the subject of the investigation, shortly after the investigators recommend his indictment, becomes their superior. Yesterday, the investigator sat in the director’s chair, interrogating the minister. Today, the former suspect sits in the director’s chair and the interrogator is subordinate. My colleague, Justice Rivlin referred to the “bounds of deference” that inform the relationship between the authorities. I would sooner talk in terms of human dignity. Does not this role reversal, where the suspect has so soon become the boss and the investigator his subordinate, thoughtlessly trample on the dignity that should inform the relationship between people? Both the investigator and the suspect are human beings. Should we deal such a blow to the dignity of the police investigator?

59. In the Derech Tzleha affair, the police investigation culminated in 1999 in a recommendation to indict respondent. At the beginning of 2000, the prosecution, headed by the Attorney-General, decided to indict respondent for a number of offenses, subject to a preliminary hearing (see para. 11 above). The preliminary hearing was conducted in September 2000. While justifying the investigation, the Attorney-General decided in March 2001 against an indictment, given that there was no reasonable chance of conviction. The Bar-On affair occurred in January through April 1997, with the judgments on the petitions that challenged the Attorney-General’s decision being handed down in June 1997. In addition to these two cases, we should also mention the ISTA case, which was closed in 1992. Parenthetically, it could be said that a person who holds himself up as a trustee – and ministers all have this status, as we have seen – should voluntarily declare himself unfit to act as the superior of those who recently investigated him for criminal offenses. All the more so in light of the fact that the investigators recommended that he be indicted. After all, human beings are not angels.

60. The conflict of interest between respondent and the higher echelons of Israel Police, particularly the upper ranks of the Investigations Branch, cannot be ignored. The Minister of Public Security is empowered to appoint police officers from the rank of deputy commander upwards (section 7 of the Police Ordinance). The Inspector-General of the Police is appointed by the government, on the recommendation of the Minister of Public Security (section 8A of the Police Ordinance). Of course, the minister’s power in making appointments is subject to particular conditions (as claimed by the Prime Minister): administrative law, hearing the position of the Inspector-General, and others. Still, we find it difficult to accept that these factors alone obviate all concerns regarding conflicts of interest in the relations between respondent and the Police Investigations Branch. In light of all this, we find it difficult to understand how respondent is capable of being unbiased in making senior appointments, promotions of officers, and dismissals in the Investigations Branch.

 

61. Respondent claims that his investigators numbered no more than five or six, and he therefore asks: can he be prevented from serving as Minister of Public Security because of five or six people. There are two answers. First, as we observed, our concern here is not with a conflict of interest alone, but rather with respondent’s behavior in general. Second, and most importantly: indeed there were five or six people who directly interrogated respondent, but what about their superiors? And the superiors of their superiors? Each rank has a rank above it, to which it is answerable and subordinate. We know that respondent was a minister at the time of both the Bar-On and Derech Tzleha investigations. Presumably, his interrogation was authorized by the upper echelons of the Investigations Branch. In other words, the tension between respondent and the police is not confined to only five or six police personnel.

 

62. The Investigations Branch of the Police forms a central part of the Ministry of Public Security and, by definition, the Minister of Public Security is in charge of this branch. We agree that the minister is not personally involved in particular investigations being conducted by the branch. Respondent explicitly declared that he has “no power to intervene in particular investigations.” However, respondent is neither able nor empowered to divest himself of the power to make appointments in the Investigations Branch, and this is the pitfall. On the one hand, respondent is both empowered and obligated to appoint officers in the Investigations Branch. On the other hand, the past relations between the Investigations Branch and respondent make it difficult to accept that respondent is capable of making totally unbiased appointments. The conflict of interest is inescapable. We must add to this equation the considerations, detailed above, which disqualify a person from appointment to a particular office. The combination of all of these leads us to the conclusion that, from a legal standpoint, respondent’s service as Minister of Public Security is inappropriate and unacceptable.

 

63. This conclusion, based on the law and the facts presented to us, was difficult one and, even in writing this judgment, I wavered. For example, it was extremely difficult to weigh the conflicting considerations – efficiency on the one hand and morality on the other – because these considerations are not comparable. Like oil and water – they do not mix. Ultimately I decided that we should be guided by legal principles, which have long been firmly entrenched in our system. The first and most important rule is that the Court will not invalidate an executive-administrative act unless all other alternatives have been exhausted, and there is no other option. Accordingly, where there is a request to render a person unfit for a public office, “the tendency is to initially consider more moderate means, and only to implement the extreme measure as a last option.” See MK Sarid [78], at 758 (Or, J.). The tendency is to “try to limit the use of the extreme measure of disqualification, save as a last resort, if there is no other more moderate way of neutralizing the fear of conflicting interests.” Id. at 762-63. Furthermore:

 

The rule [concerning conflicting interests] should be implemented in a responsible and cautious manner, because to use it recklessly, without the proper balance, may deter talented and capable people from seeking offices that they are qualified to fill, even when there is no serious threat to their honesty and integrity.

 

CA 6983/94 Pachima v. Peretz [55], at 835 (Strasbourg-Cohen, J.). As such, “it is better to eliminate the potential conflict of interest and limit activity or prevent it in a particular area, and not remove a person from office.” Id. at 838.

 

This was also the opinion of Justice Beinisch (whose opinion was the minority view):

 

The mere determination that there is a conflict of interest does not automatically necessitate the person’s removal from office. This solution is the last and most extreme resort, only to be adopted in those cases where the conflict of interest is so intense that there is no other way to prevent it. There are a number of intermediate solutions between removal from office and full service in an office, and the decision should be based on the degree of the conflict, its intensity and its centrality to the role of the public official.

 

Id. at 854. In a similar vein:

 

The picture is not entirely “black and white.” The solution to a conflict of interest is not necessarily disqualification from a particular office. There are a number of other options that can be exercised at different levels, ranging from full service in a particular office to outright disqualification from that office. Removal from office should not be the first solution, but rather the last resort. Prior to disqualifying a person, there must be an assessment whether other less drastic measures might not fulfill the criteria at the basis of the laws against conflicting interests.

 

HCJ 595/89 Shimon v. Appointee of Ministry of the Interior, Southern District [79], at 418 (Barak, J.).

 

In this sense, the Court’s role is to “find the cure that fits the disease,” which each problem having its own solution. See also CA 6763/98 Carmi v. State of Israel [52] (Rivlin, J.).

 

64. It is obvious that this rule has the same basis as other legal principles. The “blue pencil rule,” for example, directs us, wherever possible, to differentiate between the diseased organs and the healthy organs of a body. The same rule applies to law, contracts and all other legal mechanisms. After the differentiation, we proceed to ignore the diseased parts, and emphasize the healthy parts. See HCJ 1715/97 The Israel Association of Investment Managers v. The Minister of Finance [80], at 413-14. This is similar to the legal principle of ut res magis valeat quam pereat, which means that where a text containing a legal norm allows two interpretations, then the interpretation supporting the norm is chosen over the interpretation negating it. See HCJ 288/00 Israel Union for Environmental Defense v. Minister of the Interior [81], at 696-97. These principles are almost self-evident and may also contain elements of natural law. On an abstract level they are all derived from the principle of proportionality, a principle that guides us in all our paths.

 

65. Having considered these principles, I initially thought that the solution to the question at hand lay between two polar opposites. The first is petitioner’s position, which would have respondent disqualified outright. The second is respondents’ position, which maintains respondent is perfectly fit for the office. I thought that the appropriate solution could be a differential one, which means making a rough distinction between Hanegbi’s various activities, the aim being to avoid having to disqualify him from service as Minister of Public Security. I did attempt to differentiate between the activities, but this proved impossible. The different roles of the Minister of Public Security are interdependent, and the various departments of the Ministry of Public Security are closely intertwined. Any separation between the areas would effectively create a new system, which we have no power to establish. There is no escaping the conclusion that respondent cannot properly fulfill the role of Minister of Public Security.

 

66. I would not be doing my job faithfully if I did not now briefly relate to three additional issues which arose during the proceedings.

 

Appointment and Election

 

67. Respondent and the state claim that, by expressing confidence in the government in office, the Knesset also expressed its confidence in respondent, and we must therefore refrain from interfering with the Knesset’s discretion. I cannot accept this claim. First, the Knesset expressed its confidence in the government in general. Second, it is not disputed that the Prime Minister is currently empowered to remove respondent from office without receiving Knesset approval. It is his exercise of that discretion which we review. Consequently, the Knesset is not involved in the case before us.

 

68. In this context we will add that we are not speaking of respondent as an elected Member of the Knesset. We have not been asked to interfere with respondent’s status as an MK, and it is doubtful whether we have any power in that respect. HCJ 7367/97 See The Movement for Quality Government in Israel v. The Attorney-General [51], at 547 which deals with the appointment of MK Pinhasi as the chairman of the Knesset Committee. Our concern here is with respondent’s appointment as Minister of Public Security and not with his status as an elected Member of Knesset. As Minister of Public Security, respondent is subject to the same rules that would apply to a minister who is not a Member of the Knesset.

 

The Difference between the Minister of Public Security and Other Ministers

 

69. Petitioner’s claims focus on respondent’s fitness as Minster of Public Security specifically. It has no issue with him serving in any other ministerial role, except perhaps as Minister of Justice, who is charged with law enforcement, like the Minister of Public Security. My colleague Justice Rivlin takes issue with this proposition. For if indeed respondent is unworthy of serving as Minister of Public Security, how can he serve as a minister in charge of any other area? In the words of my colleague (para. 32 of his opinion):

 

Petitioner focuses on two reasons why Hanegbi should be dismissed. First, the possible damage to public confidence as a result of his appointment as minister in charge of public security and the police. Second, the risk of a conflict of interest in performing certain ministerial duties. As to the first reason, this is not enough to constitute grounds for intervention in the Prime Minister’s decision. We related to this above, and we would only add here that petitioner takes issue specifically with Hanegbi’s appointment as Minister of Public Security. As far as this line of reasoning is concerned, there is nothing to stop Hanegbi from being appointed as a minister in a different ministry – except, perhaps, the Ministry of Justice. This position raises a difficulty. It is hard to imagine that an individual, whose appointment as Minister of Public Security would cause such severe damage to the public’s trust that we must strike down the Prime Minister’s decision to appoint him, would be able to head another ministry – such as the Ministry of Education or the Finance Ministry. It is difficult to accept that an individual who is so patently unfit to serve in a ministry responsible for law enforcement could, without any hindrance, serve in a ministry entrusted with the state’s foreign policy or its security. We thus come to the second part of this petition, the concern regarding a conflict of interest (emphases in the original – M.C.).

 

There are three answers to this question. First, petitioner confined itself to the role of Minister of Public Security because respondent is currently serving in that capacity. Neither this self-imposed limiting of the petition nor our judgment can determine that respondent is able to serve in a different ministerial role. The question was not asked, and as such, we will not rule on it. Second, in our case there is the additional concern of conflicting interests due to the particular relationship between respondent and the police (a point dealt with by my colleague). Finally, according to the principle of proportionality, there must be a correlation between the substance of the claims that render a person unfit for a particular public office, and the office that he actually holds, or for which he is a candidate. Each office is different, and the principle of proportionality obliges us to limit the harm caused to a particular person. A “balance” must be struck between conflicting considerations, and the considerations themselves differ from case to case. According to Eisenberg [6]:

 

[T]he nature of the position to be filled by the public servant will also influence the weight accorded to a criminal past in the filling of the post. A junior position is not comparable to a senior position. A position that does not involve the control, supervision, direction and guidance of others is not comparable with a position involving authority and responsibility for other people and responsibility for discipline. The job of a leader cannot be compared with the jobs of those being led. An office with no special ethical requirements cannot be compared to an office whose essence demands high ethical standards.

Id. at 263. The Minister of Public Security is the minister in charge of law enforcement. As such, comments made regarding the Minister of Justice are also applicable to him:

 

Clearly, there is room for reservations regarding the minister’s conduct, to the extent that it diverges from the norm of appropriate conduct. The public expects that any minister, being a public leader, will provide an example of appropriate conduct. This is especially true in the case of the Minister of Justice, from whom the public expects this kind of conduct. More than any other minister, the Minister of Justice is responsible for the rule of law and the values of the law. In his personality and in his conduct he symbolizes not only the preservation of the law, but also that which is good and honest beyond the letter of the law.

 

Bar-On [3], at 59 (Zamir, J.).

 

Differences of Opinion Regarding the Scope of the Range of Reasonableness

 

70. Respondent has made the following argument: The question here is whether, by refusing to dismiss respondent as Minister of Public Security, the Prime Minister deviated from the range of reasonableness in an extreme manner. Some of the justices on this panel feel that the Prime Minister acted reasonably; at the very least they consider that there was insufficient proof to warrant intervening in his discretion. This view inevitably influences the decisions of other justices. Judicial intervention in the discretion of an authority is only warranted when that discretion is an extreme deviation from the range of reasonableness. If some of the justices maintain that the discretion does not deviate from the range of reasonableness, then how can other justices on the same panel rule that his discretion is an extreme deviation? Under these circumstances the rulings of the other justices could themselves be regarded as unreasonable. Alternatively, it indicates that those rulings based on the judgments of the other justices are unreasonable. Hanegbi claims that this reasoning is not applicable in a criminal procedure. He agrees that where one judge has doubts regarding the guilt of the accused, that doubt should not affect his colleagues on the panel. However, he claims that the rule is different in an administrative procedure.

 

71. I see no reason for distinguishing between a criminal procedure and an administrative procedure. In both, doubt and reasonableness are given over to the individual discretion of each judge, within the bounds of the overall legal context. Administrative law and assessments of reasonableness have often been a source of dispute between judges. See CrimA State of Israel v. Zeguri [82], at 427. Furthermore:

 

Every judge decides individually; and his decision in a trial is the product of his own conviction and his own conscience.

 

Every judge decides individually. The fact that my colleagues on the panel have doubts regarding whether the accused committed the offense of which he is accused does not cause me to have doubts too. It is forbidden for me to doubt solely because my colleagues doubt. My colleague’s doubt is not infectious, and does not pass from one heart to another, from one conscience to another, even if my colleague is greater, wiser, older, or more experienced than me. This is the independence of a judge in its deepest sense, the inner independence of the judge.

 

CrimA 6251/94 Ben-Ari v. State of Israel [83], at 107-8. In the words of the Court, “[e]ach and every judge is a lone knight wandering the plains of law and justice.” See HCJ 3679/94 National Association of Directors and Authorized Signatories of the First International Bank of Israel v. Tel Aviv/Jaffa District Labor Court [84], at 593. It is true that:

 

The judge must always be receptive to the opinions of others, and be prepared to listen to other people. However, the simple fact that another person has a different opinion, however important this dissenter may be, must not affect his own discretion (all subject to explicit legal provisions, such as binding precedents).

 

As Maimonides taught (Laws of the Sanhedrin, 10:1 [109]):

 

A judge in a capital case who rules guilty or not guilty not due to his own reasoning, but because he followed the view of his colleague, has transgressed. Of this the Torah said: Do not respond to grievance by yielding to the majority to pervert the law. From tradition we learn that at the moment of deciding you must not say, it is sufficient that I am like another – rather you must say what you believe.

 

In Conclusion

 

72. In considering Hanegbi’s appointment as Minister of Public security, or his removal from the position, the Prime Minister was presumably confronted with two conflicting categories of considerations. On the one hand: public considerations against the appointment due to the concern that his past would conflict with his role as Public Security Minister and lead to the improper management of the police, and the loss of public confidence in the government. And on the other hand: political considerations relating to the need to establish a stable coalition to support the government and preserve its structure, including respondent’s proven executive talents. The Prime Minister chose the latter considerations over the former, and decided to appoint respondent to the office, and, later on, to allow him to remain in office. In my colleagues’ view, having regard for the political nature of the case before us, the Prime Minister’s decision did not deviate from the legal boundaries of reasonableness. I cannot agree.

When the President charges a Knesset Member with the formation of a government with himself at its head, the Knesset Member will do his best to fulfill that task by forming a stable government that can weather the storms. The consideration of forming a government that will win the Knesset’s confidence becomes a primary consideration for the Prime Minister-elect, after having agreed upon the policies acceptable to prospective coalition partners. Generally, the other relevant considerations play a secondary role in the forming of a government. In other words:

As distinct from public servants, who are subject to the provisions of the State Service Law (Appointments) 1959, a minister and deputy-minister are not appointed to their positions exclusively by virtue of their qualifications, talents and personal virtues. Party and coalition interests form the basis of these appointments.

Deri [47], at 428 (Goldberg, J.). These comments were made regarding the formulation and appointing of the government. Nonetheless, in conducting a judicial review of the final composition, the Court must assess whether the considerations which were secondary in the eyes of the Prime Minister were in fact given appropriate weight. If these considerations were overlooked to a great extent it could render the decision a deviation from the boundaries of discretion. If the Court does not uphold the basic principles of public law and morality, then who will?

73. Under these circumstances, our concern is with the candidate’s moral suitability to be a minister, as well as his relations with the police over whom he has been appointed. Were these considerations given the weight they deserve? We have observed that, in reality, these considerations were allocated but a small part of their deserved weight. We also observed that these factors ought to have been given far more consideration. The unavoidable conclusion is therefore that the Prime Minister’s discretion was fatally flawed.

 

 

74. Judicial invalidation of the Prime Minister’s discretion does not make the Court a “supra-Prime Minister,” as my colleague Justice Rivlin put it. The Court did not attain that status in Deri [47], Pinhasi [5] and Eisenberg [6], and in a not insignificant number of other cases. Striking down a prime ministerial decision falls within the boundaries of legitimate judicial review of the administration’s activities. It is part of the “checks and balances” which exist in a democratic system characterized by the principle of the separation of powers between the authorities. I think that it is our duty, the duty of the Court, especially in these times, to protect the police in general, and the Investigations Branch in particular. This is the reasoning for my conclusion.

 

Epilogue

 

75. Our decision in this case has been far from simple and straightforward. Of this, I am well aware. Yet I could not allow myself to just let things slide, to avert my gaze and pretend nothing has happened.

 

76.            On the basis of the above, I propose to my colleagues that we make the order final, and declare that the Prime Minister is obligated to exercise his power under section 22(b) of Basic Law: The Government, 2001, and remove Minister Tzahi Hanegbi from his position as Minister of Public Security.

 

 

Justice D. Beinisch

 

1. We have been asked to deal with the question of whether the appointment of respondent 3 to the position of Minister of Public Security is so unreasonable as to warrant the Court’s intervention to strike down this decision. This is a very important question. We must be very sensitive when interfering in the decisions of the executive authority and of the Prime Minister, who have been granted broad discretion. The utmost caution and a meticulous examination of the legal issues is necessary in ruling in this petition. This is especially true since this petition concerns the process of forming the government and appointing its ministers.

 

Prior to reaching my own conclusions on the subject, I reviewed the opinions of my colleagues, Justice Rivlin, Vice-President Or and Justice Cheshin. The first opinion deals with the rather broad topic of deference between the authorities. My opinion will deal exclusively with the question the Vice-President posed in his opinion – judicial intervention in the circumstances here. My colleague, Justice Cheshin, thoroughly analyzed the issues raised by the appointment, as well as the normative legal framework, and concluded that the decision to appoint respondent 3 as Minister of Public Security should be struck down due to the fact that it is unreasonable in the extreme. It should be mentioned, at the outset, that I agree with my colleague, Justice Cheshin: under the circumstances and at the present time, respondent’s appointment is not compatible with the rule prohibiting conflicts of interest.

 

2. From a reading of the opinions in this case, it becomes clear that there exists no fundamental dispute as to the nature or quality of the statutory power granted the Prime Minister to appoint ministers and dismiss them, pursuant to Basic Law: The Government. This is also true regarding the extent to which this Court can review this power. The statutory discretion granted to the Prime Minister to fill cabinet posts and remove the occupants of these posts is extremely broad. Our rulings have already established, undisputably, that the factors the Prime minister may consider when deciding whether to appoint or dismiss ministers include political considerations such as the stability of the government and the formation of a viable coalition. These and other political considerations are legitimate, and even essential, in the process of establishing a government and appointing ministers.

 

Accordingly, and in light of the nature of the Prime Minister’s power to appoint and dismiss ministers, it would take a radical deviation from the range of reasonableness for the Court to intervene in these decisions. Having said that, my colleague Justice Rivlin, who emphasizes the limits of intervention and their narrow scope, also notes that:

 

The discretion of the Prime Minister regarding the appointment of a minister is certainly subject to the review of this Court. This applies to any kind of appointment.

 

He further stated that:

 

The powers granted to the Prime Minister to appoint and dismiss ministers serve to improve the government’s image and functioning, and public confidence in it. A radical deviation from the range of reasonableness in the exercise or non-exercise of these powers constitutes grounds for judicial intervention.

 

See paras. 17 and 18 of Judge Rivlin’s ruling. There is obviously nothing innovative about these findings; they merely reflect the precedents set forth by this Court in a number of rulings that deal with judicial intervention to remove ministers. The primary cases are: HCJ 3094/93, 4319/93, 4478/93; HCApp 4409/93 The Movement for Quality Government in Israel v. The Government of Israel [Deri [47]]; HCJ 4267/93, 4287/93, 4634/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel [Pinhasi [5]]; HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel [Bar-On [3]].

 

We also agree that the question is not whether the Court feels comfortable with the Prime Minister’s appointment of a certain person to a specific post. Such a question does not constitute a cause for judicial review. It is not the Court’s role to examine the wisdom of the appointment, the suitability of the person for the post, or his likelihood of success. These considerations are entrusted to the elected Prime Minister, and it is up to the Knesset and the voter to redress such decisions. Therefore, we will act with much caution and restraint when considering the disqualification of an appointment. Disqualification can only be justified in exceptional and extraordinary circumstances, where there was a legal defect either in the appointment process or the appointment itself. This defect must be at the core of the administrative discretion afforded to the authority, no matter how broad his powers may be.

 

My colleagues, each in their own way, have laid out the factual details of this petition. This mainly concerns the criminal affairs in which Hanegbi has been involved as a suspect or subject of investigation despite the fact that, at the end of the day, he was not tried concerning these affairs. So, too, my colleagues have already discussed the normative framework in which the Prime Minister exercises his power to appoint ministers or to remove them from their posts, as well as the grounds which would enable this Court to exercise judicial review. Therefore, I will refrain from expanding on these matters and will instead limit myself to a discussion of the flaw which I see in the appointment here.

 

3. The petition is based on two principal claims. The first claim is that Hanegbi is not fit to act as Minister of Public Security due to his involvement in a number of criminal affairs, the latest and most central being the so-called Derech Tzleha affair. In a previous petition filed by petitioner – Bar-On [3] – it was already determined that that there was nothing in the first three affairs to render respondent unfit for the post held by him at the time – that of Minister of Justice. This includes the affair in which Bar-On was appointed to the position of Attorney-General. Petitioner now claims that the latest affair, which concerns Hanegbi’s involvement in the Derech Tzleha organization, when added to the previous affairs, tips the balance and renders him unfit to serve as Minister of Public Security.

 

The other grounds for the intervention of the Court, according to petitioner, are that the appointment of respondent as Minister of Public Security contravenes the rule against conflicts of interest. As a result, petitioner asserts he is not fit for the office.

 

4. As to petitioner’s first claim, regarding the criminal affairs Hanegbi was allegedly involved in, or investigated about, I take issue with those who feel this is insufficient to warrant judicial review of the decision to appoint him as Minister of Public Security.

 

I agree with my colleague Justice Cheshin, that one must distinguish between the presumption of innocence to which a person who has neither been tried nor convicted of a crime is entitled, and the question of whether he is suited for public office in light of such allegations. I also agree that, in appointing someone to public office, the authorities are permitted and even required to take into account a person’s “criminal past” based on administrative evidence. It should not be said that this decision rests solely on whether the public prosecutor’s office filed an indictment. The discretionary power exercised by the public prosecutor’s office when deciding whether or not to indict someone serves a different purpose than that exercised to prevent an appointment or remove a person from public office. See HCJ 6163/92, 6177/92 Eisenberg v. The Minister of Housing and Construction [6], at 268; Pinhasi [5], at 467-69.

 

This Court has already determined that there are no hard and fast rules pertaining to when it is appropriate to bar a person from public office. On one hand, it would be erroneous to hold that an indictment automatically renders a person unfit for such a post. At the same time, however, the lack of an indictment is not the hallmark of fitness. There are a host of factors which must be taken into account when considering disqualification. These include the type of office, the type of misconduct attributed to the official, how strongly such behavior reflects on the person’s fitness, and the strength of the evidence for the alleged wrongdoing. See Bar-On [3], at 62-63 (Zamir, J.).

 

We must take into account that the other criminal affairs in which Hanegbi was allegedly involved, as well as the impact these affairs on his role as Minister of Justice, have already been examined by this Court in Bar-On [3]. The Court expressed its opinion on the issue, and did not see fit to interfere with Hanegbi’s tenure as Minister of Justice.

 

As to the Derech Tzleha affair, this should not be viewed as my colleague Justice Rivlin sees it, as yet another chapter in the affair that was already judged by this Court in Bar-On [3]. This affair involved an extensive investigation. From the outset, the police recommended the indictment of respondent, and even the Attorney-General was in favor of this after an initial examination of the evidence. The evidence was then once again examined by the Attorney-General himself, as well as by a contingent of attorneys. It is apparent from the report that the evidence was repeatedly inspected with great thoroughness. At the end of the day, however, the evidence was not deemed sufficient to indict respondent. The close examination of the evidence, as detailed in the Attorney-General’s report, and the high professional caliber of those who performed the examination, begs the conclusion that there is no evidentiary basis for the criminal involvement of respondent in this affair. Under the circumstances, and after having examined the opinion of the Attorney-General and the decision of the Knesset Ethics Committee, I have not been convinced that the factual basis presented to me is sufficiently grave as to render respondent unfit to serve as Minister of Public Security. It is true that the largely undisputed facts, which are apparent in the opinions of the Attorney-General and the Knesset Ethics Committee, indicate unethical behavior by respondent. Nevertheless, I do not believe that, based on the Derech Tzleha affair, the decision to appoint respondent 3 as Minister of Public Security is extremely unreasonable on the legal level.

 

5. The petition’s second claim troubled me. According to this claim, following the investigation in the Derech Tzleha affair, there exists a conflict of interest between respondent’s ability to fulfill his position as Minister of Public Security, charged with the public interest in the investigative field, and his relationship with the Investigations Branch of the police. After much deliberation, I have arrived at the conclusion that respondents did not supply a satisfactory answer to why this does not constitute a conflict of interest.

 

First, it must be stated that respondents did not convince us that petitioner’s claim should not be classified as a conflict of interest. The rule prohibiting conflicts of interest is predicated on the principle that a person in a public role should avoid the “prejudice” or “bias” which results from the conflict between the faithful execution of his public duties and an interest of his own. There is a substantive and foreseeable a priori concern regarding the existence of an extraneous consideration and this concern falls under the rule prohibiting conflicts of interest. If such a concern exists on the basis of objective criteria, respondent need not actually be put to the test in order to determine if an actual conflict of interest exists. For a comprehensive discussion of this subject, see HCJ 531/79 The Likud Faction of the Petach Tikva Municipality v. The City Council of Petach Tikva [53], at 569-76; see also CA 6983/94 Pachima v. Peretz [55], at 835-36.

 

In his affidavit, the Prime Minister expanded at length on respondent’s fitness for senior and demanding public offices. He emphasized his vast experience in the administration of complex departments and the “broad knowledge of the field of security.” All of these qualify respondent 3, in the Prime Minister’s opinion, to “lead the Ministry of Public Security in the best possible manner.” The Prime Minister’s statement focuses a considerable amount of attention on Hanegbi’s organizational skills and his ability to cope with the security roles entrusted to the Ministry of Public Security. All these considerations are part of the Prime Minister’s discretion and it is not our place to interfere with them. Nonetheless, the Minister of Public Security is responsible to the public on behalf of the government concerning all aspects of Israel Police; security operations constitute only one facet of this post, albeit an important one, especially nowadays. It is well-known that the Israel Police is also empowered to carry out investigations and to enforce the law in Israel. In this respect, petitioner claims that respondent 3 is liable to find himself in a conflict of interest when placed in charge of the very people who investigated him not so long ago in the Derech Tzleha affair and who recommended that he be brought to trial. Respondents countered this by pointing out that the minister is not a “supra-Inspector-General,” “with direct control or authority over everything that happens in the Israel Police, and this is especially true regarding everything that occurs in its Investigations Branch.”

 

It is true that the minister is not in charge of individual police investigations and is not even involved in them. He is also not a “supra-Inspector-General,” as respondents maintain. Yet the import, stature, and influence of the minister on the structure of the police and its budget should not be ignored. After all, the minister is responsible for setting the working priorities of the police and, most importantly, for the appointment and dismissal of senior officers. According to the Police Ordinance (New Version), the minister is in charge of appointing every senior police officer from the rank of deputy commander upwards. Accordingly, the minister appoints the senior officers of the Investigations Branch, including the head of this branch, and he also has the power to fire them. He is also responsible for recommending who should fill the office of Inspector-General. Indeed, respondents are correct in their assertion that a duty of consultation applies to the minister pursuant to the rules of administrative law, prior to deciding who will fill the senior ranks of the Investigations Branch. However, this duty is not sufficient, by itself, to negate the existence of a conflict of interest.

 

As part of his role as Minister of Public Security, it is necessary for respondent 3 to set police policy, including policy for the Investigations Branch, and it is in his power to influence the stature of this branch, its standards, and its work assignments. Yet, only a short while ago he himself was the subject of a series of investigations which, despite being essential and permitted by the law, were substantially damaging for him. It should be recalled that, at the conclusion of the previous two investigations, the Investigations Branch recommended that respondent be indicted.

 

To this, we note that the the situation in which the senior officers involved in the investigation of respondent find themselves in. Even though there is no doubt these people have no personal grudge against respondent, since they were merely doing their job, respondent still has significant powers to decide their fate and influence their rank and place in the police hierarchy. How will this conflict affect their trust in respondent’s decisions, and how will he exercise the hierarchical authority he wields over them?

 

This is not to infer that we believe that respondent seeks vengeance against his interrogators. Not in the least. He has declared that this is not the case and I am willing to assume that he will make every effort to ignore his personal feelings. However, an actual conflict of interest exists when there a near certainty of “prejudice” or “bias,” even “unintentionally and unknowingly.” As stated by Justice Cohen:

 

We will state at once that we have not had even a shred of evidence presented to us that would cause us or petitioner to have even the slightest doubt as to whether respondent has not or will not carry out his role of Chairman of the Appeals Committee in absolute good faith and objectivity, to the best of his knowledge and capabilities. Even according to petitioner, there is no requirement that the “corrupt viewpoint” or bias actually exist or be proven. The claim is that even though these do not actually exist, “a reasonable person would consider that, under the circumstances, there exists a real possibility of bias or prejudice.”

 

HCJ 279/60 Gil Theaters v. Ya’ari [85], at 675-76. Furthermore:  

 

When we apply the term bias, this should not be taken to mean that respondent will knowingly or intentionally favor a certain side. When we talk of a corrupt viewpoint, this should not be misconstrued as implying that respondent’s viewpoint has been corrupted through the accepting of actual bribes. The intention is that bias, by its very nature, is inevitable or probable, even if it is not willful or intentional, since every person favors his own interests.

 

Likud Faction [53], at 570.

6. I am aware that the rule prohibiting conflicts of interest should be interpreted with prudence and moderation. I can accept that, just because a person has been investigated, this should not necessarily prevent him from subsequently serving as the minister in charge of the Investigations Branch. Yet in the case of respondent 3 we are not talking about events that occurred in the dim and distant past. Respondent’s encounter with the Investigations Branch ended only in June 1999, at which point it was recommended to the prosecuting authorities to indict him. This case was only closed in March 2001. The investigation of respondent by officers of the Investigations Branch has not yet been relegated to the history books of the Israel Police. Respondent also possesses no small amount of prior experience with the investigators of the Investigations Branch. Can it be said that he is so divorced from the past that he would be capable of fulfilling his post with complete objectivity? According to the rule prohibiting conflicts of interest, a person should not be placed in a situation in which he is liable to be influenced by extraneous considerations in the line of duty.

 

I would also like to add that we have already noted that the rule against conflicts of interest will not necessarily bring about a person’s disqualification from a post, provided that less drastic means can be found to circumvent the specific problem. There is a tendency to utilize such extreme measures only as a last resort, when there is no other way to neutralize the concern about a conflict of interest. As I mentioned elsewhere:

 

The mere determination that there is a conflict of interest does not automatically necessitate removal from office. This solution is the last and most extreme resort, only to be adopted in those cases where the conflict of interest is so intense that there is no other way to prevent it. There are a number of intermediary solutions between removal and full service in an office, and the decision should be based on the degree of the conflict, its intensity, and its centrality to the role of the public official.

 

In general, conflicts of interests can only be isolated when they appear in an institutional setting, in which it is possible to pinpoint where the interests overlap and to prevent this. Indeed, it is possible to neutralize a conflict of interest even when the conflicting interest is personal. For this to be the case, however, the public servant’s interest must be one that can be avoided or which can be isolated from those areas of overlap with his public role.

 

Pachima [55], at 854.

In light of the above, I, like my colleague, Justice Cheshin, considered the possibility of keeping respondent 3 in his post as Minister of Public Security, while eliminating the conflict of interest. Had respondents shown me such a way, it is possible I would have avoided the decision that Hanegbi is unfit to continue as Minister of Public Security. In its place, I may have considered it sufficient to merely ban him from serving in ministerial roles pertaining to the Investigations Branch, in a manner that would ensure there were no conflicts of interest. However, no such solution was presented to me. Moreover, as stated above, it is difficult to find such a solution. The Minister of Public Security’s powers over the Investigations Branch are, in part, statutory; an example of this is his authority to appoint the upper echelon of police officers. The investigations system is an integral part of the Israel Police, and the minister is in charge of setting general policy, priorities, and budget for the police. In light of this, to take away the control of investigative matters from the Minister of Public Security is liable to be harmful both to the minister and to his general ability to function in his role. It seems difficult, therefore, to separate him from these issues so long as he is an acting minister. In any event, such a course would apparently require a shift in the division of the labor and the intra-governmental responsibilities of ministers. This is something we will refrain from interfering with.

 

It should be noted that, in the main arguments of respondent 3, he reiterated that the claim of a conflict of interest should be rejected. At the conclusion of his argument, in para. 20.12., he stated: “[e]ven if there does exist a conflict of interest, there are much less drastic ways of neutralizing it and these should be preferred.” Despite searching, I could not find what alternative means were being referred to here which would properly address the problem of the conflict of interest. Had my colleagues shared in my opinion, there may conceivably have been room to ask respondent 3 to set forth arguments regarding this issue, and to propose a solution which would neutralize the conflict of interest without the need to remove him from his office. As long as no such solution is found, I feel that there is no way to avoid removing Hanegbi from his office as Minister of Public Security.

Justice E. Mazza

Like my colleagues Justice Rivlin and Vice-President Or, I feel that petitioner did not present us with a clear justification for intervening in the Prime Minister’s decision to appoint respondent 3 to the office of Minister of Justice. Based on their well explained and properly detailed reasons – in most of which, if not all, I concur – I hereby join them in concluding that this petition should be denied.                               

Justice Y. Türkel

1. In my opinion, the petition should be denied. I concur with the opinion of my esteemed colleague, Justice Rivlin, who laid out the appropriate reasoning. I also concur with the reasons laid out by my esteemed colleague, Vice-President Or. In my opinion, it would have been sufficient to predicate the denial of this petition on two grounds:

a) The first ground is that approximately six years ago this Court, in a panel of five Justices, dealt with a petition requesting that respondent be removed from his post as Minister of Justice. It decided, by a majority of four, to reject the petition without granting an order nisi. See HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel [3], at 46. That petition concerned three out of the four affairs raised by the petition here – the “brawling affair,” the “ISTA affair,” and the “Bar-On affair” – and it dealt with the fundamental questions currently under discussion. In that petition, the Court found no adequate reason to remove respondent 3 from his post. The only new factor here is the fourth affair – the “Derech Tzleha affair” – and the appointment of respondent to the post of Minister of Public Security. I believe that this fourth affair, per se, and even in conjunction with the previous affairs, does not amount to a justification for respondent’s removal from office. It should also be mentioned that the distinction that petitioner draws between the office of the Minister of Justice and the office of the Minister of Public Security is, unfortunately, erroneous.

 

b) There is a midrash in the Talmud that can shed light on the second reason, which is more at the heart of the dispute than the first one. This midrash states that no appointments to high offices can be made unless the public is consulted first. This midrash is based on the two biblical verses: “And the Lord spoke unto Moses saying: See, I have called by name Bezalel the son of Uri, the son of Hur, of the tribe of Judah.” (Exodus 31:2) [110], and “And Moses said unto the children of Israel: See, the Lord hath called by name Bezalel the son of Uri” (Exodus, 35:30) [110].

 

Said Rabbi Isaac: A public appointment is not made without first consulting the public, in accordance with the text: “See, the Lord hath called by name.”

 

Said the Holy One, Blessed be He, to Moses: Moses! Is Bezalel acceptable to you? He answered: Lord of the Universe! If he is acceptable to Thee, all the more so to me! The Lord replied: Even so, go and tell the Israelites. He went and asked the Israelites: Is Bezalel acceptable to you? They answered him: Moses, our teacher! If he is acceptable to the Almighty and to you, he is certainly acceptable to us!

 

Babylonian Talmud, Tractate Berakhot 55a [111]. On the requirement to consult with the public, see also Shulkhan Arukh, Choshen Hamishpat, 3:4 [112]; Arukh Hashulkhan, Choshen Hamishpat, 3:8 [113]; Ribash, Responsa 271 [114]; Rabbi A.Y. Kook, Be’er Eliyahu, commentary on the Biur HaGra [115], as well as other sources. See also my comments in HCJ 6499/99 The National Religious Party v. Rabbi Shlomo Ben-Ezra [86], at 624.

 

It seems, therefore, that no appointment could be made unless the public was consulted, despite the fact that both the Lord and Moses expressed their views about the appointment. Regarding the removal of officials who have been the subject of defamation, compare Exodus 18:21 [110]; Babylonian Talmud, Tractate Sanhedrin 7b [116]; Maimonides, Laws of Temple Vessels, 4:21 [117]; Maimonides Reponsa, Chapter 111 [118]; Shulkhan Arukh, Chosen Hamishpat, 53:25 [119]; Zaken Abraham Responsa, Yoreh Deah, 30 [120].

 

Respondent 3 was elected to the first slot in his party’s primary elections. He placed third on his party’s list for the elections to the Knesset, and was nominated by the Prime Minister to serve as Minister of Public Security. This appointment was ratified by the Knesset. Therefore, “consultation” with the public did occur and the public had its say. Is our power greater than that of the people? I believe that we can overrule the choice of the people, as expressed through elections to the Knesset, only in rare and extraordinary circumstances. Save with respect to the legality of the appointment, it is not our place, but the public’s, to take issue with the wisdom and ethics of the administrative authority making the appointment. This is not to say that I wish to detract from the Court’s power to speak its mind on issues of ethics and morality. See Bar-On [3], at 61-64 (Zamir, J.). Sometimes it is appropriate that it should do so. But the proposal to expand the rule so that respondent 3’s conduct, as discussed in that case, would “obligate the Prime Minister to remove a minister or deputy-minister from his post, though well-intentioned, would be improper and likely to cause more harm than good.” Id. at 64. There is much to be said for the view that the morals and

 

character of public representatives should be subject to painstaking scrutiny. But in the world in which we live, this goal is unattainable.

 

  1. Therefore, the petition should be denied.

 

 

Justice D. Dorner

I agree with the rulings of my colleagues, Justice Rivlin and Vice-President Or, who hold the petition should be denied. I wish to add three comments to the rulings of my two colleagues.

 

1. Indeed, the discretionary authority for appointing and removing ministers (and deputy-ministers) is not absolute. In addition to the grounds for removal expressly provided in the Basic Law: The Government, there are also the grounds established by HCJ 3094/93 The Movement for Quality Government in Israel v. The Government of Israel [Deri [47]] and HCJ 4267/93 Amitai v. The Prime Minister of Israel [Pinhasi [5]]:

 

When a minister or deputy-minister has been indicted for a serious crime, it is incumbent upon the Prime Minister to remove him from his post. The failure of the Prime Minister to do so will be regarded, under such circumstances, as extremely unreasonable.

 

HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel, at 56 [Bar-On [3] (Zamir, J.). The Court added that:

 

There is a possibility that, even if a minister’s behavior does not amount to criminal conduct, it may still be so serious that it would be extremely unreasonable to allow him to continue in his post. Even so, this possibility is still far from constituting a sweeping rule that a minister must be removed from office in every instance of behavior that deviates from the norms of appropriate conduct.

 

Id, at 63.

 

As mentioned in my colleagues’ opinions, the fact that legal grounds for removal are limited is a result of the fact that the constitutional authority for the appointment and removal of ministers enables the implementation of policy objectives, including policies that are political in nature. This includes the need to appoint ministers with the proper skills and experience – which is the Prime Minister’s responsibility. From this it follows that it is, first and foremost, the responsibility of the Knesset and the public to review these political appointments. Moreover, restraint is necessary due to the damage that removal from a senior political position causes to a public figure, to his presumption of innocence, and to his ability to accomplish his life’s work. Of course, this fear does not supersede the prohibition against appointments which severely impair the public’s trust in the government. However, there is no room to expand the grounds for removal beyond those already set down in Deri [47] and Pinhasi [5].

 

2. The grounds of removal established in Deri [47] and Pinhasi [5] are based on two elements. The first element is that there must be sufficient evidence to justify an indictment, such as evidence that creates a reasonable chance of conviction:

 

An indictment is not a verdict. It only reflects the prima facie evidence that has been collected by the public prosecutor’s office. Yet, continued tenure in the government is impacted even by the prima facie evidence of the indictment. Under certain circumstances, the nature of the individual’s alleged offenses – in addition the final legal ruling – is also significant, as these offenses have been officially presented in the indictment ready for filing with the courts.

 

Deri [47], at 422-23 (Shamgar, P.). The second element is that the evidence must point to the commission of a serious crime, one which involves moral turpitude. Such crimes, including the receipt of bribes, acts of fraud, defrauding state authorities, and the filing of false reports, caused Minister Aryeh Deri and Deputy-Minister Raphael Pinhasi to be declared unfit for office, As stated there:

 

[I]f, heaven forbid, an indictment is filed against a minister, which charges the minister with serious offenses that involve moral turpitude – such as the acceptance of bribes, acts of fraud, deceiving state authorities, lying or with making false reports – then it would be neither proper nor reasonable for him to continue in office.

 

Id. at 427 (Levin. J). Minister Tzahi Hanegbi’s part in the Derech Tzleha affair is the decisive affair in the petition before us. As my colleagues have already indicated, the legality of Hanegbi’s appointment, as affected by the other three affairs, was already dealt with by this Court in Bar-On [3]. In that case, not only was there no indictment, but Hangebi’s file was closed due to the lack of a reasonable chance of a conviction.

 

Indeed, the facts of the crimes Hanegbi is alleged to have committed are not in dispute. Proving the criminal intent, however, turned out to be the primary difficulty. This intent is usually what determines the nature of the behavior and the level of moral turpitude associated with it. See Glanville Williams, Criminal Law 22 (2d ed. 1961) [107]; compare also CrimA 2831/95 Elba v. The State of Israel [87], at 319. This intent particularly influences the anti-social element of the crimes of fraud and breach of trust, which are attributed to the minister. As Justice Goldberg stated:

 

The crime of breach of trust is a general offence, yet its factual basis is not adequately defined. As a result, moral guilt is one of the mechanisms for defining the boundaries of this crime. Since moral guilt constitutes a main element of the crime, there are instances where it is necessary for the Court to investigate the defendant’s motives.

 

See HCJ 2534/97 Yahav v. The State Attorney [2], at 16.

 

The Prime Minister saw the Attorney-General’s report, including its conclusion that the file against the minister should be closed due the fact that there was no reasonable chance of a conviction. Certainly, he was obligated to make use of the Attorney-General’s conclusion – and its reasoning – even if the report did not detail the evidence on which this conclusion was founded. Compare HCJ 320/96 Yael German v. The Municipal Council of Herzliya [88], at 239. In any event – and this is the significant factor – petitioner did not attack this report and we have no choice, therefore, other than to accept the Attorney-General’s conclusion.

 

An indictment does not require evidence that guarantees a conviction. When an indictment is filed, the chance of conviction can only be estimated. Moreover, an indictment is only based on the evidence obtained by the police – the defense does not cross examination or present its own evidence. See CrimApp 8087/95 Za’ada v. The State of Israel [89], at 148-49; and Yahav [2], at 12-13. Most significantly, it is possible to indict a suspect even when existing evidence does not prove guilt beyond reasonable doubt. That is to say, there may be a reasonable chance for conviction, which is what justifies the filing of the indictment, even if the evidence does not rule out every reasonable doubt. It goes without saying, therefore, that the decision not to file an indictment due to the lack of a reasonable chance of conviction possesses, as a rule, an “acquittal value” greater than an acquittal in court. Furthermore, it is difficult to imagine a scenario in which the appointment of a minister would be proscribed on account of an act for which he was acquitted in court, even if only due to the existence of reasonable doubt. In any event, such a proscription would be all the more inappropriate where the Attorney-General – whose discretion has not been assailed here – has not even filed an indictment, due to the lack of a reasonable chance of conviction.

 

3. It is the conclusion of my colleague, Justice Beinisch, that the petition should be accepted, because of the conflict of interest that exists between Hanegbi’s post as Minister of Public Security and his alleged desire to get revenge on his interrogators and the Investigations Branch. In this regard, I am in agreement with my colleagues, Justice Rivlin and Vice-President Or, that it is extremely doubtful that a conflict of interest actually exists. Even if there is some type of conflict of interest, it is very slight and does not give rise, under the circumstances, to any reasonable concern that extraneous considerations will hamper the functioning of the Ministry of Public Security and of the police. See HCJ 3132/92 Mushlav v. The District Committee for Planning and Building, Northern District [90], at 747, for an explanation of what constitutes a reasonable concern of an extraneous consideration.

 

Yet, even if the case had been borderline, there would be cause for great hesitation before granting the petition. Granting the petition would mean harming a public figure merely on the basis of a police recommendation to put him on trial, a recommendation rejected by the Attorney-General. The result would be that the very fact of a police recommendation, even if unfounded, would be sufficient to render a person unfit for office or to remove him from a ministerial post. Certainly, had a clear-cut case of conflict of interest been created, due to the police recommendation, it is possible there would be no way of escaping this result. Yet, this is not so in a borderline case.

 

As such, I join the opinion of my colleagues, Justice Rivlin and Vice-President Or, that this petition be denied.

 

 

*******

 

Petition denied according to the majority opinions of Justices Rivlin, Or, Mazza, Turkel and Dorner, against the dissenting opinions of Justices Cheshin and Beinisch.

 

Under the circumstances, no party was ordered to bear costs.

October 9, 2003

 

Full opinion: 
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Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/03/930/019/P26/03019930.p26.pdf

Morar v. IDF Commander in Judaea and Samaria

Case/docket number: 
HCJ 9593/04
Date Decided: 
Monday, June 26, 2006
Decision Type: 
Original
Topics: 
Administrative Law
Discretion
Constitutional Law
Property Rights
Criminal Law
Enforcement
International Law
Occupied territories
Abstract: 

Facts: The petitioners, who represent five Arab villages in the territory of Judaea and Samaria, claimed that the respondents unlawfully deny Palestinian farmers in those villages access to their agricultural land. The petitioners also claimed that the respondents do not act to prevent attacks and harassment perpetrated by Israeli inhabitants of the territory of Judaea and Samaria against Palestinian farmers and do not enforce the law against the Israeli inhabitants. In reply, the respondents explained that the agricultural land was closed only when it was necessary to protect the Palestinian farmers from harassment by Israeli inhabitants. The respondents also notified the court of the actions taken by them to enforce the law against Israeli inhabitants in Judaea and Samaria.

 

Held: The measure of denying Palestinian farmers access to their land for their own protection is disproportionate. The proper way of protecting Palestinian farmers from harassment is for the respondents to provide proper security arrangements and to impose restrictions on those persons who carry out the unlawful acts.

 

Law enforcement in Judaea and Samaria is insufficient and unacceptable, since the measures adopted have not provided a solution to the problems of harassment. The respondents were ordered to improve law enforcement procedures to deal with the problem properly.

Voting Justices: 
Beinisch, Dorit
Primary Author
majority opinion
Rivlin, Eliezer
Author
concurrence
Joubran, Salim
Author
concurrence
Full text of the opinion: 

HCJ 9593/04

Rashed Morar, Head of Yanun Village Council

and others

v.

1.         IDF Commander in Judaea and Samaria

2.         Samaria and Judaea District Commander, Israel Police

 

 

The Supreme Court sitting as the High Court of Justice

[26 June 2006]

Before Justices D. Beinisch, E. Rivlin, S. Joubran

 

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

 

Facts: The petitioners, who represent five Arab villages in the territory of Judaea and Samaria, claimed that the respondents unlawfully deny Palestinian farmers in those villages access to their agricultural land. The petitioners also claimed that the respondents do not act to prevent attacks and harassment perpetrated by Israeli inhabitants of the territory of Judaea and Samaria against Palestinian farmers and do not enforce the law against the Israeli inhabitants. In reply, the respondents explained that the agricultural land was closed only when it was necessary to protect the Palestinian farmers from harassment by Israeli inhabitants. The respondents also notified the court of the actions taken by them to enforce the law against Israeli inhabitants in Judaea and Samaria.

 

Held: The measure of denying Palestinian farmers access to their land for their own protection is disproportionate. The proper way of protecting Palestinian farmers from harassment is for the respondents to provide proper security arrangements and to impose restrictions on those persons who carry out the unlawful acts.
Law enforcement in Judaea and Samaria is insufficient and unacceptable, since the measures adopted have not provided a solution to the problems of harassment. The respondents were ordered to improve law enforcement procedures to deal with the problem properly.

 

Petition granted.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 2, 3, 4.

Security Measures (Judaea and Samaria) (no. 378) Order, 5730-1970, s. 90.

 

Israeli Supreme Court cases cited:

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

[2]        HCJ 6339/05 Matar v. IDF Commander in Gaza Strip [2005] IsrSC 59(2) 846.

[3]        HCJ 10356/02 Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443; [2004] IsrLR 53.

[4]        HCJ 2612/94 Shaar v. IDF Commander in Judaea and Samaria [1994] IsrSC 48(3) 675.

[5]        HCJ 7957/04 Marabeh v. Prime Minister [2005] (2) IsrLR 106.

[6]        HCJ 3680/05 Tana Town Committee v. Prime Minister (not yet reported).

[7]        HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [2005] (2) IsrLR 206.

[8]        HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [1996] IsrSC 50(1) 353.

[9]        HCJ 2753/03 Kirsch v. IDF Chief of Staff [2003] IsrSC 57(6) 359.

[10]     HCJ 1890/03 Bethlehem Municipality v. State of Israel [2005] IsrSC 59(4) 736; [2005] (1) IsrLR 98.

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

[12]     HCJ 7862/04 Abu Dahar v. IDF Commander in Judaea and Samaria [2005] IsrSC 59(5) 368; [2005] (1) IsrLR 136.

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

[14]     HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

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

[16]     HCJ 2725/93 Salomon v. Jerusalem District Commissioner of Police [1995] IsrSC 49(5) 366.

[17]     HCJ 531/77 Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [1978] IsrSC 32(2) 160.

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

[19]     HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[20]     HCJ 61/80 Haetzni v. State of Israel (Minister of Defence) [1980] IsrSC 34(3) 595.

[21]     HCJ 551/99 Shekem Ltd v. Director of Customs and VAT [2000] IsrSC 54(1) 112.

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

[23]     HCJ 2431/95 Salomon v. Police [1997] IsrSC 51(5) 781.

[24]     HCJ 3641/03 Temple Mount Faithful v. HaNegbi (unreported).

[25]     HCJ 166/71 Halon v. Head of Osfiah Local Council [1971] IsrSC 25(2) 591.

 

For the petitioners — L. Yehuda.

For the respondents — E. Ettinger.

 

 

JUDGMENT

 

 

Justice D. Beinisch

The petition before us concerns the right of access of the residents of five Arab villages in the territory of Judaea and Samaria (hereafter: the territory) to their agricultural land. The original petition was filed on behalf of the residents of three villages (Yanun, Aynabus, Burin) and later the residents of two additional villages (A-Tuani and Al-Jania). According to what is alleged in the petition, the respondents — the IDF Commander in Judaea and Samaria (‘the IDF Commander’) and the Commander of the Samaria and Judaea District in the Israel Police (‘the Police Commander’) are unlawfully preventing Palestinian farmers, who are residents of the petitioning villages, from going to their agricultural land and cultivating it. They claim that the respondents are depriving them of their main source of livelihood on which the residents of the petitioning villages rely and that this causes the residents serious harm. It is also alleged in the petition that the respondents are not acting in order to prevent attacks and harassment perpetrated by Israeli inhabitants of the territory of Judaea and Samaria against Palestinian farmers and that they do not enforce the law against the Israeli inhabitants.

The course of the proceedings in the petition and the arguments of the parties

1.    Since the petition was filed at the end of 2004, it has undergone many developments. We shall discuss below, in brief, the main events in the course of the petition.

On 24 October 2004 the petition was filed for an order nisi ordering the respondents to show cause as to why they should not allow the residents of the petitioner villages, and the residents of the territory of Judaea and Samaria in general, to have access to their land throughout the year, and particularly during the olive harvest and the ploughing season. The court was also requested to order the respondents to show cause as to why they should not take the appropriate action in order to ensure the security of the Palestinian farmers when they cultivate their land.

The petition that was filed was of a general nature but it also contained an application for concrete and urgent relief, since at the time when the petition was filed the olive harvest had begun. After an urgent hearing of the petition was held on 1 November 2004, arrangements were made between the parties in order to resolve the existing problems and to allow the harvest to take place in as many areas as possible. These arrangements were successful and from the statements that were filed by both parties it appears that a solution to the petitioners’ problems was found and that the specific difficulties that were raised in the petition were mostly resolved.

2.    On 9 December 2004 an application was filed by the petitioners for an order nisi to be made in the petition. In this application the petitioners said that although the urgent and specific problems that arose during the current harvest season had been resolved, the petition itself addressed a ‘general modus operandi, which was practised by the security forces in extensive parts of the territory of the West Bank, as a result of which residents are denied access to their land.’ It was alleged that because the IDF Commander was afraid of violent confrontations between Palestinian farmers going to work on their land and Israeli inhabitants, the IDF Commander is in the habit of ordering the closure of Palestinian agricultural areas, which are defined as ‘areas of conflict.’ This denies the Palestinians access to their land and deprives them of the ability to cultivate it. It was argued that denying them access to their land is done unlawfully, since it is not effected by means of an order of the IDF commander but by means of unofficial decisions. It was also argued that the justification given for closing the area is the need to protect the Palestinian farmers against acts of violence against them by Israeli inhabitants. In addition to this, it was argued in the petition that the respondents refuse to enforce the law against the Israeli inhabitants who act violently towards the Palestinian farmers and their property.

On 14 January 2005 the respondents filed their response to the application. In the response, it was emphasized that according to the fundamental position of the Attorney-General, the rule is that the Palestinian inhabitants in the territory of Judaea and Samaria should be allowed free access to the agricultural land that they own and that the IDF Commander is responsible to protect this right of access from hostile elements that seek to deny the Palestinians access to their land or to harm them. The respondents stated that following meetings between the defence establishment and the Attorney-General, a comprehensive examination of the areas of conflict was made, and the purpose of this was to examine whether it was essential to continue to impose restrictions on access to agricultural areas and on what scale and for how long such restrictions are required. The respondents also said that where it transpires that areas of conflict make it necessary to continue to impose restrictions upon access, these will be declared closed areas and a closure order will be made with regard thereto in accordance with s. 90 of the Security Measures (Judaea and Samaria) (no. 378) Order, 5730-1970 (the ‘Security Measures Order’). At the same time it was stated that nothing in the aforesaid would prevent the closure of an area by virtue of an unwritten decision when the defence establishment had concrete information of an immediate and unforeseen danger to the Palestinian residents or the Israeli settlers in a specific area, if the entry of Palestinian farmers into that area would be allowed. In conclusion it was argued that in view of the fact that the immediate needs of the petitioners had been satisfied and in view of what is stated above with regard to the issue of principle addressed by the petition, there was no basis for examining the petitioners’ arguments within the scope of this proceeding and the petition should therefore be denied.

3.    On 1 March 2005 a hearing was held in the presence of the parties, at the end of which it was decided to make an order nisi ordering the respondents to show cause as to why they should not allow the residents of the villages access to their agricultural land on all days of the year and why they should not adopt all the measures available to them in order to prevent the harassment of the residents of the petitioning villages and in order to ensure that they could work their land safely.

4.    In their reply to the order, the respondents discussed the difficult security position in the area and reviewed some of the serious security incidents that recently took place in the areas adjacent to the petitioners’ villages. The respondents said that in many places in Judaea and Samaria Israeli towns had been built close to Palestinian villages and that this proximity had been exploited in the past to carry out attacks against the Israeli towns. The respondents also said that during the ploughing and harvesting seasons the fear of attacks increases, since at these times the Palestinian farmers wish to cultivate the agricultural land close to the Israeli towns and hostile terrorist elements exploit the agricultural activity in order to approach the Israeli towns and attack them. In view of this complex position, the respondents discussed the need to impose balanced and proportional restrictions on both the Israeli and the Palestinian inhabitants of Judaea and Samaria in order to minimize the loss of human life on both sides. The respondents again emphasized that the principle that guides their action is the duty to allow the Palestinian residents in Judaea and Samaria free access to their agricultural land and the duty to protect this right. The respondents gave details in their reply of the rules that they have formulated in order to implement this principle and the respondents mainly emphasized the change that has occurred in the security outlook in so far as dealing with the areas of conflict is concerned: whereas in the past the prevailing outlook was that all the areas of conflict — both those characterized by harassment of Palestinians by Israelis and those where the presence of Palestinians constituted a danger to Israelis — should be closed, now areas of conflict are closed only where this is absolutely essential in order to protect Israelis (para. 16(a) of the statement of reply). According to the reply, the Palestinians will no longer be protected against harassment by Israeli residents by means of a closure of areas to Palestinians but in other ways. The methods that will be adopted for the aforesaid purpose are an increase in security for the Palestinian farmers, operating a mechanism for coordinating access to the agricultural land and closing the areas of conflict to prevent the entry of Israelis into those areas at the relevant times. The respondents also said that the problematic areas of conflict, whose closure was required in order to protect the Israeli residents, would not be closed absolutely during the harvesting and ploughing seasons, but in a manner that would allow the Palestinian farmers access to them, by coordinating this and providing security. During the rest of the year, the Palestinians would only be required to advise the DCO of their entry into the areas of conflict. The respondents argued that the aforesaid principles have led to a significant reduction in the restrictions on the access of Palestinians to their land, both with regard to the size of the area that is closed and with regard to the amount of time during which the area is closed. Thus, with regard to the village of Yanun (which is represented by the first petitioner), it was decided to close a piece of land with an area of only 280 dunams, instead of 936 dunams in 2004; with regard to the village of Aynabus (the second petitioner), no land would be closed at all (after in the original reply of the respondents it was said that an area of 218 dunams would be closed); with regard to the village of Burin (the third petitioner), two areas amounting to only approximately 80 dunams would be closed; with regard to the village of A-Tuani (the sixth petitioner), three areas amounting to approximately 115 dunams would be closed; and in the area of the village of Al-Jania (the seventh petitioner), several pieces of land with a total area of 733 dunams would be closed.

With regard to the second part of the petition, which concerns law enforcement against Israeli residents, the respondents discussed in their reply the efforts of the police to prevent acts of harassment at the points of conflict, both from the viewpoint of prevention before the event (which mainly concerns increased deployment in the areas of the conflict at the relevant times) and from the viewpoint of law enforcement after the event (by maximizing the investigation efforts and filing indictments).

 5.   The petitioners filed their response to the respondents’ reply, in which they claimed that nothing stated therein changed the prevailing position, in which the Palestinian residents were refused free access to their land. The alleged reason for this is that they continue to suffer a de jure denial of access to their land — by virtue of closure orders, which the petitioners claim do not satisfy the tests of Israeli and international law — and a de facto denial of access, as a result of attacks and harassment on the part of Israeli inhabitants. The petitioners also complained of the continuing ineptitude of the police treatment of Israeli lawbreakers.

6.    After receiving the respondents’ reply and the petitioners’ response to it, two additional hearings were held in the case, and at the end of these the respondents were asked to file supplementary pleadings, including replies to the petitioners’ claims that there is no access to the agricultural land during the current harvesting season and that nothing is done with regard to the complaints of residents of the petitioning villages with regard to harassment against them. In the supplementary pleadings of 26 September 2005, the respondents discussed at length the deployment of the army and the police for the 2005 olive harvest. In reply to the questions of the court, the respondents said, inter alia, that in the course of the deployment a plan is being put into operation to determine days on which security will be provided for the areas of conflict, which has been formulated in coordination with the Palestinians; that several control mechanisms have been formulated with the cooperation of the civil administration, the police and the Palestinian Authority, whose purpose is to provide a solution to the problems that arise during the harvest; that the forces operating in the area will be strengthened in order to guard the agricultural work; that the police forces have taken action to improve their ability to bring lawbreakers to justice; that orders have been issued to the IDF forces, emphasizing the fundamental principle that the farmers should be allowed to go to harvest the olives and that they should ensure that the harvest takes place in a reasonable manner; and that there was an intention to make closure orders for Israeli areas only, together with restriction orders for certain Israeli inhabitants who had been involved in the past in violent actions.

In addition to the aforesaid, the respondents said in their reply that following another reappraisal of all the relevant factors and circumstances in the area, they had revised their position with regard to the use of closure orders directed at the Palestinian residents. The respondents said that the reappraisal was carried out against the background of the tension anticipated during the withdrawal from the Gaza Strip and in view of the concern that the olive harvest was likely to be characterized by many attempts on the part of Israeli inhabitants to harm Palestinian residents. According to the revised position, in addition to the security need to make use of closure orders where this was required in order to protect the security of the Israeli inhabitants, there was also a security need to make use of closure orders when the main purpose was to protect the Palestinian residents. At the same time the respondents informed the court that, in view of the aforesaid parameters, it had been decided in the reappraisal of the issue not to make closure orders for the land of the villages of A-Tuani and Yanun. The respondents also said that in the land of the villages of Burin and Al-Jania only areas amounting to approximately 808 dunams would be closed. Against the background of all of the aforesaid, the respondents were of the opinion that there was a significant improvement in the access of the Palestinian farmers to their land.

In an additional statement of the respondents, it was argued that the question of law enforcement against the Israeli settlers was being treated seriously both by the defence establishment and by the interdepartmental committee for law enforcement in the territories, which operates at the State Attorney’s Office. In this context the respondents discussed, inter alia, the efforts that were made to increase the supervision of security officers in Israeli towns and to increase supervision of the allocation of weapons to Israelis in the area, and the steps taken by the police in order to deal with offences carried out by Israeli inhabitants. They also addressed the handling of specific complaints that were made with regard to the villages that are the subject of the petition.

7.    The petitioners, for their part, filed on 30 November 2005 an additional supplementary statement, in which they said that during the olive harvest season of 2005 there had indeed been a certain change for the better from the viewpoint of the respondents’ deployment. In this regard, they discussed how greater efforts had been made by the civil administration to coordinate with the Palestinians the dates of the olive harvest, and that more requests by Palestinians to receive protection were granted. At the same time, the petitioners said that the results on the ground were not always consistent: whereas in the villages of Yanun and Al-Jania most of the farmers did indeed succeed in obtaining access to their land in order to carry out the harvesting on certain days during the season, this was not the case in the other petitioning villages, in which there was no real change in the access to the land. In any case, the petitioners argued that in general the situation remained unchanged, since the Palestinian farmers cannot access their land in the areas of conflict freely on a daily basis, both because of violence on the part of the Israeli inhabitants and because of various restrictions that the army imposes. The petitioners emphasized that this modus operandi, whereby as a rule the Palestinians are denied access to their land, except on certain days when protection is provided by the forces in the area, is the complete opposite of the right to free access, since, in practice, preventing access is the rule whereas allowing access is the exception.

8.    Shortly thereafter, on 2 January 2006, the petitioners filed an application to hold an urgent hearing of the petition. This was in response to several very serious incidents in which more than two hundred olive trees were cut down and destroyed on the land of the village of Burin. In the application it was stated that despite repeated requests to the respondents, no activity was being carried out by them at all to protect the petitioners’ trees and that no measures were being taken to stop the destruction of the trees. It was also claimed in the application that the ploughing season was about to begin and that the respondents were not taking the necessary steps in order to allow the residents of the petitioning villages safe access to their agricultural land and were not taking any action to prevent attacks and harassment by the Israeli inhabitants.

9.    In consequence of what was stated in the application, the petition was set down for a hearing. Shortly before this hearing, a statement was filed by the respondents, in which it was claimed that the incidents in which the olive trees were ruined were being investigated intensively by the competent authorities, but at this stage evidence has not been found that would allow the filing of indictments in the matter. It was also stated that the phenomenon of violent harassment by Israeli residents against Palestinian farmers had recently been referred to the most senior level in government ministries and that a real effort was being made to find a solution to the problem. In addition, it was stated that the Chief of Staff had orders several steps to be taken in order to reduce the phenomenon of the harassment of Palestinian farmers, including increased enforcement at the places where law and order were being violated, adopting administrative measures against lawbreakers and reducing the number of weapons held by the Israeli inhabitants of Judaea and Samaria. It was also stated that the deputy prime minister at that time, Mr Ehud Olmert, ordered the establishment of an inter-ministerial steering committee that would monitor the law enforcement operations carried out as a part of the measures taken to prevent acts of violence perpetrated by Israeli inhabitants in Judaea and Samaria.

10. At the last hearing that was held before us on 19 January 2006, the parties reiterated their contentions. The petitions again argued against the ineffectual protection afforded by the respondents to the Palestinian farmers who wish to have access to and cultivate their agricultural lands and against the forbearing approach adopted, according to them, towards the lawbreakers. The petitioners indicated in their arguments several problematic areas, including improper instructions given to the forces operating in the area, a failure to make orders prohibiting the entry of Israelis into the Palestinian agricultural areas, and so forth. The respondents, for their part, discussed the steps that were being taken and the acts that were being carried out in order to ensure that the residents of the petitioning villages had access to their lands and that they were protected.

Deliberations

General

11. The petition before us has raised the matter of a very serious phenomenon of a violation of the basic rights of the Palestinian residents in the territories of Judaea and Samaria and of significant failures on the part of the respondents with regard to maintaining public order in the territories. As we have said, the claims raised by the petitioners are of two kinds: one claim relates to the military commander denying the Palestinian farmers access to their land. In this matter, it was claimed in the petition that the closure of the area deprives the Palestinian residents of their right to freedom of movement and their property rights in a manner that is unreasonable and disproportionate and that violates the obligations imposed on the military commander under international law and Israeli administrative law. It was also claimed that it was not proper to protect the Palestinian farmers in a way that denied them access to their land. In addition it was claimed that closing the areas to the Palestinians was done on a regular basis without a formal closure order being made under section 90 of the Security Measures Order and therefore the denial of access to the land was not based upon a lawful order. The main additional claim that was raised in the petition addressed the failure of the respondents to enforce the law in the territories of Judaea and Samaria. The essence of the claim was that the respondents do not take action against the Israeli inhabitants in the territories that harass the Palestinian farmers and harm them and their property. In addition to these general claims, the petition also includes specific claims that required immediate action in concrete cases where access was being denied, and these claims were dealt with immediately (see para. 1 above).

The proceedings in the petition before us were spread out over several hearings; the purpose of this was to allow the respondents to take action to solve the problems that were arising and to find a solution to the claims raised before us, under the supervision of the Attorney-General and subject to the judicial scrutiny of the court. We thought it right to give the respondents time to correct what required correction, since there is no doubt that the reality with which they are confronted is complex and difficult and that the tasks imposed on them are not simple. Regrettably, notwithstanding the time that has passed, it does not appear that there has been any real change in the position and it would seem that no proper solution has been found to the serious claims of the Palestinian farmers concerning the violation of their right to cultivate their land and to obtain their livelihood with dignity, and to the injurious acts of lawbreaking directed against them. At the hearings that took place before us, a serious picture emerged of harm suffered by the Palestinian residents and contempt for the law, which is not being properly addressed by the authorities responsible for law enforcement. Therefore, although some of the claims that were raised in the petition were of a general nature, we have seen fit to address the claims raised by the petitioners on their merits.

Denying access to land

12. The territories of Judaea and Samaria are held by the State of Israel under belligerent occupation and there is no dispute that the military commander who is responsible for the territories on behalf of the state of Israel is competent to make an order to close the whole of the territories or any part thereof, and thereby to prevent anyone entering or leaving the closed area. This power of the military commander is derived from the rules of belligerent occupation under public international law; the military commander has the duty of ensuring the safety and security of the residents of the territories and he is responsible for public order in the territories (see art. 23(g) and art. 52 of the Regulations concerning the Laws and Customs of War on Land, which are annexed to the Fourth Hague Convention of 1907 (hereafter: ‘the Hague Regulations’); art. 53 of the Convention relative to the Protection of Civilian Persons in Times of War, 1949 (hereafter: ‘the Fourth Geneva Convention’); HCJ 302/72 Hilo v. Government of Israel [1], at pp. 178-179). This power of the military commander is also enshrined in security legislation in section 90 of the Security Measures Order (see, for example, Hilo v. Government of Israel [1], at pp. 174, 179; HCJ 6339/05 Matar v. IDF Commander in Gaza Strip [2], at pp. 851-852). In our case, the petitioners do not challenge the actual existence of the aforesaid power but the manner in which the military commander directs himself when exercising his power in the circumstances described above. Therefore the question before us is whether the military commander exercises his power lawfully with regard to the closure of agricultural areas to Palestinian residents who are the owners or who have possession of those areas.

In order to answer the question that arises in this case, we should examine the matter in two stages: in the first stage we should seek to ascertain the purpose for which the power to close areas is exercised by the military commander, and we should also examine the various criteria that the military commander should consider when he considers ordering a closure of areas in the territories. In the second stage we should examine the proper balance between these criteria and whether this balance is being upheld in the actions of the military commander in our case.

The purpose of adopting the measure of closing areas

13. According to the respondents’ position, the purpose of adopting the measure of closing areas is to help the military commander carry out his duty of maintaining order and security in the area. Indeed, no one disputes that it is the duty of the military commander to ensure public order and the security of the inhabitants in the area under his command. Article 43 of the Hague Regulations sets out this duty and authorizes the military commander to take various measures in order to carry out the duty:

     ‘The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.’

See also HCJ 10356/02 Hass v. IDF Commander in West Bank [3], at pp. 455-456 {64-65}. It should be emphasized that the duty and authority of the military commander to ensure security in the territory apply with regard to all the persons who are present in the territory that is subject to belligerent occupation. This was discussed by this court, which said:

     ‘… In so far as the needs of maintaining the security of the territory and the security of the public in the territory are concerned, the authority of the military commander applies to all the persons who are situated in the territory at any given time. This determination is implied by the well-known and clear duty of the military commander to maintain the security of the territory and by the fact that he is responsible for ensuring the safety of the public in his area’ (per Justice Mazza in HCJ 2612/94 Shaar v. IDF Commander in Judaea and Samaria [4], at p. 679).

(See also HCJ 7957/04 Marabeh v. Prime Minister [5], at para. 18, and HCJ 3680/05 Tana Town Committee v. Prime Minister [6], at paras. 8-9).

As we have said, the respondents’ argument is that the closure of the areas is done for the purpose of maintaining order and security in the territories. It should be noted that within the scope of this supreme purpose, it is possible to identify two separate aspects: one concerns the security of the Israelis in the territories and the other the security of the Palestinian residents. Thus in some cases the closure of the areas is intended to ensure the security of the Israeli inhabitants from the terror attacks that are directed against them, whereas in other cases the closure of the areas is intended to ensure the security of the Palestinian farmers from acts of violence that are directed against them. We shall return to these two separate aspects later, but we should already emphasize at this stage that in order to achieve the two aspects of the aforesaid purpose the military commander employs the same measure, and that is the closure of agricultural areas owned by the petitioners and denying the Palestinian farmers access to those areas.

The relevant criteria when exercising the power to close areas

14. As a rule, when choosing the measures that should be adopted in order to achieve the purpose of maintaining public order and security in the territories, the military commander is required to take into account only those considerations that are relevant for achieving the purpose for which he is responsible. In our case, when he is called upon to determine the manner of adopting the measure of closing areas, the military commander is required to consider several criteria.

On the one hand, there is the value of security and the preservation of the lives of the residents of the territories, both Israelis and Palestinians. It is well-known that the right to life and physical integrity is the most basic right that lies at the heart of the humanitarian laws that are intended to protect the local population in the territories held under the laws of belligerent occupation (see HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [7], at para. 23 of the opinion of President Barak). This right is also enshrined in Israeli constitutional law in ss. 2 and 4 of the Basic Law: Human Dignity and Liberty, and there is no doubt at all that this is a right that is on the highest normative echelon (see HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [8], at p. 368; HCJ 2753/03 Kirsch v. IDF Chief of Staff [9], at pp. 377-378). All the residents of the territories — both Palestinians and Israelis — are therefore entitled to enjoy the right to life and physical integrity, and a fundamental and primary criterion that the military commander should consider when deciding to close areas is the criterion of the protection of the life and physical integrity of all the residents in the territories.

The petition before us concerns agricultural areas that are owned by Palestinian inhabitants and that are closed by the order of the military commander. Therefore, the right to security and the protection of physical integrity is opposed by considerations concerning the protection of the rights of the Palestinian inhabitants, and in view of the nature of the case before us, we are speaking mainly of the right to freedom of movement and property rights. In the judgment given in HCJ 1890/03 Bethlehem Municipality v. State of Israel [10], we said that the freedom of movement is one of the most basic human rights. We discussed how in our legal system the freedom of movement has been recognized both as an independent basic right and also as a right derived from the right to liberty, and how there are some authorities that hold that it is a right that is derived from human dignity (see para. 15 of the judgment and the references cited there). The freedom of movement is also recognized as a basic right in international law and this right is enshrined in a host of international conventions (ibid.). It is important to emphasize that in our case we are not speaking of the movement of Palestinian residents in nonspecific areas throughout Judaea and Samaria but of the access of the residents to land that belongs to them. In such circumstances, where the movement is taking place in a private domain, especially great weight should be afforded to the right to the freedom of movement and the restrictions imposed on it should be reduced to a minimum. It is clear that restrictions that are imposed on the freedom of movement in public areas should be examined differently from restrictions that are imposed on a person’s freedom of movement within the area connected to his home and the former cannot be compared to the latter (see HCJ 2481/93 Dayan v. Wilk [11], at p. 475).

As we have said, an additional basic right that should be taken into account in our case is, of course, the property rights of the Palestinian farmers in their land. In our legal system, property rights are protected as a constitutional human right (s. 3 of the Basic Law: Human Dignity and Liberty). This right is of course also recognized in public international law (see HCJ 7862/04 Abu Dahar v. IDF Commander in Judaea and Samaria [12], at para. 8 and the references cited there). Therefore, the residents in the territories held under belligerent occupation have a protected right to their property. In our case, there is no dispute that we are speaking of agricultural land and agricultural produce in which the petitioners have property rights. Therefore, when the petitioners are denied access to land that is their property and they are denied the possibility of cultivating the agricultural produce that belongs to them, their property rights and their ability to enjoy them are thereby seriously violated.

15. Thus we see that the considerations that the military commander should take into account in the circumstances before us include, on the one hand, considerations of protecting the security of the inhabitants of the territories and, on the other hand, considerations concerning the protection of the rights of the Palestinian inhabitants. The military commander is required to find the correct balance between these opposite poles. The duty of the military commander to balance these opposite poles has been discussed by this court many times, and the issue was summarized by President Barak in Marabeh v. Prime Minister [5] as follows:

     ‘Thus we see that, in exercising his power under the laws of belligerent occupation, the military commander should “ensure public order and safety.” Within this framework, he should take into account, on the one hand, considerations of the security of the state, the security of the army and the personal safety of everyone who is in the territory. On the other hand, he should consider the human rights of the local Arab population’ (para. 28 of the judgment [5]; emphases supplied).

See also Hass v. IDF Commander in West Bank [3], at pp. 455-456 {64-65}.

16. There is no doubt that in cases where the realization of human rights creates a near certainty of the occurrence of serious and substantial harm to public safety, and when there is a high probability of harm to personal security, then the other human rights yield to the right to life and physical integrity (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [13], at p. 454; Hass v. IDF Commander in West Bank [3], at p. 465 {76}). Indeed, in principle, where there is a direct conflict, the right to life and physical integrity will usually prevail over the other human rights, including also the right to freedom of movement and property rights. The court addressed this principle in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [14], where it said:

     ‘When there is a direct confrontation and there is a concrete risk to security and life, the public interest indeed overrides protected human rights, and the same is the case where there is a concrete likelihood of a risk to life’ (para. 11 of my opinion [14]).

Notwithstanding, the balance between the various rights and values should be made in such a way that the scope of the violation of the rights is limited to what is essential. The existence of risks to public safety does not justify in every case an absolute denial of human rights and the correct balance should be struck between the duty to protect public order and the duty to protect the realization of human rights. The question before us is whether the manner in which the military commander is exercising his power to close areas for the purpose of achieving security for the Israeli residents on the one hand and the Palestinian residents on the other properly balances the conflicting considerations. We shall now turn to consider this question.

The balance between the relevant considerations

17. As we have said, in order to achieve the purpose of preserving security in the territories, the military commander adopts the measure of closing agricultural areas that are owned by Palestinians and in doing so he violates the right of the Palestinian residents to freedom of movement on their land and their right to have use of their property. We therefore discussed above the purpose for which the military commander was given the power to close the areas and the relevant criteria for exercising this power. Now we should consider whether the military commander properly balanced the various criteria and whether the measures adopted by the military commander satisfy the principle of proportionality that governs him in his actions.

18. The centrality of the principle of proportionality in the actions of the military commander has been discussed by this court many times (see, for example, HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [15], at pp. 836-841 {293-298}). The manner in which the military commander exercises his power to close agricultural areas in the territories inherently results in a violation of the rights of the Palestinian residents and therefore this violation should satisfy the principle of proportionality. According to the proportionality tests, the military commander has the burden of showing that there is a rational connection between the measure adopted and the purpose (the first subtest of proportionality); he is required to show that, of the various appropriate measures that may be chosen, the measure adopted causes the least possible harm to the individual (the second test); and he is also required to show that adopting the aforesaid measure is proportionate to the benefit that arises from employing it (the third subtest).

19. According to the aforesaid tests, is the harm caused to the petitioners as a result of the closure of the agricultural land by the military commander proportionate? The proportionality of the measure is examined in relation to the purpose that the military commander is trying to achieve with it. ‘The principle of proportionality focuses… on the relationship between the purpose that it wants to realize and the measures adopted to realize it’ (Beit Sourik Village Council v. Government of Israel [15], at p. 839 {296}). In our case, the respondents claim that the closure of the areas is done for one purpose, which has two aspects: in certain circumstances it is for the protection of the Israeli inhabitants and in other circumstances it is for the protection of the Palestinian farmers. There are cases where the purpose is a mixed one, and the closure is intended to protect the lives of all the inhabitants, both Israeli and Palestinian, and in these circumstances the discretion of the military commander will be examined in accordance with the main purpose for which the power was exercised. Accordingly, we should examine the manner in which the military commander exercises the power of closure with regard to all of the aforesaid circumstances. First we shall examine the proportionality of the use of the power to close areas with regard to the purpose of protecting the security of the Israeli inhabitants and afterwards we shall examine the proportionality of the use of this measure with regard to the purpose of protecting the security of the Palestinian farmers.

Protecting the security of Israeli inhabitants

20. In so far as the protection of the security of the Israeli residents is concerned, the respondents argued that in order to achieve this purpose, in a period when brutal and persistent terrorist activity is taking place, the closure of areas near Israeli towns so that Palestinians cannot enter them is needed in order to prevent the infiltration of terrorists into those towns and the perpetration of acts of terror against the persons living there. The respondents explained that the access of the Palestinian farmers to agricultural land adjoining the Israeli towns is exploited by the terrorist organizations to carry out attacks against the Israeli towns, and that the presence of the Palestinian farmers on the land adjoining the Israeli towns serves the terrorists as a cloak and helps them to infiltrate those areas. The proximity of the agricultural land to Israeli towns is exploited particularly in order to carry out attempts to infiltrate the Israeli towns, for the purpose of carrying out attacks in them, and also for the purpose of long-range shooting attacks. Because of this, the respondents explained that there is a need to create a kind of barrier area, into which entry is controlled, and thus it will be possible to protect the Israeli inhabitants in an effective manner.

After considering the respondents’ explanations and the figures presented to us with regard to the terror activity in the areas under discussion in the petition, we have reached the conclusion that the measure of closing areas adjoining Israeli towns does indeed have a rational connection with the purpose of achieving security for the inhabitants of those towns. As we have said, the protection of the security of the Israeli inhabitants in the territories is the responsibility of the military commander, even though these inhabitants do not fall within the scope of the category of ‘protected persons’ (see Marabeh v. Prime Minister [5], at para. 18). The proximity of the Palestinian agricultural land to the Israeli towns, which is exploited by hostile terrorist forces, presents a significant risk to the security of the Israeli residents, and contending with this risk is not simple. The closure of the areas from which terrorist cells are likely to operate, so that the access to them is controlled, is therefore a rational solution to the security problem that arises.

With regard to the second test of proportionality — the least harmful measure test — according to the professional assessments submitted to us, no other measure that would be less harmful and that would achieve the purpose of protecting the security of the Israeli residents was raised before us. The military commander is of the opinion that the unsupervised access of Palestinians to areas that are very close to Israeli towns is likely to create a serious threat to the security of the Israeli inhabitants and there is no way to neutralize this threat other than by closing certain areas to Palestinians for fixed and limited periods. The military commander emphasized how the closure of the areas to the Palestinians will be done only in areas where it is absolutely essential and that there is no intention to close areas of land beyond the absolute minimum required in order to provide effective protection for the Israeli inhabitants. The military commander also said that the period of time when the areas would be closed to the Palestinian residents would be as short as possible and that the periods when access was denied would be limited. The military commander emphasized that he recognizes the importance of the right of the Palestinian farmers to have access to their land and to cultivate it and that making closure orders from time to time would be done while taking these rights into account and violating them to the smallest degree. The military commander also emphasized the intention to employ additional measures in order to ensure the protection of the rights of the Palestinians and that by virtue of the combination of the various measures it would be possible to reduce to a minimum the use of closure orders. From the aforesaid we have been persuaded that the military commander took into account, in this regard, the absence of any other less harmful measure that can be used in order to achieve the desired purpose. The other measures discussed by the respondents are insufficient in themselves for achieving the purpose and therefore there is no alternative to using also the measure of closing areas that adjoin Israeli towns for a limited period, in order to provide security.

With regard to the third test of the principle of proportionality — the proportionate or commensurate measure test — the benefit accruing to the Israeli inhabitants from the closure of the areas, from a security perspective, and the protection of the value of preserving life without doubt exceeds the damage caused by employing this measure, provided that it is done in a prudent manner. It should be remembered that, according to the undertaking of the military commander, the closure of the area will not cause irreversible damage to the Palestinian farmers, since by prior arrangement they will be allowed to have access to all of the agricultural land and to carry out the necessary work.

Consequently our conclusion is that subject to the undertakings given by the respondents, exercising the power to deny the Palestinians access to the areas that are very close to Israeli towns, in so far as this derives from the need to protect the Israeli towns, is proportionate. Indeed, the use of the measure of closing the areas inherently involves a violation of basic rights of the Palestinian residents, but taking care to use this measure proportionately will reduce the aforesaid violation to the absolute minimum.

21. It should be re-emphasized that the actual implementation of the military commander’s power to close areas should be done proportionately and after a specific and concrete examination of the conditions and character of the risks that are unique to the relevant area (cf. HCJ 11395/05 Mayor of Sebastia v. State of Israel (not yet reported)). In this regard it should be noted that, before filing the petition, the respondents defined a range of 500 metres from the boundaries of an Israeli town as the necessary security limits for the closed area, but following the hearings that took place in the petition this range was reduced and in practice areas were closed within a range of between only 50 and 300 metres from Israeli towns, as needed and according to the topography of the terrain, the nature of the risk and the degree of harm to the Palestinian residents in the area. Determining the security limits in the specific case is of course within the jurisdiction of the military commander, but care should be taken so that these ranges do not exceed the absolute minimum required for effective protection of the Israeli inhabitants in the area under discussion, and the nature and extent of the harm to the Palestinians should be examined in each case. In addition, whenever areas are closed it should be remembered that it is necessary to give the Palestinian residents an opportunity to complete all the agricultural work required on their land ‘to the last olive.’ It should also be noted that closing the areas should be done by means of written orders that are issued by the military commander, and in the absence of closure orders the Palestinian residents should not be denied access to their land. Nothing in the aforesaid prejudices the commander’s power in the field to give oral instructions for a closure of any area on a specific basis for a short and limited period when unexpected circumstances present themselves and give rise to a concern of an immediate danger to security that cannot be dealt with by any other measures. But we should take care to ensure that the power to order the closure of a specific piece of land without a lawful order, as a response to unexpected incidents, should be limited solely to the time and place where it is immediately required. In principle, the closure of areas should be done by means of an order of which notice is given to whoever is harmed by it, and the residents whose lands are closed to them should be given an opportunity to challenge its validity. Within the limitations set out above and subject thereto, it can be determined that closing areas close to Israeli towns is proportionate.

Protecting the security of Palestinian farmers

22. As we said above, the purpose of maintaining order and security in the territories has two aspects, and for each of these we should examine the proportionality of the use of the measure of closing areas. We discussed above the proportionality of the military commander’s use of the power to close areas to achieve the first aspect — the protection of the security of the Israeli inhabitants. Now we should consider whether the military commander has exercised his power proportionately also with regard to the second aspect of the purpose — providing protection for the security of the Palestinian farmers.

23. According to the respondents’ explanations, there is no alternative to closing off the agricultural areas to their Palestinian owners, since the Palestinian farmers often suffer from harassment by the Israeli inhabitants when they enter their land. The respondents said that every year the olive harvest is a focal point for conflicts between Israeli settlers and Palestinian farmers and that in a large number of cases these conflicts result in serious harm to the lives and property of the Palestinian farmers. Because of the aforesaid, the military commander adopts the measure of closing areas to the Palestinian farmers in order to realize the purpose of protecting them against attacks directed at them.

24. The question of denying a person access to certain land, when he has a right of access to it, for the purpose of protecting his security and for the purpose of preserving public order is not new in Israel and it has been considered in our case law several times (see, for example, Temple Mount Faithful v. Jerusalem District Police Commissioner [13]; HCJ 2725/93 Salomon v. Jerusalem District Commissioner of Police [16]; HCJ 531/77 Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [17]; HCJ 5016/96 Horev v. Minister of Transport [18]). In these judgments and others, the court considered the question of the conflict between the public interest of order and security and the duty of protecting basic human rights such as freedom of worship, freedom of movement and freedom of expression.

In our case, as we have said, assuming that the violation of the Palestinians’ right of access to their land is done for the proper purpose of protecting their lives, we should consider whether the closure of the agricultural areas to the Palestinians in order to protect them is a proportionate violation of their rights. After studying the written pleadings and hearing the arguments of the parties, we have reached the conclusion that in the prevailing circumstances the exercising of the military commander’s power to close land to Palestinians for the purpose of protecting them is disproportionate. Of course, no one disputes that closing the area and preventing the access of Palestinians to their land does achieve a separation between them and the Israeli inhabitants and thereby protects the Palestinian farmers. But the use of the power of closure for the purpose of protecting the Palestinian inhabitants violates the right of the Palestinian inhabitants to freedom of movement and their property rights to a disproportionate degree and it does not satisfy the subtests of the principle of proportionality. We shall explain our position below.

25. Exercising the power to close areas that are owned by Palestinians for the purpose of protecting them does not satisfy the first subtest of proportionality, since there is no rational connection between the means and the end. The rational connection test is not merely a technical causal connection test between means and end. Even when use of a certain measure is likely to lead to realization of the desired purpose, this does not mean that there is a rational connection between the means and the end and that the means is suited to achieving the end. The emphasis in the rational connection test is whether the connection is rational. The meaning of this is, inter alia, that an arbitrary, unfair or illogical measure should not be adopted (see HCJ 4769/95 Menahem v. Minister of Transport [19], at p. 279; A. Barak, Legal Interpretation — Constitutional Interpretation, at pp. 542, 621). In our case, the areas that are closed are private areas that are owned by Palestinians whose livelihood depends upon their access to them. On the other hand, the threat to the security of the Palestinians is the perpetration of acts of harassment by Israeli lawbreakers. In these circumstances, the closure of the areas to the Palestinian farmers in order to contend with the aforesaid threat is not rational, since it is an extremely unfair act that results in serious harm to basic rights while giving in to violence and criminal acts. Admittedly, closing the areas is likely to achieve the purpose of protecting the Palestinian farmers, but when the discretion of the military commander in closing the areas is influenced by the criminal acts of violent individuals, who violate the rights of the inhabitants to their property, the discretion is tainted (see Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [17], at p. 165; Horev v. Minister of Transport [18], at pp. 77 {235} and 118-120 {286-290}). A policy that denies Palestinian inhabitants access to land that belongs to them in order to achieve the goal of protecting them from attacks directed at them is like a policy that orders a person not to enter his own home in order to protect him from a robber who is waiting for him there in order to attack him. In the circumstances of the case before us, it is not rational that this policy should be the sole solution to the situation in the area, since it violates the rights of the Palestinian farmers to freedom of movement and their property rights disproportionately.

The use of the measure of closing the area to Palestinians for the purpose of protecting the Palestinians themselves is inconsistent with the basic outlook of the military commander with regard to protecting the inhabitants against harassment. When the military commander seeks to protect the security of the Israeli inhabitants he takes the step of closing the area to Palestinians, whose entry into the area may be exploited by terrorists. With regard to this purpose we said that the measure chosen is proportionate since placing a restriction on the party from which the danger may arise achieves the purpose of protecting the Israeli inhabitants by means of a proportionate violation of the protected rights of the Palestinian farmers. By contrast, when the purpose sought is to protect the security of the Palestinian farmers from acts of violence directed against them, it is right that the appropriate measure should be directed against the party causing the danger, i.e., against those persons who carry out the attacks on the Palestinian farmers. The problem is that when he seeks to protect the Palestinian farmers, the military commander has once again chosen to act against them, even when they are the victim of the attacks. It is clear therefore that the use of the measure of closing the area to the Palestinian farmers when the purpose is to protect the Palestinians themselves is not an appropriate use of the aforesaid measure, and it is contrary to our sense of justice. This situation is not proper and therefore the use of the measure of closing areas as the standard and only measure for protecting Palestinian inhabitants who are attacked on their land is a use that is disproportionate and inconsistent with the duties imposed on the military commander.

26. It should be noted that now we have found that the measure adopted is not at all appropriate or suited to the purpose for which it was intended (the first test of proportionality), we are not required to examine whether the measure is consistent with the other tests of proportionality. Nonetheless we should point out that in the circumstances of the case it is also clear that the measure adopted is not the least harmful measure, nor is it proportionate to the benefit that arises from it (the two remaining tests of proportionality). In this regard, it should be stated that the respondents themselves discussed in their responses other measures that could be adopted in order to realize the purpose of protecting the Palestinian inhabitants when they wish to cultivate their land. Inter alia, the respondents mentioned their intention to increase the security given to the Palestinian inhabitants when carrying out the agricultural work by means of increasing the forces in the area, and also their intention to issue restriction orders against certain Israeli inhabitants who were involved in the past in acts of violence and who, in the military commander’s opinion, present a danger. The use of these measures and other additional measures that were mentioned by the respondents is likely to achieve the purpose of protecting the Palestinian inhabitants who wish to cultivate their land without disproportionately violating the right of the Palestinian farmers to freedom of movement on their land and their property rights.

27. Naturally, it is not possible to rule out entirely the use of the measure of closing an area to the party that is being attacked in order to protect him (see Salomon v. Jerusalem District Commissioner of Police [16]). The matter depends on the circumstances of the case, the human rights that are violated and the nature of the threat. This is for example the case when there is concrete information of a certain risk and according to assessments it is almost certain that it will be realized and it is capable of seriously endangering security and life. In our case, these conditions are not satisfied. In the case before us the violation of the rights is serious, whereas the threat is one which from the outset can and should be handled in other ways that violate rights to a lesser degree. In addition, the closure of the areas was done in our case in a sweeping manner for prolonged periods, on the basis of a general assessment, and not pursuant to a specific concrete assessment. Therefore, the relevant circumstances in our case are what make the use of the measure of closing the area to the Palestinian farmers in order to protect them disproportionate.

Denying access — summary

28. The inescapable conclusion is therefore that the manner in which the military commander exercised his discretion to deny Palestinians access to agricultural areas that belong to them, in order to realize the purpose of protecting their security, is not consistent with the proportionate measure test that governs the respondents, and therefore it is unacceptable. As a rule, the military commander should carry out his duty to protect the security of the Palestinian inhabitants in another manner, and not by closing the agricultural areas, provided that his command responsibility is not prejudiced. The ‘conflict areas,’ which are closed to the Palestinians in order to protect the Palestinians themselves, should therefore remain open to the movement of Palestinians and the respondents should adopt all the measures that are required in order to ensure the security of the Palestinians farmers in those areas. The protection of the Palestinians should be afforded by providing proper security, giving clear instructions to the military forces and the police with regard to how they should act, and imposing restrictions that will be effective against those persons who harass the Palestinians and break the law. With regard to the closure of areas belonging to Palestinian inhabitants when the purpose that is being sought is the protection of the Israeli inhabitants against terrorist activity, in such a case the measure of closure may be proportionate, provided that the military commander exercises his power on the smallest scale possible and while observing the rules set out above.

Law enforcement in the territories of Judaea and Samaria

29. As we have said, the second head of the petition was directed against the respondents’ failures to enforce the law in the territories against the Israeli inhabitants. The petitioners claim that the respondents are not doing enough in order to prevent the Israeli inhabitants from harassing the Palestinian farmers who are cultivating their land and that they are not taking action to prevent harm to the Palestinians and their property. We shall now turn to examine these contentions.

30. As we said in para. 13 above, article 43 of the Hague Regulations sets out the duty and power of the military commander to maintain order and security in the territory under his control. There is no doubt that one of the main duties for which the military commander is responsible within this framework is the duty to ensure that the law is upheld in the territories (see HCJ 61/80 Haetzni v. State of Israel (Minister of Defence) [20], at p. 595; Abu Dahar v. IDF Commander in Judaea and Samaria [12], at para. 7).

A discussion of the general subject of law enforcement in Judaea and Samaria and the many problems that this entails falls outside the scope of the petition before us. This is without doubt a serious problem with which the State of Israel has been contending for many years. A detailed review and recommendations on this issue can be found in the report of the Commission of Inquiry into the Hebron Massacre (1994), at pp. 157-200, 243-245 and 250-251 (hereafter: ‘the Shamgar Commission report’). It should be noted that the Shamgar Commission report extensively considered the problem of law enforcement against the Israeli settlers in the territories and several specific contentions were raised with regard to the harassment of Palestinians by Israeli inhabitants by means of physical attacks, the destruction of property and uprooting orchards. The Shamgar Commission report also gives details of claims concerning the ineffective handling of law breaking and inter alia the report discusses the phenomena of not carrying out police investigations, delays in carrying out investigations, not filing indictments and so on (see pp. 192-193 of the Shamgar Commission report). The Shamgar Commission made its recommendations and these led, inter alia, to the creation of the Samaria and Judaea division of the police, which operates in the territories under the control of the military commander and deals with all the issues that concern policing in those territories.

But notwithstanding the repeated discussion, both in the report and on other additional occasions, of the problems relating to law enforcement in the territories, and notwithstanding the steps taken in this field in the past, the petition reveals the ineffectiveness of the respondents in enforcing the law against those persons who break it and cause physical injury to the Palestinian farmers and damage to their property. The physical security of the Palestinian farmers is in real danger when they go to cultivate their land, because of serious acts of violence on the part of Israeli settlers. The property of the Palestinian farmers also suffers from lawlessness when, after a day’s work, under the cover of night lawbreakers return to the agricultural land in order to uproot trees and damage agricultural implements.

No one disputes that the petitioners are deprived of their basic rights to security and property because of these lawbreakers. Moreover, no one disputes that it is the duty of the respondents to prevent this infraction of security and public order. This duty is enshrined in the rules of international humanitarian law; see, for example, art. 27 of the Fourth Geneva Convention that states with regard to ‘protected persons’ that:

     ‘Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity’ (emphasis supplied).

Maintaining an effective law enforcement system in the territories of Judaea and Samaria is naturally mandated also by the duties imposed on the respondents under Israeli law.

31. It is important to emphasize that the lawbreaking acts that are perpetrated against the Palestinian farmers are carried out by a small and extreme group of Israelis who by their acts stain the reputation of all the Israeli settlers in Judaea and Samaria. The acts of the extremists harm not only the security, safety and property of the local inhabitants but also sully the image that the Israeli settlers wish to nurture, an image of law-abiding citizens, and they also taint the image and reputation of the whole of the State of Israel as a state that respects the supremacy of law and justice. The respondents ought therefore to act with greater force against the lawbreakers so that this phenomenon is eradicated.

32. In their most recent statements, the respondents described the measures that were being adopted in order to re-establish order. To this end, we were presented with affidavits of the senior commanders in the area both from the police and from the army. In one of the hearings that took place, the Samaria District Commander was present and he described the treatment of the phenomenon of harassment of Palestinian famers, and we made a note of his undertaking to act in so far as possible to protect the Palestinian farmers when they go to cultivate their land. In addition, as we said in para. 9 above, it would appear that the matter is being considered at the highest level, as it ought to be. Nonetheless, despite the declarations that were made by the respondents in their responses, it would appear that no solution has yet been found to the problem of the repeated harassment of Palestinians when they go to their land in order to cultivate it and to the problem of the damage to the farmers’ property, and especially the uprooting of the trees. Notwithstanding the steps that have been adopted in order to ensure the security of the Palestinian farmers, and a certain improvement that has taken place, the position is far from satisfactory. As we described in para. 8 above, recently — while the petition was pending — we witnessed a significant increase in the violent acts against the farmers and their crops. Because of this deterioration, on 2 January 2006 the petitioners filed the application mentioned in para. 8, in which an urgent hearing of the petition was sought. At the hearing that was held, the respondents once again described the measures that have been taken, but it would appear that the facts on the ground speak for themselves and that too little has been done in order to protect the rights of the petitioners. This situation is intolerable and unacceptable and the respondents should take action in order to put matters to rights immediately.

33. In view of the aforesaid, we pondered at length the order that this court should issue with regard to enforcement of the law in the territories. ‘Law enforcement is a fundamental element of the rule of law… it is one of the main functions of any government. The competent authorities may not shirk this duty’ (HCJ 551/99 Shekem Ltd v. Director of Customs and VAT [21], at p. 125). It need not be said that there is no need for this court to issue an order that directs the respondents to enforce the law and carry out their duties (ibid.). This is especially the case where the respondents themselves confirm their commitment to protect the rights of the petitioners and promise to act in so far as possible in order to carry out their duties. There is therefore no doubt that the respondents should act with all the means at their disposal in order to protect the security of the Palestinian farmers who come to work on their land and they should act in order to protect the property rights of the petitioners so that they are not violated unlawfully. Even though the court does not have the power to determine the size of the forces that will be allotted for these tasks and what operations will be carried out, we do have the power to say that the protection of the security and property of the local inhabitants is one of the most fundamental duties imposed on the military commander in the territories. We are aware that the declaration of intentions made by counsel for the respondents in this matter is not mere words. We are persuaded that the establishment of the inter-ministerial committee and the experience in dealing with law enforcement in the territories are steps that were chosen in good faith and in recognition of the duty of imposed on the army and the police operating in the territories. But plans and intentions are one thing and results another, and the results do not indicate success in the field of enforcement.

Therefore, notwithstanding the difficulty in giving judicial directions in this matter, we have seen fit to address in general the principles that should guide the respondents in dealing with this matter. First, action should be taken to ensure the security of the Palestinian farmers when they go to work on the land and, if necessary, to protect them when the agricultural work is being carried out. Second, clear and unequivocal instructions should be given to the forces operating in the field as to how to act in order not to prevent those inhabitants who are entitled thereto from having access to their land, unless there is a lawful ground for doing so. Third, forces should be deployed in order to protect the property of the Palestinian inhabitants. Fourth, complaints that are made by the Palestinian inhabitants should be investigated on their merits and the investigation should be completed as soon as possible. Investigations should be made immediately when information is received with regard to acts of harassment, and patrols should be deployed by the army and the police in order to discover such acts. It should be noted that in the current situation it is very doubtful whether the police units that were established for this purpose in the territories have been given all the resources required in order to carry out the enforcement. The enforcement mechanisms — investigations and indictments — should be improved. The respondents should act on their own initiative in order to discover the lawbreakers and bring them to justice and they should consider which measures should be adopted in order to prevent recurrences of the blatant acts of lawbreaking.

34. Subject to the aforesaid guidelines and the right of the petitioners to apply once again to this court with concrete problems at any time, if these guidelines are not upheld, we are of the opinion that the second part of the petition has been addressed. We can merely reiterate the remarks that were written in the summary of the Shamgar Committee Report in the chapter dealing with law enforcement, which is no less relevant today and has not yet been properly implemented:

     ‘We accept the premise that in the absence of effective law enforcement there is also no effective government. In an atmosphere in which everyone does what seems right in their own eyes, without being subject to any real risk that he will be brought to justice if he oversteps what is permitted, the propriety of the actions of the authorities responsible for effective control of the territories is impaired. The Supreme Court said years ago that the rule of law cannot be created ex nihilo and is not merely a matter of theory. It should be expressed in a concrete and daily manner in the existence of binding normative arrangements and in enforcing these in practice with respect to everyone…’ (p. 243 of the Shamgar Committee Report).

Summary

33. The result is that we declare that except in cases of a concrete need, which arises from reliable information or real warnings in the field, the military commander should, as a rule, refrain from closing areas in a manner that prevents the Palestinian inhabitants from having access to their land for their own protection, since the use of this measure in these circumstances is disproportionate. Adopting the measure of closing areas, which should be restricted to the absolute minimum, may be proportionate only when it is done in order to protect the Israeli inhabitants, subject to the restrictions and the conditions that we discussed in paras. 20-21 above.

With regard to the deficiencies in the field of law enforcement in the territories, the handling of these complaints is within the jurisdiction of the respondents and the whole issue is being considered by the most senior decision makers in the State of Israel. It is to be presumed that they will have the wisdom to deal with the complaints that the petitioners have raised and that they will do so with the speed and efficiency required by the nature, character and importance of law enforcement.

 

 

Justice E. Rivlin

I agree with the opinion of my colleague Justice D. Beinisch and its reasoning in every respect.

The response to the violation of the right of Palestinian inhabitants not to be harassed when cultivating their land does not lie in placing restrictions upon the Palestinians themselves. An aggressor should not have the right to ‘veto’ the right of his victim. Therefore I agree with my colleague’s declaration that, as a rule, the military commander should refrain from closing areas in a manner that denies the Palestinian residents the possibility of access to their agricultural land for their own protection. I also agree with her remarks with regard to the deficiencies in law enforcement.

 

 

Justice S. Joubran

1.    I agree with the opinion of my colleague Justice D. Beinisch and all of the reasoning that appears in her opinion.

2.    I think that there is no need to speak at length on the harm that is likely to be suffered by the Palestinian inhabitants if they are denied access to the agricultural land that they own. Here it should be emphasized that in most cases these are inhabitants whose land serves as the main if not the only source of livelihood for them and their families. It is clear that during periods of intensive agricultural work, such as during the olive harvest season, the damage that may be caused to the livelihood of these inhabitants is far greater. Therefore, the court has the duty to ensure that the violation of these rights of the Palestinian inhabitants is proportionate and not excessive (cf. and see Marabeh v. Prime Minister [5]).

3.    My colleagues rightly reached the conclusion that in general there is no basis for allowing a violation of the rights of the Palestinian inhabitants to cultivate their land merely because of the desire to protect their lives from persons who wish to harass them. This conclusion is consistent with the principle that this court has stated time and again in a whole host of judgments that ‘a person should not be deprived of his liberty because of the violent opposition to the exercising of that liberty’ (HCJ 153/83 Levy v. Southern District Commissioner of Police [22], at p. 404 {120}; see also HCJ 2431/95 Salomon v. Police [23]; Horev v. Minister of Transport [18]; HCJ 3641/03 Temple Mount Faithful v. HaNegbi [24]). Even though most of the aforesaid cases mainly concerned the protection of the rights of freedom of worship, freedom of movement and freedom of speech, no one denies that what was said there applies to our case too, mutatis mutandis, especially in view of the importance attributed to the protection of property rights in our legal system.

4.    Imposing severe restrictions on the Palestinian inhabitants by closing agricultural areas, even as a result of a concern that they may be harmed by the criminal acts of violent persons, amounts de facto to placing the keys to exercising the right of freedom of movement and property rights in the hands of those lawbreaking persons, who wish to prevent the Palestinian inhabitants from cultivating their land. Moreover, imposing such restrictions on the Palestinian inhabitants is tantamount to rewarding violence, and it sends the wrong message of surrender and capitulation to those lawbreakers, even at a cost of a violation of the fundamental principles on which our system of government is based. In this context I think it appropriate to cite the remarks of President Barak in Horev v. Minister of Transport [18]:

‘A government authority whose path is influenced by violence on the street will ultimately lose its way’ (ibid. [18], at p. 80 {235}).

5.    I agree with the view that maintaining public order and the security of the Palestinian inhabitants should be done by means of adopting appropriate measures against those lawbreakers and not by imposing additional restrictions on the victims of the violence. Similar remarks have been uttered by this court elsewhere, when it said:

‘Keeping the peace does not mean capitulating to those who threaten to breach it, but the opposite: giving shelter and protection to their victims’ (HCJ 166/71 Halon v. Head of Osfiah Local Council [25], at p. 594).

Indeed, one of the duties of the military commander, who is responsible for upholding the law and keeping the peace in the territories, is to adopt reasonable measures in order to prevent those persons from stopping the Palestinian farmers from cultivating their land, while realizing their right to freedom of movement and their property rights. The military commander has many different ways of protecting the security of the Palestinian residents, including by increasing the security presence or closing areas of conflict to prevent the entry of Israelis. Denying the Palestinian inhabitants access to their land should be the last resort, not the first.

6.    In this context I accept the determination that there may be exceptional cases in which the great probability of danger to human life, as well as the scope of the anticipated harm, may justify closing a certain area for fixed period on the basis of definite and specific intelligence. But in order that these exceptional cases do not become the rule, we cannot agree to preventative measures of a sweeping closure of large areas for lengthy periods of time.

 

 

Petition granted.

30 Sivan 5766.

26 June 2006.

 

Full opinion: 
PDF icon Morar v. IDF Commander in Judaea and Samaria.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/04/930/095/N21/04095930.n21.pdf

Miller v. Minister of Defence

Case/docket number: 
HCJ 4541/94
Date Decided: 
Wednesday, November 8, 1995
Decision Type: 
Original
Topics: 
Administrative Law
Discretion
Army
Assignments and exemptions from service
Constitutional Law
Affirmative Action
Basic Law: Human Dignity and Liberty
Freedom of Expression
Abstract: 

Facts: The petitioner asked the army to assign her to the air force for training as a pilot. The army refused, since it was established policy not to train women as pilots. The army’s reasoning was based on the length of service: by law, men are obliged to serve until the age of 54, whereas women are only obliged to serve until the age of 38, and they are exempt if they are pregnant or have children. Consequently, the army argued, the huge investment involved in training a pilot could not be justified for women, and planning for the deployment of pilots in the air force units would be complicated by the integration of women pilots who could be expected to be absent for significant periods of time because of pregnancy and childbirth.

 

Held: The majority held that the budgetary and planning considerations did not justify a general policy of rejecting all women from aviation courses. The minority held that intervention of the High Court of Justice was not justified in view of these considerations.

 

Petition granted by majority decision (Justices E. Mazza, T. Strasberg-Cohen, D. Dorner), Justices Y. Kedmi, Ts. E. Tal dissenting.

Voting Justices: 
Mazza, Eliahu
Primary Author
majority opinion
Dorner, Dalia
Author
concurrence
Strasberg-Cohen, Tova
Author
concurrence
Kedmi, Yaakov
Author
dissent
Tal, Tzevi Eliyahu
Author
dissent
Full text of the opinion: 

HCJ 4541/94

Alice Miller

v.

1.     Minister of Defence

2.     Chief of Staff, IDF

3.     Head of Manpower Department, IDF

4.     Chief Officer of Women’s Corps, IDF

 

The Supreme Court sitting as the High Court of Justice

[8 November 1995]

Before Justices E. Mazza, Y. Kedmi, T. Strasberg-Cohen, Ts. E. Tal, D. Dorner

 

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

 

Facts: The petitioner asked the army to assign her to the air force for training as a pilot. The army refused, since it was established policy not to train women as pilots. The army’s reasoning was based on the length of service: by law, men are obliged to serve until the age of 54, whereas women are only obliged to serve until the age of 38, and they are exempt if they are pregnant or have children. Consequently, the army argued, the huge investment involved in training a pilot could not be justified for women, and planning for the deployment of pilots in the air force units would be complicated by the integration of women pilots who could be expected to be absent for significant periods of time because of pregnancy and childbirth.

 

Held: The majority held that the budgetary and planning considerations did not justify a general policy of rejecting all women from aviation courses. The minority held that intervention of the High Court of Justice was not justified in view of these considerations.

 

Petition granted by majority decision (Justices E. Mazza, T. Strasberg-Cohen, D. Dorner), Justices Y. Kedmi, Ts. E. Tal dissenting.

 

Basic Laws cited:

Basic Law: Freedom of Occupation, 5754-1994, ss. 1, 3.

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 1, 2, 3, 4, 8, 10, 11.

 

Statutes cited:

Defence Service (Volunteering for Defence Service) Regulations, 5734-1974.

Defence Service (Women’s Jobs in Compulsory Service) Regulations, 5712-1952.

Defence Service Law (Amendment no. 2), 5747-1987.

Defence Service Law (Amendment no. 7 and Temporary Provisions) (Police Service and Recognized Service), 5755-1995, s. 4.

Defence Service Law [Consolidated Version], 5719-1959, s. 16(b).

Defence Service Law [Consolidated Version], 5746-1986, ss. 1, 12, 15, 16, 17, 17(e), 21(b), 24, 29, 34, 39.

Defence Service Law, 5709-1949, s. 6(f).

Discharged Soldiers (Return to Work) Law, 5709-1949.

Equal Employment Opportunities Law, 5748-1988, s. 2(a).

Equal Remuneration for Female and Male Employees Law, 5724-1964, s. 1.

Government Corporations Law, 5735-1975, s. 18A.

Work and Rest Hours Law, 5711-1951, s. 9(c).

Women’s Employment Law, 5714-1954, ss. 6(a), 7(c)(1), 7(d)(1).

Women’s Equal Rights Law, 5711-1951, s. 1.

 

Regulations cited:

Employment of War Invalids Regulations, 5711-1951.

 

Israeli Supreme Court cases cited:

[1]        FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[2]        HCJ 720/82 Elitzur Religious Sports Association, Nahariya Branch v. Nahariyah Municipality [1983] IsrSC 37(3) 17.

[3]        HCJ 721/94 El-Al Israel Airways Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

[4]        HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[5]        HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3) 353.

[6]        HCJ 453/94 Israeli Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[7]            CrimA 5/51 Steinberg v. Attorney-General [1951] IsrSC 5 1061.

[8]        HCJ 3627/92 Israel Fruit Growers Organization Ltd v. Government of Israel [1993] IsrSC 47(3) 387.

[9]        HCJ 734/83 Shine v. Minister of Defence [1984] IsrSC 38(3) 393.

[10]     HCJ 329/87 Sorko-Ram v. Minister of Defence [1992] IsrSC 46(5) 301.

[11]     HCJ 3246/92 Har-Oz v. Minister of Defence [1992] IsrSC 43(4) 873.

[12]     HCJ 953/87 Poraz v. Mayor of Tel-Aviv [1988] IsrSC 42(2) 309.

[13]     HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(3) 393; IsrSJ 7 109.

[14]     HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 441.

[15]     HCJ 1255/94 Bezeq, the Israel Telecommunication Corporation Ltd v. Minister of Communications [1995] IsrSC 49(3) 66.

[16]     HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [1994] IsrSC 48(5) 441.

[17]     HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221; IsrSJ 8 186.

[18]     HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[19]     FH 36/84 Teichner v. Air France Airways [1987] IsrSC 41(1) 589.

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

[21]     HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.

[22]     HCJ 141/82 Rubinstein v. Knesset Speaker [1983] IsrSC 37(3) 141; IsrSJ 8 60.

[23]     HCJ 142/89 Laor Movement v. Knesset Speaker [1990] IsrSC 44(3) 429.

[24]     HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [1958] IsrSC 12 264.

[25]     HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.

[26]     CA 732/74 HaAretz Newspaper Publishing Ltd v. Israel Electricity Co. Ltd [1977] IsrSC 31(2) 281; IsrSJ 5 30

[27]     HCJ 301/63 Streit v. Chief Rabbi [1964] IsrSC 18(1) 598.

[28]     CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[29]     CrimApp 4595/94 (unreported).

[30]     CApp 4459/94 Salomonov v. Sharabani [1995] IsrSC 49(3) 479.

[31]     HCJFH 3229/93 Wechselbaum v. Minister of Defence [1995] IsrSC 49(2) 195.

[32]     CrimApp 2169/92 Suissa v. State of Israel [1992] IsrSC 46(3) 338.

[33]     HCJ 389/90 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

[34]     HCJ 4422/92 Efran v. Israel Lands Administration [1993] IsrSC 47(3) 853.

[35]     HCJ 231/63 Ratef Food Supply Ltd v. Ministry of Trade and Industry IsrSC 17 2730.

[36]     HCJ 5510/92 Torkeman v. Minister of Defence IsrSC 48(1) 217.

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

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

[39]     HCJ 1452/93 Igloo Plumbing Works, Building & Development Contracting Co. Ltd v. Minister of Industry and Trade [1993] IsrSC 47(5) 610.

[40]     HCJ 80/70 Elitzur v. Broadcasting Authority [1970] IsrSC 24(2) 649.

 

American cases cited:

[41]         Faulkner v. Jones 10 F. 3d 226 (1993).

[42]         Faulkner v. Jones 51 F. 3d 440 (1995).

[43]         Bradwell v. The State 83 U.S. 130 (1872).

[44]         Brown v. Board of Education 347 U.S. 483 (1954).

[45]         Frontiero v. Richardson 411 U.S. 677 (1986).

[46]         Muller v. Oregon 208 U.S. 412 (1908).

[47]         Hoyt v. Florida 368 U.S. 57 (1961).

[48]         Rostker v. Goldberg 453 U.S. 57 (1981).

[49]         Getz v. Con. of Pa., Dept of Public Welfare 802 F. 2d 772 (1986).

[50]     Shapiro-Gordon v. MCI Telecommunications Corp. 810 F. Supp. 574 (1993).

[51]         Railway Express Agency v. New York 336 U.S. 106 (1949).

[52]         Massachusetts Board of Retirement v. Murgia 427 U.S. 307 (1976).

[53]         Korematsu v. United States 323 U.S. 214 (1944).

[54]         Craig v. Boren 429 U.S. 190 (1976).

[55]         Mississippi Univ. v. Hogan 102 S. Ct. 3331 (1982).

 

Canadian cases cited:

[56]         Gauthier & an. v. Canadian Armed Forces — unreported.

[57]         Re Blainey and O.H.A. (1986) 54 O.R. 2d 513.

[58]         R. v. Oakes [1986] 1 S.C.R. 108.

[59]         Singh v. M.E.I. [1985] 1 S.C.R. 177.

[60]         R. v. Lee [1989] 2 S.C.R. 1384.

 

Jewish Law sources cited:

[61]         Psalms 45, 14.

 

For the petitioner — N. Ziv, R. Benziman.

For the respondents — U. Fogelman, senior assistant and director of the High Court of Justice Department at the State Attorney’s Office.

 

 

JUDGMENT

 

 

Justice E. Mazza

1.    At the heart of this petition lies the question whether the policy adopted by the IDF, not to recruit women soldiers to the profession of aviation, should not be disqualified because it is tainted by improper discrimination on the basis of the sex of the candidates. When the petition was filed, an order was made, ordering the respondents to show cause why they should not summon the petitioner for aptitude tests for an aviation course, and why they should not allow her to participate in the aviation course if she is found suitable for it.

The facts

2.    The petitioner (an Israeli citizen, born on 23 January 1972), was born and grew up in South Africa. Since her youth, in South Africa, she showed great interest in aviation. She trained for this and received a pilot’s license, which is recognized as valid in many countries, but she has not yet completed the requirements for receiving a civil aviation licence in Israel. On 13 December 1990 the petitioner was enlisted in the IDF. Her enlistment took place within the framework of the academic reserves, and the beginning of her service was postponed. For four years the petitioner studied aeronautic engineering at the Technion in Haifa. She successfully completed her studies and on 1 January 1995 she reported for active service.

            In November 1993 (more than a year before the beginning of her military service) the petitioner informed the commander of the academic reserves that she wanted to volunteer for service in the air crew professions and she asked to be summoned to aptitude tests for an aviation course. The petitioner thought that she had promising basic qualifications for succeeding in the role of pilot; but her request was denied. In her letter to the petitioner (dated 15 December 1993), the commander of the reserves wrote that according to the directives of the high command, women were not to be assigned to ‘combat professions’; and since aviation was classified as a combat profession, the army does not accept women for aviation courses. The petitioner gave notice that she challenged the legality of the refusal and gave her reasons. As a result, she was invited to a meeting with the Commander of the Air Force. However, this meeting too, which took place in December 1993, did not further her cause; on 15 May 1994 the army once again informed her that in view of established policy ‘not to assign women to combat professions’, there was no basis for assessing her aptitude for an aviation course.

            This was the background to the petitioner filing (in August 1994) the petition before us. It should be noted that prior to the date of hearing the objection to the show cause order (which took place on 21 June 1995), the petitioner successfully completed an officers’ course and was given the rank of an officer, but her desire to be accepted to an aviation course and to serve as a pilot remained as strong as ever.

            The legal framework

3.    The Defence Service Law [Consolidated Version], 5746-1986, regulates compulsory service in the IDF. In three main areas relating to the scope of compulsory service, the law makes a different provision for men and women. The most noticeable differences relating to the sex of young persons being enlisted — as can be seen from the law alone, without taking into account additional arrangements prescribed in subordinate legislation and in army regulations — are as follows:

(a) Duration of regular service: Men are liable for thirty months of service, whereas women are liable for compulsory service for a period of only twenty-four months (ss. 15 and 16 of the law);

(b) Reserve duty: Men who are not in compulsory service are liable for reserve duty until the age of 54, whereas women are only liable until the age of 38 (see section 29 of the law and the definition of ‘person of military age’ in section 1 of the law);

(c) Exemption from defence service: In addition to the grounds for exemption from security service available to men, married woman are entitled to an exemption from compulsory service and pregnant women and mothers are also exempt from reserve duty (s. 39 of the law).

4.    Alongside the provisions with regard to compulsory defence service, the law also makes it possible (in section 17) to volunteer for service (with the approval of the Minister of Defence). The possible volunteer tracks are for ‘compulsory’ service, by those who are not liable for such service; for additional ‘compulsory’ service (‘permanent service’), beyond the period of compulsory service; and for reserve service, by those who not liable for such service, or beyond the amount for which a person is liable. From the provisions of section 17(e) of the law it appears that volunteering for ‘compulsory’ service imposes an obligation to serve until the end of the period stipulated in the declaration of voluntary service, and the Minister of Defence has the authority to shorten the period, but someone who volunteers for reserve duty will be discharged even before the end of the period stipulated in the declaration, if he submits a written notice of his desire to be discharged (at the times stipulated in the Defence Service (Volunteering for Defence Service) Regulations, 5734-1974).

5.    With regard to the kinds of jobs that can be imposed on soldiers, the law no longer distinguishes between men and women. However, such a distinction — which serves as the guideline for the army authorities — is found in the High Command Regulations which regulate the service of women soldiers. In sections 4 and 5, which are entitled ‘Jobs’, the regulations state as follows:

‘4.          Women soldiers in the IDF shall be employed in all military professions that are defined in the list of military professions as professions to which women may be assigned, with the exception of field, combat professions, taking into account their credentials, capabilities and their special service conditions as women.

5.            A woman soldier may volunteer for jobs that are outside the framework of the definition in section 4 above, after she signs a suitable declaration to volunteer, and her voluntary service for the job is approved by the Chief Officer of the Women’s Corps and the Head of the Manpower Division.’

It should be noted that in the past, women’s jobs were determined by the Defence Minister, in the Defence Service (Women’s Jobs in Compulsory Service) Regulations, 5712-1952. These regulations list the jobs to which the army may assign women. The list, which specifies twenty-five different possible jobs, does not include jobs in the sphere of combat professions, and assigning a woman to a job that is not mentioned in the list was permitted under the regulations only ‘if the woman consented thereto in a written declaration’. The regulations still appear in the statute book, but the legal basis for enacting them was removed by the repeal (within the framework of the Defence Service Law (Amendment no. 2), 5747-1987) of section 21(b) of the law, which by virtue of its parallels in previous wordings of the law (s. 6(f) of the Defence Service Law, 5709-1949, and section 16(b) of the Defence Service Law [Consolidated Version], 5719-1959) gave the Minister of Defence authority to enact regulations in this respect. It appears that the only distinction between men’s jobs and women’s jobs that the law left intact was in section 24, in which the Minister of Defence was authorized, in consultation with the Minister of the Police or someone authorized by him, to direct in an order that men of military age who have certain qualifications may serve in the Border Patrol of the Israeli Police. But recently the legislator repealed even this distinction (see section 4 of the Defence Service Law (Amendment no. 7 and Temporary Provisions) (Police Service and Recognized Service), 5755-1995).

The petitioner’s arguments

6.    The petitioner claims that the respondents’ position, which is based on a policy of an absolute disqualification of women for the profession of aviation, violates the basic right of equality between the sexes. The admission of men to an aviation course is considered, subject to the requirements of the army, on the basis of the personal details and qualifications of the candidates. A soldier who volunteers to serve on an air crew and who complies with the minimum requirements is referred for aptitude tests. If he is found to be suitable, he is accepted into an aviation course; and if he successfully completes the aviation course he will be assigned (according to his talents and the degree of his success) to one of the air crew professions. But women are denied the opportunity and the right at the outset. They are disqualified because they are women. The question of their talents and suitability does not interest the army. For this reason the army refuses to test the level of the personal qualifications of any woman candidate.

The petitioner claims that this policy is a discriminatory one. Its implementation violates her right (and the right of all women) to equality. This violation is expressed, first and foremost, in denying a woman the equal right and opportunity to serve in the army as a pilot, if she is found to have the requisite qualifications, and thereby to make her contribution to the defence of the State, to achieve her aspirations and to make the most of her potential. But denying the possibility of serving as a pilot has additional ramifications. The disqualification in limine of women for positions, even when they are suitable and have the necessary qualifications, harms their social image. It also blocks their prospects of promotion to senior positions in the air force and in the army as a whole. Being in a combat unit is, usually, a precondition for promotion in the army. For this reason, most positions of senior staff officers in the IDF are, de facto, closed to women. But this is not all: it is usual in Israel that having a professional position in the army constitutes a springboard for obtaining employment in the civil sector. This is especially obvious for pilots, since obtaining a job as a pilot for the El-Al company is de facto conditional upon serving as a pilot in the air force; by denying the petitioner an equal opportunity to serve as a pilot in the air force, she is also, de facto, being denied the equal opportunity to work and make the most of her talents as a civil pilot.

            7.         The petitioner is aware that the exclusion of women from combat professions may be based on relevant considerations. Thus, for example, she is prepared to assume that in many combat roles in the field corps, there is no practical possibility of integrating women. Therefore she does not argue that the existing restrictions on the recruitment of women for combat units should be cancelled entirely. Nonetheless, the petitioner argues that an all-embracing disqualification of the integration of women in combat positions is an unacceptable position. Experience, both generally and in the army, shows that it is possible to integrate women in some combat positions. Aviation professions are an obvious example of this. This has been done, with great success, in the armies of other countries, and even in the IDF several women pilots have served in the past. Therefore the petitioner argues that the policy of the army with regard to the integration of women in combat positions should be an all-embracing one, but it should consider, on an individual basis, the nature of the position, the combat unit and the corps in the relevant case. This approach is mandated by the principle of equality. As long as there is no objective and relevant reason for distinguishing between men and women for the purpose of carrying out a particular job, both sexes should be treated according to the same criterion. The law does indeed distinguish, in some matters, between men and women soldiers, but the distinctions of the law are not relevant for the purpose of the jobs which it is permitted and possible to assign to women. Moreover, the aforesaid regulations of the High Command, which were the basis for rejecting her application to volunteer for an air crew, allow a woman soldier to volunteer for tasks that are not included among the jobs that the army may impose on her. It follows that neither the law nor army regulations place an obstacle in the way of implementing a policy of selection and assignment that respects the right of women soldiers to equality.

The position of the respondents

8.    In the affidavit in reply to the petition, which was submitted by the Air Force Commander, General Herzl Bodinger, the reasons of the respondents that justify the policy of the army with regard to the military service of women and the question of integrating them in combat positions are set out — at great length. From the affidavit it emerges that the basis for this policy lies in the distinction that the law makes between men and women with regard to the extent of their duty to serve. On the basis of this distinction it is argued that the service conditions for women, as dictated by law, have implications for the nature of their service, both in the regular forces and the reserve forces. Because of the difference in the relevant characteristics of men and women, the principle of equality does not apply. The different treatment of the service of women is based on relevant differences in their personal details, and therefore it is not an improper discrimination but a permitted distinction.

            9.         A preliminary comment should be made regarding the scope of the dispute.

In his reasons for disqualifying the integration of women in combat professions in the wider sense, the deponent discussed, inter alia, the socio-ethical aspect. This is what he said:

‘The question of integrating women into combat professions is problematic, and ultimately it is also a social, cultural and ethical question that has been pondered in many countries. It also arises from time to time in Israel and the solution to it is not merely in the hands of the defence establishment.

Until now it was accepted, in the security situation prevailing in Israel, that men are the ones who go to the front, in view of the element of danger involved in the combat professions, the risk of combat against the enemy and the danger of falling into captivity. Obviously weight was given to public opinion on this matter, since the decision is one of life and death in view of the dangers prevailing in the daily security reality, which even with the passage of time have not yet disappeared.’

However, at the beginning of the hearing before us, counsel for the State, Mr U. Fogelman, declared that the respondents wished to rely, in their opposition to the petition, only on the considerations because of which the army decided — within the framework of section 5 of the aforesaid High Command regulations — to reject the petitioner’s request to volunteer for an air crew. It soon became clear that the respondents’ position in this respect relied mainly on what in his affidavit the Air Force Commander referred to as  ‘planning considerations’. To remove all possible doubt regarding the decision we are asked to make in this petition, Mr Fogelman reiterated and emphasized the following two points: first, that the respondents limit their opposition to the specific issue raised by the petition — i.e., the integration of women as pilots in the air force — without including this as part of their approach to the general question of principle with regard to the possibility of integrating women in other combat professions; second, that even though with regard to the integration of women pilots the respondents are not unaware of the (in his words) ‘paternalistic’ aspect — i.e., the social approach that holds that women should not be exposed to the risks of combat against the enemy and falling into captivity — it was not this criterion that led to the decision in the case of the petitioner, and the question of whether this approach is correct, and to what degree, is not what requires clarification and elucidation from us. It follows that the petitioner was rejected on the basis of the ‘planning considerations’; we only need to consider whether these are justified, and we only need to give a decision on this point.

            10. I will therefore return to the affidavit-in-reply, in order to ascertain and clarify the nature and scope of the planning reasons, on which basis the respondents wish to justify an all-embracing and absolute disqualification of all women soldiers from the aviation courses of the air force. I will first say that that not everything that has been brought to our attention in this sphere can be revealed within the framework of the judgment. The information submitted to us concerns, to no small degree, the structure of the air force’s deployment for operations and training, the financial costs of training pilots, the average service periods of pilots in the regular army and in reserve duty, the standard call-up of pilots for active reserve duty and its frequency and other matters. Obviously, since all these constitute fragments of information about the planning of the air force, the less said the better. In submitting them to us — partly in an additional (privileged) affidavit from the Air Force Commander, partly in explanations given orally, in camera, by the Head of the Manpower Division at Air Force Headquarters — the respondents wanted to put before us the factual basis needed to appraise the validity of the considerations that led to the rejection of the petitioner’s request without considering her suitability and her qualifications. Only those considerations which the respondents stated publicly may be mentioned by us, for the planning considerations relevant to the rejection of the petitioner’s request are not part of the planning, but considerations based on the planning.

            11. What, then, are the planning considerations? From the affidavit-in-reply it transpires that these concern considerations of overall viability and also organizational limitations involved in the integration of women into the air combat alignment of the air force. In fact, these reasons form the basis for the policy of disqualifying the integration of women in many other combat professions as well. However, in the opinion of the Air Force Commander, these reasons are particularly valid for justifying the viewpoint that women should not be trained as pilots.

            The training of a pilot is a lengthy process, and the financial investment in funding it is huge. The training of a pilot therefore looks towards the future. It is based on the assumption that the candidate will serve for a long period, beginning with compulsory service and thereafter in reserve duty. Because of this, army regulations provide additional age limits and preconditions for accepting a candidate for an aviation course. The length of compulsory service for women, the limited obligations for reserve duty imposed upon them and their entitlement to an exemption from defence service as a result of marriage, pregnancy and childbirth make it impossible to integrate them in an aviation course and for them to serve in an air crew. Even volunteering for additional regular service and reserve duty by those women wishing to serve as pilots provides only a partial solution to the problem, both because of the statutory distinction between a volunteer who is liable to serve and a volunteer who is not liable to serve and also because of the reduced capacity to continue to serve in situations of pregnancy and childbirth.

            Indeed, in the course of argument before us, Mr Fogelman conceded that with respect to an undertaking for additional regular service, there is no real basis for distinguishing between women and men, since a woman candidate for an aviation course who commits herself (in the same way as male candidates) to additional regular service, would be obliged to complete her term of service in full, even if she marries, becomes pregnant or gives birth during the period of service. This is not the case with respect to the obligation of reserve duty for a woman pilot, who has completed her term of additional regular service to which she committed herself. She is bound by this obligation only until she becomes pregnant, gives birth or reaches the age of 38, whichever is the earliest. Even if she volunteers for reserve duty for which she is not liable (such as because of pregnancy or childbirth), she can at any time retract her volunteering for reserve duty, and the army will be bound to release her. Counsel for the respondents argues that the selection of candidates for assignment to any military function must be based solely on army needs, and the assignment of women to positions as pilots is inconsistent with those needs. Even if a woman pilot is able and willing to carry out all her obligations, her temporary absence from service, due to pregnancy for example, could disrupt the viability of her unit. As a result, planning and operational capacity will be compromised. And if the planning considerations are insufficient to tip the scales, they are supplemented by budgetary and logistic considerations. These involve the necessity of adapting existing military facilities for the inclusion of women.

            It should be noted that the Air Force Commander (as can be seen from his affidavit) does not dispute that a woman may have all the qualifications required for success as a pilot. In his affidavit, he also addresses the fact that in some other armies several combat professions (including aviation) have been opened up to women. However, in his opinion, one cannot use the experience of other armies to draw conclusions for the IDF, both because of the unique emergency conditions under which the IDF is required to act, and also because of the difference in the service conditions of women between the IDF and other armies. In conclusion, with regard to the rejection of the petitioner’s request, the Air Force Commander says:

‘The petitioner’s request to volunteer for an aviation course was rejected despite her excellent and admirable qualifications, not because she is a woman, but mainly because her anticipated length of service (placing an emphasis on reserve duty) is inconsistent with the army’s preconditions for the training of a member of an air crew.’

            Relevant difference and improper discrimination

12. The petitioner’s position relies on the principle of equality. Her argument is that her rejection as a candidate for an aviation course, merely because she is a woman, discriminates against her in relation to men soldiers. This discrimination violates her right to equality of the sexes, and the decision must therefore be disqualified. In replying to this argument, counsel for the respondents hoped to persuade us that in our case, the question of violation of the principle of equality does not arise at all. In his opinion, this is a necessary implication of the provisions of the law which, in so far as the extent of the obligation to serve and the conditions of service are concerned, clearly distinguish between men and women. This means that the legislator recognized that the difference between the sexes is relevant with respect to their military service. It follows that this difference is relevant also in determining the nature of the military jobs and professions that the army assigns to men and women soldiers.

            13. I cannot accept this position. It is true that a relevant difference may justify a distinction. This indeed is the root of the difference between improper discrimination and a proper distinction. In the words of Justice Agranat in FH 10/69 Boronovski v. Chief Rabbis [1], at p. 35:

‘The principle of equality, which is merely the opposite of discrimination and which, for reasons of justice and fairness, the law of every democratic country aspires to achieve, means that people must be treated equally for a particular purpose, when no real differences that are relevant to this purpose exist between them. If they are not treated equally, we have a case of discrimination. However, if the difference or differences between different people are relevant for the purpose under discussion, it is a permitted distinction to treat them differently for that purpose, provided that those differences justify this.’

            However, as a condition for achieving real equality, we must determine that the relevance of the difference, and its degree, should be examined, in every case, in view of the specific purpose that the distinction is intended to achieve. In other words, the relationship required between the special characteristics possessed by one person and not by another, and the purpose for which it is permitted to prefer one person to another, must be direct and concrete (vid. et cf. the remarks of Justice Netanyahu in HCJ 720/82 Elitzur Religious Sports Association, Nahariya Branch v. Nahariya Municipality [2], at p. 21). The mere existence of a difference between two people does not justify a distinction. Compare HCJ 721/94 El-Al Israel Airways Ltd v. Danielowitz [3], the remarks of Vice-President Barak, at pp. 760-764 {488-494}, and the remarks of Justice Dorner, at pp. 782-783 {519-520}. On the contrary; wherever possible, even different people should be treated equally, while taking into account their being different.

            14. In establishing the duty of service and the conditions of service, the law distinguished between men and women. Does this not imply that there is a difference between the two sexes that is relevant for the absolute disqualification of all women soldiers from fulfilling various jobs? The answer must be no. The statutory distinction between men and women with regard to the duty of service and conditions of service was intended as a concession to women, presumably in view of the biological differences between the sexes. This concession regarding the service conditions of women constitutes a factor to be considered by the army when planning its manpower arrangement; but it cannot be a reason for permitting discriminatory treatment of women soldiers. Note that the law says nothing about assigning certain jobs to women, or their disqualification for other jobs; even the provision that used to be in the law, which authorized the Minister of Defence to enact regulations about what jobs the army could assign to women soldiers, was repealed and no longer exists (see paragraph 5 above). In these circumstances, and in the absence of any contrary indication in the language or purpose of the law, the presumption is that the law should be construed in a way that is consistent with respect for the right to equality between the sexes and that it is intended to achieve it (see A. Barak, Judicial Interpretation, vol. 2, Statutory Interpretation, Nevo, 1993, at pp. 435-436). This approach is even more compelling when we acknowledge that, since the enactment of the Basic Law: Human Dignity and Liberty, the normative status of the principle of equality — which had already been described as ‘the heart and soul of our constitutional regime…’ (Justice Landau in HCJ 98/69 Bergman v. Finance Minister [4], at p. 698 {17}) — has become elevated and has become ‘a principle with constitutional, super-legislative status’ (in the words of Justice Or in HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [5], at p. 363. See also: Barak, supra, at pp. 565-566; HCJ 453/94 Israel Women’s Network v. Government of Israel [6], at pp. 525-526 {451-454}).

            15. In the affidavit-in-reply it was hinted that the fact that the petitioner does not argue that women should be submitted to the same duties of military service that the existing law imposes only on men, is tantamount to seeking a privilege for women. Counsel for the respondents did well not to repeat this argument during the hearing before us. There are some who see in the law a defect of discrimination against men (see Dr C. Shalev, ‘On Equality, Difference and Sex Discrimination’, The Landau Book, Boursi, vol. 2, ed. A. Barak and A. Mazoz, 1995, 893, at pp. 900-902, and what is stated in footnote 42); this is certainly the opposite of the approach that holds that the distinction in the law between men and women is justified since it is based upon a relevant difference between the sexes (see the remarks of Justice Sussman in CrimA 5/51 Steinberg v. Attorney-General [7], at pp. 1067-1068). However, even if we do not stick to the traditional view and assume that the law is indeed defective to some extent in discriminating against men, I do not see how this argument can be used specifically against the petitioner who is seeking for herself the right to take upon herself a burden that according to the approach of those making this argument was designated only for men.

16. Therefore the construction of the law in accordance with its language and purpose leads to the conclusion that the law does not permit the total disqualification of women, because of their sex, from holding any particular job in the army. To remove doubt, I wish to add that even under the Defence Service (Women’s Jobs in Compulsory Service) Regulations — which after the repeal of the section in the law authorizing the regulations are no longer valid — it was not possible to reach a different conclusion. Even in the regulations there was a possibility for women soldiers to volunteer for jobs not included in the list of jobs that the army was allowed to assign to women. The same is also true under the aforesaid regulation of the Supreme Command, according to which the army continues to direct itself in assigning the jobs of women soldiers; even this, like the regulations when they were valid, leaves an opening for women to volunteer for jobs outside the scope of the jobs that the army normally assigns to women. Note that this does not mean that the difference between the sexes is never relevant with regard to the suitability of a woman soldier for a specific job. Even I think that it is indeed possible that a woman soldier will be disqualified, because of her sex, from holding various jobs, but a disqualification for this reason is permitted only where the sex of the candidate creates a difference that is relevant to her holding the specific job.

            Women as Pilots

17. No-one disputes that the capabilities required for operating military aircraft may be found equally among men and women. Much material has been submitted to us with regard to the successful integration of women pilots in the air forces of other countries. Admittedly, the practical experience in the air units of the United States Air Force (from 1942 onwards) was based mainly on the use of women pilots in reconnaissance, training and indirect assistance only (see the chapter ‘Women in Aviation’ in J. Ebbert & M. Hall, Crossed Currents: Navy Women from WWI to Tailhook, Brassey’s, 1993, at pp. 241-327). However, there is evidence that in the Red Army, during the Second World War, woman pilots were used with great success even in combat operations against enemy planes (see J. Holm, Women in the Military — An Unfinished Revolution, Presidio, 1982, at p. 315). In fact, no-one any longer disputes that women are capable of operating successfully in air crews to the same degree as men. It should be noted that the question of integrating women pilots in the United States Army in combat operations was recently examined by a presidential commission that was appointed to examine all the questions arising from the participation of women in combat units, including issues relating to the pregnancy and childbirth of women in active military service. The commission, whose investigations also included the lesson learned from the participation of women in the Gulf War, recommended (by a majority of eight to seven) not to allow women to participate in combat aviation (see the Commission’s report: The Presidential Commission on the Assignment of Women in the Armed Forces, Report to the President: Women in Combat, Brassey’s, 1992). But it appears that on this issue it was precisely the minority opinion of seven of the commission’s members (see, ibid., p. 80-83) that prevailed: the Secretary of Defence at that time, Les Aspin, decided to adopt the minority opinion, and in April 1993 he ordered the restriction against the participation of women in combat operations of the airborne units of all forces to be lifted. The active integration of women as pilots is today common in the air forces of other countries. It seems that the prominent examples in this field from our viewpoint are Canada and Australia, where openness on this subject increased and received an impetus as a result of the constitutional development of human rights and the prevention of discrimination against women (in this respect, see the research of A. Ayalon, Women in Combat Positions — A Theoretical Comparative Survey, The Israel Institute for Democracy, 1994, at pp. 21-28).

            18. But why should we search so far away? The material submitted to us shows that at least in the first decade of the air force’s existence several women pilots were integrated into its ranks. Before and during the Kadesh operation, women received assignments as pilots of transport aircraft. But in subsequent years the army stopped accepting woman for aviation courses. The change in policy is attributed to budgetary considerations: the training of women as fighter pilots in order to be assigned merely as transport pilots, for a relatively short period, was considered to be cost-ineffective. In one exceptional case, during the seventies, several women were accepted as cadets for an aviation course. But since then the doors of the course were closed once again to women soldiers (on this issue, see N. L. Goldman & K. L. Wiegand, ‘The Israeli Woman in Combat’, The Military, Militarism and the Polity, The Free Press, N.Y., 1984, at pp. 220-221). It should be noted that not all professionals accepted this approach. In support of her petition, the petitioner submitted, inter alia, also an affidavit of Col. (Res.) Ze’ev Raz who served in the air force as a combat pilot, and during the years 1986-1989 served as Commander of the Aviation School. The deponent testified that, subject to the difficulty that he sees in the participation of women in combat operations (which he attributes to the difficulty that exists in the attitude of the public to the possibility of women falling into captivity), he supports the integration of women in an aviation course; moreover, even when he was in active service he tried to change the army’s policy in this matter. In his opinion, women can be integrated in flying Boeing transport aircraft and in service flights in Skyhawk aircraft. Women can serve as pilots both in compulsory service and also (on a voluntary basis) in reserve duty, as is the case with men pilots. In his estimation, the integration of women in a flight course and in the units will not only not impair the ability of the units to carry out the missions which they are assigned, but will even make a positive contribution in this direction. Moreover, he does not expect the integration of women to create difficulties in logistic and organizational deployment that are insurmountable. Support for the integration of women in aviation courses is expressed also in the affidavit of Major-General (Res.) Amira Dotan, who served as the Chief Officer of the Women’s Forces during the years 1982-1987. The deponent testified to the successful integration of women soldiers in units that operated beyond the borders of the State (such as in Lebanon in Operation Peace for Galilee) and to a positive development taking place in the IDF in recent years, whereby jobs and service tracks that in the past were considered the sole prerogative of men soldiers have been opened up to women. It is not redundant to point out that confirmation of the existence of this new approach in army deployment can be found also in the affidavit of the Air Force Commander, but in his opinion what is desirable in other army professions cannot apply to the profession of aviation.

            Counter-arguments: planning, logistics and budget

19. The respondents, as stated, do not dispute that from the viewpoint of the qualifications that are prerequisites for suitability for an aviation course, there is no difference between women and men. Both of these alike may be suitable or unsuitable for the profession of aviation; the sex of the candidates and the talents required for their suitability are totally unconnected. Nonetheless the respondents are adamant in their refusal to train women for aviation and to integrate them as pilots in air force units. Their argument is that there is nonetheless a difference between the two sexes which is relevant in making their decision. This difference is what leads to the distinction underlying the army’s policy that only men are accepted for aviation courses and jobs as pilots.

            The respondent’s position remains unchanged. But we should mention once again that there has been a change in their reasoning. It will be remembered that the petitioner’s request was rejected on the basis of the regulation of the High Command that women are not to be assigned to combat professions; and since aviation is classified as a combat profession, the army does not accept women for aviation courses. In the Air Force Commander’s affidavit-in-reply, the socio-ethical aspects of the participation of women in combat missions was also addressed (and cited above in full). But in oral argument counsel for the respondents limited the reasons for his opposition to practical considerations relating to the deployment of the air force for carrying out its missions. In defining the obstacle to accepting women as pilots, the emphasis has now been placed on planning considerations, but  ‘logistic’ and ‘budgetary’ considerations were also mentioned. I do not think that I need to dwell on these additional reasons, which have in common the unsurprising revelation that the absorption of women will necessitate the investment of additional financial resources. This is not because no approximate valuation of the size of the additional investment required was appended to this argument; nor even because budgetary considerations, in themselves, are unimportant; but because the relative weight of such considerations, in making an executive decision, is measured and determined when balanced against other considerations (see HCJ 3627/92 Israel Fruit Growers Organization Ltd v. Government of Israel [8], at pp. 391-392, and the references cited there). In any event, when we are concerned with a claim to exercise a basic right — and such is the case before us — the relative weight of the budgetary considerations cannot be great, since:

‘The rhetoric of human rights must be founded on a reality that sets these rights on the top level of the scale of national priorities. The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden’ (Barak, in his book supra, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 528).

See also: P. W. Hogg, Constitutional Law of Canada, Toronto, 3rd ed., 1992, at p. 873. Indeed, even counsel for the respondents conceded that not much weight should be attached to these considerations, and he preferred to concentrate his arguments almost exclusively on the reasons that the Air Force Commander stated in his affidavit as the main reasons. These, as we have already said, are the planning considerations.

            20. The planning considerations which we have already discussed (in paragraph 11, supra) were intended to persuade us that the integration of women in the active planning framework of air crews is impracticable. The huge investment in training pilots is based on a long-term projection. The candidates for aviation courses commit themselves to serving in the regular army for a number of years (which is determined and stipulated in advance) from the date that they qualify as pilots. They also commit themselves (voluntarily) to annual amounts of reserve duty that in most cases exceed the statutory requirement and comply with requirements determined by the air force according to its needs and the types of activity required. The statutory arrangements with respect to the extent of women’s compulsory service — and mainly their limited obligation for reserve duty, which is also subject to clear grounds for an absolute exemption as a result of pregnancy or childbirth — make it impossible to integrate them within this planning framework. Admittedly a woman candidate for an aviation course can be required to do additional ‘compulsory’ service, as is usual with regard to men candidates, and she can also be required to undertake voluntarily to do reserve duty for which she is not liable. But even these cannot ensure the regularity and continuity of her service. Even a temporary absence of a woman pilot during her compulsory service, as a result of pregnancy or childbirth, can disrupt the planned daily activity of the whole airborne unit. And perhaps the main difficulty lies in the inability to rely on her undertaking to continue the reserve duty for which she is not liable, since, if she becomes pregnant or gives birth, and gives notice that she retracts her commitment to volunteer, there will be no legal possibility of compelling her to serve.

            21. I doubt whether these fears have a solid basis. The premise is that women who offer themselves as candidates for an aviation course will, like men candidates, be required to make commitments both for ‘compulsory’ service and for reserve duty. As a rule, it is correct to assume that someone who commits himself to such an undertaking will want and be able to perform it. Even if the assumption is that the average total contribution of a woman pilot — in terms of the length and continuity of service — will be less than that of men pilots, this is a difference resulting from her being a woman. This difference, which should not be held against her, can be taken into account within the framework of planning. The army can learn, in this respect, from its rich experience with regard to its personnel in permanent service. There are doubtless cases in which soldiers ask, for a variety of reasons, to be released from their commitments for continued service. With respect to the scope of this phenomenon, among men and women, figures must be available, and it stands to reason that in planning its activity the army also takes these figures into account. The air force can also rely, at least to some extent, on its experience with reserve pilots. It may be assumed that the majority of pilots indeed carry out the extra amounts of service, in excess of the statutory requirement, and continue to do so throughout the whole period of their undertaking with hardly any interruption. But even in this group there are certainly cases of prolonged absence from reserve duty, for personal reasons, long periods spent overseas and similar circumstances; even the figures relating to this phenomenon, the extent of which is certainly well-known, can be assumed to be taken into account by the air force in planning its missions. Is there any reason to suppose that, with respect to the proper discharge of compulsory service and the voluntary reserve duty, the distribution among women pilots will be significantly different from that among women soldiers who serve in other professions and among men pilots in the reserves? In so far as we can learn from the experience of air forces in countries like the United States and Canada, the effect of specific factors, such as pregnancy and childbirth, as a disturbance to the regularity of service of women pilots is not significant. Can we not learn anything from this? The respondents’ reply to this is that the successful absorption of women pilots in the air forces of other countries is no evidence of the anticipated success of a similar process in Israel. The conditions of service are different, the conditions on the ground are different and the conditions of permanent readiness are also different. All of these are likely to have an effect.

            The main and striking weakness in this argument is that it is entirely based on theories and hypothetical assessments and not on lessons learned from accumulated practical experience. It is true that most women pilots in the air forces of other countries regard military aviation as their profession and choose a military ‘career’. But who can say that the integration of women in the profession of aviation in the IDF will not lead also to a similar tendency in Israel, among most of the women seeking this special job? It should be noted that in the air forces of other countries the process of integrating women was carried out gradually. In the judgment of the Canadian Court of Human Rights in Gauthier & an v. Canadian Armed Forces [56] — a transcript of which was submitted to us by the petitioner — there was a survey of the absorption processes of women in combat positions in the various parts of the army (and it should be noted that one of the several claims considered in that judgment was of a qualified civil pilot whose candidacy for the position of pilot in the air force was rejected because of her sex). From the survey it emerges that the question of the suitability of women for integration into combat roles was examined very carefully. After the Royal Commission, which examined the issues relating to this, submitted its recommendations, five whole years were devoted to conducting practical tests. With the help of these tests — which were named, for short, ‘SWINTER’ (Service Women in Non Traditional Environments and Roles) — the implications of the integration of women in roles that previously were not open to them were examined. In order not to prejudice defence preparedness even to a small degree, the army allowed, at the beginning of the process, the absorption of women in a limited and controlled fashion. The tests referred to groups of women who were absorbed, in the various professions, in this format. The tests conducted in the air force proved that women who were admitted into the roles of pilots integrated successfully in the units, performed their duties well and were respected both by their commanders and by the members of their crews. These conclusions led to the cancellation of the restrictions on the enlistment of women to combat aviation roles. When the women were admitted, rules were established for regulating various issues, including absence from flying as a result of pregnancy and childbirth.

            Such an experiment, or something similar, has not yet been conducted in the IDF; in my opinion, it should be conducted. It is indeed possible — as the respondents claim — that the encouraging experience of other armies does not constitute evidence as to the success of a similar plan in our air force. But as long as the air force does not allow the experimental integration of women into a track of the aviation profession, and as long as it does not carry out a systematic and intelligent assessment of their functioning in the course and in the units, we will never be able to know whether, in the special conditions that prevail in Israel, women may be integrated in the air crews. Indeed, preserving the readiness and deployment of the air force is an important and essential asset. But what is required for readiness and deployment is likely to be given the full attention of the professional personnel at air force headquarters, even if air crews include a few women who are absorbed in an experimental and controlled manner, and an assessment is made that will lead in the end to lessons being learned and conclusions being drawn for the future. Such experience can be based on a small number of women candidates who would be taken in gradually over a sufficiently long period that will allow conclusions to be drawn with regard to the degree of success in standing units and reserve units. It can be assumed that demand — at least in the beginning —will not be great. But within the framework of the experimental integration of women into the aviation course I would not consider it a defect if quotas were set for women candidates. Setting quotas is by definition unequal. This is not the case when they are set within the framework of an experiment whose purpose it to promote equality, without prejudicing thereby an essential security interest.

Intervention in the assignment policy of the army

22. This court does not tend to intervene in professional-planning decisions of the army authorities. In the words of Vice-President Elon in HCJ 734/83 Shine v. Minister of Defence [9], at p. 399:

‘It is a rule of case-law that this court does not put its discretion in place of the discretion of the competent authority, and this rule applies especially when it concerns this court’s review of professional-planning decisions of the army authorities.’

            See also: HCJ 329/87 Sorko-Ram v. Minister of Defence [10], at p. 879, and also the remarks of Justice Goldberg in HCJ 3246/92 Har-Oz v. Minister of Defence [11], at p. 307, regarding ‘… the power of the IDF to exercise its authority in assigning each soldier in accordance with its own considerations and the needs of the army’, since ‘the assignment naturally relates to the structure of the army and its military deployment’. But there has never been any doubt, and counsel for the respondents conceded this unhesitatingly, that army decisions and army regulations, which reflect the policy of the IDF, are subject to the judicial review of this court. Personally, I see no basis for doubting that a policy involving a violation of a basic right gives rise to proper grounds for the intervention of the court. A violation of equality, because of discrimination on the basis of sex, is a typical example of a case that justifies and requires intervention. Such is the case before us. The IDF cannot succeed with an argument that women are disqualified for a specific job because they are women. The argument that the training of women for jobs as pilots is not cost-effective, notwithstanding their having suitable qualifications for this, is an outrageous argument. Declarations supporting equality of the sexes are insufficient, for the real test of equality lies in its realization, de facto, as an accepted social norm (cf. Israel Women’s Network v. Government of Israel [6]). This normative obligation also applies to the IDF. It is well-known that the policies of the army have a very major effect on our life styles. In strengthening the recognition of the importance of basic rights, the IDF cannot be left out of the picture. It too must make its contribution.

            23. I propose to my esteemed colleagues that an absolute order is made in this petition. This order will require the respondents to summon the petitioner for aviation aptitude examinations. If she is found to be suitable, and meets all the other usual preconditions for men candidates, she will be allowed to participate in an aviation course. In this way the air force will begin an experimental procedure, and it can be presumed to determine the remaining aspects and details professionally and fairly, after taking into account the requirements of deployment and vigilance on the one hand, and the criteria required for deriving fair conclusions from the experiment on the other. As a result of the decision, the respondents will be liable to pay the petitioner the costs of the petition in a sum of NIS 10,000.

 

 

Justice Y. Kedmi

            1.         I regret that I am unable to add my voice to the opinion of my colleague, Justice Mazza, as it stands; the following, in brief, are my main reasons:

            (a) In my opinion, we should attribute to policy decisions made by those responsible for national security, in so far as these concern security requirements and the methods of achieving the proper level of security, a high level of reasonableness, such that those challenging this bear a heavy burden of persuasion, equivalent to the burden borne by someone who wishes to rebut a presumption of law.

            (b) I would hesitate before intervening in such decisions, as long as I am not convinced that they are tainted by extreme unreasonableness, arbitrariness, a lack of good faith and unclean hands. As stated, my premise is that this is not the case, and that the persons making decisions of this kind can be presumed to have carried out all the necessary investigations and considered all the relevant factors, and to have acted conscientiously throughout, consonant with their positions and the powers granted to them.

            (c) In our case, the representative of the air force concentrated his argument on the needs of national security, putting the emphasis on the extended and intensive service expected of a combat pilot in the air force, against the background of the cost of his basic training, and in view of the continued effort required for ensuring the level of his operative ability. The working assumption of the security authorities charged with this function is that in the prevailing circumstances, it is almost certain that a woman pilot will be unable to comply in full with these expectations as to the length of service, and will have great difficulty in bearing the burden of maintaining operative ability over the years; between the lines I believe that I can hear the argument that it will also not be right to put her in a position of having to choose between continuing her service and ensuring operative capacity and the demands that she will surely make of herself when the time comes with respect to starting and caring for a family. It seems to me that this outlook, inter alia, underlies the distinction between men and women with respect to reserve duty; and I do not think that it is outdated.

In any case, I do not think that I have the tools — and more importantly, the expertise — required to examine the ‘reasonableness’ of the said working assumption; moreover, I am not prepared to lighten the heavy burden of responsibility borne by air force headquarters in its commitment to national security and to impose upon it a pattern of behaviour which conflicts with its own outlook.

            (d) I fear that the attempt to learn from the experience of other countries in this sphere will not succeed, for a simple reason: our security situation is entirely different from the security situation prevailing in those countries; the situation in which we find ourselves requires readiness for risks that are entirely different from the risks expected there, and a ‘mistake’ made by us in this respect could well have far-reaching ramifications.

            (e) I do not believe, as does my esteemed colleague, Justice Mazza, that the decision not to train women combat pilots, at this stage, contains a hint of illegitimate discrimination. What emerges from my remarks above is that there is no ‘discrimination’ here, but rather a ‘distinction’ based on the continuing requirements of national security.

            One cannot speak of improper ‘discrimination’ when the ‘choice’ between equals is based on essential needs of national security. A difference deriving from these needs — when speaking, of course, about genuine needs — not only does not indicate any ‘discrimination’, but also contains an expression of the ‘equality’ of the requirement made of each of us to contribute what that person is able to contribute to the security of the nation; and the ‘ability’ of the man in this context — according to the working assumption of the air force — is different from the ‘ability’ of the woman.

2.    Nonetheless, I agree with the position of my esteemed colleague, Justice Mazza, that the fears on which the outlook of the security authorities in this matter is based ought to be put to a real test; and that it is proper to take the first step in this direction soon, in so far as security considerations allow. However, I would leave it to the Air Force Command to decide when and how security requirements make it possible to conduct this test; I would not ‘dictate’ to them the date when it should be held, as long as they are not convinced that it would not harm the current needs of national security.

 

 

Justice T. Strasberg-Cohen

In the disagreement between my colleagues, I agree with the opinion of my colleague Justice Mazza, and wish to shed some more light on the subject from my own perspective.

1.    The Defence Service Law [Consolidated Version] of 1986 (hereafter — the law) (which replaced the Defence Service Law [Consolidated Version] of 1959) created a distinction between men and women that makes the service conditions of women more lenient.  The distinction finds expression in the length of compulsory service and reserve duty for women which is shorter than that for men, in exempting married women from compulsory service and in exempting pregnant women and mothers from reserve duty, all of which as set out by my colleague, Justice Mazza (hereafter — service conditions).

            2.         The law does not contain any provision directly violating the equality of men and women soldiers with respect to the nature of the jobs to which they can be assigned, but as a result of the distinction that the law created in the service conditions, there arose — as a matter of policy — an inequality which, for our purposes, is the refusal to accept women for an aviation course. In my opinion, the distinction created by the law should not be perpetuated by discrimination built on its foundations.

            The sources for the distinction that the law created in service conditions derive, apparently, from an outlook on the biological difference between women and men and the legislator’s opinion of the different roles of women and men in the family, society and the army. There are some who see the provisions of the law as a paternalistic attitude towards women, who are perceived as weaker, more fragile and in need of protection, and whose purpose is to create and care for a family. Others believe that the law benefited women by being lenient with regard to their service conditions. Whatever the historical, psychological and sociological reasons for the outlook underlying the distinction created by the law, the distinction created by the law should be accepted as a fact that we are not required to review, since the law itself is not challenged on the grounds of illegality. Its provisions, which create the said distinction, are a given factual premise, as a result of which a policy not to accept women for aviation was formulated. The petitioner has sharply contested this policy by alleging discrimination and violation of the principle of equality. The respondents, in reply, concentrate on the argument that the law created a distinction between men and women with regard to service conditions, that this distinction creates a difference between them, that the difference is relevant with regard to the assignment of women to aviation and that when the difference is relevant, we are not faced with improper discrimination between equals but with a valid distinction between those who are different.

            We must examine this policy with the tools that are available to us for examining the policy of any government authority. As I will clarify below, this policy does not pass the test and it should not be given legal force.

            3.         The respondents’ position is unacceptable to my colleague, Justice Mazza, for the reasons that the difference in this case is irrelevant and therefore the discrimination is improper.

            I too am of the opinion that the aviation course ought to be opened up to women, but I do not think — as does my colleague Justice Mazza — that the difference between women and men regarding the service conditions is irrelevant. In my opinion, the difference between the service conditions of men and the service conditions of women, as stipulated in the law, creates a real and difficult problem for the training and service of women as pilots. The continuity of a woman pilot’s military service may be affected and her military service is liable to end if she marries, becomes pregnant or becomes a mother, and she can be released from reserve duty at the age of 38 (a man – at the age of 54), by giving unilateral notice, even if she volunteers for such service above that age. I think therefore that this difference, created by the law, is indeed relevant for the acceptance of women for aviation and the reasons for not admitting them are objective and not arbitrary. Therefore — prima facie — the distinction does not create improper discrimination; but in my view this is only the case prima facie, because in my view it is not sufficient for a difference to be relevant in order to rebut a claim of discrimination, since a relevant difference that can be amended or neutralized in order to achieve equality should be amended or neutralized, although not at any price.

            4.         Differences for the purpose of discrimination have been divided into two categories: a relevant difference that does not create discrimination and an irrelevant difference that does (see HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [12], at p. 332; El-Al Israel Airlines Ltd v. Danielowitz [3]). As with any classification into groups, there are no two groups that fit the whole spectrum of cases between the two extremes. There are cases that clearly fall into one of the groups and it can be clearly established whether or not there is discrimination. However, there are cases where ascribing them to one of the two groups is not self-evident and is insufficient. Such cases require a sub-classification. It seems to me that the category of cases where the difference is relevant should be divided into two subgroups: first, a group where the relevant difference cannot be, or should not be, neutralized; second, a group in which the relevant difference can and should be neutralized in order to achieve equality.

In this classification we are not dealing with affirmative action in its classic sense, where a particular field is opened up to a group for which it was previously closed, even if the members of that group are less suited than others to function in that field. This method is used to correct an historic aberration, a social stigma, prejudice and the like. Such affirmative action is often carried out through legislation and through case-law (see, for example: the Employment of War Invalids Regulations, 5711-1951; the Discharged Soldiers (Return to Work) Law, 5709-1949; section 18A of the Government Corporations Law, 5735-1975 as applied in Israel Women’s Network v. Government of Israel [6]. With regard to affirmative action, see also: F. Raday, ‘On Equality’, The Status of Women in Society and Law, Shoken, ed. F. Raday, C. Shalev, M. Liben-Koby, 1995, at pp. 19, 36-39).

            Affirmative action requires the avoidance of a distinction between persons who are not equal in their qualifications or in their suitability and treating them equally, in order to rectify an historic aberration. My position — with respect to the facts before us — is different in that it makes a demand to neutralize the difference between persons with equal qualifications by allocating resources that will create conditions that establish an equal starting point for two persons who are equally suitable for the same job, but factors that are irrelevant to the job block the path of one of them. Our case falls into the second category, in which the relevant difference can be neutralized and it ought to be remedied.

            How is this to be done?

            6.         If, for example, it is found that dark-skinned or blue-eyed persons are not accepted for a certain job, when the colour of the skin or the colour of the eyes has no connection with the job, it will be absolutely clear that this is an irrelevant difference that creates improper discrimination. This is the case for every arbitrary distinction based upon differences of race, religion, sex and the like, where the distinction is arbitrary and irrelevant. If, however, a certain job requires tall people or people with academic education or people in good health, it will not be improper discrimination if short people, uneducated people and people in poor health are not accepted for those tasks. If the path to a specific job was closed to women, and it is opened up to them, either by case-law or statute, even if their experience and qualifications are less than those of the men competing for the same job, this would constitute affirmative action.

            What is the law when the qualifications are equal, but there is a difference and the difference is albeit relevant, but it can be and should be neutralized in order to achieve equality? If, for example, a disabled person in a wheelchair wants to be accepted for work in a public institution, and his qualifications fulfil the requirements of the job, but the access to the office is by way of stairs; the restriction in the physical conditions allowing access to the place of work creates a relevant difference, but it can be neutralized at a reasonable price, and it should be remedied in order to achieve equality of opportunities. Therefore we would require an investment of resources in order to neutralize the difference and remedy it by means of an elevator or in some other way that will allow the disabled person to reach that office.

            It seems to me, therefore, that a difference that causes relevant and genuine difficulties in applying the value of equality, such as physical, economic, logistic and similar difficulties, is a relevant difference. Nonetheless, in those cases where it can be neutralized at a reasonable price, it should be remedied and neutralized in order to achieve equality.

7.    Establishing a requirement for neutralizing a difference in order to achieve equality is not foreign to Israeli law. More than once the legislator has shown that he is aware of the need to prevent discrimination as a result of a difference between persons who are suitable for carrying out a job, where external factors create a distinction between them and lead to the preference of one group over another or one person over another because of differences which have economic, budgetary and organizational implications, particularly in the workplace. In such cases, the legislator has on several occasions seen fit to impose duties, mainly on employers, which were designed to neutralize or remedy a difference, in order to achieve equality of opportunity. An example of this can be found in the Women’s Employment Law, 5714-1954, and the various regulations enacted thereunder; the Equal Employment Opportunities Law, 5748-1988; in these laws, factors and characteristics that created differences between people were taken into account, and the laws were designed to achieve equality notwithstanding the differences. The legislator imposed economic burdens upon various public sectors in order to create equality, including equality of opportunity, not because there was previously no relevant difference, but because even though there was a difference, the legislator saw fit to remedy it by spreading the burden amongst different sectors of the economy. With regard to equality of the sexes, F. Raday says in her article ‘Labour Law and Labour Relations — Trends and Changes in 1988’, Labour Law Annual Vol. 1, 1990, 161, 172, on the subject of equal opportunities for women:

‘The biological difference between the sexes with respect to pregnancy, childbirth or nursing is a difference that may be a relevant difference in the workplace. The possibility of certain absences is required in order to allow the working woman to function not only as an employee but also as a mother of a newborn. “Equality” that does not take into account the need for the integration of these roles is not real equality and is mere lip service’ (emphasis added).

See also F. Raday, ‘Women in the Work Force’, The Status of Women in Society and Law, supra, at p. 64.

8.    The respondents do not dispute the ability of women to fulfil the role of a pilot. From their affidavits and pleadings it emerges that the considerations guiding the policy-makers in not recruiting women for aviation do not derive from a belief that women are inferior or from archaic concepts that a woman’s place is in the home and that she is not suited for ‘men’s’ professions such as aviation. From what they say it appears that their considerations are sincere and relevant, and that they are motivated by the army’s interests and needs. I accept the respondents’ contention that the difference created by the law in service conditions and the resulting restrictions make it difficult for the air force to recruit women as pilots. The respondents claim, as can be seen in the affidavit of the Air Force Commander, General Bodinger, that the difference between men and woman in the law is based on strong statutory language, an unwavering statutory history and a particular statutory purpose, which is the realization of the needs of the army that require different rules to be created for the service of men and women. According to him, the refusal to integrate women into aviation courses derives from planning, logistic, strategic and economic considerations, according to which the needs of the army would be prejudiced if it is compelled to assign women for aviation.

            The IDF places the ‘blame’ for closing the aviation course to women on the legislator, who created the difference in service conditions, and so it feels itself justified in creating discrimination. I do not think that this position should be legitimized. The IDF, as one of the organs of State, is not entitled to shirk its responsibility and the obligation to close the gap between the factors determined by the law and what is needed to achieve equality. This requires a sacrifice. The IDF and the various organs of State must pay this price, provided that it is not too high and is not unreasonable, and this is really not so in the present case.

            9.         General Bodinger recognizes that even though the issue of integrating women in combat professions is problematic, it is ultimately also a socio-cultural and ethical question. Indeed, we are dealing with an issue that is first and foremost socio-cultural and ethical. It is difficult to exaggerate the importance and stature of the principle of equality in any free, democratic and enlightened society. The supreme status of the principle of equality as a supreme value in Israeli society finds expression and a place of honour in case-law and law books. A society that respects its basic values and the basic rights of its members must be prepared to pay a reasonable price so that that the value of equality does not remain an empty shell, but is given expression and applied in practice.

            10. Confronting the problem of discrimination in general, and with regard to differences between the sexes in particular, is not only our concern. It concerns every free society where the principle of equality is one of its foundations. Discrimination derives from a perception that was accepted in human society as part of an outlook that for generations regarded the status of women as inferior and without rights. The development of granting women rights has progressed little by little. It received impetus and strength in this century as part of the ideological and practical renaissance aimed at eradicating discrimination between people. This struggle to eradicate discrimination against women because of their sex is fought on various battlefields and with a wide range of weapons. It occupies a place of honour in literature, philosophy, articles, the media, political frameworks and various public fora. I refrain from expanding on this topic, for which this platform is too narrow, and elaboration is not needed to decide this case. I will satisfy myself by referring to several cases considered in American and Canadian case-law.

The issue of discrimination against women — for the purpose of admission to a military academy where only men studied — was recently considered in the United States in the case of a petitioner who wanted to be admitted as a cadet into the South Carolina Military Academy where only men studied, and who was rejected because she was a woman. The Federal Court considered the matter in two stages. In the first stage, a temporary order was issued ordering the authorities to prepare a parallel study program for women cadets, and in the interim, the woman cadet could be integrated in the studies on a partial basis (within the framework of day studies) (Faulkner v. Jones (1993) [41]). Two years later, when the program outlined was not put into practice — inter alia because of considerations relating to the economic costs —the court ordered the full integration of the petitioner in the military program. The Federal Court recognized the existence of relevant differences between men and women even with respect to methods of education in military institutions, but it limited the expression that could be attached to such differences and subordinated it to the principle of equality. The court did not ignore the complexity and difficulties that applying the principle of equality sets before society at times, and it dealt with these difficulties one by one. It set against them the importance and supremacy of the principle of equality and the duty of society to uphold it in practice, even if this involves difficulties and expense. In weighing all the considerations against the principle of equality it reached a conclusion that lead to the result of issuing an order that the petitioner should be fully integrated into the military program (Faulkner v. Jones (1995) [42]).

            In Canada, a judgment was given with regard to the same issue; in it the court found that the balance that was made between the purpose of giving sports training and the means chosen to do this — the existence of men-only sports associations — was an improper balance and was disproportionate to the damage caused by shutting women out of the association. In that case, a girl was prevented from taking part in the sporting activity of an ice hockey association, because of her sex, and irrespective of the specific talents required for such participation. The court was required to interpret the sport regulations and it abolished the said discrimination (Re Blainey and O. H. A. (1986) [57]).

            Now let us return to our case.

            11. Not recruiting women for aviation violates the principle of equality between the sexes. The problem is that this is not the only principle involved. There are two conflicting principles involved: one is equality and the other is public security as a result of military needs. In a conflict between two values, the conflicting values must be given the proper weight and a balance made between them. There are cases where such a conflict occurs between values of equal status, and there are cases where this occurs between unequal values where one of them is more important than, and has preference over, the other (on the difference between the two kinds of conflicts and the status of the conflicting values, and on the method of balancing them, see: Barak, in his book supra, vol. 3, p. 220; vol. 2, pp. 688-693 and the references cited there).

            12. With regard to a conflict between public safety and the freedom of speech, Prof. Barak says in his book, supra, vol. 2, at p. 693:

‘It follows that the central problem confronting us is this: in what circumstances and according to what criteria is it permissible to limit the freedom of speech in a society that respects human rights, in order to protect and maintain public safety? What is the “balancing formula” in the conflict between public safety and the freedom of speech? In this context, two main questions were before the Supreme Court: first, the anticipated degree of harm to public security that can justify a violation of the freedom of speech; second, (emphasis in the original) the likelihood that an infringement of public safety will occur if freedom of speech is not limited. The Supreme Court’s reply to these two questions is this: freedom of speech gives way to public safety only if the harm to public safety is severe, serious and critical, and only if it almost certain that allowing the freedom of speech will result in this harm…’ (emphasis added).

These comments are appropriate in this case.

            In the conflict between the value of equality and the value of national security as the result of military requirements, national security may be regarded as the preferred value and of a higher status than the value of equality, notwithstanding the importance of equality. But national security is not a magic word; it does not have preference in every case and in all circumstances, nor is it equal for every level of security and for every harm thereto. The balancing formula between conflicting values that are not of equal status is not uniform and it varies significantly according to the status of the values and the relationship between them. There are cases where a reasonable possibility of real harm to the preferred value is sufficient, and there are cases where a near certainty and a real danger of harm are required.

            In our case, the higher value (military and security requirements) prevails over the lower value (equality), only if there is near certainty of real harm and real damage to national security. The policy of the air force with respect to the recruitment of women for aviation does not pass these tests. It does not even stand up to a more lenient balancing formula, which is a reasonable possibility of real harm. The difficulties indicated by the respondents under the title of logistic and deployment difficulties are partly economic and partly based on speculations as to the future. The IDF authorities have no prior experience that confirms their fears — neither with respect to the ability of the air force to absorb women pilots, nor with respect to the number of applications that will be received for an aviation course or with respect to the number of persons completing it successfully, nor with respect to the anticipated damage if the aviation course is opened up to women. Moreover, in examining the anticipated damage, we must examine whether, when this is offset against the chance that it will not take place, the violation of the citizen’s right is still justified in order to prevent the danger. In our case, there is a reasonable chance that there will be no harm at all.

            13. If this is insufficient, I would point out that even when there is a near certainty of damage and real harm, the work of examination and balancing is not finished. ‘In all these cases, we must ascertain and examine the existence of alternative measures that could prevent the near certainty of the serious danger, without violating the freedom of speech’ (Barak, ibid.). Indeed —

‘… When we are dealing with a lawful denial or restriction of a person’s basic right, the government must choose — from among all the measures that can be adopted to protect national security — that restrictive measure that violates the basic right to the smallest degree. Of all the drastic measures, the least drastic should be chosen…’ (HCJ 153/83 Levy v. Southern District Commissioner of Police [13], at p. 412 {127}).

I would reach the same conclusion with the principle of proportionality, which is accepted as an important principle in Western legal systems and our own system. According to this principle, when a basic right is violated, we must demand that the violation is of a proper degree and is not excessive. This requirement reflects the proper relationship between the measure and the goal (see the remarks of Justice Zamir in HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [14]).

            One can draw an analogy in our case from the ruling made with regard to the freedom of occupation, whereby one should regard with particular severity a restriction on entry into an occupation, as opposed to imposing restrictions on the methods of realizing this freedom (see HCJ 1255/94 Bezeq, the Israel Telecommunication Corporation Ltd v. Minister of Communications [15], at pp. 686-687; HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [16], at pp. 484-485; Barak, supra, vol. 3, at p. 657).

            14. Does the case before us comply with the balancing standards and emerge from them unscathed? I think this is not the case. From the affidavits submitted, it would appear that the defence establishment itself does not believe in a near certainty of real harm to security and of real damage, nor even a reasonable possibility of real harm. Admittedly, the deponents indicated difficulties — including economic ones — that the air force will face if it is compelled to integrate women in aviation; but it would seem that opening up the aviation course to women in a controlled and limited manner for an appropriate number of women pilots, while examining the ramifications that this has on the requirements of the air force and the assignment of women pilots to jobs that they can fulfil over a long period of years, will significantly reduce the risk of harm and damage, if these are not entirely cancelled. Instead of blocking the path of women to aviation courses, it is possible — in the first stage —to adopt less drastic restrictive measures as stated, and to follow the path of trial and error.

            15. The petitioner before us declares that she is prepared to undertake any service for any period of time required by the air force, similar to the service of any other pilot. There is no reason to assume ab initio that she will not honour her undertaking. There is no reason to suspect that her declarations are not genuine. If, notwithstanding all this, it happens in the future that she is unable, for personal reasons, to fulfil those undertakings, her situation will be similar to those cases in which men pilots are unable, for various reasons, to fulfil their undertakings over the years. In the words of my colleague, Justice Mazza, from a planning perspective, the IDF authorities must take into account such possibilities and prepare accordingly; and, as the Air Force Commander said, the problem is one of society as a whole, not merely of the defence establishment. If financial resources are required for this, the State must provide them, within reason.

16. Before concluding, I would like to quote the words of the American philosopher, Ruth Bleier:

‘Though there are biologically based gender differences, they do not imply superiority or inferiority not do they justify inequities in social, economic, and political policy and practice. Rather they call for public education and reform of sexist policies, laws and practices… In the absence of clear paths to truth and social justice, the one hope for bringing about change for the better lies in the capacities of the human brain to make it possible to break out of the cultural constraints that some human beings have constructed to the detriment of others’ (Ruth Bleier, ‘Science and Gender: A Critique of Biology and its Theories On Women,’ in Sneja Gunew (ed.), A Reader in Feminist Knowledge, Routledge, 1991, 249).

17. In conclusion, the aviation course should be opened up to women who have the requisite talents, in order to allow women to realize their basic right to equality between themselves and men in this field also. I therefore add my voice to the voice of Justice Mazza, and I too am of the opinion that the show cause order should be made absolute.

            18. After writing my opinion, I received the illuminating opinion of my colleague, Justice Dorner. Her survey of the roots of discrimination against women on the basis of their sex and of the obligation of every enlightened society to recognize the basic right of every person to dignity and equality and to implement this recognition in practice is a work of art. But to do justice to the respondents it should be noted that, according to their position as presented to us — and there is no reason to regard this as mere lip service — they espouse these very same principles, and even they — as a mouthpiece of the State of Israel — do not dispute the right of women to equality and dignity and the duty of the State to implement these principles in practice. Not only this; they also agree that there is no difference between men and women from the perspective of the talents required to be accepted into an aviation course and that among women, as among men, there are those who are suitable for this. The difficulty that confronts them is the law that provided special service conditions for women, which results in logistic and deployment difficulties which will affect the preparedness and strength of the air force. In this respect, the position of the respondents was unacceptable to me and to my colleagues Justice Mazza and Justice Dorner, and therefore I am pleased that we have reached, by a majority, the result that the petition should be granted.

 

 

Justice Ts. E. Tal:

I agree with the opinion of my colleague, Justice Kedmi, and I would like to add to it. We still hold by the rule that discrimination because of a relevant difference is not discrimination. This rule leads me to think that the petitioner’s petition should not be granted, for we are concerned with a distinction and not discrimination. There are two reasons for this: the budgetary consideration and the planning consideration.

The budgetary consideration

The difference, created by the law, between men and women soldiers is in the length of their service, and the emphasis is on reserve duty. The cost of preparing and training a pilot is huge. However short a pilot’s period of service is, we pay the same cost for his training, but we receive less in return.

If the IDF had an unlimited budget at its disposal, we could rule that we should pay the price for the value of equality between men and women. My colleague, Justice Mazza, cites the remarks of Prof. Barak:

‘The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden’ (Barak, in his book supra, vol. 3, at p. 528).

Indeed, when the considerations are only financial, then it can be said that society must pay the price, in the words of Prof. Barak:

‘Administrative convenience or financial economy are not, in themselves, social goals justifying a restriction or violation of a human right’ (ibid., at p. 528) (emphasis added).

It is also worth mentioning the example brought by Prof. Barak, ibid.:

‘In one case, the question arose whether an oral hearing should be granted to everyone arriving in Canada, claiming to be a refugee. The Canadian Attorney-General argued that granting the right of an oral hearing would involve heavy financial costs and therefore this (natural) right should be waived. The Supreme Court of Canada rejected this argument.’

These remarks are apposite in such cases, where the only consideration standing against equality is the financial consideration. That is not so in the case before us.

The reality is that the defence budget is finite and limited. Within the limited framework of the budget, any huge expense made for the value of equality must come at the expense of other essential security needs. The protection of life is also one of the basic values (s. 4 of the Basic Law: Human Dignity and Liberty), and as such it can prevail over the value of equality.

            If one argues that the value of equality cannot be overridden by any other value, however important it is, this undermines first principles and cancels the doctrine of a relevant difference. The result would be that in any case of a relevant difference it would be possible to say that the difference has ceased to be relevant, because we have set ourselves a goal of implementing the value of equality, in view of which a difference no longer has any importance.

            Take, for example, the issue of equal work opportunities. There are jobs where the difference is characteristic. An advertisement seeking only women candidates for a job in a public bath house for women will not be improper. Equal work opportunities are overridden by the value of the privacy of the women bathing there. In the same way the value of equality is overridden by the value of personal and national security.

            It therefore seems to me that the budgetary consideration is also a reasonable consideration of relevant difference. This is true even if we assume that a woman will serve full reserve duty until the age of 38.

            But there is a significant possibility that the reserve duty of a woman will be reduced considerably on account of pregnancy and childbirth. This means that all of the huge investment in training a woman as a pilot will only bear fruit for a very short time, and, in practice, the investment will be, for the most part, lost.

            Planning

The army claims that it is very difficult to plan for units when some of its members are likely to be neutralized at different times and for different periods of time as a result of marriage, pregnancy and birth. This is an important and pivotal consideration. Even in units comprised of men, planning must take account of periods of temporary incapacity (sickness, travel overseas). But if women are to be assigned to these units, the army will need to take into account — throughout their service which is in any event a short one — incapacity for long periods as a result of pregnancy and childbirth.

            Appendix Res/3 of the affidavit-in-reply is a report of the Presidential Commission on the Assignment of Women in the Armed Forces, supra, that was submitted to the President of the United States. On pp. 19-20 of the report, medical limitations resulting from pregnancy and childbirth are stated. According to this report, the period of time during which woman cannot be assigned for readiness and operational deployment because of various factors, including pregnancy and childbirth, is four times greater than the period of time during which men cannot be assigned to these tasks (section 44 of the affidavit-in-reply).

            My colleague, Justice Mazza, believes that this argument cannot succeed because —

‘It is entirely based on theories and hypothetical assessments and not on lessons learned from accumulated practical experience.’

I do not agree. A statistical fact based on a reasonable and logical assessments and which is also based on the said report of the Commission is not a mere speculation but rather a fact that should ideally be taken into account.

            With regard to the case before us: if the petitioner is trained as a pilot in the air force, she will serve — as a volunteer in regular and permanent service — for five years, and she will be discharged from the IDF at the age of 29. She will then have only nine years to be integrated into the reserves, and during these nine years we must take into account periods of incapacity as a result of pregnancies and childbirths.

            Even volunteering for additional service will not overcome the natural limitations of pregnancies and childbirths.

            It follows that we are not concerned with discrimination between equals but with a distinction between persons who are not equal. Therefore I would recommend that the petition is denied. Like my colleague, Justice Kedmi, I would allow the Air Force Command to decide how to the conduct the experiment of integrating women as pilots at such time and in such circumstances as in their discretion will not harm the needs of national security.

 

 

Justice D. Dorner

1.  ‘Man kann von einem Ding nicht aussagen, es sei 1 m lang, noch, es sei nicht 1 m lang, und das ist das Urmeter in Paris’ (L. Wittgenstein, Tractatus Logico-philosophicus — Philosophische Untersuchungen, 1960, 316).

(‘There is one thing of which it cannot be said that its length is one metre, or that its length is not one metre, and that is the original metre in Paris’).

            Indeed, many criteria are accepted by society as absolute, but they are in fact arbitrary. But it is not decreed that all criteria must be arbitrary, like the original metre mentioned by Witgensttein. There are matters where it is possible —and if it is possible then it is also proper — to endeavour to establish just criteria.

            The petition before us concerns criteria for translating the difference between men and women into legal norms. These criteria can and should be just.

            2.         Women are different from men. In general their physical strength is weaker than that of men. They are restricted by the necessity of their natural roles — pregnancy, childbirth and nursing. These differences were, apparently, the basis for the division of roles between the sexes in primitive human society, which gave birth to the patriarchal family. The man, who was both stronger and also free from the restrictions involved in childbirth, took charge of providing food and defending the family.

            This division of roles remained unchanged even when, as a result of economic and technological developments, it no longer had an objective basis. In the entry for ‘Woman’, the Hebrew Encyclopaedia says as follows:

‘Combat remained within the sphere of men’s activity even when exhausting and prolonged guard duty replaced the outburst of a reckless operation, and the dropping of bombs by pressing a button or dialling numbers on a control panel replaced the throwing of the spear or a face-to-face battle of swords… it should also be noted that a woman’s strength, stamina and ability to exert herself are usually assessed by the abilities of the woman who is pregnant, nursing and caring for her children; whereas the abilities of young women, on the one hand, and women after menopause, on the other hand, are also determined according to the weakness and cumbersomeness of the woman during her period of fertility. The criterion for assessing the strength of men, however, is the ability of the young, model fighter, i.e., of the young and unmarried man. It can be said that many of our professional ideals are determined for a man in accordance with his role as a man and not as a father, whereas for a woman — in accordance with her role as a mother, and not as a woman’ (Hebrew Encyclopaedia, the Encyclopaedia Publishing Co., vol. 7, 1954, at pp. 341-342).

In the patriarchal family, the family property belonged to the husband-father. A married woman could not own property and her status was like that of a minor. The woman had no right to vote or to be elected, and she was even forbidden from holding any position outside her home. Involvement in war and politics was considered to be contrary to the nature of women. See J. S. Mill, The Subjection of Women, New York, 1986, at pp. 8, 33; S. De Beauvoir, Le Deuxième Sexe, vol. 1, 1976, at pp. 164-165; D. L. Rhode, Justice and Gender, Cambridge, 1989, at pp. 9-28).

            In our own sources it is said of the woman that ‘the honour of a king’s daughter is inward’ (Psalms 45, 14 [61]).

            As recently as the end of the nineteenth century, the English poet Alfred Tennyson wrote a sonnet that reflects the accepted social norms of that time:

‘Man for the field and woman for the hearth;

Man for the sword, and for the needle she;

Man with the head and woman with the heart;

Man to command and woman to obey.

                        All else confusion.’

(A. Tennyson, The Princess, 2nd song, 5, 427).

These norms were also expressed in the constitutional case-law of the United States. Thus, for example, in a judgment given at the end of the nineteenth century it was held that that a woman has no constitutional right to be a lawyer. The Supreme Court held, in the opinion of Justice Bradley, as follows:

‘The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood… [and] is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband’ (Bradwell v. The State (1872) [43], at 141).

3.    All of this has changed greatly. In the State of Israel, as in other democratic states, the rule forbidding discrimination against women because of their sex is continually winning ground as a basic legal principle, and the legal rhetoric is continually being translated into reality.

            In the declaration of the establishment of the State of Israel (‘the Declaration of Independence’) it was stated that ‘the State of Israel will uphold complete equality of social and political rights for all its citizens irrespective of… sex.’ In the Women’s Equal Rights Law, 5711-1951, section 1 provides that  ‘There shall be one law for men and women for every legal act; and any provision of law that discriminates against women as women, for any legal act, shall not be followed’. In the Equal Remuneration for Female and Male Employees Law, 5724-1964, section 1 provides that ‘An employer shall pay a woman employee remuneration that is equal to the remuneration of an employee who is a man at the same place of employment for the same work.’ In the Equal Employment Opportunities Law, section 2(a) provides, inter alia, that ‘An employer shall not discriminate between his employees, or between candidates for employment on the basis of their sex…’. Case-law has played its part in establishing a substantive-interpretative principle, according to which, in the absence of any contrary statutory provision, the authorities (and in certain cases, even private individuals and bodies) are prohibited from discriminating against women because of their sex, and that statutes will be construed — in so far as possible — as consistent with this prohibition. See, for example, HCJ 153/87 Shakdiel v. Minister of Religious Affairs [17]; Poraz v. Mayor of Tel-Aviv-Jaffa [12]; HCJ 104/87 Nevo v. National Labour Court [18].

            4.         The Basic Law: Human Dignity and Liberty (hereinafter – the Basic Law) gave a constitutional, super-legislative status to the prohibition of discrimination against women. This status derives from both of the following:

First, section 1 of the Basic Law (which also appears as section 1 of the Basic Law: Freedom of Occupation) provides:

‘Basic human rights in Israel are founded on the recognition of the worth of man, the sanctity of his life and his being free, and they shall be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel.’

This section provides, at least, that basic rights are to be upheld in the spirit of the principles of the Declaration of Independence, including the equality of citizens irrespective of sex. Therefore, for example, there can be no discrimination of women with respect to their right to property (a right enshrined in section 3 of the Basic Law) or in respect of their freedom of occupation (a right enshrined in section 3 of the Basic Law: Freedom of Occupation).

Second, the prohibition of discrimination against women is included in the right to dignity enshrined in sections 2 and 4 of the Basic Law.

The question whether the principle of equality in its entirety is encompassed in the right to dignity, within the meaning thereof in the Basic Law, has been discussed in several obiter dicta in the rulings of this Court. See, on the one hand, the remarks of Justice Or in HCJ 5394/95 [5], at pp. 360-363; the remarks of Vice-President Barak in El-Al Israel Airlines v. Danielowitz [3], at p. 760 {488}; and the remarks of Justice Mazza in Israel Women’s Network v. Government of Israel [6], at pp. 521-523 {447-449}. On the other hand, see the remarks of Justice Zamir in Israel Women’s Network v. Government of Israel [6], ibid.. See also: F. Raday, ‘On Equality’, 24 Mishpatim, 1994, 241, 254; Y. Karp, ‘Basic Law: Human Dignity and Freedom — A Biography of Power Struggles’, 1 Law and Government, 1992, 323, 345-361.

            The legislative history of the Basic Law indicates that the omission of the general principle of equality was intentional. In the Knesset debate on the draft Basic Law, MK Shulamit Aloni and MK Moshe Shahal argued against the omission in the Basic Law of a section about the right of equality (see Knesset Proceedings vol. 123, 1992, at pp. 1241, 1244). In reply to these arguments, (ibid., at p. 1532) MK Amnon Rubinstein, who proposed the Basic Law, said the following:

‘There is no section about general equality, that is correct, because that section of general equality was a stumbling block, an obstacle that prevented the passing of the comprehensive draft proposal.’

See also Karp, in her article, supra, at pp. 345-346.

            In view of this background, I doubt whether it is possible — or at least, whether it is proper — to hold by means of construction that the purpose of the Basic Law is to provide constitutional protection to the principle of general equality. The clear intention of the legislator, as can be seen from the drafts versions, was precisely not to enshrine this general principle in the Basic Law. The draft versions of a law are a factor in determining its purpose. See the remarks of Justice Barak in FH 36/84 Teichner v. Air France Airways [19], at p. 619; Barak, in his book, supra, vol. 2, at pp. 191, 215. Admittedly, the significance of the draft versions — which reveal the intentions of the members of the Knesset who enacted the Law — decreases with the passage of time since the legislation was passed, and the occurrence of political, social or legal changes that may justify a deviation from these intentions. But only a few years have passed since the enactment of the Basic Law, and prima facie the Basic Law should not be construed in a way that conflicts with its purpose as can be seen from the draft versions.

            Notwithstanding, there can be no doubt that the purpose of the Basic Law was to protect people from degradation. The degradation of a human being violates his dignity. There is no reasonable way of construing the right to dignity, as stated in the Basic Law, such that the degradation of a human being will not be considered a violation of that right.

            Indeed, not every violation of equality amounts to degradation, and therefore not every violation of equality violates the right to dignity. Thus, for example, it was held that discrimination against small political parties as opposed to large parties, or against new parties as opposed to old parties, violates the principle of equality. See, for example: HCJ 637/89 ‘Constitution for the State of Israel’ v. Minister of Finance [20]; HCJ 98/69 [4], at p. 698; HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [21], at pp. 13, 15, 21 {32, 34, 41}; HCJ 141/82 Rubinstein v. Chairman of the Knesset [22]; HCJ 142/89 Laor Movement v. Knesset Speaker [23]. Notwithstanding, such infringements of the principle of equality, which have even led to the disqualification of Knesset laws, did not constitute a degradation, and so they also did not involve a violation of human dignity.

            This is not the case with certain types of discrimination against groups, including sex discrimination, and also racial discrimination. Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. Thus, for example, in the famous judgment of the United States Supreme Court in the case of Brown v. Board of Education (1954) [44], at p. 494, the approach that had been accepted until that time with regard to separate and equal education was rejected. With regard to the influence of separate education, Chief Justice Warren wrote as follows:

‘To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’

And in the judgment in Frontiero v. Richardson (1973) [45], at pp. 686-687, when discussing the influence of different treatment of women in legislation, Justice Brennan wrote:

‘… Sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth… the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.’

Closing a profession or a position to a person because of his sex, race or the like sends a message that the group to which he belongs is inferior, and this creates a perception of the inferiority of the men and women in the group. This creates a vicious cycle that perpetuates the discrimination. The perception of inferiority, which is based on the biological or racial difference, causes discrimination, and the discrimination strengthens the deprecating stereotypes of the inferiority of the victim of discrimination. Therefore the main element in discrimination because of sex, race or the like is the degradation of the victim.

My opinion is therefore that the Basic Law protects against a violation of the principle of equality when the violation causes degradation, i.e., an insult to the dignity of a human being as a human being. The same is true when a woman is a victim of discrimination because of her sex.

5.    Enshrining the prohibition against discrimination of women in the Basic Law has two consequences, which are mutually connected: first, inclusion in a Basic Law has significance for the definition of the right, and especially for the distinction between the definition of the right and the definition of the conditions in which it is permitted — if at all — to violate it; second, in exercising executive discretion — including discretion enshrined in a law that existed before the Basic Law came into effect — extra weight should be given to a right enshrined in the Basic Law.

            6.         The classic definition of equality was coined by Aristotle. According to this definition, equality means equal treatment of equals and different treatment of those who are different according to the extent of their difference (Aristotle, The Nicomachean Ethics, book 5, par. 1131). In my opinion, this definition, which has been incorporated in our case-law (see, for example, Boronovski v. Chief Rabbis [1], at p. 35), borders on tautology.

            The definition permits, and even necessitates, different treatment when the ‘difference’ is relevant, but it does not contain criteria for determining that relevance. In the absence of such criteria, there is a danger — which has frequently been realized — that the criteria applied in each case will reflect the degrading stereotypes which the prohibition of discrimination was originally intended to prevent. In our case, the prohibition against the discrimination of women is likely to be rendered meaningless by a determination — based on accepted degrading stereotypes —that the difference between women and men justifies, and even necessitates, different treatment of women. Thus, for example, in the judgments in Muller v. Oregon (1908) [46] at 427; Hoyt v. Florida (1961) [47], at 62, laws that provided for different treatment of women were upheld, for the reason that the difference was relevant in view of the woman’s roles as a mother and housekeeper. For the same reason a law was approved that made only men liable for military service, notwithstanding the fact that the chiefs of staff of the American army were interested in applying the law to women also. See Rostker v. Goldberg (1981)[48], at p. 74. Even in Israel it was held in Steinberg v. Attorney-General [7], at pp. 1067-1068, that different treatment of women, based on the duties of the married woman, falls into the category of permitted distinctions, since it is based on a relevant difference between women and men.

            Moreover, the definition also obscures the distinction between the actual relevance of the difference and its proportionality, in the sense of restricting the violation of human rights to cases where it is required, or to the required degree.

The Aristotelian definition has also been criticized in legal literature. Prof. Rhode wrote the following:

‘American equal-protection analysis has developed largely within an Aristotelian tradition that defines equality as similar treatment for those similarly situated. Under this approach, discrimination presents no legal difficulties if the groups differ in ways relevant to a valid regulatory objective… challenges to gender classifications underscored the theoretical and practical limitations of this approach… Contemporary gender-discrimination analysis has presented difficulties along several dimensions. At the most basic level, traditional approaches have failed to generate coherent or convincing definitions of difference. All too often, modern equal-protection law has treated as inherent and essential differences that are cultural and contingent. Sex-related characteristics have been both over- and undervalued. In some cases, such as those involving occupational restrictions, courts have allowed biology to dictate destiny. In other contexts, such as pregnancy discrimination, they have ignored women’s special reproductive needs. The focus on whether challenged classifications track some existing differences between the sexes has obscured the disadvantages that follow from such differences.

Although discourses of difference must sometimes have a place, they should begin, not end, analysis. As deconstructionists remind us, women are always already the same and different: the same in their humanity, different in their anatomy. Whichever category we privilege in our legal discourse, the other will always be waiting to disrupt it. By constantly presenting gender issues in difference-oriented frameworks, conventional legal discourse implicitly biases analysis. To pronounce women either the same or different allows men to remain the standard of analysis.

Significant progress toward gender equality will require moving beyond the sameness-difference dilemma. We must insist not just on equal treatment but on woman’s treatment as an equal’ (Rhode, supra, at pp. 81-82)

            See also Raday, in her article, supra, 24 Mishpatim, at p. 255.

In my opinion, in our case (i.e., in circumstances where a decision is based on considerations of sex or similar considerations based on belonging to a group, such as race), it is possible to overcome the difficulties raised by the Aristotelian definition — or at least some of them — by replacing this definition with a twofold test: first, is the consideration of sex relevant? Second, assuming that the consideration is relevant, is it justified to take account of it in the circumstances of the case?

In my opinion, as stated, discrimination against a person because he belongs to a group, and in our case discrimination against women, violates the right to dignity. However, like every right, the right to dignity (including the prohibition of group discrimination derived from it) is also not an absolute right but a relative one, and a balance must be struck between it and other legitimate values and interests. Therefore, in special cases a violation of women’s right of equality may be justified, if it complies with criteria that reflect the proper balance between this right and other legitimate values and interests.

A good example of the application of this approach can be found in Poraz v. Mayor of Tel-Aviv-Jaffa [12]. This case considered a decision of the Tel-Aviv-Jaffa Municipality not to appoint women to the body that appointed the city’s chief rabbi. The decision was based upon considerations recognized by the court as relevant considerations (which were called by the court ‘particular considerations’), which were the fear that the participation of women on the body making the appointment would prevent suitable rabbis from presenting themselves as candidates and would make the functioning of the rabbi that would be elected more difficult. Prima facie, according to the Aristotelian definition — which the Court both cited and relied upon — this should have been sufficient to deny the petition and to uphold the decision of the Municipality. But the court held that the discrimination against women itself constituted a violation of the right to equality. In such a case, the court held, in the opinion of Justice Barak, that:

‘… we must balance the general principle of equality on the one hand against the particular consideration of the appointment of an electoral assembly that can properly carry out its office on the other’ (supra, at p. 336).

From this we can infer that even when ‘discrimination against women is a relevant consideration’ (ibid.), the discriminatory decision violates the right of equality, and we must examine whether this violation is justified. On the other hand, according to the accepted Aristotelian definition, a statement that ‘discrimination against women is a relevant consideration’ is inherently contradictory, for, according to that definition, if the consideration is relevant, there is no discrimination at all.

8.    The distinction between discriminatory treatment and its justification also requires a distinction regarding the burden of proof, between the woman claiming discrimination and the executive authority. A woman claiming discrimination must prove that the authority treated her differently because of her sex (or her belonging to another group). On the other hand, the burden of proof that discriminatory treatment is justified lies with the authority. Thus for example, in the United States, in lawsuits of observant Jews against their employers on the grounds that they were the victims of discrimination because they observed the Sabbath, it was held that when the plaintiffs proved the actual discriminatory treatment, the employers had to prove that they took all the reasonable measures for integrating the persons who observed the Sabbath in the work. See Getz v. Com. of Pa., Dept. of Public Welfare (1986) [49]; Shapiro-Gordon v. MCI Telecommunications Corp. (1993) [50].

The proper degree of proof is the usual one in civil law, namely, the balance of probability in favour of the contention that must be proved. Cf. R. v. Oakes (1986) [58], at p. 107; P. A. Joseph, Constitutional and Administrative Law in New Zealand, Sydney, 1993, at pp. 861-862; Hogg, supra, at pp. 857-858.

9.    Section 11 of the Basic Law requires all Government authorities to uphold the rights enshrined therein. Notwithstanding, the section does not stipulate the criteria for upholding the rights. How then are these criteria to be determined?

In the United States, in the absence of a provision of the Constitution in this respect, the criteria for examining the constitutionality of the violation of human rights have been formulated in case-law. These criteria do not make a clear distinction between the purpose of the norm that violates a basic right and the proportionality of the violation. American case-law developed a doctrine of levels of scrutiny, which is based on an examination of the importance of the social values at the heart of the right. The most lenient level of scrutiny in terms of the restrictions it imposes on the authorities, applies to acts (including laws) that violate economic rights. The level of scrutiny of these activities is minimal scrutiny. According to this, a violation of a right will be found to be justified if the violation is rationally related to a legitimate State interest. See: Railway Express Agency v. New York (1949) [51]; Massachusetts Board of Retirement v. Murgia (1976) [52].

The strictest level of scrutiny applies to acts that violate fundamental rights, such as freedom of speech, freedom of movement and the right to vote. This criterion also applies to the examination of the constitutionality of actions based on a suspect classification. In examining the constitutionality of such actions there is a need for strict scrutiny, which imposes a heavy burden of persuasion — substantive and probative — to justify the violation of the right. Only an essential public interest, which cannot be achieved by less discriminatory measures, may justify such a violation. See Korematsu v. United States (1944) [53]; Brown v. Board of Education [44].

            Notwithstanding, the level of scrutiny of classifications based on sex was a subject of dispute. In the judgment in Frontiero v. Richardson [45], at pp. 682, 685, Justice Brennan, supported by Justices Douglas, White and Marshall, was of the opinion that classifications based on sex — like classifications based on race — were suspect classifications, and they should be subject to the highest level of scrutiny. He wrote:

‘At the outset, appellants contend that classifications based upon sex, like classifications based upon race, alienage and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree…

…

… Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children… And although blacks were guaranteed the right to vote in 1870, women were denied even that right…’

But in a later judgment it was held that the constitutionality of classifications based on sex, which were defined as ‘quasi-suspect’, will be examined on the basis of an intermediate level of scrutiny (intermediate scrutiny). According to this level of scrutiny, a classification based on sex will be considered to be justified if it has a substantial relationship to an important Government objective. See Craig v. Boren (1976) [54]; Mississippi Univ. v. Hogan (1982) [55].

            In Canada, in the Charter of Rights and Freedoms, there is a limitation clause that distinguishes between the purpose of the action that violates the right and the proportionality of the violation (s. 1 of the Charter). Canadian case-law developed a standard level of scrutiny for all basic rights. It was held that legislation has a proper purpose if it is intended to realize social needs of fundamental importance, and that the violation should not be excessive for achieving the purpose. In the latter case, secondary tests were established. The following was stated in the leading judgment R. v. Oakes [58], at 139:

‘There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question… Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.’

            In Germany, the Constitutional Court ruled that a strict level of scrutiny is required for legislation that discriminates on the basis of sex, that only an essential purpose justifies such a discrimination, and even this on condition that the extent of the violation is not excessive. See D. P. Currie, The Constitution of the Federal Republic of Germany, Chicago, 1994, at p. 328.

            The principle of proportionality, which was developed in German administrative law as early as the eighteenth century, is comprised of three elements that are in principle similar to the secondary tests in the Canadian ruling in R. v. Oakes [58]. First, the violating measure must be appropriate (geeignet) for achieving the purpose. Second, the measure must be required (erforderlich) for achieving the purpose, in the sense that of the suitable measures, the measure chosen is the most moderate one that can achieve the purpose (the element of necessity). Third, the measure must not be excessive (unzumutbar) in its violation, in comparison with the benefit deriving from it. In other words, the relationship between the measure and the purpose must be proportional (Currie, in his book, supra, at pp. 309-310). See also Y. Zamir, ‘Israeli Administrative Law in comparison with German Administrative Law’, 2 Law and Government, 1994, at pp. 109, 131.

10. In Israel, the criteria for upholding rights, mutatis mutandis, should be derived from section 8 of the Basic Law (hereafter — the limitation clause). This section provides:

‘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, or under a law as stated by virtue of an express authorization therein.’

Indeed, the limitation clause applies only to powers deriving from laws passed after the enactment of the Basic Law. However, it is appropriate, by way of analogy, to apply its principles to the duty of executive authorities by virtue of section 11 of the Basic Law, which also applies to powers based upon laws that preceded the Basic Law. There are two reasons for this: first, the protection of basic rights in Israel should be carried out on the basis of similar criteria, whether the legal norm whose validity is being examined is a statute or whether it is another legal norm. Second, the arrangement provided in the limitation clause — which distinguishes, inter alia, between the purpose of the violation of the right and the extent of the violation — is in principle appropriate for all legal norms, and not merely statutes. The suitability of the criteria in the limitation clause for the scrutiny of the validity of legal norms that are not statutes was discussed by Vice-President Barak in El-Al Israel Airlines v. Danielowitz [3] (in which a discriminatory collective agreement was considered), at p. 760 {488}:

‘Equality may be lawfully restricted if this is consistent with the values of the State of Israel, is for a proper purpose and if equality is not restricted more than necessary.’

The elements of the limitation clause are very similar to the criteria developed in case-law for a violation by an administrative authority of a basic human right.

11. The first element, which reflects the principle of legality, provides that the violation must be in a law or under a law by virtue of an express authorization therein. In this respect, in case-law laid down before the Basic Law was passed, it was held, inter alia:

 (1) A basic human right may not be restricted without the clear authorization of the primary legislator. See, for example: the remarks of Justice Berinson in HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [24], at p. 268; Justice Shamgar in HCJ 337/81 Miterani v. Minister of Transport [25], at p. 359.

 (2) Legislation that violates a basic human right must be construed narrowly, ‘with the aim of giving the said right maximum application and not limiting it in any way beyond what is clearly and expressly implied by the legislation’ (the remarks of Justice Shamgar in CA 732/74 HaAretz Newspaper Publishing Ltd v. Israel Electricity Co. Ltd [26], p. 295 {243}).

 (3) Laws should be construed on the assumption that it is not their aim to violate the principle of equality. The following was written by Justice Haim Cohn in HCJ 301/63 Streit v. Chief Rabbi [27], at p. 612:

‘… this court will always presume that the Israeli legislator does not intend to violate, by an act of legislation, the basic principles of equality, freedom and justice…’

            In another context, Justice Barak wrote in Poraz v. Mayor of Tel-Aviv-Jaffa [12], at p. 612:

‘… we must presume [that] the primary legislator and the secondary legislator [wished] to uphold the principle of equality… we must construe this authority in a way that the power to enact subordinate legislation is not exercised in a manner that violates the principle of equality’ (square parentheses added).

The power to discriminate against women must therefore be expressly stated in a law, and a general provision giving an authority discretion is insufficient. This is because the assumption is, as stated, that the authority should exercise its powers while upholding basic human rights — including the prohibition of discriminating against women — unless it is expressly authorized not to do so.

These rules of interpretation were reinforced with the enactment of the Basic Law. It was held that even legislation that is protected by section 10 of the Basic Law against being held invalid should be interpreted in the spirit of the provisions of the Basic Law, and the same applies also to discretion exercised under legislation whose validity was protected. It was also held that there should be a re-examination of existing case-law to assess whether it was consistent with the provisions of the Basic Law. See CrimApp 537/95 Ganimat v. State of Israel [28], and the remarks of Vice-President Barak, at p. 419:

‘… There are rulings that were made in the past, and which are inconsistent with the new balance. These rulings can no longer be used for the construction of a new law. Moreover, these rulings should no longer be used for the construction of the old law. This law should be construed in the spirit of the new basic laws. The purpose of the old legislation and executive discretion enshrined in old legislation must be construed according to the new balance between human rights and the needs of society, provided that this new interpretation is possible.”

            See also: the remarks of Vice-President Barak, ibid., at pp. 423-424; and my own remarks, ibid., at p. 375; and also CrimApp 4595/94 [29]; CApp 4459/94 Salomonov v. Sharabani [30]; HCJFH 3299/93 Wechselbaum v. Minister of Defence [31].

            12. The second element requires that the violation befits the values of the state of Israel. It may be assumed that the intention is to its values as a Jewish and democratic State, as stated in section 1 of the Basic Law. See Barak, in his book, supra, vol. 3, at p. 157; H. H. Cohn, ‘The Values of the State of Israel as a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’, 9 HaPraklit — Jubilee Volume, Israel Bar Association Publications, 1994, at p. 9. Even this element should be applied (subject to section 10 of the Basic Law) to all executive decisions. See the remarks of Vice-President Elon in CrimApp 2169/92 Suissa v. State of Israel [32], at p. 341.

            13. The third requirement in the limitation clause requires that the violation of the right is for a proper purpose. The meaning of ‘a proper purpose’, with regard to a decision of an administrative authority, is different from its meaning with respect to a statute. While with respect to a statute we should examine whether its purpose serves a public purpose whose realization might justify a violation of a basic right, with respect to an administrative decision we should examine, first and foremost, whether its purpose is one of the general or particular purposes of the law authorizing the decision. I discussed this in El-Al Israel Airlines v. Danielowitz [3], at p. 782-783 {519-520}, with regard to discrimination based on sexual orientation:

‘According to this test, no distinction should be made between homosexual couples and heterosexual couples, if the spousal relationship between the spouses of the same sex meets the criteria that realize the purpose for which the right or benefit is conferred. By contrast, when the sexual orientation is relevant to realizing the purpose of the benefit, for instance if the purpose is to encourage having children, withholding the benefit from a same-sex spouse will not constitute discrimination’ (square parentheses added).

            See also HCJ 389/90 Golden Pages Ltd v. Broadcasting Authority [33], at p. 435; HCJ 4422/92 Efran v. Israel Lands Administration [34], at p. 858.

In our case, legislation whose purpose is to protect women cannot be used as a basis for discriminating against women, if she has waived the protection (provided, of course, that the protection is not forced on her by a law whose validity is preserved under section 10 of the Basic Law). See HCJ 231/63 Ratef Food Supply Ltd v. Ministry of Trade and Industry [35], at p. 2733.

            14. The fourth element — which, in my opinion, is the most important — is the requirement that the extent of the violation of the right is not excessive. This principle is expressed by adapting the means to the purpose, in adopting a measure that violates a basic right only as a last resort and in the absence of another reasonable measure, and in adopting a measure of violating a basic right only where the importance of the purpose of the violation (‘the purpose’), and the severity of the damage that will be caused if the purpose is not realized, justify it. See: HCJ 5510/92 Torkeman v. Minister of Defence [36]; HCJ 987/94 [14]; HCJ Ben-Atiya v. Minister of Education, Culture and Sport [37]. See also Z. Segal, ‘The Grounds of Disproportionality in Administrative Law’, 39 HaPraklit, 1990, at p. 507. In the latter case, balancing formulae were established, based on the special weight of the violated human right on the one hand and the conflicting interest (in the terminology of the limitation clause — ‘the purpose’) on the other. These formulae are expressed in the tests that concern the extent of the violation of the basic human right and its probability. See the remarks of Justice Barak in 399/85 Kahana v. Broadcasting Authority Management Board [38], at p. 284. The probability formula is determined, on the one hand, in accordance with the importance of the basic right and its underlying reasons, and, on the other hand, in accordance with the importance of the conflicting interest, the realization of which is the purpose of the violation. For this latter issue, see HCJ 1452/93 Igloo Plumbing Works, Building and Development Contracting Co. Ltd v. Minister of Industry and Trade [39], at p. 617.

            The right to dignity — which enshrines the prohibition of discrimination against women — is one of the most important basic human rights. In general, the degradation of a woman by discriminating against her merely because she is a woman is very hurtful to her. Moreover, important social interests are also a basis for the right. In the words of Justice Bach in Nevo v. National Labour Court [18], at p. 760 {150}:

‘A society that practises discrimination is not a healthy one, and a State that practises discrimination cannot be called a civilized State.’

The individual and social reasons that are the basis for the prohibition of discrimination against women require that we apply in this respect the strict test of a near certainty of serious danger.

            15. In cases where the difference of women is a relevant consideration for realizing the purpose of the power, there is a spectrum of possible measures for achieving that purpose. At one extreme of the spectrum, there is the asymmetric model of the  ‘special protection rule’. This model holds that women have special characteristics and roles, which justify their being discriminated against in comparison with men, and inter alia they are prevented from being employed in various jobs. The proper purpose — which is the proper exercise of the said roles — is therefore realized by closing the door to women who wish to serve in those jobs.

            At the other end of the spectrum, there is a symmetric model known as ‘gender neutrality’. This model advocates equal treatment of men and women, and it assumes that both sexes have identical functional capacity. According to this approach, pregnancy is considered as a constraint equivalent to a man being sick. Adopting this model usually involves building the system according to the ability of men. In its planning, naturally account is taken of various needs that are common to all human beings, whether women or men, but no account is taken of the special needs of women. According to this model, society may close to women the door of an organization whose optimal operation is in the interests of society, if it transpires that because of the needs and characteristics of women their period of activity is expected to be shorter than the activity of men (and this also as a result of women exercising privileges that the law grants them, with regard to pregnancy, childbirth and the other roles of women). The symmetrical model is therefore likely to prevent or to reduce to a large degree the employment of women in essential organizations.

            This problem raised by the ‘gender neutrality’ model was succinctly described by Prof. MacKinnon:

‘Under the sameness rubric, women are measured according to correspondence with man, their equality judged by proximity to his measure; under the difference rubric, women are measured according to their lack of correspondence from man, their womanhood judged by the distance from his measure. Gender neutrality is the male standard. The special protection rule is the female standard. Masculinity or maleness is the referent for both’ (C. A. MacKinnon, Toward a Feminist Theory of the State, Harvard University Press, 1989, at p. 221).

16. In my opinion, the solution to the difficulties raised by both of the extreme models lies in an intermediary model. According to this model, achieving equality between the sexes requires organizational planning that takes the unique needs of women into account. The interest in ensuring the dignity and status of women, on the one hand, and in the continued existence of society and the raising of children, on the other hand, makes it necessary — in so far as possible — not to deny women the possibility of realizing their abilities and ambitions merely because of their special natural functions, and thereby discriminating against them in comparison with men. Social institutions — including legal arrangements — should be adapted to the needs of women.

            This intermediary model, whereby every employer must take into account that the years of a woman’s activity are likely to be disrupted by pregnancy, childbirth, nursing and childcare, has been enshrined in Israel in labour law. Thus, for example, the Women’s Employment Law provides that a woman has a right of maternity leave (s. 6(a)), a right of absence from work during the pregnancy if there is a medical need (s. 7(c)(1)), and a right to return to work after childbirth following an absence that does not exceed twelve months (s. 7(d)(1)).

            Naturally, the implementation of the intermediary model costs money and complicates planning. These costs must be borne — sometimes with the participation of National Insurance — also by private employers. This obligation is imposed, all the more so, also on the State.

            The demand to consider the special needs of women is similar to the demand to consider a person’s religious belief. Such a demand is accepted in the United States. See Getz v. Con. of Pa., Dept of Public Welfare [49]; Shapiro-Gordon v. MCI Telecommunications Corp. [50]. In HCJ 80/70 Elitzur v. Broadcasting Authority [50], at p. 666, Justice Kister wrote that the approach of American case-law should be adopted:

‘… we may learn some things from the American approach in law and case-law:

a.            An approach that has maximum consideration for the religious persuasion of the employee; even if he has undertaken to work overtime, he should not be required to do this on his day of rest, and he even cannot be required to find a replacement if this is contrary to his religious belief, and the employer must adapt himself, in so far as possible, to his religious belief; I emphasize that we are speaking here of a private factory…’

It will be noted that in 1981 the Work and Rest Hours Law, 5711-1951, was amended, and in section 9(c) an employer was forbidden to refuse to accept someone for employment merely because he is not prepared to work on the weekly rest days prohibited by a precept of his religion.

17. From the general to the specific:

            My colleague, Justice Mazza, set out the facts underlying the petition. As stated, the respondents rejected the petitioner’s request to invite her for aptitude tests for an aviation course because of planning reasons, which were mainly considerations of organizational feasibility. The basis for these considerations is the large cost of training pilots, which makes — so the respondents argue — the training of someone whose service for many years is not guaranteed by law not worthwhile, and it also makes it necessary to train a larger number of pilots. An additional reason given by the respondents was the cost required for adapting the facilities at the camp where the flight course takes place to absorb women.

The respondents’ considerations are based on the assumption that the petitioner, being a woman, can be expected to serve fewer years than a man. In this respect, they relied on the provisions of the Defence Service Law [Consolidated Version] (hereafter — the law), which obliges men to do reserve duty until the age of 54, whereas women are liable for reserve duty only until the age of 38 (s. 29), and pregnant women and mothers are exempt altogether from reserve duty (s. 34). The law does not prevent a woman volunteering for reserve duty (s. 12), nor does it even distinguish between men’s jobs and women’s jobs. But in the respondents’ opinion, in view of the pregnancies and childbirths that can naturally be expected in the life of a woman, one cannot rely upon voluntary service from which the woman can exempt herself at any time.

As my colleague Justice Mazza mentioned, the respondents did not rely on the existence, under High Command regulations, of restrictions in assigning women to combat roles, and I will therefore assume that these regulations have no implications with regard to the rights of the petitioner.

18. I have arrived at the conclusion that the respondents’ decision to reject the petitioner’s request because she is a woman, discriminates against her, and this discrimination — which constitutes a violation of the petitioner’s constitutional right of dignity — does not satisfy the requirements of the limitation clause in the Basic Law, and it is therefore illegal and improper.

I will consider the elements of the limitation clause in order.

19. The first requirement — express statutory authorization: the law distinguishes between men and women in so far as the length of compulsory service is concerned, and in this way it discriminates between the sexes. In view of the provisions of section 10 of the Basic Law regarding the preservation of laws, we are not required to consider the validity of the law in this respect. In the absence of any other argument, I too am prepared to assume — without ruling — that the decision was made within the framework of the power that the law gave to the respondents.

20. The second element — befitting the values of the State: here too, in the absence of arguments to the contrary, I will assume — without ruling — that the respondents’ decision does not conflict with the values of the State of Israel as a Jewish and democratic state.

21. The third element — a proper purpose: the air force’s planning considerations, which, as stated, led it to make the decision that is the subject of the petition, serve important State interests, and in this sense they constitute ‘a proper purpose’. The problem is that these considerations were based on statutory provisions that were intended to protect women and grant them ‘privileges’. As stated, the law is not compulsory in this respect, and the petitioner gave notice that she is prepared to waive the privileges given to her. Therefore, in rejecting the petitioner’s request by relying on the protective provisions, the respondents applied considerations that were irrelevant for realizing the purpose of these provisions of law. In this sense, their considerations can therefore not be regarded as ‘a proper purpose’. Notwithstanding, there still remains the consideration that a woman, because of her biological functions, is expected to do less years of reserve duty than men, something that will make her training less worthwhile, and will, so they claim, adversely affect the possibility of planning. These considerations — of economy and facilitating planning — are relevant and legitimate, and constitute ‘a proper purpose’.

22. The fourth element — to an extent that is not excessive: in my opinion, the measure that the respondents chose in order to realize their purposes — closing the profession of aviation to women — does not comply with this element of the limitation clause. Closing the profession of aviation to women does not comply with the requirement of proportionality. As my colleague Justice Mazza has shown, it is possible to make plans — since in any event planning takes account of interruptions and stoppages for various reasons — in a way that takes into account the differences between men and women. As stated, the obligation to take account of women’s needs in planning is incumbent on all employers in the country by virtue of laws that prohibit refusing to accept a woman for employment because of her sex, and at the same time give her privileges that shorten her activities in a way liable to harm the employer. In these circumstances, where an extra financial burden is imposed on all private employers for the sake of achieving equality, considerations of budgeting and planning efficiency cannot justify a decision of the State that violates a basic right. See: Singh v. M. E. I. (1985) [59], at p. 218; R. v. Lee (1989) [60], at p. 1390; Barak, supra, vol. 2, at pp. 526-527.

Moreover, even if we assume that the planning consideration could justify discrimination against women, the State which seeks to justify the discrimination bears the burden of proof. But the respondents did not substantiate their arguments about the harm to planning on solid facts, but merely on a hypothesis whose correctness is not self-evident. The fact that in 1975 women soldiers were integrated into an aviation course on the respondent’s initiative, indicates precisely that the planning difficulties, in so far as they exist, are not insoluble.

            In addition to all the above, the damage caused by closing the aviation course to women exceeds the benefit of the planning considerations. First, closing the aviation course to women violates their dignity and degrades them. It also, albeit unintentionally, provides support for the degrading slogan: ‘the best men for the air force, and the best women for its pilots’.

            Second, the potential of half the population is not utilized, and this damages society. ‘The best women for the air force’ is also in the interests of society, and this was harmed by the respondents’ decision. This was discussed by the English philosopher, John Stuart Mill, in his book, supra, which was written over one hundred years ago. He wrote, on p. 57:

‘Nor is the injustice confined to [women]: it is shared by those who are in a position to benefit by their services. To ordain that any kind of persons shall not be physicians, or shall not be advocates, or shall not be members of parliament, is to injure not them only, but all who employ physicians or advocates, or elect members of parliament, and who are deprived of the stimulating effect of greater competition on the exertions of the competitors, as well as restricted to a narrower range of individual choice.’

Very recently this was explained in the United States by Justice Hall in his judgment in Faulkner v. Jones [42], at p. 451:

‘Though our nation has, throughout its history, discounted the contributions and wasted the abilities of the female half of its population, it cannot continue to do so. As we prepare, together, to face the twenty-first century, we simply cannot afford to preserve a relic of the nineteenth.’

Indeed, the experience of history in other countries and also in Israel shows that in times of emergency, when the enemy stood at the gates, accepted norms gave way and women took part in combat, on land and even in the air.

The policy of closing the doors also does not meet the accepted criteria in our law for violation of a basic right. In this respect the respondents needed to prove the existence of a near certainty that the integration of women in aviation will seriously harm national security. The respondents did not do this, nor do common sense and experience in themselves lead to a conclusion about the existence of such a near certainty.

For these reasons, I think that the petition should be granted and the show cause order be made absolute.

 

 

Petition granted by majority decision (Justices E. Mazza, D. Dorner, T. Strasberg-Cohen), Justices Y. Kedmi, Ts. E. Tal dissenting.

15 Heshvan 5756.

8 November 1995.

 

Full opinion: 
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Cohen v. Minister of Defense

Case/docket number: 
HCJ 4169/10
Date Decided: 
Wednesday, June 2, 2010
Decision Type: 
Original
Topics: 
Administrative Law
Competent authority
Discretion
Criminal Law
Criminal Procedure
International Law
Occupied territories
Laws of war
Customary humanitarian law
International Humanitarian Law
Abstract: 

Petitions seeking remedies concerning the release of foreign arrestees who took part in a flotilla from Turkey to the Gaza Strip were rejected. Following the notice of the Attorney General regarding the release of the foreign arrestees, part of these petitions have become unnecessary, whereas regarding the petitions challenging the decision of the Attorney General, it a decision within the discretion of the Attorney General and there is no reason for intervention. The High Court of Justice (in an opinion written by Justice D. Beinisch) rejected the Petitions for the following reasons:

 

Following the decision of the Attorney General, the primary remedies sought as part of these petitions have become unnecessary.

 

As for the Petitions against the Attorney General’s decision to release the foreign arrestees, it is a decision within the range of the Attorney General’s discretion. This Court held in a long line of decisions that the extent of intervention into the discretion of the Attorney General in regards to an investigation or an indictment is limited only to exceptional and unusual cases. Because of the unique nature of the event and the circumstances around it, which – in addition to the criminal aspects – bears political aspects that concern the country’s foreign affairs as well, the Attorney General was permitted to consider such aspects. The developments that occurred in the international arena regarding this affair point to special political sensitivity as to law enforcements treatment of the participants of the flotilla. The Attorney General noted that he consulted all the government bodies relevant to these political aspects and that after considering the fact that nine of the participants were killed and several dozens were injured, he concluded that the political, security and public interests outweigh the interests of criminal law enforcement. The Court found neither in this decision, which was given the above reasons, nor in the considerations that justified it, a reason for intervention. 

Voting Justices: 
Beinisch, Dorit
Primary Author
majority opinion
Naor, Miriam
majority opinion
Vogelman, Uzi
majority opinion
Full text of the opinion: 

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 4169/10

HCJ 4193/10

HCJ 4220/10

HCJ 4221/10

HCJ 4240/10

HCJ 4243/10

 

 

Before: The Honorable President D. Beinisch, The Honorable Justice
M. Naor, The Honorable Justice U. Vogelman

 

Petitioners in HCJ 4169/10: Yiftach Cohen; Omer Shatz, Itamar Mann

Respondents in HCJ 4169/10: The Minister of Defense; The Minister of the Interior; The Minister of Public Security

 

Petitioners in HCJ 4193/10: Adalah – The Legal Center for Arab Minority Rights in Israel; Public Committee Against Torture in Israel; Physicians for Human Rights

Respondents in HCJ 4193/10: The Minister of Defense; The Military Advocate General; The Israel Prison Service; The Israel Police; The Immigration Authority

 

Petitioners in HCJ 4220/10: Al Jazeera Satellite Network; Othman Al Bukhairi; Abas Naser; Muhammad Fal; Ali Sabri; Andrei Abu Khalil; Jamal Al Shial; Wasima Bin Salah

Respondents in HCJ 4220/10: The Israel Defense Forces; The Minister of Defense; The Minister of Public Security

 

Petitioner in HCJ 4221/10: Yekutiel Ben Yaakov

Respondents in HCJ 4221/10: The Israel Police; The Israel Prison Service; The Government of Israel; The Minister of Defense; The Prime Minister

 

Petitioner in HCJ 4240/10: Shurat Hadin – Israel Law Center

Respondents in HCJ 4240/10: The Attorney General; The Prime Minister; The Minister of Public Security; The Minister of the Interior; The Israel Police

 

Petitioners in HCJ 4243/10: 1. Almagor – Terror Victims Association; Y.S. – Navy commando (res.); D.B. – Navy commando (res.) and bereaved brother; Pniel Krichman; Yekira and Zecharia Komemi; Aviva and Rahamim Komemi; Tzila Rahamim; Moshe Keinan; Briana and Shmuel Hilberg

Respondents in HCJ 4243/10: The Prime Minister; The Minister of the Interior; The Attorney General; The Inspector General of the Israel Police

 

 

Petitions to grant an order nisi

 

Date of hearing:

20 Nisan 5770

(June 2, 2010)

 

For the petitioners in HCJ 4169/10: Itamar Mann; Yiftach Cohen; Omer Shatz

For the petitioners in HCJ 4193/10: Fatima El Ajou

For the petitioners in HCJ 4220/10: Zaki Kamal; Kamal Zaki Kamal

For the petitioner in HCJ 4421/10: Himself

For the petitioner in HCJ 4240/10: Nitsana Darshan Leitner

For the petitioners in HCJ 4243/10: Sharon Avni; Shira Greenberg

For the respondents: The State Attorney Moshe Lador; Osnat Mandel; Dina Zilber; Hila Groni

 

 

Judgment

 

 

President D. Beinisch:

 

 

1.          In view of the control of the Gaza Strip by the Hamas organization, Israel has taken various measures designed to prevent direct access to the Gaza Strip, among them a blockade of the Gaza Strip which, as declared by the State, is designed to prevent the infiltration of weapons and arms to the Hamas organization, which, for years, has carried out acts of shooting and terrorism at Israeli territory for the purpose of harming civilians.

 

2.          In recent weeks, announcements have been publicly made by various organizations, among them organizations that declared themselves to be acting for humanitarian purposes, regarding their intention to arrange a flotilla of ships which, they claimed, were designated to transfer foodstuffs and materials as humanitarian aid to the residents of the Gaza Strip. Israel, for its part, made efforts to prevent the flotilla from reaching the shores of Gaza and breaching the blockade in such manner. The State proposed to the organizers of the flotilla, among others, that the cargo – which was supposed to reach Gaza – be unloaded from the ships and transferred directly to Gaza via Israel. This proposal was rejected.

 

             In the early hours of May 31, a number of ships approached the shores of Israel to implement the flotilla's plan. As decided by the political echelon, the IDF prepared to take measures to prevent the entry of the ships into the Gaza Strip as stated. In the framework of an operation that was designed to stop the ships, soldiers landed on the deck of the ship Mavi Marmara, the largest ship in the flotilla. The soldiers met with a violent and severe response from the flotilla participants on the ship. The soldiers were attacked with knives, clubs and iron rods. Attempts were made to seize the soldiers’ personal weapons and they were violently attacked. One of the soldiers was even thrown off the deck of the ship. The soldiers were forced to respond to defend their lives and, unfortunately, the operation ended with unexpected loss of life - nine people were killed and both soldiers and flotilla participants were injured. The operation concluded with the ships being halted and their passengers removed and detained in Israel.

 

3.          That same morning, when the results of the operation became known, the petition in HCJ 4169/10 was filed with this court (hereinafter: the First Petition), in which four attorneys filed the petition as public petitioners. It should be noted that at the opening of the hearing before us, the petitioners gave notice of the request of attorney A. Feldman, who was among the petitioners, to strike his name from the petition. The petition ascribed grave and illegal acts to the State of Israel and the petitions sought a remedy of habeas corpus to free all the detainees. It is evident in the petition, which was hastily filed, that, notwithstanding the fact that the petitioners knew nothing about the actual events, they were quick to cast the gravest aspersions on the actions of the IDF forces, while using inappropriate language. Notwithstanding that stated, because the relief sought was the release of the detainees, the petition was not stricken in limine at that stage, and the State’s response was requested by the following day.

 

             During the course of that day and the following day, a number of additional petitions were filed with court. In HCJ
4193/10, which was filed on behalf of the Adalah organization and other human rights organizations, the petitioners requested information on the detainees and their whereabouts, as well as details on the injured and the dead. This petition was also filed as a public petition. Another petition (HCJ 4220/10) was filed by the Al Jazeera television network and in the name of journalists acting on its behalf who had been arrested on the ship. This petition requested the release of the network personnel who had participated in the flotilla. It should be noted that during the hearing that we held, it transpired that this petition was superfluous since the petitioners had already been released.

 

4.          On June 1, 2010, the government issued a statement that all the foreign flotilla participants would be released and returned to their countries. After this statement was issued, three additional petitions were filed with this court: HCJ 4221/10, which was filed on behalf of Mr. Yekutiel Ben Yaakov; HCJ 4240/10, which was filed by Shurat Hadin – Israel Law Center; and HJC 4243/10 filed by Almagor – Terror Victims Association. In these three petitions, the remedy sought was to bar the release of the foreign flotilla participants, with the main argument being that these were people who had committed an offense, who were required both for investigating the facts and the circumstances surrounding the incident and for a decision about arraignment for trial.

 

             In view of the remedy sought, which related to the question of the release of a large number of detainees, we conducted an urgent hearing and deliberated all the petitions together before the panel at that session, and within two days of the filing of the First Petition.

 

5.          Before the hearing, the State submitted a written response in which it protested the description of the events in the First Petition and pointed out the distortion of the facts therein. In essence, the State addressed the legality of the blockade and referred to an alternative remedy set forth in the relevant provisions of the Entry into Israel Law, 5712-1952, with regard to the foreign participants in the flotilla and the relevant provisions of the law pertaining to the criminal proceedings of investigation and detention with regard to the Israeli suspects who participated in the event. During the day, proximate to the time of hearing the petitions, the State completed its statement and submitted a decision formulated by the attorney general, which stated that on the day of the event, May 31, 2010, the attorney general ordered the opening of an investigation on suspicion of offenses committed on the deck of the ship Mavi Marmara, including the offense of the grave attack on IDF soldiers, disturbing the peace, endangering the lives of soldiers, seizing weapons and so forth. The attorney general further stated that the next day, the ministerial committee on national security matters convened and conducted a long and exhaustive discussion of the security, political, legal and other aspects of the affair. At the end of the discussion, the senior political echelon recommended “to enable the immediate deportation of all the foreigners who had arrived on the flotilla, who were suspected of committing criminal offenses. This is recommended for clear political reasons pertaining to foreign relations and the security of the State of Israel.” In his decision, the attorney general noted that he had discussed the matter with the state attorney and other senior officials at the Ministry of Justice and other government ministries, at the end of which he decided, as stated, to allow the immediate deportation of all the foreigners from Israel.

 

6.          During the hearing before us, State Attorney Moshe Lador, appeared together with senior attorneys. It should be noted that due to the nature of the proceedings which we conducted, we sought not to address the claims pertaining to the legality of the blockade, nor with the factual events during that grave incident, the full details of which had not been presented to us. Claims pertaining to the detention of Israelis suspected of committing offenses while participating in the flotilla were also not adjudicated before us, as they should be argued in individual hearings on the criminal arrest proceedings before the competent courts. The hearing focused on the urgent remedies sought which pertain to holding the foreign detainees. The state attorney stated that all the foreigners who wished to do so could be released from detention and, in effect, those who had not yet left the country were on their way to the airport. The wounded whose medical condition allowed for it, were also removed to their countries of origin. Apparently, two of the wounded remained in the hospital because their condition did not enable them to be flown back to their country. The state attorney further stated that the names of all the wounded had been submitted to the relevant consulates and, with regard to those who came from countries that do not have diplomatic relations with Israel, the details were provided to the Red Cross. It should be noted that the State did not see fit to acquiesce to the request to provide details in this matter to counsel for the Adalah organization, as the details had been provided to the relevant entities. However, the possibility arose that if a specific, substantive application were to be made to obtain details regarding one of the casualties or the wounded, the State would examine the possibility of providing counsel for the Adalah organization with the requested details. It further transpired that the remaining details requested by the Adalah organization regarding the place in which the detainees were being held were resolved. The Adalah organization’s counsel also made claims with regard to the detainees' ability to meet with attorneys. During the hearing it was made clear that there had been no intention to prevent such a meeting, and many detainees had actually already met with attorneys. Due to the need to release hundreds of people quickly, not all the detainees may have had the opportunity to meet with an attorney.

 

             The position of the attorney general to release all the foreign participants meant that the main remedy sought in the First Petition was already granted. In the course of the arguments, in view of the response of the state attorney and the comments of the court, the petitioners retracted the style of the scathing verbal attack that they had employed in the petition.

 

7.          As stated, three of the petitions were filed against the attorney general’s decision to release the foreign detainees. Each one of the petitioners argued before us at length about the importance of keeping the detainees in Israel for the purpose of conducting an exhaustive investigation regarding the grave events that occurred on the ship, and regarding the need to exercise the full rigor of the law or, at least, to investigate details which, they claim, would constitute defense arguments for the IDF soldiers.

 

             We did not find any ground for intervention in the decision of the attorney general. The decision to release the detainees is in the realm of the attorney general’s discretion. In a long series of judgments, this Court has ruled that the scope of intervention in the attorney general’s discretion in decisions pertaining to investigation or prosecution is limited to exceptional and unusual instances. Due to the unusual nature of the event and the circumstances entailed therein which, aside from the criminal aspects, also encompass political aspects pertaining to the State’s foreign relations, the attorney general was entitled to consider these aspects. The developments that have ensued in the international arena indicate that a particular political sensitivity exists in everything pertaining to the handling of the matter by the enforcement entities. The attorney general noted that he consulted with all the relevant government entities and after taking into account the fact that nine flotilla participants were killed and several dozen were wounded, he reached the conclusion that the public, political and security interests outweigh the interests of criminal enforcement. We did not find in this decision, which was reasoned as stated, and in the considerations underlying it, any cause for intervention.

 

             Wherefore, after we were convinced that the main remedies sought in some of the petitions were superfluous, and in the absence of cause to intervene in the decision of the attorney general, we have decided to deny the petitions.

 

             Given this day, 20 Sivan 5770 (June 2, 2010).

 

 

The President          Justice                 Justice

_________________________

This copy is subject to editorial and textual changes 10041690_N04.doc AB

Information Center Tel; 02-65936666, website www.court.gov.il

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Bohakov v. The Mayor, Council, & Inhabitants of Herzlia

Case/docket number: 
CA 103/63
Date Decided: 
Thursday, July 11, 1963
Decision Type: 
Appellate
Topics: 
Administrative Law
Discretion
Property
Abstract: 

Under a road construction scheme. the local authority planned to construct a road across the appellant's land. Notice was sent to the latter, asking him to vacate the land affected and move the fences and that in default the local authority would do so at his expense. The appellant refused to comply and informed the respondent that he would deny it and its agents access to the land. Some days afterwards, local authority employees tore down the fences involved, uprooted trees and began to lay a road close to the appellant's dwelling. The appellant called the police who did not interfere but merely noted what had occurred. The appellant later repaired the fences but they were pulled down again and in the presence of the police the uprooting of trees and other works continued by the local authority. The appellant sued for vacation of the land, an injunction and damages. He was unsuccessful but leave was given to appeal. He appealed in respect of vacation and the injunction which had been refused.

           

Held. The rule against self-help and taking the law into one's own hands is basic and absent express provision in that regard may not be departed from. The relevant law only provides for compensation and not for forcibly taking possession of land against the objections of the owner. Possession, even if rightful, can under Israeli law in the given circumstances, be obtained only through court.

Voting Justices: 
Manny, Eliyahu
Primary Author
majority opinion
HaLevy, Binyamin
Author
concurrence
Olshan, Yitzhak
majority opinion
Full text of the opinion: 

C.A. 103/63

 

           

JOSEPH BOHAKOV

v.

THE MAYOR, COUNCIL & INHABITANTS OF HERZLIA

 

 

In the Supreme Court sitting as a Court Of Civil Appeal

[July 11, 1963]

Olshan P., Manny J. and Halevi J.

 

Administrative Law - forcible removal of fences and execution of work under road construction scheme - objections and protest by land owner - Town Planning Ordinance, 1936, secs. 7, 26 and 27 - Land (Acquisition for Public Purposes) Ordinance, 1943, secs. 5, 7 & 8.

 

            Under a road construction scheme. the local authority planned to construct a road across the appellant's land. Notice was sent to the latter, asking him to vacate the land affected and move the fences and that in default the local authority would do so at his expense. The appellant refused to comply and informed the respondent that he would deny it and its agents access to the land. Some days afterwards, local authority employees tore down the fences involved, uprooted trees and began to lay a road close to the appellant's dwelling. The appellant called the police who did not interfere but merely noted what had occurred. The appellant later repaired the fences but they were pulled down again and in the presence of the police the uprooting of trees and other works continued by the local authority. The appellant sued for vacation of the land, an injunction and damages. He was unsuccessful but leave was given to appeal. He appealed in respect of vacation and the injunction which had been refused.

           

            Held. The rule against self-help and taking the law into one's own hands is basic and absent express provision in that regard may not be departed from. The relevant law only provides for compensation and not for forcibly taking possession of land against the objections of the owner. Possession, even if rightful, can under Israeli law in the given circumstances, be obtained only through court.

           

Israel cases referred to:

(1)        H.C. 37/49 - Zvi Goldstein v Custodian of Absentees' Property, Yaffo and others (1949) 2P.D. 716.

(2)        Cr.A. 48/49 - Emanuel and Mina Kahanovitz v Attorney-General (1949) 2 P.D. 890.

(3)        C.A. 332/60 - Jacob Ben-Ami v Attorney-General and another (1961) 15 P.D. 138.

(4)    C.F. 134/51 Tel-Aviv - Joseph Galinski and others v Mayor, Council and Inhabitants of  Tel Aviv (1952) 7 P.M. 208.

 

 English cases referred to:

(5) Loosemore v Tiverton  and N. Devon  Rly. Co. (1882) 22 Ch.D. 25.

(6) Julius v Bishop of Oxford and another (1880) 5 App. Cas. 214.

 

M. Michalovskii for the appellant

A. Ber for the respondent.

 

MANNY J. The sole question to be decided in this appeal is whether a local planning commission acting under the powers vested in it by sec. 27 of the Town Planning Ordinance, 1936, may forcibly take property against the wish of the owner without being required to apply to the competent court. The lower courts answered this question in the positive and hence this appeal.

 

            The statutory provisions necessary for solving the problem are, so far as pertinent, the following:

           

Sec. 25 of the Town Planning Ordinance, 1936:

 

"At any time after... an outline or detailed town planning scheme has come into force, the Local Commission may proceed to the expropriation of any or all of the lands and buildings mentioned in the scheme as destined for expropriation. Subject to the provisions of sections 27 and 28 of this Ordinance the expropriation shall be carried out in accordance with the law in force from time to time concerning expropriation of land for public purposes as though the (Minister of Finance) had certified the scheme to be an undertaking of a public nature."

 

Section 27 of the same Ordinance:

 

"Notwithstanding anything in any other Ordinance contained, it shall be competent for a Local Commission to expropriate without compensation any land which is included in a town planning scheme, and is required for the purposes of constructing, diverting or widening any road, street, playground or recreation ground included in the scheme, provided that not more than one quarter part of the area of the plot of any owner is so expropriated, and it shall be lawful for the Local Commission to enter into immediate possession of such land not exceeding one quarter part as aforesaid, for the purposes aforesaid..."

 

 Sec. 28 of the Ordinance empowers the Local Commission to postpone completion of the expropriation for a period not exceedings two years.

 

Sec. 5 (1) of the Land (Acquisition for Public Purposes) Ordinance, 1943:

 

"Where the (Minister of Finance) intends to acquire any land for any public purpose, he shall cause a notice of such intention to be published in (Reshumot), and such notice shall be in the form A or the form B set out in the Schedule, whichever is appropriate... He shall cause a copy of such notice to be served on any person whose name is entered in the land registers as the owner of, or as a person having an interest in, the land..."

 

Sec. 7 of the same Ordinance:

 

"(1) The (Minister of Finance) may, in a notice given under section 5, or by any subsequent notice given in like manner direct any person having possession of the land to be acquired to yield up possession of the land on or before the expiration of the period specified in the notice on that behalf, which period shall not be less than two months from the date of publication of such notice in (Reshumot) unless the land is urgently required for the public purpose for which it is to be acquired...

 

(2) At the expiration of the period specified in a notice given under subsection (1) the (Minister of Finance) shall be entitled to enter into or upon, and take possession of, the land accordingly."

 

Sec. 8 of this Ordinance:

 

"If the owners or occupiers of the land to be acquired refuse to allow the (Minister of Finance) to enter into possession, the Attorney-General may apply to the court which if satisfied that the (Minister of Finance) is entitled to possession under section 7 shall issue an order commanding possession to be delivered."

 

            The reason which moved the majority in the District Court to give a positive answer to the question posed at the beginning of this judgment appears in the third paragraph of the majority judgment, as follows:

           

"It appears to us that the learned Magistrate was right on this point. Expropriation of property for public purposes requires, indeed, generally an application to court, when the owner of the expropriated property refuses to yield possession. That is the general provision found in section 8 of the Land (Acquisition for Public Purposes) Ordinance, but sections 25 and 27 of the Town Planning Ordinance are designed to exclude expropriations for special purposes, and one of these is the diversion of a road, for which the manner of taking possession is changed. The manner outlined in section 27 is to send thirty day prior notice so as to give the owner the opportunity of applying to court to stop possession being taken. That in brief is the difference: in general the expropriating authority is under duty to apply to the court, when the owner refuses to sell possession, but in the special cases specified in section 27, this duty, or more correctly this right, attaches to the owner."

 

I cannot agree with this conclusion of the District Court.

 

            Section 23 of the Town Planning Ordinance of 1921, which preceded the Town Planning Ordinance of 1936, now in force, provided that

           

"(1) At any time after the date at which the scheme has come into force, the responsible authority may proceed to the expropriation of any or all of the lands and buildings mentioned in the scheme as destined for expropriation.

 

(2) The expropriation shall be carried out in accordance with the law in force from time to time concerning expropriation of land for public purposes: Provided that no certificate of the High Commissioner shall be required that the town planning scheme is an undertaking of a public nature."

 

And sec. 7 of the Land (Expropriation) Ordinance, 1927, which was in effect when the Town Planning Ordinance of 1936 was enacted, provided that

 

"If within fifteen days after the service of any such notice (to treat) the person on whom the same is served fails to state the particulars of his claim in respect of any land to which such notice relates or to treat with the promoters as to the amount of compensation to be paid or if the promoters and such persons do not within fifteen days agree as to the amount of such compensation,

 

(a) it shall be lawful for the promoters to enter into immediate possession of the lands referred to in such notice:

 

Provided that, if the owners or occupiers refuse to allow the promoters to enter into such possession, the promoters may apply to the president of the court who, if he is satisfied that the promoters are entitled to possession under this section, shall issue an order under his hand commanding possession to be delivered;..."

 

It follows from sec. 23 of the 1921 Town Planning Ordinance and sec. 7(a) of the 1924 Land (Expropriation) Ordinance that until the enactment of the 1936 Town Planning Ordinance, a Local Commission could not take possession of land against the owner's wish without resort to the courts.

 

            Does sec. 27 of the 1936 Town Planning Ordinance change the position in this regard? I think that it does not, and for the following reasons.

           

(1) As I have already said, when this section was enacted the 1926 Land (Expropriation) Ordinance was in force and according to the provision in sec. 7(a) thereof whenever the owner of land sought to be expropriated refused to deliver possession, the expropriators had to apply to court to obtain an order for delivery of possession. Although sec. 27 of the 1936 Town Planning Ordinance, which permits the Local Commission to enter into immediate possession, after one month's notice in writing to the owner, makes no mention of the matter of applying to court of the above-mentioned proviso, that can be explained by the fact that sec. 25 of the 1936 Ordinance had already directed that the expropriation shall be effected "in accordance with the law in force from time to time concerning the expropriation of land for public purposes."

 

(2) The 1943 Land (Acquisition for Public Purposes) Ordinance - which replaced the 1924 Land (Expropriation) Ordinance - also makes a court application obligatory for obtaining an order for delivery of possession when the other refuses to yield up possession. In subsection 7(2) of the 1943 Ordinance, authorising the expropriators to enter into possession, the word "immediate" which appears in subsection 7(a) of the 1926 Ordinance is omitted, but the omission is of no significance for the reasons set out in the previous paragraph.

 

(3) The rule that a person may not take the law into his own hands is basic to our legal system and consequently, in the absence of clear provision to the contrary, no intention of ousting it may be attributed to the legislature. As Maxwell, The Interpretation of Statutes (9th ed.) pp. 85 - 86, puts it:

 

"It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness...

 

In construing the words of an Act of Parliament, we are justified in assuming the Legislature did not intend to go against the ordinary rules of law, unless the language they have used obliges the court to come to the conclusion that they did so intend."

 

I have been unable to find in secs. 25 and 27 of the 1936 Town Planning Ordinance, or in any other part thereof, any such language which should compel me to conclude that the legislature did indeed intend to depart from the said rule. It seems to me that all that the legislature intended in secs. 25, 27 and 28 of the said Ordinance was to provide for a summary manner of expropriating land without compensation for the purposes of highways and playgrounds and recreation grounds and to empower the Local Commissioner to postpone completion of the expropriation for a period not exceeding two years (a postponement which could not be made under the existing law regarding the expropriation of land for public purposes) and on the other to apply to expropriation the provisions of the existing law to all other matters relating to the carrying out of expropriation.

 

            For these reasons, I would accept the appeal, set aside the judgments of the District and Magistrate's Courts and order the respondent to vacate the land which it seized and refrain from entering or carrying out any work thereon or within its bounds, without a prior order of a competent court.

           

HALEVI J.  The facts giving rise to the present dispute are as follows. On 6 April, 1959 the Tel Aviv Planning Commission gave effect to Detailed Planning Scheme No. 403 regarding the building of a road in the Herzliah area. The scheme was published in Reshumot (No. 699) on 17 September 1959. The road as planned affects parts of several plots of land, and crosses inter alia the north-west part of the appellant's plot. A notice from the local planning commission for Herzliah was sent to the appellant on 29 February 1962, signed by the Mayor and municipal engineer and informing him that the municipality "intends proceeding to the carrying out of the necessary works" for making the planned road and "therefore you are requested, in accordance with section 27 of the Town Planning Ordinance, 1936, to remove all your possessions from the place and move the fence to the correct boundary line in accordance with the plan annexed," and "if, within 30 days from receipt of this letter, you do not carry out the required work, the municipality will do so" and "all expenses will be charged to your account." At the beginning of April 1962, the Mayor of Herzlia and the municipal engineer visited the appellant to influence him to comply with this notice, but he refused, telling them expressly that he also refused to permit the respondent or its employees to enter his plot of land and carry out any road works according to the plan. It should be noted that the plot in question includes the appellant's dwelling and an orange grove fenced with iron network. Municipal employees appeared on 10 April 1962 and broke through the fence on the north-west side of the plot, drove a tractor onto the land, uprooted the trees and leveled the ground there for a road close to the house. The appellant who was then ill in bed was only able to get to the part affected after the fence had been broken. Notwithstanding his protests, the municipal engineers continued their operations and forcibly seized that part of the land. A policeman called by the appellant made a note what was happening but did not intervene. After the municipal employees left the place, the appellant repaired the fence but during one of the following nights the fence was again broken through and the next morning the municipal employees turned up once more, this time accompanied by six policemen to prevent the appellant from interfering with them. They carried on uprooting the trees and leveling the ground. They forcibly occupied the part affected, against the appellant's protests. Finally the appellant took legal proceedings for the respondent to vacate the land and claiming an injunction and damages. The action was dismissed by the learned magistrate and his judgment was upheld by a majority in the District Court, with leave to appeal to this Court.

Appellant's counsel limited the appeal before us to the first two prayers, vacation of the land and an injunction.

 

            The respondent, there is no doubt, seized possession of part of the appellant's plot by threats and force and according to sec. 24 of the Ottoman Magistrates Law the appellant is entitled to a judgment for vacation of the land unless the respondent can show that it had a legal right so to take possession. The respondent relies on sec. 27 of the Town Planning Ordinance which provides that, notwithstanding anything contained in any other Ordinance, a Local Commission may, after serving 30 days written notice to the owner, "enter into immediate possession of such land", provided obviously - and this is not in dispute - that the area affected does not exceed one quarter of the plot of the owner. The question we have to answer is whether the words "it shall be lawful for the Local Commission to enter into immediate possession of such land" entitled the Commission to occupy the land by threats or force, in spite of the owner's refusal and opposition. I agree with the view of my friend, Manny J., that since sec. 27 does not provide explicitly that the Commission may so occupy land, the answer to our question must be in the negative.

           

            The source of "to enter into possession" or "to enter into immediate possession" in this context is English law. Many statutes have been enacted in England in the past 150 years with regard to expropriation of land for different public purposes, including the laying of roads, railways and the like. They vest in "the promoters" (whether private individuals, such as railway companies, or public bodies, such as municipalities) a right of entry on to the land required, after certain conditions have been met. Thus, sec. 85 of the Land Clauses Consolidation Act, 1845, provides that "it shall be lawful for the Promoters... to enter upon and use such Lands", and sec. 2 of the Acquisition of Land (Authorisation Procedure) Act, 1946, that "the acquiring authority may enter on, and take possession of, the land" and subsection (5) thereof that "a power to enter on and take possession of land conferred... under this section may... be exercised without notice to or the consent of any person." To enforce the right of entry, where the owner refuses to allow the promoters to enter or actively hinders them, sec. 91 of the 1845 Act (which has not been repealed even in the special cases of the 1946 Act) provides that "it shall be lawful for the Promoters... to issue their Warrant to the Sheriff to deliver possession... to the Person appointed in such Warrant to receive the same, and upon the Receipt of such Warrant the Sheriff shall deliver Possession of any such Lands accordingly."

           

            Thus English law permits "promoters" who have "a right of entry" under special enactments to take possession without the consent of the owner of the land, but if the owner refuses to give or actively interferes with the taking of possession the law refers the promoters to the sheriff, the court's execution officer, and he takes possession of the land in face of the refusal and against the wishes of the owner or occupier and delivers the land to the promoters or their agents. According to English Common Law, as explained by Agranat J. in Goldstein v Custodian of Absentees' Property (1), the person having "a right of entry" does not need a judgment of court to implement his right; he may take the law into his own hands and obtain the land even by force from anyone not entitled to possession, except that the very act of entry by force or threat of force is a breach of the peace and a criminal offence under the Statute of Forcible Entry of Richard II.  Accordingly, for "promoters" to effect their right of entry without breach of the peace and the commission of a criminal offence, sec. 91 of the said Act enables them to call upon the Sheriff who in such an event is mandated to act without a court order on the strength only of the promoters' warrant.

In Loosemore v Tiverton & Devon Rly Co. (5), the defendant company, having a right of entry under a special Act, actually succeeded in entering on the plaintiff's land in spite of his written refusal to allow them to do so, without any breach of the peace (see pier Fry J. at 37). The plaintiff took action against the company for return of the land, pleading inter alia that in the absence of an application to "the execution officer" under sec. 9 the taking of the land was unlawful.

 

"It is said that the Defendant's entry was void for this reason, that the Plaintiff had, before they entered, notified to them that he should refuse to allow their entry, which it is quite plain that he did on the 5th of July, and it is said that, when the landowner refuses to allow the company to enter, they can enter only through the intervention of the sheriff. For that purpose reference was made to the 91st section of the Land Clauses Consolidation Act... It is said that that authority carries with it an obligation, and that the company could not enter, except with the assistance of the sheriff. Now, in the first place, the words of the section are very plain, 'it shall be lawful' and it has been determined in Julius v Bishop of Oxford (6) after great discussion by the 'House of Lords' that the words 'it shall be lawful' in a statute mean 'it shall be lawful' and nothing more, unless there is something in the context or the circumstances of the case which turns words of permission into words of obligation... In my judgment, therefore, the words create an obligation to set the sheriff in motion only where it would be unlawful to enter without his intervention, that is where the entry would be forcible if the company acted upon their right of entry. In the present case all that had been done was to refuse to allow an entry, he did not in any way obstruct the company's entry of the 6th of July, he was not there, and he did not come on the ground till the 9th of July, and an entry does not become forcible, merely because a person says, I refuse to allow you to enter. In my judgment, the entry was perfectly valid." (ibid., 41­42).

 

It follows from these observations of Fry J. that had the taking of the land been effected by the use or threat of force, that would not only have been a breach of the peace and a criminal offence but also a departure of "the right of entry" vested in the promoters under the special Act. That is also implied by Cripps, Compulsory Acquisition of Land (16th ed.) para. 2 - 122, p. 2077, who in reliance on this case states: "It would seem that the promoters may enter premises without issuing their warrant to the sheriff, although the owner refuse entry, provided they can do so peacefully." Thus also in England, the home of the Common Law, on a conservative view, it is at least doubtful whether "a right of entry", accorded by a variety of expropriation enactments, includes a right to seize land by the use or threat of force.

 

            The law current in Israel regarding the taking of land and its return is fundamentally different from English Common Law. The difference was explained by Agranat J. in Goldstein (1] af 724 - 25. The second part of sec. 24 of the Ottoman Magistrates Law absolutely debars the use of force and requires the person having the right of possession, who forcibly takes land from anyone in occupation without right, to restore the land to the previous occupier: only by going to court may he claim his land. This rule applies equally to the taking of land with the assistance of the police. "A person cannot, by his own power or with the assistance of the police, remove another who occupies his property without right, but he must apply to the competent court and obtain an order for recovery of possession" (ibid., 726). There exists in Israel in addition a criminal prohibition of forcible entry similar to that under the English Statute of Forcible Entry. Sec. 96 of the Criminal Code Ordinance, 1936, lays down that

 

"any person who, in order to take possession thereof, enters on any land... in a violent manner, whether such violence consists in actual force applied to any other person or in threats... is guilty of a misdemeanour. Such misdemeanour is termed forcible entry. It is immaterial whether he is entitled to enter on the law or not."

 

See also Kahanovitz v Attorney-General (3).

 

            It is in the light of the general law applicable in Israel, as also in Palestine when the Town Planning and other relevant Ordinances (the Land (Expropriation) Ordinance and the Land (Acquisition for Public Purposes) Ordinance were enacted, that one must understand and construe sec. 27 of the Town Planning Ordinance. If "the right of entry" vested in expropriators under English law is restricted by a prohibition of the use of force, a fortiori is it under Israeli law. Sec. 27 provides that "it shall be lawful for the Local Commission to enter into immediate possession" but not that, in the event of a refusal by the owner or occupier or his actual opposition to entry, the Commission may take possession by the use of or threat of force or with the assistance of the police.

           

            Regarding expropriation under the Town Planning Ordinance generally, sec. 25 provides that "subject to the provision of section 27... the expropriation shall be carried out in accordance with the law in force from time to time concerning expropriation of land for public purposes." This provision refers us to the Land (Acquisition for Public Purposes) Ordinance, and secs. 7 and 8 thereof which touch upon the taking of possession. Whilst sec. 7 is essentially similar to sec. 27 of the Town Planning Ordinance, and in my judgment there is no substantive difference between "to enter into or upon, and take possession of, the land" (sec. 7) and "to enter into immediate possession of such land" (sec. 27), sec. 8 goes on to add the provision, not found in sec. 27, that in the event of the owner or occupier refusing to allow the expropriating authority "to enter into possession" under sec. 7, that authority may apply to the District Court and if the court is satisfied that the authority "is entitled to enter into possession under section 7" it shall order delivery of possession. This section is parallel to sec. 91 of the Land Clauses Consolidation Act of 1845, except that instead of a right to go directly to the sheriff there is here - in accordance with the fundamental difference between English Common Law and the general local law regarding the need in such matters to apply to court - a right to move the District Court by way of motion to order enforcement through the Execution Officer, after proof of the right to take possession. (See Galinski v Tel Aviv Municipality (4)). The respondent's argument which apparently found favour with the Magistrate and the majority in the District Court is that in view of the words "Notwithstanding anything in any other Ordinance contained" in sec. 27 and their non-repetition in sec. 8, the Local Commission need not, nor indeed is allowed to, apply to the Court to enforce its right to take possession in an expropriation under sec. 27. Hence, the conclusion that it was the intention of the legislature that the Commission was entitled, in the event of the owner or occupier refusing to allow it to take possession under sec. 27, to use force, including the police, for that purpose. This reasoning appears to me, with all respect, to be erroneous.

 

            The error, in my opinion, lies in the very view about the nature of "the right to enter into possession" and the relationship between sec. 7 and 8 of the Land (Acquisition for Public Purposes) Ordinance.  Sec. 8 is not intended to restrict the right of possession conferred by sec. 7 but to add to it by providing when necessary for a summary way to effecticate it. A person who reads sec. 7 as giving the expropriator seemingly a right to seize possession by any means, including the use of force against the owner or occupier, will see the provision of sec. 8 as a restriction on this right, that is as a deviation from sec. 7. The conclusion will be that by virtue of the words in sec. 25 of the Town Planning Ordinance, "Subject to the provisions of section 27," and the words in sec. 27, "Notwithstanding anything in any other Ordinance contained," the deviation found in sec. 8 will not apply to the right of possession under sec. 27 and this right will include - as would the right under sec. 7 were it not, in this view, for see. 8 - the right forcibly to obtain possession from the owner or occupier who refuses or opposes it. However, according to the view I favour for the reasons given above, the right itself "to enter into possession" or "to enter into immediate possession" does not, having regard to general Israeli law, include any right to take possession by the use or threat of force towards the owner or occupier. Accordingly the person having the right under sec. 7 - and so also the person having the right under sec. 27 - needs the court's assistance to enforce his right against a contesting owner or occupier. And sec. 8 of the Land (Acquisition for Public Purposes) Ordinance gives him a summary means of achieving this goal: see Ben-Ami v Attorney-General (3). I do not think that the words "Subject to the provisions of section 27"

 and "Notwithstanding anything in any other Ordinance contained" appearing in secs. 25 and 27 or the Town Planning Ordinance, which lays down the priority of sec. 27 over any contrary matter provided in any other Ordinance, negates the right of the Local Commission to apply, even in the case of sec. 27, to the District Court by motion under sec. 8, since that section is not in conflict with sec. 27 regarding the Commission's entitlement to possession but is intended to complete it and add a convenient way for its realisation. In any event, whether the Commission may apply by motion to the District Court or needs to bring an ordinary action for possession in the Magistrate's Court, sec. 27 does not empower it to take possession by the use or threat of force and thus, contrary to the general law of the country, obtain possession from the owner or occupier.

 

            For these reasons, in my judgment, the appeal should be allowed and the two prayers of the appellant granted.

           

OLSHAN P. I agree that the appeal should be allowed.

 

            Appeal allowed

           

            Judgment given on July 11, 1963.

Full opinion: 
PDF icon Bohakov v. The Mayor, Council, & Inhabitants of Herzlia.pdf

Mayor of Ad-Dhahiriya v. IDF Commander in West Bank

Case/docket number: 
HCJ 1748/06
HCJ 1845/06
HCJ 1856/06
Date Decided: 
Thursday, December 14, 2006
Decision Type: 
Original
Topics: 
Administrative Law
Discretion
International Law
Occupied territories
Abstract: 

Facts: The petitioners challenged the construction of a concrete barricade, with a height of 81 centimetres, along a section of road in the south of Mount Hebron in the territory of Judaea and Samaria. The respondents argued that the barricade was required for security purposes. The petitioners argued that it impeded the movement of pedestrians and animals.

 

Held: The concrete barricade was disproportionate, since it was not the least harmful measure that was capable of achieving the security purpose. A metal barricade, which would allow livestock to pass underneath and would make it easier for people to climb over, would achieve the same security purpose, but cause less harm to the local inhabitants.

 

Petition granted.

Voting Justices: 
Barak, Aharon
Primary Author
majority opinion
Beinisch, Dorit
majority opinion
Rivlin, Eliezer
majority opinion
Full text of the opinion: 

HCJ 1748/06

Mayor of Ad-Dhahiriya

and others

v.

IDF Commander in West Bank

HCJ 1845/06

Khalil Mahmud Younis

and others

v.

1.     IDF Commander in West Bank

2.     Head of Civilian Administration in West Bank, Bethel

HCJ 1856/06

As-Samu Municipality

and others

v.

1.     IDF Commander in West Bank

2.     State of Israel

 

Amicus curiae: Council for Peace and Security

 

 

The Supreme Court sitting as the High Court of Justice

[14 December 2006]

Before Emeritus President A. Barak, President D. Beinisch
and Vice-President E. Rivlin

 

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

 

Facts: The petitioners challenged the construction of a concrete barricade, with a height of 81 centimetres, along a section of road in the south of Mount Hebron in the territory of Judaea and Samaria. The respondents argued that the barricade was required for security purposes. The petitioners argued that it impeded the movement of pedestrians and animals.

 

Held: The concrete barricade was disproportionate, since it was not the least harmful measure that was capable of achieving the security purpose. A metal barricade, which would allow livestock to pass underneath and would make it easier for people to climb over, would achieve the same security purpose, but cause less harm to the local inhabitants.

 

Petition granted.

 

Israeli Supreme Court cases cited:

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

[2]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2005] (2) IsrLR 106.

[3]        HCJ 3680/05 Tana Town Committee v. Prime Minister (not yet reported).

[4]        HCJ 4938/04 Shuqba Village Council v. Prime Minister (not yet reported).

[5]        HCJ 1348/05 Shatiyeh v. State of Israel (not yet reported).

[6]        HCJ 1998/06 Bet Aryeh Local Council v. Minister of Defence (not yet reported).

[7]        HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[8]        HCJ 2942/05 Mansour v. State of Israel (not yet reported).

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

[10]     HCJ 399/06 Susiya Agricultural Communal Settlement Cooperative Society Ltd v. Government of Israel (not yet reported).

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

[12]     HCJ 258/79 Amira v. Defence Minister [1980] IsrSC 34(1) 90.

[13]     HCJ 4825/04 Alian v. Prime Minister (not yet reported).

[14]     HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

 

For the petitioners in HCJ 1748/06 — L. Yehuda.

For the petitioners in HCJ 1845/06 — N. Amar.

For the petitioners in HCJ 1856/06 — G. Nassir.

For the respondents — G. Shirman, D. Tirza.

For the Council for Peace and Security — Col. (res.) S. Arieli, Maj-Gen. (ret.) S. Givoli.

 

 

JUDGMENT

 

 

 

President Emeritus A. Barak

This petition is directed against the construction of a concrete barricade by the IDF forces in the south of Mount Hebron and against orders to requisition land that were made for the purpose of constructing this barricade.

The background to the petition

1.    There are three roads in the south of Mount Hebron in Judaea. Road no. 60 runs from the south-west to the north-east and it passes through the Jewish town of Shima. Road no. 317 is the continuation of road 60, extending east from Shima Junction, and it connects the towns of Susiya, Maon and Carmel. The third road connects road 60 to the town of Tana. The petition concerns three sections of these roads, which jointly create a continuous road that is approximately 41 kilometres long, from the town of Tana in the west to the town of Carmel in the east (hereafter: the roads). North of the roads lie the Palestinian towns of Ad-Dhahiriya, As-Samu and Al-Carmel, and beyond these to the north lies the Palestinian city of Yatta. The Green Line passes to the south of the roads, at a distance of between three and seven kilometres. The route for constructing the separation fence was planned to run close to the Green Line. In the area between the planned separation fence and the roads there are approximately twenty small Palestinian villages in which there live a total of approximately 2,000 inhabitants. This area also contains agricultural land that is cultivated by the local Palestinian inhabitants. The roads are crossed by various paths that connect the Palestinian towns in the north with the Palestinian towns and agricultural land in the south.

2.    On 14 December 2005 the respondents made three requisition orders: order R/185/05, order R/186/05 and order R/187/05 (hereafter — the new requisition orders). According to what is stated in the orders, they were issued ‘in order to establish a defensive barricade in the south of Mount Hebron.’ They requisition land in a strip adjacent to the roads, which has a length of approximately 41 kilometres and a width of several metres. The strip of land passes through the lands of the villages of Ad-Dhahiriya, Yatta, As-Samu, At-Tuwani, Khirbet Zanuta, Khirbet Ar-Rahwa and A-Tuba. The new requisition orders include a strip that is adjacent to the whole length of the roads, with the exception of several sections, whose total length is approximately three kilometres, which according to the military commander are subject to old requisition orders by virtue of which he is in any case authorized to act as aforesaid (order R/82/19 of 17 March 1982, order R/82/31 of 28 June 1982, order R/99/2 of 23 March 1999 and order R/96/4 of 2 April 1996). In total the new requisition orders cover an area of approximately 230 dunams of private land. Objections to the requisition orders that the petitioners filed were rejected by the respondents on 12 February 2006.

3.    The respondents began to construct a concrete barricade in the strip that was requisitioned along the roads, i.e., from Tana to Carmel. The barricade was built on the north side of the roads at a distance of up to three metres from the road itself. It is approximately 41 kilometres long. It is 82 centimetres high and the width of its base is 60 centimetres. There are 13 openings in the barricade that are intended to allow the traffic of vehicles on the paths that cross the roads. Two of these serve a quarry that is situated in the area and the remainder serve the local inhabitants and farmers. During the hearing of the petition, the respondents decided to make eleven additional openings so that there are a total of 24 openings in the barricade. Six of the openings are situated in close proximity to one another along a four-kilometre section of the road south of the town of Tana, and the remainder are at intervals of between one and three kilometres. Most of the openings are located at intervals of approximately two kilometres.

4.    When they filed the petitions, the petitioners requested an interim order that would prevent the performance of the works to construct the concrete barricade until the petition is decided on its merits. We held a hearing of the interim order application on 3 April 2006. The application was denied. We held that in view of the scope of the harm that was anticipated from the works to construct the barricade, which was relatively small, and the fact that the measures were not irreversible, it was not proved that the petitioners’ immediate damage from the performance of the works outweighed the risk involved in delaying the construction of the barricade. After the respondents sealed the opening in the concrete barricade that allowed the traffic of vehicles between the city of Yatta and the village of A-Tuwani and other towns, the petitioners filed an additional application for an interim order. We heard the positions of the parties on this matter at a hearing that took place on 27 July 2006. The respondents explained that the sealing of the opening was carried out as an exceptional and temporary step in consequence of the serious deterioration in the security position, and on account of the redeployment of considerable forces from the territory of Judaea and Samaria to the combat areas in Gaza and Lebanon. In such circumstances, we decided (on 31 July 2006) that there was no basis for granting the application. On 6 September 2006 we held a hearing of the petitions themselves. The hearing was attended by Brigadier (res.) Danny Tirza, who is in charge of the ‘Rainbow’ administration, which deals with the construction of the separation fence, and Colonel (res.) Shaul Arieli from the Council for Peace and Security, which was joined as a party to the hearing, at its request, as amicus curiae. During the hearing the parties agreed to regard the petitions as if an order nisi had been made.

The parties to the petition

5.    The petitioners in HCJ 1748/06 are the mayor of Ad-Dhahiriya, a part of whose land is included in the requisition orders made by the respondents; the head of the village council of A-Tuwani, which is situated south of the concrete barricade; and Palestinian inhabitants who live in the area or who own agricultural land in the area. The seventh petitioner is the Association for Civil Rights. The petitioners in HCJ 1845/06 are the mayor of Yatta and the mayor of the towns around Yatta, which are all near the area where the barricade is being built, and Palestinian inhabitants who live in the area south of the barricade or who live in towns in the area and have land in the area. Petitioner 30 is a non-profit association, Rabbis for Human Rights. The petitioners in HCJ 1856/06 are the municipality, mayor and inhabitants of As-Samu, a town whose agricultural lands are mostly situated in the area south of the concrete barricade. The respondent in the three petitions is the IDF Commander in Judaea and Samaria.

The arguments of the parties

6.    The petitioners request that we set aside the decision to build the barricade. They emphasize that the barricade does not merely prevent the passage of motor vehicles but also the passage of livestock, whether these are herds or pack animals. The barricade also prevents the passage of pedestrians, including children, the elderly and the disabled. In view of the character of the local population, travel in the area takes place on foot, on horses or donkeys, or by means of agricultural vehicles such as tractors. The use of these forms of transport has increased as a result of the travel restrictions imposed on the Palestinian population. The result is that the concrete barricade seriously disrupts the petitioners’ mobility. The situation is even more serious on account of the proximity to the separation fence. The concrete barricade encloses an extensive area of land to the north and west, and the separation fence is being built to the south. This creates an enclave that is surrounded on all sides by a barrier. The ability of the inhabitants of the enclave to leave it and the ability of farmers from nearby towns to enter the cultivated areas in the enclave is very restricted and is only possible via the openings that remain in the concrete barricade.

7.    The petitioners point out that the enclave contains approximately twenty villages, which are inhabited by two thousand people. These villages are very small and most of them are not connected to water and electricity. Therefore the inhabitants of the villages are dependent upon Palestinian towns on the other side of the roads for every sphere of life: the supply of water and fuel, health and education services, and a livelihood. According to the petitioners, the construction of the concrete barricade will result in the demographic and economic decline of the villages in the enclave to the point where their long-term existence is endangered. The petitioners attached to their petition a professional opinion of the non-profit association Bimkom — Planners for Planning Rights, which supports this conclusion. According to the petitioners, the concrete barricade bisects kilometres of agricultural land. It encloses within the enclave agricultural land that belongs to the inhabitants of the nearby towns. According to the records in the petitioners’ possession, at least 3,500 families from the towns of Yatta, As-Samu and Ad-Dhahiriya own rights in land in the area of the enclave. It is becoming difficult for these farmers to have access to their land. Sheepherding is impeded because the movement of the flocks has become very restricted. These injuries exacerbate the harm to the property rights of the owners of the private land that has been requisitioned for building the barricade. In most places where openings have been left in the barricade, the paths that connect with the road on either side do not meet at the same point. This means that in order for an inhabitant of the area to pass from one side of the road to the other, he needs to reach the road via a path on one side that leads to an opening, enter the road and travel along it until he reaches another opening which connects with the other side. The problem with this, according to the petitioners, is that in recent years the IDF forces prevent Palestinians from travelling on the roads that are the subject of this petition.

8.    The petitioners claim that the construction of the barricade is not required at all for security reasons and therefore its construction is improper and falls outside the authority of the respondents. The petition was supported by a professional opinion signed by Brigadier (res.) Yehuda Golan-Ashenfeld and four other reserve IDF officers with the rank of colonel or lieutenant-colonel, who all formerly held senior army positions in Judaea and Samaria or the Gaza Strip. The authors of the opinion say that most of the terrain where the barricade was constructed could not in any case be negotiated by vehicles, and the construction of the barricade in fact increased certain threats, such as shooting ambushes, and created security problems. Their conclusion is that not only does the concrete barricade provide no benefit, but it is more of a security liability than an asset. According to the authors of the opinion, the IDF protects hundreds of kilometres of other roads in the territory of Judaea and Samaria without using concrete barricades of the type under discussion in this petition. The petitioners conclude their arguments in this regard by saying that the concrete barricade seriously violates the basic rights of the Palestinian inhabitants without there being any military need that can justify this violation. They therefore claim that this is an act that is ultra vires, or at the very least a disproportionate act that should be set aside.

9.    Finally the petitioners point out that it was originally planned (in a government decision in 2003) to build the separation fence with a route that is close to the route chosen for the concrete barricade. The route of the separation fence was changed (in a government decision in 2005) in order to comply with the principles laid down by this court in HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [1]. According to the petitioners, the construction of the concrete barricade along a route that is very similar to the original route of the separation fence is a way of circumventing the requirement of determining a proportionate route for the separation fence. The petitioners express the concern that the barricade constitutes an initial stage on the way to building a barrier like the separation fence, which will be accompanied by the introduction of travel restrictions.

10. According to the respondents, the barricade is intended to protect persons travelling on the roads. These are roads that lead to Israeli towns that are situated on the ‘Palestinian’ side of the security fence in the area, and therefore there is a special defensive need in this area. The respondents pointed out that ‘the security need is based, inter alia, on a series of security incidents that have taken place in the area where the barricade is being constructed (including during 2005), namely stone throwing, Molotov cocktails, shooting at vehicles, etc.’. The concrete barricade restricts the possibilities of entering and exiting the road. It directs vehicles travelling along the road to specific exit openings. These openings will admittedly not be fitted with gates and they will allow free passage, but directing the traffic of vehicles in the area to specific openings will allow the IDF to control the traffic that crosses the road more effectively. The concrete barricade is especially useful in contending with the phenomenon of ‘drive-by shootings,’ because it limits the car’s possibilities of escaping. The respondents claim that the harm to the inhabitants as a result of building the concrete barricade is minimal. The respondents insisted that a barricade that is 82 centimetres high does not create any restriction upon pedestrian traffic. Cars can cross the roads freely at the openings in the barricade. In their statements before us, both in oral argument and in written pleadings, the respondents insisted that there is no general restriction upon the movement of Palestinian cars on the roads themselves. At the last hearing that took place on 6 September 2006 the respondents stated that if the petitioners make specific requests to make additional openings in the concrete barricade, their requests will be considered favourably. On 19 October 2006 the respondents notified the court that they had made a ‘detailed re-examination’ of the route of the concrete barricade and the openings that were made in it. The petitioners’ proposal of making 45 openings in the barricade was examined. The respondents found that the application was not sufficiently detailed and coherent and that it did not ‘represent real needs.’ Notwithstanding, a decision was made to add eleven openings that would be used for the passage of vehicles, pack animals and pedestrians, so that there would be a total of twenty-four openings in the barricade.

11. The experts of the Council for Security and Peace appeared before us and filed a detailed and coherent security opinion. According to them, the concrete barricade does not provide any protection for persons travelling on the roads. On the contrary, it creates security weaknesses. The barricade provides cover for persons wishing to ambush passing cars. It makes it impossible to carry out an immediate pursuit of terrorists when necessary. According to the representatives of the Council for Security and Peace, no incident of ‘shooting from a passing car,’ which according to the respondents is the threat that the concrete barricade is supposed to prevent, ever occurred in the area under consideration in the petition, but only in remote parts of Judaea and Samaria. Instead, other security incidents have taken place in the area under consideration in the petition; these are no less serious, but the concrete barricade is of no use in preventing them. In their opinion the representatives of the Council for Security and Peace point out that the concrete barricade was also built along sections of roads that cannot be used by wheeled vehicles because of topographic conditions, natural obstacles and mounds of earth that are in the area. In view of this, the representatives of the Council for Security and Peace wonder why the concrete barricade was built, why in particular it was built on the roads that are under consideration in the petition, and why no such barricade has been built anywhere else in Judaea and Samaria.

Deliberations

12. According to the laws relating to a belligerent occupation, the military commander is competent to order the construction of a concrete barricade and to requisition land belonging to Palestinian inhabitants for this purpose. This power only exists when the reason that gave rise to the decision is a military or security one. According to art. 52 of the regulations appended to the Hague Convention Respecting the Laws and Customs of War on Land, 1907, the requisition of the land should be for the ‘needs of the army of occupation.’ According to art. 53 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, a requisition should be ‘rendered absolutely necessary by military operations.’ The military commander is also competent to requisition land and to build a concrete barricade on it in order to protect the lives and security of Israelis who live in Israeli towns in the territory of Judaea and Samaria, even though the Israelis who live in the territories are not ‘protected persons’ within the meaning of this term in art. 4 of the Fourth Geneva Convention. This was what we held with regard to the separation fence in HCJ 7957/04 Marabeh v. Prime Minister of Israel [2], at paras. 18-22; see also HCJ 3680/05 Tana Town Committee v. Prime Minister [3], at paras. 8-10). It is also the position in the petition before us. Indeed, the normative position for deciding the matter before us is identical to the normative position that was determined for considering the petitions concerning the separation fence in Beit Sourik Village Council v. Government of Israel [1] and in Marabeh v. Prime Minister of Israel [2] (see also HCJ 4938/04 Shuqba Village Council v. Prime Minister [4]; HCJ 1348/05 Shatiyeh v. State of Israel [5]; HCJ 1998/06 Bet Aryeh Local Council v. Minister of Defence [6]). The principles guiding the military commander when constructing the separation fence also apply when he decides to requisition land for other defensive activity, such as the construction of the concrete barricade under discussion in this petition.

13. When he considered the decision whether to construct the barricade, the military commander was required to take several considerations into account. The first consideration is the security or military consideration, which concerns the protection of the security of the state and the security of the army. The second consideration concerns the welfare of the inhabitants who live in the area. The military commander is obliged to protect the human dignity, life and security of every one of them. The third consideration is that the military commander is obliged to protect the human dignity, life and security of Israelis who live in Israeli towns in the territories. These considerations conflict with one another. The military commander should balance the conflicting considerations. Indeed —

‘The laws of belligerent occupation recognize the authority of the military commander to maintain security in the area and thereby to protect the security of his country and its citizens, but it makes the exercising of this authority conditional upon a proper balance between it and the rights, needs, and interests of the local population’ (Beit Sourik Village Council v. Government of Israel [1], at p. 833 {290}; see also Marabeh v. Prime Minister of Israel [2], at para. 29; Tana Town Committee v. Prime Minister [3], at para. 10).

14. The balance between security needs and the interests of Palestinian inhabitants and Israeli citizens is not simple. The military commander is responsible for striking a balance between them. A main criterion in this balance is ‘proportionality,’ with its three subtests. First, there should be a rational connection between the measure chosen and the purpose that it is supposed to realize. Second, the measure chosen should be the one that is least harmful to the violated rights. The question is whether, of all the various measures that are capable of realizing the security purpose, the least harmful one was chosen.

‘The obligation to choose the least harmful measure does not amount to the obligation to choose the measure that is absolutely the least harmful. The obligation is to choose, of the reasonable options that are available, the least harmful. One must therefore compare the rational possibilities, and choose the possibility that, in the concrete circumstances, is capable of achieving the proper purposes with a minimal violation of human rights’ (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [7], at para. 68 of my opinion).

Third, the measure chosen should strike a proper balance between the purpose underlying its realization and the violated rights (see Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [7], at paras. 64-75 of my opinion; Beit Sourik Village Council v. Government of Israel [1], at p. 841 {297}; Shatiyeh v. State of Israel [5], at para. 22; HCJ 2942/05 Mansour v. State of Israel [8], at para. 23). When determining the proportional balance, the military commander’s discretion is not absolute. His decision should be one that a reasonable military commander could make (see Marabeh v. Prime Minister of Israel [2], at para. 32, and the references cited there). His decision is subject to judicial scrutiny. Notwithstanding, the Supreme Court sitting as the High Court of Justice does not replace the military commander’s discretion with its own discretion. This court exercises judicial scrutiny of the legality of the military commander’s exercise of discretion. In this scrutiny —

‘… we do not appoint ourselves as experts in security matters. We do not replace the security considerations of the military commander with our own security considerations. We do not adopt any position with regard to the manner in which security matters are conducted… Our role is to ensure that boundaries are not crossed and that the conditions that restrict the discretion of the military commander are upheld…’ (HCJ 7015/02 Ajuri v. IDF Commander in West Bank [9], at p. 375 {109-110}, and see: Tana Town Committee v. Prime Minister [3], at para. 11; Bet Aryeh Local Council v. Minister of Defence [6], at para. 8; Shatiyeh v. State of Israel [5], at para. 22).

The court does not take the place of the responsible military authority. Judicial scrutiny examines whether the actions and decisions of the military commander comply with the law.

From general principles to the specific case

15. In Tana Town Committee v. Prime Minister [3] and HCJ 399/06 Susiya Agricultural Communal Settlement Cooperative Society Ltd v. Government of Israel [10] we denied petitions of Jewish inhabitants of the towns of Tana and Susiya, which are situated in the area under discussion in this petition; they requested, contrary to the position of the army, that the separation fence should pass to the north of their towns so that they would be included on the ‘Israeli’ side. We held that the decisions of the military commander were made after he considered all the relevant factors and struck a proper balance between them. These factors included the protection of the Jewish inhabitants, the protection of the military forces and the protection of the human rights and needs of the protected inhabitants in the territory. Within the framework of the hearings of each of the petitions, the respondents told us that they believed that they could discharge their responsibility to provide the petitioners with security to a sufficient degree even if the town was on the northern side of the fence. The military commander gave details of security measures that would make it possible to provide security for the Jewish towns in the area. The position of the respondents was described in the judgment in Tana Town Committee v. Prime Minister [3] as follows:

‘The military commander is of the opinion that he can discharge his responsibility to provide the inhabitants with security to a sufficient degree even if the town of Tana is left on the northern side of the fence. The town of Tana itself will receive perimeter protection by means of a special security zone, which is a security system that includes a security fence and a series of security measures whose purpose is to prevent any infiltration into the town and to allow advance warning of any attempt to infiltrate the town. The security fence itself will be constructed at a distance of approximately 400 metres from the most outlying houses of the town. A patrol route and lighting will be set up between the security fence and the fence that surrounds the town. The approach route to the town will be protected in the same way in which main traffic arteries are protected in the territories, by means of two long-range observation towers and by means of fences (which are not uninterrupted) along the road, to prevent the throwing of stones and other short-range terrorist measures. Apart from the physical protection measures, rapid response forces will operate in the area at all times’ (Tana Town Committee v. Prime Minister [3], at para. 4; see also Susiya Agricultural Communal Settlement Cooperative Society Ltd v. Government of Israel [10], at para. 5).

Indeed, it should be taken into account that this area contains Jewish towns whose protection requires proper military deployment. The protection of persons travelling on the access routes to these towns also requires proper military deployment. The respondents have the authority to employ military measures in order to guarantee this essential protection. The construction of the concrete barricade is therefore an act that derives from the authority of the military commander.

16. Have the respondents exercised their power proportionately? Does the harm arising from the concrete barricade strike a proper balance between the rights of the petitioners on the one hand and security needs on the other? The respondents insist that the concrete barricade is similar in nature ‘to the safety barricades on Israeli roads,’ such as those that have been constructed along inter-city roads in order to separate the traffic going in different directions. According to them, this implies that the measure is a commonplace one that does not unduly harm the petitioners. We do not accept this argument. The extent of the harm should be examined against the background of the characteristics of the injured population. The principle of proportionality is a concrete test. It is ‘a criterion that balances the authority of the military commander in the occupied area against the needs of the local population’ (Beit Sourik Village Council v. Government of Israel [1], at p. 838 {295}). Proportionality focuses therefore on the harm caused by the administrative action to a certain group. The harm depends upon the circumstances. The harm caused by an administrative action varies from person to person and from one population group to another. The harm caused to an urban population by a barricade built along a paved and developed road that is used by motor vehicles cannot be compared to the harm caused by such a barricade to a rural population. The conditions and character of the petitioners’ lives are such that the nature of the harm caused by the barricade to them is serious. Many of the Palestinian inhabitants of the area make use of donkeys and other animals as means of transport, and many of them travel by foot. Many of the inhabitants of the area earn their livelihood from herding sheep. The barricade impedes the passage of pack animals and flocks of sheep and goats. The barricade impedes the passage of pedestrians. Not every person is capable of climbing over a concrete barricade with a height of 82 centimetres. The barricade denies passage to the disabled. The barricade prevents the passage of the elderly and other persons who have limited movement. The barricade makes the passage of women with small children difficult.

17. The concrete barricade causes serious harm. It is more than forty kilometres long. It restricts the movement of more than five thousand inhabitants who live or own agricultural plots to the south. The petitioners filed affidavits of dozens of inhabitants of the villages that are situated in the enclave, which is enclosed by the concrete barricade on one side and the separation fence on the other. The concrete barricade restricts the movement of the inhabitants of these villages in a way that will make it difficult for them to lead normal lives. It seriously impedes access to basic and essential services that are located in nearby urban centres. It makes it difficult for the inhabitants of these villages to earn a livelihood, since they need to reach the nearby urban centres in order to market their crops, and it substantially increases the costs of essential products such as water, food, fuel and animal fodder. Thus the concrete barricade violates property rights, the freedom of movement and the right to education, health, family life and dignity. Indeed, the effect of constructing the concrete barricade, which is more than forty kilometres long, is to isolate a large area and separate it from the other parts of Judaea and Samaria. The lifestyles of the inhabitants will be deeply affected by this isolation. It constitutes a major change for the local inhabitants and imposes a real burden on their ability to continue to live in this area. We are not speaking of self-sufficient towns. These are small villages that depend extensively on their contact with nearby towns. Moreover, the barricade separates the farmers who live north of the road from their crops and grazing land to the south of it. Thus it separates the town of Ad-Dhahiriya from approximately half of its inhabitants’ agricultural land. More than 950 inhabitants of Ad-Dhahiriya own rights in agricultural land in the enclave. The barricade separates the city of as-Samu from 80 per cent of its agricultural land, an area of approximately 22,000 dunams. Admittedly we are not speaking of a complete isolation, since the concrete barricade does have openings, which can be used by the inhabitants to cross the roads. But we are speaking of a significant impediment to the mobility of farmers in the area, especially in view of the extensive use that they make of pack animals and the considerable amount of sheep herding.

18. Does this harm satisfy the first test of proportionality? Is there a rational connection between the measure that was adopted and the purpose that the respondents are seeking to achieve? The petitioners claim that there is no rational connection between the declared security purpose and the construction of the concrete barricade. The representatives of the Council for Security and Peace also claimed before us that constructing the barricade not only makes no contribution to security, but does more harm than good, since it increases the security risks to persons travelling on the roads. By contrast, the professional opinion of the respondents is that restricting the movement of vehicles in the area is important from a security viewpoint and will make it possible to contend with threats presented to those travelling on the roads. We have before us two conflicting viewpoints. When there is a professional dispute between the military commander and other security experts, serious weight should be attached to the professional approach of the military commander in the area. ‘… we must attribute special weight to the military opinion of the party who has the responsibility for security’ (Beit Sourik Village Council v. Government of Israel [1], at p. 844 {302}, and see HCJ 390/79 Dawikat v. Government of Israel [11], at p. 25; HCJ 258/79 Amira v. Defence Minister [12], at p. 92; HCJ 4825/04 Alian v. Prime Minister [13], at para. 15; Marabeh v. Prime Minister of Israel [2], at para. 32 of my opinion; HCJ 1661/05 Gaza Coast Local Council v. Knesset [14], at pp. 574-576). Therefore, anyone who asks the court to prefer a professional opinion of another expert to the position of the military commander needs to discharge a heavy burden. The petitioners did not discharge this burden. We have not been persuaded that we should prefer the professional opinion of the members of the Council for Peace and Security or the professional opinion of the security experts representing the petitioners to the position of the military commander. In such circumstances we should base our judgment on the security opinion of the military commander. We therefore accept the respondents’ position with regard to the military solution to the security needs in the area. We rely upon their position that the concrete barricade is an effective means of protecting whoever travels on the roads. The result is therefore that the construction of the concrete barricade satisfies the first subtest of proportionality.

19. Does the harm satisfy the second subtest of proportionality? Have the respondents discharged their duty to choose the least harmful of all possible measures in order to realize the purpose? In their updated statement to the court, the respondents said that following a re-examination that they made, they made additional openings in the concrete barricade to allow the passage of pedestrians and livestock. The petitioners for their part replied to this statement by claiming that the vast majority of these openings do not allow anyone to cross the roads. Some of the openings are situated in impassable areas from a topographical viewpoint; some are not situated in places where the local inhabitants wish to cross the road; others are not even openings, but merely narrow slits that do not allow people and animals to pass through. In their most recent statements, the respondents even undertook that requests to make additional openings in the concrete barricade will be considered favourably. Indeed, this is capable of reducing the degree of harm caused by the barricade. We have taken the most recent statements of the respondents into account, but they are insufficient. The question that is considered by the second subtest of proportionality is whether in comparison to the measure chosen by the respondents — which we are considering in the light of their most recent statements — a less harmful alternative exists. The answer to this is that a less harmful alternative does indeed exist.

20. The alternative measure that is less harmful is a barricade as constructed by the respondents, with one difference: instead of concrete it should be a metal barricade, like the safety barricades that have been constructed at the sides of many roads in Israel and in various parts of the territories. This measure was proposed by the petitioners. It is a less harmful measure. Flocks of sheep will be able to pass under the metal bar of the fence. It will be easier for pedestrians to climb over the fence. The respondents themselves do not deny that a metal barricade is capable of achieving the same security benefit as the concrete barricade, but they argued before us that there is a concern that parts of the barricade will be dismantled by metal thieves. In view of this assessment, the respondents’ position is this measure should not be adopted. Counsel for the respondents did not present any figures with regard to the scope of the phenomenon of the theft of metal in the area under discussion in the petition or in the territories in general. In any case, proportionality demands the construction of a metal barricade and protecting it against theft, rather than a serious injury to the lifestyle of the local inhabitants. It should also be noted that the material before us shows that in addition to the alternative of the metal barricade there are other options. The representatives of the Council for Peace and Security said in their opinion that in order to achieve the respondents’ declared security purpose, it is also possible to construct a lower barricade, which will prevent the passage of wheeled vehicles. A lower barricade is easier for pedestrians and livestock to cross. It is a less harmful measure. Additional options were raised during the petitions, such as the replacement of the barricade with metal posts or stone blocks that can be placed at distances in such a way that they will prevent the passage of cars but allow the free passage of pedestrians and animals. We are not considering the choice of the most suitable option from among these or other options. This matter lies within the respondents’ authority. Our task is to examine whether there is an alternative measure to the one chosen by the respondents — a measure that achieves the same benefit but is less harmful. Such a measure exists. It can realize the security benefit that the barricade seeks to realize, while harming the lifestyle and human rights of the local population to a lesser degree.

21. In view of this finding, the conclusion is that the concrete barricade does not satisfy the requirement of the second subtest of proportionality. Since several rational options were available to the respondents for realizing the same security purpose, they should have chosen the one that is the least harmful to human rights. The respondents did not discharge this duty. In view of our finding with regard to the second condition of proportionality, we do not need to go on to examine whether the third subtest is satisfied.

22. The result is that we are making the order nisi absolute in respect of the construction of the concrete barricade. Within six months the respondents shall dismantle the concrete barricade that they built between the town of Carmel and the town of Tana, along road 60, road 317 and the road leading to the town of Tana. The respondents may construct an alternative barrier that is consistent with this judgment.

The respondents shall be liable for the petitioners’ costs in a sum of NIS 25,000 in each of the petitions.

 

 

President D. Beinisch

I agree.

 

 

Vice-President E. Rivlin

I agree.       

 

 

Petition granted.

23 Kislev 5767.

14 December 2006.

 

Full opinion: 
PDF icon Mayor of Ad-Dhahiriya v. IDF Commander in West Bank.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/06/480/017/A20/06017480.a20.pdf

Mara’abe v. The Prime Minister of Israel

Case/docket number: 
HCJ 7957/04
Date Decided: 
Thursday, September 15, 2005
Decision Type: 
Original
Topics: 
Administrative Law
Discretion
International Law
International Court of Justice
Laws of war
Occupied territories
Abstract: 

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

 

According to orders by the military commander, a partition fence was erected that sorrounds the town of Alfei Menashe in all directions while leaving a road connecting the town to Israel. Several Palestinian villages are within the area surrounded by the fence. The fence cuts them off from the remaining areas of the West Bank and creates a landlocked cluster of villages on the “Israeli” side of the fence. The Petitioners, residents of the villages, maintain that the fence that surrounds the landlocked area of Alfei Menashe is illegal and must be dismantled. They argue that the military commander is not authorized to order an erection of a fence around the landlocked area. This argument relies, among others, on the advisory opinion of the International Court in the Hague, according to which erecting the fence violates international law. The Petitioners further claimed that the fence – on the path along which it was erected – is disproportional.

 

The Supreme Court held:

 

A.         1.         The legal system that applies in the West Bank is governed by public international law regarding war-based occupation. Under wartime occupation law, the military commander is not authorized to order the erection of a partition fence if the motivation for erecting the partition fence is a political reason of “annexing” lands from the area to the State of Israel and establishing Israel’s state borders. The military commander is authorized to order erection of a partition fence where the reason of erecting the fence is related to security and to the military.

 

            2.         The authority of the military commander to erect a partition fence for security and military reason encompasses, first and foremost, the need to protect the military in an area subject to wartime occupation. This authority also includes protecting the State of Israel itself. Further, the authority includes erecting a fence in order to protect the life and safety of Israeli residents in the area.

 

            3.         When determining the path for the fence, the military commander must balance the security needs and the needs of the local population. This balance will be done, among others, according to the principles of proportionality. Proportionality is based on three sub-test: the first sub-test requires a rational link between the means taken and the desired end; the second sub-test mandates that among the range of means that might accomplish the end, the means selected must be the least restrictive; the third sub-test requires that the harm caused to the individual as a result of the means taken must be at a proper proportion to the benefit it brings.

 

            4.         When examining the decisions and actions of the military commander in an area subject to wartime occupation, a court does not substitute the discretion of the military commander for its own. A court does not examine the wisdom of the decision, but its lawfulness. Still, a court does not refrain from judicial review merely because the military commander operates outside of Israel and because its activity bears political and militaristic consequences. When the decisions of the military commander or its activity infringe upon human rights, they are justiciable.

 

            5.         When an activity may be exercised in several manners, the question examined is whether the action of the military commander is one that a reasonable military commander could have made. When the decision of the military commander relies on military expertise, the court attaches special weight to the military expertise of the area’s commander, who shoulders the responsibility for the security and safety of the area. When the decision of the military commander – which relies on military professionalism – violates human rights, the proportionality of the violation hinges on the acceptable tests for such purposes.

 

B.         The Supreme Court of Israel will attribute the full appropriate weight to the norms of international law, as developed and interpreted by the International Court in the Hague in its opinion. However, the conclusion of the International Court, which relies on a different factual foundation than that which was presented to the Supreme Court, does not constitute a court decision and does not bind the Supreme Court of Israel to find that the entire fence is inconsistent with international law. The Israeli Court will continue to examine each section of the fence’s path, as brought before it and according to the model of adjudication that it follows. It will ask itself, for each part of the fence, whether it embodies a proportional balance between the military-security need and the rights of the local population. When doing so, it will not disregard the overall picture and its determination will always be in regards to each section as a part of the whole.

 

C.         1.         In the case at hand the motivation for erecting the fence is not political. At the foundation of the decision to erect the fence was the security consideration to prevent the infiltration of terrorists into the State of Israel and the Israeli towns in the area. The partition fence is a central security feature in Israel’s war against Palestinian terrorism. The fence is inherently temporary. So is generally the matter of the partition fence, and so, too, is the matter if the path of the fence around the landlocked area of Alfei Menashe. Therefore the decision of the erecting a partition fence in the landlocked area of Alfei Menashe was made within the authority granted to the area’s military commander.

 

            2.         As for proportionality, the partition fence creates a separation between the terrorists and the Israelis (in Israel and in the area,) and in this sense there necessary rational link between the means and the end is met. Therefore the first sub-test of proportionality is satisfied in the case of the landlocked Alfei Menashe.

 

            3.         On the other hand, it cannot be found that the second sub-test of proportionality is met in regard to the path of the fence that creates the landlocked area of Alfei Menashe. The necessary effort was not made, nor explored in depth, to identify an alternative path that would guarantee security and would cause lesser harm to the residents of the villages. Respondents 1-4 must reconsider, within a reasonable period of time, the different alternatives to the fence’s path while exploring security alternatives that would less restrict the lives of residents of the villages in the landlocked area. In this context, excluding the some or all of the villages of the landlocked area from it, and removing them from the “Israeli” side of the fence should be considered. 

Voting Justices: 
Barak, Aharon
Primary Author
majority opinion
Beinisch, Dorit
majority opinion
Procaccia, Ayala
majority opinion
Levy, Edmond E.
majority opinion
Grunis, Asher
majority opinion
Naor, Miriam
majority opinion
Joubran, Salim
majority opinion
Hayut, Esther
majority opinion
Cheshin, Mishael
Author
concurrence
Full text of the opinion: 

 

H.C.J. 7957/04

 

 

Petitioners:                               1.       Zaharan Yunis Muhammad Mara'abe

  1. Morad Ahmed Muhammad Ahmed
  2. Muhammad Jamil Mas'ud Shuahani
  3. Adnan Abd el Rahman Daud Udah
  4. Abd el Rahim Ismail Daud Udah
  5. Bassem Salah Abd el Rahman Udah
  6. The Association for Civil Rights in Israel

 

v.

 

Respondents:                                      1.         The Prime Minister of Israel

2.The Minister of Defense

3.The Commander of IDF Forces in the Judea and Samaria Area

4.The Separation Fence Authority

5.The Alfei Menashe Local Council

 

 

The Supreme Court Sitting as the High Court of Justice

 

[September 12 2004; March 31 2005; June 21 2005]

 

Before President A. Barak, Vice President M. Cheshin, Justice D. Beinisch, Justice A. Procaccia, Justice E. Levy, Justice A. Grunis, Justice M. Naor, Justice S. Joubran  & Justice E. Hayut

 

Petition for an Order Nisi

For Petitioners:                        Michael Sfard

                                               Dan Yakir

                                               Limor Yehuda

For Respondents no. 1-4:        Anar Helman

                                                Avi Licht

For Respondent 5:                  Baruch Heikin

 

 

 

JUDGMENT

 

President A. Barak:

 

Alfei Menashe is an Israeli town in the Samaria area. It was established approximately four kilometers beyond the Green Line.  Pursuant the military commander's orders, a separation fence was built, surrounding the town from all sides, and leaving a passage containing a road connecting the town to Israel.  A number of Palestinian villages are included within the fence's perimeter.  The separation fence cuts them off from the remaining parts of the Judea and Samaria area.  An enclave of Palestinian villages on the "Israeli" side of the fence has been created.  Petitioners are residents of the villages.  They contend that the separation fence is not legal.  This contention of theirs is based upon the judgment in The Beit Sourik Case (HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, 58(5) P.D. 807).  The petition also relies upon the Advisory Opinion of the International Court of Justice at the Hague (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (International Court of Justice, July 9, 2004), 43 IL M 1009 (2004)).  Is the separation fence legal? That is the question before us.

 

A.        The Background and the Petition

 

            1.         Terrorism and the Response to It

 

1.         In September 2000 the second intifada broke out.  A mighty attack of acts of terrorism landed upon Israel, and upon Israelis in the Judea, Samaria, and Gaza Strip areas (hereinafter – the area).  Most of the terrorist attacks were directed toward civilians.  They struck at men and at women; at elderly and at infant.  Entire families lost their loved ones.  The attacks were designed to take human life.  They were designed to sow fear and panic.  They were meant to obstruct the daily life of the citizens of Israel.  Terrorism has turned into a strategic threat.  Terrorist attacks are committed inside of Israel and in the area.  They occur everywhere, including public transportation, shopping centers and markets, coffee houses, and inside of houses and communities.  The main targets of the attacks are the downtown areas of Israel's cities.  Attacks are also directed at the Israeli communities in the area, and at transportation routes.  Terrorist organizations use a variety of means.  These include suicide attacks ("guided human bombs"), car bombs, explosive charges, throwing of Molotov cocktails and hand grenades, shooting attacks, mortar fire, and rocket fire.  A number of attempts at attacking strategic targets ("mega-terrorism") have failed.  Thus, for example, the intent to topple one of the Azrieli towers in Tel Aviv using a car bomb in the parking lot was frustrated (April 2002).  Another attempt which failed was the attempt to detonate a truck in the gas tank farm at Pi Glilot (May 2003).  Since the onset of these terrorist acts, up until mid July 2005, almost one thousand attacks have been carried out within Israel.  In Judea and Samaria, 9000 attacks have been carried out.  Thousands of attacks have been carried out in the Gaza Strip.  More than one thousand Israelis have lost their lives, approximately 200 of them in the Judea and Samaria area.  Many of the injured have become severely handicapped.  On the Palestinian side as well, the armed conflict has caused many deaths and injuries.  We are flooded with bereavement and pain.

 

2.         Israel took a series of steps to defend the lives of her residents.  Military operations were carried out against terrorist organizations.  These operations were intended to defeat the Palestinian terrorist infrastructure and prevent reoccurrence of terrorist acts (see HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57(2) P.D. 349, hereinafter – Marab; HCJ 3278/02 The Center for Defense of the Individual v. The Commander of IDF Forces in the West Bank Area, 57(1) P.D. 385.  These steps did not provide a sufficient answer to the immediate need to halt the severe terrorist attacks.  Innocent people continued to pay with life and limb.  I discussed this in The Beit Sourik Case:

 

"These terrorist acts committed by the Palestinian side have led Israel to take security steps of various levels of severity. Thus, the government, for example, decided upon various military operations, such as operation “Defensive Wall” (March 2002) and operation “Determined Path” (June 2002). The objective of these military actions was to defeat the Palestinian terrorist infrastructure and to prevent reoccurrence of terror attacks . . .  These combat operations – which are not regular police operations, rather bear all the characteristics of armed conflict – did not provide a sufficient answer to the immediate need to stop the severe acts of terrorism. The Committee of Ministers on National Security considered a series of steps intended to prevent additional acts of terrorism and to deter potential terrorists from committing such acts . . . Despite all these measures, the terror did not come to an end.  The attacks did not cease. Innocent people paid with both life and limb. This is the background behind the decision to construct the separation fence (Id., at p. 815).

 

Against this background, the idea of erecting a separation fence in the Judea and Samaria area, which would make it difficult for terrorists to strike at Israelis and ease the security forces' struggle against the terrorists, was formulated.

 

3.         The construction of the separation fence was approved by the government on June 23 2002.  At the same time, phase A of the fence was approved.  Its length is 116 km.  It begins in the area of the Salem village, adjacent to the Megiddo junction, and continues to the Trans-Samaria Highway adjacent to the Elkana community.  An additional obstacle in the Jerusalem area (approximately 22 km long) was also approved.  These were intended to prevent terrorist infiltration into the north and center of the country, and into the Jerusalem area.  The government decision stated, inter alia,

 

"(3) In the framework of phase A – to approve construction of security fences and obstacles in the 'seamline area' and in the surroundings of Jerusalem, in order to decrease infiltrations by terrorists from the Judea and Samaria areas for the purpose of attacks in Israel.    

 

(4) The fence, like the other obstacles, is a security means.  Its construction does not reflect a political border, or any other border.

 

(5) . . .

 

(6) The exact and final route of the fence shall be determined by the Prime Minister and the Minister of Defense . . . the final route shall be presented to the Committee of Ministers on National Security or to the government."

 

After that (December 2002) the construction of phase B of the fence was approved.  That phase began at Salem village, heading east until the Jordan river (approximately 60 km).  This phase also includes an offshoot starting at Mt. Avner (adjacent to the village of Al Mutilla) in the southern Gilboa, heading south toward Thaisar village.  After about one year (on October 1 2003) the government decided to construct phases C and D of the fence.  Phase C includes the fence between Elkana and the Camp Ofer military base, a fence east of the Ben Gurion airport and north of planned highway 45, and a fence protecting Israeli communities in Samaria (including Ariel, Emanuel, Kedumim, Karnei Shomron).  Phase D includes the area from the Etzion Bloc southward to the southern Hebron area.  The government decision stated, inter alia:

 

"(2) The obstacle built pursuant to this decision, like its other segments in the 'seamline area', is a security means for preventing terrorist attacks, and does not reflect a political border, or any other border.

 

(3) Local alterations of the obstacle route or of construction necessary for the overall planning of the route, shall be brought for approval to the Minister of Defense and the Prime Minister.

 

(4) . . .

 

(5) . . .

 

(6) During the detailed planning, all efforts shall be made to minimize, to the extent possible, disturbance liable to be caused to the daily lives of Palestinians as a result of the construction of the obstacle." 

 

The separation fence discussed in the petition before us is part of phase A of fence construction.  The separation fence discussed in The Beit Sourik Case is part of phase C of fence construction.  The length of the entire fence, including all four phases, is approximately 763 km.  According to information relayed to us, approximately 242 km of fence have already been erected, and are in operational use.  28 km of it are built as a wall (11%).  Approximately 157 km are currently being built, 140 km of which are fence and approximately 17 km are wall (12%).  The building of 364 km of the separation fence has not yet been commenced, of which 361 km are fence, and 3 km are wall.

 

4.         The separation fence is an obstacle built of a number of components.  "In its center stands a 'smart' fence. The purpose of the fence is to alert the forces deployed along it of any attempt to cross it. On the fence’s external side lies an anti-vehicle obstacle, composed of a trench or another means, intended to prevent vehicles from breaking through the fence by slamming up against it. There is an additional delaying fence. Adjacent to the fence, a service road is paved. On the internal side of the electronic fence, there are a number of roads: a trace road (a strip of sand smoothed to detect footprints of those who pass the fence), a patrol road, and a road for armored vehicles, as well as an additional fence. The average width of the obstacle, in its optimal form, is 50–70 meters.  Due to various constraints at certain points along the route, a narrower obstacle, which includes only part of the components supporting the electronic fence, will be constructed.  In certain cases the obstacle can reach a width of 100 meters, due to topographical conditions. . . Various means to help prevent infiltration will be erected along the route of the obstacle. The IDF and the border police will patrol the separation fence, and will be called to locations of infiltration, in order to frustrate the infiltration and to pursue those who succeed in crossing the security fence" (The Beit Sourik Case, at p. 818).

 

5.         Parts of the separation fence are erected on private land.  Under such circumstances, there is an administrative process of issuing an order of seizure and payment of compensation for the use of the land.  The seizure order can be appealed to the military commander.  If the appeal is rejected, the landowner is given a seven day period to petition the High Court of Justice.  Since issuance of the orders, more than eighty petitions have been submitted to this Court.  Approximately half were withdrawn in light of compromise between the parties.  The other half are being heard before us.  One of those petitions is the petition before us.

 

6.         Since the decision to construct the fence, a constant and continual process of analysis and improvement has been taking place.  This process was intensified, of course, after the judgment in the Beit Sourik Case (given on June 30 2004).  As a result, some segments of the existing route were altered.  The planning of phases not yet constructed was changed.  When necessary, a government decision was made, ordering an alteration of the route of the fence.  Indeed, on February 20 2005, the government decided to alter the fence route.  The decision stated that it came about "after examining the implications of the High Court of Justice's ruling regarding continued work to construct the fence."  The decision further stated:

 

"(a) The government sees importance in the continued construction of the security fence, as a means whose efficacy - in defending the State of Israel and its residents, and in preventing the negative influence a terrorist attack is liable to have on diplomatic moves - has been proven, while ensuring minimization, to the extent possible, of the affect on the daily lives of the Palestinians, according to the standards outlined in the ruling of the High Court of Justice."

 

This decision included additional segments of fence, whose legal examination had not yet been completed (in the area of Western Samaria, Ma'aleh Edumim, and the Judean Desert).  As a result of the government decision, special teams were established to examine the crossings policy and the permit regime.  According to the data relayed to us, part of the separation fence is inside of Israel or on the Green Line (approximately 150.4 km, which are 19.7% of the route).  The part of the fence which is in the Judea and Samaria area leaves about 432 km2, which are about 7.8% of the area of Judea and Samaria, on the "Israeli" (western) side of the fence.  In this area live 8900 Palestinian residents, who will live under a permit regime; and 19,000 Palestinian residents in the Etzion Bloc area, where such a regime will not apply, and it will be possible to enter and exit freely, subject to security check, with no need to acquire permits or licenses of any kind.  It is worth noting that this figure includes the Gush Etzion region (about 1.2% of the area of Judea and Samaria), the "fingers of Ariel" (about 2.0% of the area of Judea and Samaria) and Ma'aleh Edumim (approximately 1.2% of the area of Judea and Samaria).  The staff work and the legal examination regarding these areas have not yet been completed.  Nor have Jerusalem's municipal territory or no-man's-land been included in these figures, since they are not in Judea and Samaria. 

 

7.         All territory left on the "Israeli" (western) side of the fence in the framework of phase A – that is to say, the area between the fence and the State of Israel (hereinafter – the seamline area) – were declared a closed military area, pursuant to Territory Closure Declaration no. S/2/03 (seamline area) (Judea and Samaria), 5764-2003 (of October 2 2003), issued by the Commander of IDF Forces in the Judea and Samaria Area (hereinafter – the declaration).  The seamline area in the phase A area is approximately 87 km2, and about 5600 Palestinians and 21,000 Israeli residents live in it.  The declaration forbade entrance and presence in the seamline area, while determining that the rule does not apply to Israelis or people holding permits from the military commander to enter the seamline area and be present in it. The declaration determined, regarding permanent residents, that people whose permanent residence is in the seamline area will be permitted to enter the seamline area and be present in it, subject to the requirement that they hold a written permit from the military commander testifying to the fact that their permanent place of residence is in the seamline area, and subject to the conditions determined in the permit.  The military commander issued a general permit to enter the seamline area, for holders of foreign passports, holders of permits for work in an Israeli community within the seamline area, and for those who have a valid exit permit from the area into Israel.  After about a half a year (May 27 2004), the declaration was amended (Territory Closure Declaration no. S/2/03 (Seamline Area) (Judea and Samaria) (Amendment no. 1), 5764 – 2004).  According to the amended declaration, the rule forbidding entrance and presence in the seamline area does not apply to permanent residents in the seamline area or those with a work permit from the military commander.  A general permit, for entrance into the seamline area and presence in it for any purpose, was granted to residents of the State of Israel.  Palestinians living in the seamline area were issued a "permanent resident card" testifying that they are permanent residents of the seamline area.  The permits make it possible to live in the seamline area and to move from it into the territories of the area, and back.  Palestinians who are not permanent residents of the seamline area must acquire an entry permit.  Such permits are granted for various reasons, including work, trade, agriculture, and education.

 

            2. The Alfei Menashe Enclave

 

The Alfei Menashe enclave – the topic of the petition before us – is part of phase A of the fence.  The decision regarding it was reached on June 23 2002.  The construction of the fence was finished in August 2003.  The fence circumscribes Alfei Menashe (population approximately 5650) and five Palestinian villages (population approximately 1200): Arab a-Ramadin (population approximately 250); Arab Abu-Farda (population approximately 120); Wadi a-Rasha (population approximately 120); Ma'arat a-Daba (population approximately 250), and Hirbet Ras a-Tira (population approximately 400) (see appendix).  The fence which surrounds the enclave from the north is based, on its western side, upon the fence encircling the city of Qalqiliya (population approximately 38,000) from the south.  This part of the fence passes north of highway 55, which is the enclave's connection to Israel.  The northern part of the fence surrounds Alfei Menashe, Abu-Farda, and Arab a-Ramadin.  The Alfei Menashe enclave is unique for two reasons: First, it is based, in many places, upon the separation fence around the city of Qalqiliya and the villages of Habla and Hirbet Ras Atiyeh; second, the separation fence "brings" over to the "Israeli" (western) side not only Alfei Menashe, but also the five Palestinian villages.

 

9.         There is one crossing and three agricultural gates in the fence surrounding the Alfei Menashe enclave, which connect the enclave to the area.  The central connection between the enclave and the area is via "crossing 109", located on the northern side of the fence, on highway 55.  Crossing 109 is close to the access point to the city of Qalqiliya, in the eastern fence surrounding Qalqiliya called DCO Qalqiliya.  This point is not staffed, except for special cases, and it allows free passage between Qalqiliya and the area.  Crossing 109 allows residents of the enclave to pass by foot and car, subject to security check, to the area and the city of Qalqiliya at all hours of the day.  There are three additional gates in the Alfei Menashe enclave fence, two agricultural, through which one can pass by foot or car.  The three gates are the Ras a-Tira gate (on the western side of the enclave, adjacent to the town of Hirbet Ras Atiyeh); the South Qalqiliya gate, and the Habla gate.  At the time the petition was submitted, the three gates were generally opened three times a day for one hour.  Now, the Ras a-Tira gate opens one hour after sunrise and is closed one hour before sunset.  There is no change in the opening hours of the other gates.  The enclave is connected, with territorial integrity, to Israel (with no checkpoint), and the crossing is made via highway 55, which connects Alfei Menashe to Israel.  The road is mainly used by Israelis traveling to and leaving Alfei Menashe and by Palestinians with permits to enter Israel, or traveling within the boundaries of the enclave.

 

            3.         The Petition

 

10.       The petition was submitted on August 31 2004.  (Original) petitioners are residents of the Ras a-Tira village (petitioners no. 1-3) and the Wadi a-Rasha village (petitioners no. 4-6).  These two villages are located southwest of Alfei Menashe.  Along with them petitioned the Association for Civil Rights in Israel (petitioner no. 7).  At a later phase petitioners' counsel submitted a letter (of March 30 2005) written by the five council heads of the villages in the enclave.  The letter is addressed to the Court.  It expresses support for the petition.  It verifies its content.  At the same time, petitioners' counsel informed us that the village council heads had granted him power of attorney to act in the name of the councils, as petitioners in the petition.

 

11.       Petitioners contend that the separation fence is not legal, and should be dismantled.  They argue that the military commander is not authorized to give orders to construct the separation fence.  That claim is based on the Advisory Opinion of the International Court of Justice at the Hague (hereinafter also "ICJ").  Petitioners also contend that the separation fence does not satisfy the standards determined in The Beit Sourik Case.  On this issue, petitioners argue that the fence is disproportionate and discriminatory.  Respondents ask that the petition be rejected due to a number of preliminary arguments (laches (delay), the "public" nature of the petition, and the lack of a prior plea to respondents).  On the merits, respondents argue that the military commander is authorized to erect a separation fence, as ruled in The Beit Sourik Case.  The Advisory Opinion of the International Court of Justice at the Hague makes no difference in this regard, since it was based upon a factual basis different from that established in The Beit Sourik Case.  Respondents also contend that the injury to the Palestinian residents satisfies the standards determined in The Beit Sourik Case.

 

            4.         The Hearing of the Petition

 

12.       The petition was heard soon after being submitted, by President A. Barak, Vice President (emeritus) E. Mazza and Vice President M. Cheshin (on September 12 2004).  The Alfei Menashe local council was joined, at its request, as a respondent in the petition.  Further hearing of the petition was postponed, in order to allow the state to formulate its stance.  We noted that postponement of the petition does not prevent respondents from doing all they can to ease the reality of daily life for petitioners under the existing fence route.  The hearing of the petition continued (on March 31 2005) before President A. Barak, Vice President M. Cheshin and Justice D. Beinisch (who replaced Vice President E. Mazza, who retired).  After that, it was decided (on April 21 2005) that the hearing of the petition would take place together with the hearing of HCJ 1348/05 and HCJ 3290/05 (regarding the separation fence around the city of Ariel), and that the hearing of all three petitions would take place before an expanded panel of nine Justices.  The petition was thus heard before an expanded panel (on June 21 2005).  At the commencement of the hearing, it was stipulated that the court would view the hearing as if an order nisi had been granted.  Petitioners presented arguments regarding the fence's injury to the various areas of life in the villages, and extensively discussed their legal arguments regarding the illegality of the fence.  Respondents expanded upon the authority to build the fence and the steps that had been taken in order to ease the residents' lives.  In addition, Colonel (res.) Dan Tirza (head of the administration dealing with the planning of the obstacle route in the seamline area) appeared before us, and surveyed the fence route and the considerations which the route planners confronted.

 

            5. The Discussion Framework

 

13.       The parties' arguments will be examined in five parts.  In the first part we shall discuss the Supreme Court's caselaw regarding the military commander's authority, according to the law of belligerent occupation, to order the erection of the separation fence.  This caselaw was developed by this Court in scores of judgments it has handed down since the Six Day War.  In the second part we shall discuss the way this law was applied, in concrete implementation, in The Beit Sourik Case.  In the third part, we shall discuss the Advisory Opinion of the International Court of Justice at the Hague.  In the fourth part we shall discuss the Advisory Opinion's effect upon the standards in The Beit Sourik Case, and its ramifications for the normative outline as determined by this Court, and for the way this outline was implemented in The Beit Sourik Case.  Finally, we shall examine whether the separation fence at the Alfei Menashe enclave satisfies the tests of the law.

 

B.        The Normative Outline in the Supreme Court's Caselaw

 

            1.         Belligerent Occupation

 

14.       The Judea and Samaria areas are held by the State of Israel in belligerent occupation.  The long arm of the state in the area is the military commander.  He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832).  His power is granted him by public international law regarding belligerent occupation.  The legal meaning of this view is twofold: first, Israeli law does not apply in these areas.  They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case).  In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations).  These regulations are a reflection of customary international law.  The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).  The State of Israel has declared that it practices the humanitarian parts of this convention.  In light of that declaration on the part of the government of Israel, we see no need to reexamine the government's position.  We are aware that the Advisory Opinion of the International Court of Justice determined that The Fourth Geneva Convention applies in the Judea and Samaria area, and that its application is not conditional upon the willingness of the State of Israel to uphold its provisions.  As mentioned, seeing as the government of Israel accepts that the humanitarian aspects of The Fourth Geneva Convention apply in the area, we are not of the opinion that we must take a stand on that issue in the petition before us.  In addition to those two sources of international law, there is a third source of law which applies to the State of Israel's belligerent occupation.  That third source is the basic principles of Israeli administrative law, which is law regarding the use of a public official's governing power.  These principles include, inter alia, rules of substantive and procedural fairness, the duty to act reasonably, and rules of proportionality. "Indeed, every Israeli soldier carries in his pack the rules of customary public international law regarding the law of war, and the fundamental rules of Israeli administrative law" (HCJ 393/82 Jami'at Ascan el-Malmun el-Mahdudeh el-Masauliyeh, Communal Society Registered at the Judea and Samaria Area Headquarters v. The Commander of IDF Forces in the Judea and Samaria Area, 37(4) P.D. 785, 810; hereinafter The Jami'at Ascan Case).

 

            2. The Military Commander's Authority to Erect a Security Fence

 

15.       Is the military commander authorized, according to the law of belligerent occupation, to order the construction of a separation fence in the Judea and Samaria area?  In The Beit Sourik Case our answer was that the military commander is not authorized to order the construction of a separation fence, if the reason behind the fence is a political goal of "annexing" territories of the area to the State of Israel and to determine Israel's political border.  The military commander is authorized to order the construction of the separation fence if the reason behind its construction is a security and military one.  Thus we wrote in The Beit Sourik Case:

 

"the military commander is not authorized to order the construction of the separation fence if his reasons are political. The separation fence cannot be motivated by a desire to “annex” territories in the area to the state of Israel. The purpose of the separation fence cannot be to draw a political border. . . . the authority of the military commander is inherently temporary, as belligerent occupation is inherently temporary.  Permanent arrangements are not the affair of the military commander.  True, the belligerent occupation of the area has gone on for many years. This fact affects the scope of the military commander’s authority.         . . . The passage of time, however, cannot expand the authority of the military commander and allow him to take into account considerations beyond the proper administration of the area under belligerent occupation" (Id., at pp. 829-830). 

 

16.       It is sometimes necessary, in order to erect a separation fence, to take possession of land belonging to Palestinian residents.  Is the military commander authorized to do so?  The answer is that if it is necessary for military needs, the military commander is authorized to do so. So we ruled in The Beit Sourik Case:

 

". . . the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if that is necessary for the needs of the army. . . . He must, of course, provide compensation for his use of the land. Of course, . . . the military commander must also consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the separation fence falls within this framework, on the condition that it is necessary from a military standpoint.  To the extent that the fence is a military necessity, infringement of private property rights cannot, in and of itself, negate the authority to build it. . . . Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers (Id., at p. 832).

 

It is worth noting that construction of the separation fence is unrelated to expropriation or confiscation of land.  The latter are prohibited by regulation 46 of The Hague Regulations (see HCJ 606/78 Iyub v. The Minister of Defense, 33(2) P.D. 113, 122; hereinafter – The Iyub case).  Construction of the fence does not involve transfer of ownership of the land upon which it is built.  The construction of the fence is done by way of taking possession.  Taking of possession is temporary.  The seizure order orders its date of termination.  Taking of possession is accompanied by payment of compensation for the damage caused.  Such taking of possession – which is not related in any way to expropriation – is permissible according to the law of belligerent occupation (see regulations 43 and 52 of The Hague Regulations, and §53 of The Fourth Geneva Convention: see The Iyub case, at p. 129; HCJ 834/78 Salame v. The Minister of Defense, 33(1) P.D. 471, 472; The Iyub case, at p. 122; HCJ 401/88 Abu Rian v. The Commander of IDF Forces in the Judea and Samaria Area, 42(2) P.D. 767, 770; HCJ 290/89 Jora v. The Military Commander of the Judea and Samaria Area, 43(2) P.D. 116, 118; HCJ 24/91 Timraz v. The Commander of IDF Forces in the Gaza Strip Area, 45(2) P.D. 325, 333 – hereinafter The Timraz Case; HCJ 1890/03 The Bethlehem Municipality v. The State of Israel – The Ministry of Defense (yet unpublished) – hereinafter The Bethlehem Municipality Case; HJC 10356/02 ­­­­­Hess v. Commander of the IDF Forces in the West Bank, 58 (3) P.D. 443, 456 – hereinafter The Hess Case; see also D. Kretzmer "The Advisory Opinion: The Light Treatment of International Humanitarian Law" 99 A.J.I.L. 88, 97 (2005) – hereinafter Kretzmer; N. Keidar "An Examination of the Authority of Military Commander to Requisition Privately Owned Land for the Construction of the Separation Barrier" 38 Isr. L. Rev. 247 (2005) – hereinafter Keidar).  Pursuant to regulation 52 of The Hague Regulations, the taking of possession must be for "needs of the army of occupation".  Pursuant to §53 of The Fourth Geneva Convention, the taking of possession must be rendered "absolutely necessary by military operation".  G. Von Glahn discussed the legality of taking possession of land, stating:

 

“Under normal circumstances an occupier may not appropriate or seize on a permanent basis any immovable private property but on the other hand a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity” (G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 186 (1957)).

 

The key question is, of course, whether taking possession of land is rendered "absolutely necessary by military operation" (on this question see Imseis "Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion", 99 A.J.I.L. 102 (2005), and Keidar, at p. 247).  This issue is for the military commander to decide.  J.S. Pictet discussed this point, stating:

 

“[I]t will be for the Occupying Power to judge the importance of such military requirements” (J.S. Pictet, Commentary IV Geneva Convention - Relative to the Protection of Civilian Persons in Time of War  302 (1958); hereinafter - Pictet).

 

Of course, the military commander's discretion is subject to judicial review by this Court (see The Timraz Case, at p. 335).

 

17.       In The Beit Sourik Case and preceding case law, the Supreme Court held that the authority to take possession of land for military needs is anchored not only in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention, but also in regulation 23(g) of The Hague Regulations.  The Advisory Opinion of the International Court of Justice at the Hague determined that the second part of The Hague Regulations, in which regulation 23(g) is found, applies only during the time that hostilities are occurring, and that therefore it does not apply to the construction of the fence (paragraph 124).  The International Court of Justice added that the third part of The Hague Regulations – which includes regulations 43 and 52 – continues to apply, as it deals with military government (§125).  This approach of the International Court of Justice cannot detract from this Court's approach regarding the military commander's authority to take possession of land for constructing the fence.  This authority is anchored, as mentioned, in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention.  Regarding the principled stance of the International Court of Justice, we note the following two points: first, there is a view – to which Pictet himself adheres – by which the scope of application of regulation 23(g) can be widened, by way of analogy, to cover belligerent occupation as well (see Pictet, at p. 301; G. Schwarzenberger 2 International Law as Applied by International Courts and Tribunals: the Law of Armed Conflict 253, 314 (1968).  Second, the situation in the territory under belligerent occupation is often fluid.  Periods of tranquility and calm transform into dynamic periods of combat.  When combat takes place, it is carried out according to the rules of international law.  "This combat is not being carried out in a normative void.  It is being carried out according to the rules of international law, which determine principles and rules for the waging of combat" (see HCJ 3451/02 Almandi v. The Minister of Defense, 56(3) P.D. 30, 34; see also HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16).  In such a situation, in which combat activities are taking place in the area under belligerent occupation, the rules applicable to belligerent occupation, as well as the rules applicable to combat activities, will apply to these activities (see The Marab Case; HCJ 7015/02 Ajuri v. The Commander of IDF forces in the West Bank, 56(6) P.D. 352, and Watkin "Controlling the Use of Force: A Role of Human Rights Norms in Contemporary Armed Conflict" 98 A.J.I.L. 1, 28 (2004)).  Regulation 23(g) of The Hague Regulations will apply in such a situation in territory under belligerent occupation, due to the combat activities taking place in it.  The position of the state, as argued before us, is that the construction of the fence is part of Israel's combat actions.  It is, according to the state's argument, a defensive act of erecting fortifications; it is intended to stop the advance of an offensive of terrorism; it is a defensive act which serves as an alternative to offensive military activity; it is an act absolutely necessary for the for the combat effort.  As mentioned, we have no need to discuss this issue in depth, since the general authority granted the military commander pursuant to regulations 43 and 52 of The Hague Regulations and §53 of The Fourth Geneva Convention are sufficient, as far as construction of the separation fence goes.  We are thus able to leave that issue for decision at a later opportunity. 

 

18. The rationale behind the military commander's authority to construct a separation fence for security and military reasons includes, first and foremost, the need to protect the army in the territory under belligerent occupation.  It also includes defense of the State of Israel itself (compare §62(2) of The Fourth Geneva Convention, and HCJ 302/72 Hilo v. The Government of Israel, 27(2) P.D. 162, 178; The Iyub Case, at p. 117; HCJ 258/79 Amira v. The Minister of Defense, 34(1) P.D. 90; The Beit Sourik Case, at p. 833; Kretzmer, at p. 101).  Does the military commander's authority to construct a separation fence also include his authority to construct a fence in order to protect the lives and safety of Israelis living in Israeli communities in the Judea and Samaria area?  This question arises in light of the fact that Israelis living in the area are not "protected persons," as per the meaning of that term in §4 of The Fourth Geneva Convention (see The Gaza Coast Regional Council Case (yet unpublished, paragraph 4 of the opinion of the Court)).  Is the military commander authorized to protect the lives and defend the safety of people who are not "protected" under The Fourth Geneva Convention?  In our opinion, the answer is positive.  The reason for this is twofold: first, the military commander's general authority is set out in regulation 43 of The Hague Regulations, which determines:

 

"The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

 

The authority of the military commander is, therefore, "to ensure . . . public order and safety".  This authority is not restricted only to situations of actual combat.  It applies as long as the belligerent occupation continues (see The Timraz Case, at p. 336).  This authority is not restricted only to the persons protected under international humanitarian law.  It is a general authority, covering any person present in the territory held under belligerent occupation.  Justice E. Mazza discussed this, stating:

 

"as far as the need to preserve the security of the area and the security of the public in the area is concerned, the military commander's authority applies to all persons present in the boundaries of the area at any given time.  This determination is a necessary deduction from the military commander's known and clear duty to preserve the security of the area and from his responsibility for preservation of the public peace in his area" (HCJ 2612/94 Sha'ar v. The Commander of IDF Forces in the Judea and Samaria Area, 48(3) P.D. 675, 679).

 

In another case I added:

 

"The Israeli settlement in the Gaza Strip is controlled by the law of belligerent occupation.  Israeli law does not apply in this area . . . the lives of the settlers are arranged, mainly, by the security legislation of the military commander.  The military commander's authority 'to ensure public order and safety' is directed towards every person present in the area under belligerent occupation.  It is not restricted to 'protected persons' only . . . this authority of his covers all Israelis present in the area" (HCJ 6339/05 Matar v. The Commander of IDF Forces in the Gaza Strip (yet unpublished); see also the Hess case, at p. 455).

 

Indeed, the military commander must ensure security.  He must preserve the safety of every person present in the area of belligerent occupation, even if that person does not fall into the category of 'protected persons' (see HCJ 72/86 Zlum v. The Military Commander of the Judea and Samaria Area, 41(1) P.D. 528, 532, hereinafter – The Zlum Case; HCJ 2717/96 Wafa v. The Minister of Defense, 50(2) P.D. 848, 856; HCJ 4363/02 Zindat v. The Commander of IDF Forces in the Gaza Strip (unpublished); HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (unpublished); HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) P.D. 608, 611).

 

19.       Our conclusion is, therefore, that the military commander is authorized to construct a separation fence in the area for the purpose of defending the lives and safety of the Israeli settlers in the area.  It is not relevant whatsoever to this conclusion to examine whether this settlement activity conforms to international law or defies it, as determined in the Advisory Opinion of the International Court of Justice at the Hague.  For this reason, we shall express no position regarding that question.  The authority to construct a security fence for the purpose of defending the lives and safety of Israeli settlers is derived from the need to preserve "public order and safety" (regulation 43 of The Hague Regulations).  It is called for, in light of the human dignity of every human individual.  It is intended to preserve the life of every person created in God's image.  The life of a person who is in the area illegally is not up for the taking.   Even if a person is located in the area illegally, he is not outlawed. This Court took this approach in a number of judgments.  In one case I noted:

 

"The military commander's duty is to protect the security of his soldiers, while being considerate of the safety of the local population.  This population also includes the settlements located in the area.  Their legality is not under discussion before us, and will be determined in the peace treaties which the relevant parties will reach" (HCJ 4364/02 Zindat v. The Commander of the IDF Forces in the Gaza Strip (unpublished), and see also HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (unpublished)).

 

In another case I stated:

 

"It is contended before us that the objective of the order is to allow movement between two settlements, and that this objective is not a legal one, as the settlements are not legal.  Not security considerations lie at the base of the order, rather political considerations.  This argument holds no water.  The status of the settlements will be determined in the peace treaty.  Until that time, respondent has the duty to defend the population (Arab and Jewish) in the territory under his military control (HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) P.D. 608, 611; see also The Zlum Case, at p. 532).

 

In a similar vein wrote my colleague, Justice A. Procaccia:

 

"Alongside the area commander's responsibility for safeguarding the safety of the military force under his command, he must ensure the well being, safety and welfare of the residents of the area.  This duty of his applies to all residents, without distinction by identity – Jew, Arab, or foreigner.  The question of the legality of various populations' settlement activity in the area is not the issue put forth for our decision in this case.  From the very fact that they have settled in the area is derived the area commander's duty to preserve their lives and their human rights.  This sits well with the humanitarian aspect of the military force's responsibility in belligerent occupation" (The Hess Case, at p. 460).

 

 

20.       Indeed, the legality of the Israeli settlement activity in the area does not affect the military commander's duty – as the long arm of the State of Israel – to ensure the life, dignity and honor, and liberty of every person present in the area under belligerent occupation (see Y. Shany "Capacities and Inadequacies: a Look at the Two Separation Barrier Cases" 38 Isr. L. Rev. 230, 243 (2005)).  Even if the military commander acted in a manner that conflicted the law of belligerent occupation at the time he agreed to the establishment of this or that settlement – and that issue is not before us, and we shall express no opinion on it – that does not release him from his duty according to the law of belligerent occupation itself, to preserve the lives, safety, and dignity of every one of the Israeli settlers.  The ensuring of the safety of Israelis present in the area is cast upon the shoulders of the military commander (compare §3 of The Fourth Geneva Convention).  Professor Kretzmer discussed this:

 

“[A] theory that posits that the fact that civilians are living in an illegal settlement should prevent a party to the conflict from taking any measures to protect them would seem to contradict fundamental notions of international humanitarian law. After all, the measures may be needed to protect civilians (rather than the settlements in which they live) against a serious violation of IHL”   (Kretzmer, at p. 93).

 

It is also to be noted that the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed in Washington D.C. between the State of Israel and the PLO on 28 September 1995, provided that the question of the Israeli settlements in the area will be discussed in the negotiations over the final status (see §17(a) and §31(5)).  It was also provided in that agreement that "Israel shall . . . carry the responsibility . . . for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order" (§12(1)).  This arrangement applies to all the Israeli settlements in the area.  This agreement was granted legal status in the area (see Decree Regarding Implementation of the Interim Agreement (Judea and Samaria)(No. 7), 5756-1995)(see The Gaza Coast Regional Council Case, paragraph 10 of the opinion of the Court, as well as Y. Zinger "The Israeli-Palestinian Interim Agreement Regarding Autonomy Arrangements in the West Bank and Gaza Strip – Some Legal Aspects", 27 Mishpatim 605 (1997) [Hebrew]).

 

21.       The second reason which justifies our conclusion that the military commander is authorized to order the construction of a separation fence intended to protect the lives and ensure the security of the Israeli settlers in the area is this: the Israelis living in the area are Israeli citizens.  The State of Israel has a duty to defend their lives, safety, and well being.  Indeed, the constitutional rights which our Basic Laws and our common law grant to every person in Israel are also granted to Israelis who are located in territory under belligerent occupation which is under Israeli  control.  We discussed that point in The Gaza Coast Regional Council Case:

 

"In our opinion, the Basic Laws grant rights to every Israeli settler in the area to be evacuated.  This jurisdiction is personal.  It is derived from the State of Israel's control over the area to be evacuated.  It is the fruit of a view by which the state's Basic Laws regarding human rights apply to Israelis found outside the state, who are in an area under its control by way of belligerent occupation" (Id., paragraph 80 of the opinion of the Court).

In sum, Israelis present in the area have the rights to life, dignity and honor, property, privacy, and the rest of the rights which anyone present in Israel enjoys (see The Hess Case, at p. 461).  Converse to this right of theirs stands the state's duty to refrain from impinging upon these rights, and to protect them.  In one case, an Israeli wished to enter the area.  The military commander refused the request, reasoning his refusal by the danger to the Israeli from being present in the place he wished to enter.  The Israeli responded that he will "take the risk" upon himself.  We rejected this approach, stating:

"Israel has the duty to protect her citizens.  She does not satisfy her duty merely since citizens are willing to 'take the risk upon themselves'.  This 'taking of risk' does not add or detract from the issue, as the state remains obligated to the well being of its citizens, and must do everything possible to return them safely to the country" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 406.  See also HCJ 9293/01 Barakeh, M.K. v. The Minister of Defense, 56(2) P.D. 509, 515; The Gaza Coast Regional Council Case (yet unpublished, paragraph 111 of the opinion of the Court)).

Thus it is, generally speaking.  Thus it certainly is, when many of the Israelis living in the area do so with the encouragement and blessing of the government of Israel.

22.       Of course, the scope of the human right of the Israeli living in the area, and the level of protection of the right, are different from the scope of the human right of an Israeli living in Israel and the level of protection of that right.  At the foundation of this differentiation lies the fact that the area is not part of the State of Israel.  Israeli law does not apply in the area.  He who lives in the area lives under the regime of belligerent occupation.  Such a regime is inherently temporary (see HCJ 351/80 The Jerusalem District Electric Company v. The Minister of Energy and Infrastructure, 35(2) P.D. 673, 690; The Jami'at Ascan Case, at p. 802; The Beit Sourik Case, paragraph 27; The Gaza Coast Regional Council Case, paragraph 8 of the opinion of the Court)).  The rights granted to Israelis living in the area came to them from the military commander. They have no more than what he has - Nemo dat quod non habet.  Therefore, in determining the substance of the rights of Israelis living in the area, one must take the character of the area and the powers of the military commander into account.  This Court discussed that point in The Gaza Coast Regional Council Case, as it examined the impingement of the human rights of the Israelis evacuated from the Gaza Strip:

"In determining the substance of the impingement and the rate of compensation, one must take into consideration the fact that the rights impinged upon are the rights of Israelis in territory under belligerent occupation.  The temporariness of the belligerent occupation affects the substance of the right impinged upon, and thus also, automatically, the compensation for the impingement (Id., paragraph 126 of the opinion of the Court).

While discussing the property right of Israelis evacuated from the Gaza Strip, the Court stated:

"This property right is limited in scope . . . most Israelis do not have ownership of the land on which they built their houses and businesses in the territory to be evacuated.  They acquired their rights from the military commander, or from persons acting on his behalf.  Neither the military commander nor those acting on his behalf are owners of the property, and they cannot transfer rights better than those they have.  To the extent that the Israelis built their homes and assets on land which is not private ('state land'), that land is not owned by the military commander.  His authority is defined in regulation 55 of The Hague Regulations. . . . The State of Israel acts . . . as the administrator of the state property and as usufructuary of it . . . " (Id., paragraph 127 of the opinion of the Court).

The scope of this right and the level of protection of it are not put forth for decision before us.  The Israelis whose lives and security the separation fence is intended to protect are not petitioners before us.  Their security, lives, rights of property, movement, and freedom of occupation, as well as the other rights recognized in Israeli law, are taken into consideration in the petition before us in the framework of the military commander's discretion regarding the need for a separation fence, and regarding its route (see The Zlum Case, at p. 532).

23.       Israel's duty to defend its citizens and residents, even if they are in the area, is anchored in internal Israeli law.  The legality of the implementation of this duty is anchored in public international law, as discussed, in the provisions of regulation 43 of The Hague Regulations.  In The Beit Sourik Case, this Court did not anchor the military commander's authority to erect the separation fence upon the law of self defense.  The Advisory Opinion of the International Court of Justice at the Hague determined that the authority to erect the fence is not to be based upon the law of self defense.  The reason for this is that §51 of the Charter of the United Nations recognizes the natural right of self defense, when one state militarily attacks another state.  Since Israel is not claiming that the source of the attack upon her is a foreign state, there is no application of this provision regarding the erection of the wall (paragraph 138 of the Advisory Opinion of the International Court of Justice at the Hague).  Nor does the right of a state to self defense against international terrorism authorize Israel to employ the law of self defense against terrorism coming from the area, as such terrorism is not international, rather originates in territory controlled by Israel by belligerent occupation.  This approach of the International Court of Justice at the Hague is not indubitable (see R. Higgins Problems and Process, International Law and How We Use It 253 (1994); F. Frank "Terrorism and the Right of Self-Defense" 95 A.J.I.L.  839 (2001); J. J. Paust "Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond" 35 Cornell Int'l L.J. 533 (2002); A. C. Arend and R. J. Beck International Law and the Use of Force - Beyond the UN Charter Paradigm (2000)).  It stirred criticism both from the dissenting judge, Judge Buergenthal (paragraph 6) and in the separate opinion of Judge Higgins (paragraphs 33 and 34).  Conflicting opinions have been voiced in legal literature.  There are those who support the ICJ's conclusion regarding self defense (see I. Scobbie "Words My Mother Never Taught Me – 'In Defense of the International Court'" 99 A.J.I.L. 76 (2005). There are those who criticize the ICJ’s views on self-defense (see M. Pomerance "The ICJ's Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial" 99 A.J.I.L. 26 (2005); Murphy "Self-Defense and the Israeli Wall Advisory Opinion: An Ipse, Dixit from the ICJ" 99 I.J.I.L. 62 (2005); Wedgwood "The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self Defence" 99 A.J.I.L. 52 (2005); Gross "Combating Terrorism: Self-Defense, Does it Include Security Barrier – Depends Who You Ask" 38 Corn. Int. L.J. 569 (2005). We find this approach of the International Court of Justice hard to come to terms with.  It is not called for by the language of §51 of the Charter of the United Nations (see the difference between the English and French versions, S. Rosenne 291 General Course on Public International Law 149 (2001)).  It is doubtful whether it fits the needs of democracy in its struggle against terrorism.  From the point of view of a state's right to self defense, what difference does it make if a terrorist attack against it comes from another country or from territory external to it which is under belligerent occupation?  And what shall be the status of international terrorism which penetrates into territory under belligerent occupation, while being launched from that territory by international terrorism's local agents?  As mentioned, we have no need to thoroughly examine this issue, as we have found that regulation 43 of The Hague Regulations authorizes the military commander to take all necessary action to preserve security.  The acts which self defense permits are surely included within such action.  We shall, therefore, leave the examination of self defense for a future opportunity.

            3.         The Military Commander's Considerations in Erecting the Separation Fence and the Balancing Between Them

24.       What are the considerations which the military commander must weigh in determining the route of the fence?  The first consideration recognized by international law is the security-military consideration, by force of which the military commander is permitted to weigh considerations of the security of the state, the security of the army, and the personal security of all present in the area.  Indeed, converse to the human rights of the Israelis stands the military commander's duty and authority to defend them.  The second consideration is, in the context of the petition before us, the good of the local Arab population.  The human dignity of every member of the population, including the local population, must be defended by the military commander.  Indeed, the basic rule is that every member of the local population is entitled to recognition:

"His human dignity, the sanctity of his life, and his status as a free person . . .  one must not take his life or his dignity as a person, and one must defend his dignity as a person . . . the military commander's duty according to the basic rule is twofold: first, he must refrain from acts which hurt the local residents.  That is his 'negative' duty; second, he must take the action necessary to ensure that the local residents will not be hurt.  That is his 'positive' duty" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 394).

The human rights of the local residents include the whole gamut of human rights.  My colleague, Justice A. Procaccia, discussed this point, noting:

"In the framework of his responsibility for the well being of the residents of the area, the commander must also work diligently to provide proper defense to the constitutional human rights of the local residents, subject to the limitations posed by the conditions and factual circumstances on the ground . . . included in these protected constitutional rights are freedom of movement, religion, and worship, and property rights.  The commander of the area must use his authority to preserve the public safety and order in the area, while protecting human rights" (The Hess Case, at p. 461). 

 

25.       Human rights, to which the protected residents in the area are entitled, are not absolute.  As any human rights, they are relative.  They can be restricted (The Limitation of Human Rights in Comparative Constitutional Law (de Mestral ed. 1986); Kiss "Permissible Limitations on Rights" The International Bill of Rights (L. Henkin ed. 1981) 290).  Some of the limitations stem from the need to take rights of other people into account.  Some of the limitations stem from the public interest (see The Hess Case, at p. 461; The Bethlehem Municipality Case, paragraphs 14 and 15).  Thus, for example, the freedom of movement is not an absolute freedom.  It can be restricted due to national security needs, public order, or the rights and freedoms of others (see § 12(3) of the International Covenant on Civil and Political Rights, 1966).  The person responsible for the public interest in the area is the military commander.

26.       What is the legal source from which the protected persons in the area derive their rights?  It is unanimously agreed that international humanitarian law is the central source of these rights.  This law is established, inter alia, by The Hague Regulations.  Regulation 46 of The Hague Regulations provides as follows:

"Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."

   

This humanitarian law is also established in The Fourth Geneva Convention, which protects the rights of "protected persons".  The central provision is established in §27:

"Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. . . . the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war."

These provisions have been quoted at times in the judgments of the Supreme Court (see HCJ 256/72 The Jerusalem District Electric Company v. The Minister of Defense, 27(1) P.D. 124; HCJ 302/72 Abu Hilu v. The Government of Israel, 27(2) P.D. 169; HCJ 574/82 Al Nawari v. The Minister of Defense, 39(3) P.D. 449; HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 27(2) 349; HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(3) P.D. 385; The Beit Sourik Case).

27.       Can the rights of the protected residents be anchored in the international conventions on human rights, the central of which is the International Covenant on Civil and Political Rights, 1966, to which Israel is party (see E. Benvenisti The International Law of Occupation (1993); Dennis "Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation" 99 A.J.I.L. 119 (2005))?  The International Court of Justice at the Hague determined, in its Advisory Opinion, that these conventions apply in an area under belligerent occupation.  When this question arose in the past in the Supreme Court, it was left open, and the Court was willing, without deciding the matter, to rely upon the international conventions.  In one case, President M. Shamgar relied upon these international sources, stating:

"I enter not, at this point, into the question whether the obligations arising from the various agreements and declarations to be referred to, are legally binding . . . for the concrete purposes before us now, I shall assume that one can view the content of these legal documents as relevant" (HCJ 13/86 Shahin v. The Commander of IDF Forces in the Judea and Samaria Area, 41(1) P.D. 197, 210).

 

In another case, my colleague Justice D. Beinisch stated:

 

"We need not decide whether, and to what extent, the international conventions on human rights apply in the Judea and Samaria area . . .  Suffice it to say that in the framework of the military commander's duty to exercise his discretion reasonably, he must also take into account the interests and rights of the local population, including the need to minimize the impingement of its freedom of movement; and that, respondents do not contest" (The Bethlehem Municipality Case (yet unpublished, paragraph 15)).

 

We shall adopt a similar approach.  Indeed, we need not, in the framework of the petition before us, take a position regarding the force of the international conventions on human rights in the area.  Nor shall we examine the interrelationship between international humanitarian law and international law on human rights (on this question see T. Meron Human Rights and Humanitarian Norms as Customary Law (1989); Human Rights and Humanitarian Law: The Quest for Universality (D. Warner ed. 1997); J. Frowein "The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation" 28 Isr. Y. H. R. 1 (1998); D. Schindler "Human Rights and Humanitarian Law: Interrelationship of the Laws" 31 Am. U. L. Rev. 935 (1982)).  However, we shall assume – without deciding the matter – that the international conventions on human rights apply in the area.

 

28.       Indeed, in exercising his authority pursuant to the law of belligerent occupation, the military commander must "ensure the public order and safety."  In this framework, he must consider, on the one hand, considerations of state security, security of the army, and the personal security of all who are present in the area.  On the other hand, he must consider the human rights of the local Arab population.  Indeed, "the law of war usually creates a delicate balance between two magnetic poles.  Military necessity on the one hand, and humanitarian considerations on the other (Y. Dinstein "The Authority to Legislate in the Administered Territories" 2 Iyunei Mishpat 505, 509 (5732-5733) [Hebrew]).  I discussed this point in one case, noting:

 

"The Hague Regulations revolve around two main axes: one – ensuring the legitimate security interests of the occupier in territory held under belligerent occupation; the other – ensuring the needs of the civilian population in the territory held under belligerent occupation" (The Jami'at Ascan Case, at p. 794).

 

My colleague Justice A. Procaccia similarly noted that The Hague Regulations authorize the military commander to provide for two needs:

 

"The first need is military, and the other is a civilian-humanitarian need.  The first concerns itself with providing for the safety of the military force holding the area, and the second – with responsibility for maintaining the well being of the residents.  On the latter subject, the military commander is charged not only with preservation of the order and safety of the residents, but also with defense of their rights, and especially the constitutional human rights granted them.  The concern for human rights stands at the center of the humanitarian considerations which the military commander must weigh" (The Hess Case, at p. 455).

 

29.       These considerations – security needs on the one hand and the needs of the local population on the other – conflict each other.  Thus is usually the case.  Thus certainly is the case regarding the construction of the fence.  What is the military commander to do in this situation?  The answer is that he must create a balance between the conflicting considerations.  Indeed, like in many other areas of law, the solution is not found in "all" or "nothing"; the solution is in locating the proper balance between the clashing considerations.  The solution is not to assign absolute weight to one of the considerations; the solution is to assign relative weights to the various considerations, while balancing between them at the point of decision (see HCJ 953/83 Levy v. The Commander of the Southern District of the Israeli Police, 38(2) P.D. 393).  "In performing his task of preserving order and safety, the commander of the area must ensure, therefore, the critical security interests on the one hand, and protect the interests of the civilian population in the area on the other . . . between these foci of responsibility, a proper balance is needed" (The Hess Case, at p. 456).  Indeed, "The law of belligerent occupation recognizes the military commander's power to preserve the security of the area and to thus defend the safety of his state and its citizens.  However, it makes exercise of this authority conditional upon the proper balance between them and the rights, needs, and interests of the local population" (The Beit Sourik Case, at p. 833).

 

4.         Proportionality

 

30.       How shall this balancing be performed?  The answer is that this balancing raises no problem unique to belligerent occupation.  It is a part of a general problem in law (see A. Barak A Judge in A Democratic Society 262 (2004)[Hebrew]).  The solution to it is universal.  It is found, inter alia, in general principles of law, including reasonableness and good faith.  One of these basic principles which balances between a proper and fitting goal and the means for realizing it is the principle of proportionality (see The Hess Case, at p. 461; The Bethlehem Municipality Case, paragraph 15; The Beit Sourik Case, at p. 836; The Gaza Coast Regional Council Case, paragraph 102 of the opinion of the Court).  This principle draws its strength from international law and from the fundamental principles of Israeli public law.  The principle of proportionality is based on three subtests which fill it with concrete content.  The first subtest calls for a fit between goal and means.  There must be a rational link between the means employed and the goal one is wishing to accomplish.  The second subtest determines that of the gamut of means which can be employed to accomplish the goal, one must employ the least harmful means.  The third subtest demands that the damage caused to the individual by the means employed must be of appropriate proportion to the benefit stemming from it.  Note that "at times there is more than one way to satisfy the proportionality demand.  In such situations, a zone of proportionality (similar to the zone of reasonableness) should be recognized.  Any means which the administrative body chooses from within the zone is proportional" (The Beit Sourik Case, at p. 840).

 

            5.         The Scope of Judicial Review

 

31.       In a long line of judgments, the Supreme Court has determined the standards for the scope of judicial review of decisions and acts of the military commander in territory held under belligerent occupation.  This judicial review is anchored in the status of the military commander as a public official, and in the jurisdiction of the High Court of Justice to issue orders to bodies fulfilling public functions by law (§15(3) of Basic Law: The Judiciary).  In determining the scope of judicial review, it was decided on the one hand that the Court does not substitute the discretion of the military commander with its own discretion.  "It is but obvious that the Court does not slip into the shoes of the deciding military official . . . in order to replace the commander's discretion with the discretion of the Court" (Shamgar P. in HCJ 1005/89 Aga v. The Commander of IDF Forces in the Gaza Strip Area, 44(1) P.D. 536, 539).  The Court does not examine the wisdom of the decision, rather its legality (see HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 393).  This is appropriate from the point of view of separation of powers.  On the other hand it was determined that the Court does not refrain from judicial review merely because the military commander acts outside of Israel, or because his actions have political and military ramifications.  When the decisions or acts of the military commander impinge upon human rights, they are justiceable.  The door of the Court is open.  The argument that the impingement upon human rights is due to security considerations does not rule out judicial review.  "Security considerations" or "military necessity" are not magic words (see HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56(6) P.D. 352, 375; HCJ 619/78 "Al Taliyeh" Weekly v. The Minister of Defense, 33(3) P.D. 505, 512; The Jami'at Ascan Case, at p. 809; HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16).  This is appropriate from the point of view of protection of human rights.

 

32.       It is between these two edges that the normative outline for the scope of judicial review is determined.  This outline examines whether the actions and decisions of the military commander uphold the law in the area.  When the action can be performed in a number of ways, the Court examines whether the act of the military commander is an act that a reasonable military commander could have adopted.  When the decision of the military commander relies upon military knowledge, the Court grants special weight to the military expertise of the commander of the area, upon whom the responsibility for the security of the area is cast (see HCJ 390/79 Duikat v. The Government of Israel, 34(1) P.D. 1, 25; HCJ 258/79 Amira v. The Minister of Defense, 34(1) P.D. 90, 92; The Beit Sourik Case, at p. 844).  When the decision of the military commander – based upon his military expertise – impinges upon human rights, the proportionality of the impingement will be determined according to the customary tests of proportionality.  In one case I discussed this point, noting:

 

"We assume that the military action performed in Rafiah is necessary from a military standpoint.  The question before us is whether the military action withstands the national and international standards which determine the legality of that action.  The mere fact that the action is called for on the military level does not mean that it is lawful on the legal level.  Indeed, we do not substitute the discretion of the military commander, regarding military considerations.  That is his expertise.  We examine their results on the humanitarian law level.  That is our expertise" (The Physicians for Human Rights Case, at p. 393).    

 

 

These standards – by which this Court has acted for a very long time – apply also regarding the scope of judicial review of the separation fence route at Alfei Menashe.  So we said in The Beit Sourik Case:

 

"The military commander is the expert regarding the military quality of the separation fence route.  We are experts regarding its humanitarian aspects.  The military commander determines where, on hill and plain, the separation fence will be erected.  That is his expertise.  We examine whether this route's harm to the local residents is proportional.  That is our expertise (Id., at p. 846).

 

C. The Beit Sourik Case

 

33.       In The Beit Sourik Case, the legality of the construction of the separation fence west of Jerusalem was discussed.  The length of that separation fence was approximately 40 kilometers.  It was part of phase C of the separation fence (upon which the government decided on October 1 2003).  Most of it was built east of the Green Line.  It includes, in its "Israeli" part, a number of Israeli settlements which were built in the Judea and Samaria area, near the Green Line.  The Supreme Court (President A. Barak, Vice President E. Mazza and Justice M. Cheshin) first discussed whether the military commander is authorized to order the construction of the fence, in light of petitioners' argument that a political consideration, and not a military one, lies at the foundation of its construction.  The Court held that the military commander's authority is limited to military-security considerations.  He is not authorized to take political reasons into account.  The Supreme Court examined the data before it and determined that "according to the factual basis before us, the reason for erecting the fence is a security reason" (Id., at p. 830).  On this issue, the Court relied upon government decisions which stressed its character as a security fence; upon affidavits of the commander of the area, in which the military considerations at the heart of the choice of route were detailed; upon the way the government officials went about things, changing (more than once) the route during the hearings, showing openness to suggestions which were raised, and agreeing (more than once) to move the fence route closer to the Green Line.  Summarizing this issue, the Supreme Court stated:

 

"We have no reason to assume that the objective is political rather than security-based. Indeed, petitioners did not carry the burden and did not persuade us that the considerations behind the construction of the separation fence are political rather than security-based. Similarly, petitioners did not carry their burden, and did not persuade us that the considerations of the Commander of the IDF Forces in the area, in choosing the route of the separation fence, are not military considerations, and that he has not acted to fulfill them in good faith, according to his best military understanding" (Id., at p. 831).

 

34.       The second question discussed by the Supreme Court regarded the legality of the orders issued in order to take possession of the land upon which the fence was built.  The various seizure orders were examined on their merits.  The Court found that there had been no defect in the process of issuing the orders or in the process of allowing the submission of appeals.  The Court determined that the military commander is authorized – according to the international law which applies in the area – to take possession of land, needed for military purposes, subject to his duty to pay compensation.  The Court relied upon regulations 23(g) and 52 of The Hague Regulations, and upon §53 of The Fourth Geneva Convention.  The Court held that "the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers" (Id., at p. 832).

 

35.       The third question discussed by the Court was the legality of the route chosen for the construction of the separation fence.  The Court discussed the need to achieve a balance between the security-military needs and the rights of the protected residents.  Regarding the security-military needs, the Court stated that it assigns special weight to the military opinion of the military commander, with whom the responsibility for security lies.  Regarding the rights of the protected persons, the Court relied upon the humanitarian law set out in The Hague Regulations and The Fourth Geneva Convention.  In the discussion of the appropriate balance, a considerable part of the judgment was devoted to the question of proportionality.  A comparison was made between the intensity of harm to security (without the security fence) and the harm to the local residents (caused by the security fence).  The Court held that the test for proportionality is an objective one. "This is a legal question, the expertise for which belongs to the Court" (Id., at p. 841).  Against this background, the Court examined the five segments of the fence (according to the five seizure orders).  Each fence segment was examined separately, as the separation fence's "proportionality varies according to local conditions" (Id., at p. 846).  Also examined, however, was the compound harm caused to the lives of the local population by all the fence segments together.  Some of the fence segments were found to be proportionate.  Others were found to be disproportionate.  The basis of the determination of lack of proportionality was the third subtest of proportionality.  The question posed by this subtest is whether "the severity of the injury to local inhabitants, by the construction of the separation fence along the route determined by the military commander, stand[s] in reasonable (proper) proportion to the security benefit from the construction of the fence along that route" (Id., at p. 850).  According to that subtest, it was determined, regarding one of the fence segments, that the separation fence "undermines the delicate balance between the duty of the military commander to preserve security and his duty to provide for the needs of the local inhabitants.  This approach is based on the fact that the route which the military commander established for the security fence – which separates the local inhabitants from their agricultural lands – injures the local inhabitants in a severe and acute way, while violating their rights under international humanitarian law" (Id., at p. 850).  One fence segment was held to be disproportionate, since "the farmers' way of life is impinged upon most severely. The regime of licensing and gates, as set out by the military commander, does not solve this problem" (Id., at p. 854).  A third fence segment was found to be disproportionate, as it created "a veritable chokehold, which will severely stifle daily life" (Id., at p. 855).  Regarding all fence segments found to be disproportionate, the Court stated that "[t]he injury caused by the separation fence is not restricted to the lands of the residents and to their access to these lands.  The injury is of far wider a scope. It strikes across the fabric of life of the entire population" (Id., at p. 861).  The result was that those parts of the fence found to be disproportionate were annulled. 

 

36.       After the judgment in The Beit Sourik Case was handed down, the issue went back to the military commander.  He reexamined the route which had been under discussion in that case.  He made alterations to it, which, in his opinion, implement the content of the judgment.  Eight petitions against the legality of the new route are pending.  In seven of them, the Arab residents are petitioning against the new route (HCJ 5683/04 The Beit Sira Village Council et al. v. The Government of Israel; HCJ 426/05 The Bidu Village Council v. The Government of Israel; HCJ 2223/05 Abd el Wahab Kandil et al. v. The Military Commander of the Judea and Samaria Area; HCJ 3758/04 Agraib v. The Government of Israel; HCJ 8264/05 Hadur et al. v. The Military Commander of the Judea and Samaria Area; HCJ 8265/05 Saker Ibrahim Abdalla v. The Military Commander of the Judea and Samaria Area; HCJ 8266/05 Jamal v. The Military Commander).  In one of the petitions, an Israeli settlement petitions against the new route (HCJ 1767/05 The Har Adar Local Council v. The Ministry of Defense).  These petitions are yet pending, as we have been asked to examine – in an expanded panel - the Advisory Opinion of the International Court of Justice at the Hague, and its effect upon the normative outline as set out in The Beit Sourik Case.  It is to these questions which we now turn.

 

D. The Advisory Opinion of the International Court of Justice at the Hague

 

            1.         The Request for an Advisory Opinion and the Proceedings Before the International Court of Justice

 

37.       The General Assembly of the United Nations decided (on December 8 2003) to request an Advisory Opinion of the International Court of Justice at the Hague, regarding the legal consequences arising from the construction of the wall (as the separation fence is called in the decision of the General Assembly).  The language of the decision is as follows:

 

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?” (Resolution ES-10/14).

 

 When it received the request for an Advisory opinion, the International Court of Justice notified all states entitled to appear before the Court that they may relay information to it regarding all aspects of the question presented before it.  In this framework, the Secretary-General of the UN submitted a dossier containing documents likely to throw light upon the question before the ICJ (on January 19 2004).  Written statements were filed to the ICJ by a number of states, including Israel.  The ICJ heard oral arguments.  Israel did not request to make oral arguments.  Two questions stood before the ICJ.  The first question was whether it has jurisdiction to give the requested opinion, and if the answer to that question is positive, are there reasons not to exercise that jurisdiction.  The second question was the question posed to it by the General Assembly, on the merits.  The Advisory Opinion was handed down on July 9 2004.

 

38.       The main factual basis upon which the ICJ based its opinion, comes from the dossier filed with the ICJ by the Secretary-General of the UN.  The dossier contains the resolution of the General Assembly requesting the ICJ's Advisory Opinion, as well as the background of the events that led to its adoption by the General Assembly.  The dossier also contains data likely to throw light upon the question posed to the ICJ.  A central source of the information on the separation fence is the report of the Secretary-General of the UN (of November 24 2003; hereinafter - "The Secretary-General's Report"), prepared prior to the UN General Assembly decision, and a written statement updating his report (of January 19 2004; hereinafter - "the Secretary-General’s written statement").  The Secretary-General's Report opens with a survey of government decisions regarding the "barrier" (as the Secretary-General calls it).  It describes the route of the barrier. 

According to this description, approximately 975 km2 (which are 16.6%) of the West Bank, containing 237,000 Palestinians, will end up between the Green Line and the barrier (220,000 of whom in East Jerusalem). When the entire route of the barrier is completed, an additional 160,000 Palestinians will be in isolated enclaves, with the barrier almost completely encircling communities and tracts of land.  The planned route contains 320,000 Israelis (178,000 in East Jerusalem).  As the report continues, the Secretary-General describes the format of the barrier.  He notes that out of 180 km of the barrier already constructed or being constructed, 8.5 km are concrete walls, which the Israeli army sees as "gunfire protection walls".  They are generally found where Palestinian population centers abut Israel, such as the towns of Qalqiliya and Tulkarm, and parts of Jerusalem. The report further describes the phases of construction of the barrier.  Phase A runs 123 km (from the north end to Elkana).  Much of Phase A construction deviates from the Green Line, and incorporates Israeli settlements. According to UN officials' estimations, approximately 56,000 Palestinians have been put into enclaves - encircled areas that open into the West Bank.  Approximately 5300 Palestinians are in "closed areas" between the barrier and the Green Line.  These people require permits or identity cards.  The enclaves include Qalqiliya (population 41,606) and, to its south, a cluster of three villages with about 7300 residents.  Phase B of the barrier is 45 km long, at the northern part of the Green Line to the Jordan Valley.  It does not incorporate any settlements and does not create Palestinian enclaves.  The Secretary-General 's report also describes the plan for the barrier in Jerusalem.  Further on in the report, the route of the barrier from Elkana to the Ofer Camp military base is described.  It includes two "depth barriers" that together create enclaves encompassing 29,000 acres and 72,000 Palestinians in 24 communities.  The route deviates up to 22 km from the Green Line.  It includes a number of large settlements, including about 52,000 settlers in the "Ariel salient".  The government decision does not explain the nature of the barrier around this area.  Last described is the southern part of the barrier, 115 km long, which cuts several kilometers into the West Bank, to encompass the Gush Etzion settlement bloc and the settlement of Efrat.  An enclave is created with around 17,000 Palestinians.  The construction of the fence in this area has not yet begun.

 

39.       The Secretary-General's report describes the way in which land is requisitioned to build the barrier, including the possibility of petitioning the High Court of Justice.  It is noted that the orders expire on December 31 2005, but that they are renewable.  The report also describes the orders closing the area between the Green Line and the barrier ("Closed Areas"), pursuant to which there is no entrance into the closed area, and no one is allowed to be present in it.  This order will affect 73 km2 and 5300 Palestinians, living in 15 communities.  The order introduces a new system of residency status in the closed area.  Only upon issuance of a permit or ID card by IDF will residents of the closed area be able to remain in it.  Israeli citizens and residents can remain in the closed area and move freely to the closed area, from it, and within it, with no need for a permit.  At the date the report was written, most residents of the closed area had received permits for one month, three months, or six months.  All those that have a permit enter and exit through gates which open for 15 minutes, three times a day.  It is mentioned that if the Palestinian residents are denied regular access to their land, jobs and services, there is a concern that they will leave the area.

 

40.       The final part of the Secretary-General's report examines the humanitarian and socio-economic impact of the barrier.  According to the report, the barrier appears likely to deepen the fragmentation of the West Bank, which began with the closure system imposed after the outbreak of hostilities in September/October 2000.  The barrier dramatically increased the damage to the communities resulting from the closure system.  According to a report of the Palestinian Central Bureau of Statistics, the barrier has separated 30 localities from their health services, 22 localities from their schools, 8 localities from their primary water sources, and 3 localities from the electricity network.  The report states that the Palestinians living in the enclaves are facing some of the harshest consequences of the barrier’s construction and route. Thus, for example, the city of Qalqiliya is encircled by the barrier, with entrance and exit possible from only one gate.  Thus the town is isolated from almost all its agricultural land. The villages surrounding it are separated from their markets and services.  Thus, for example, at the UN hospital in Qalqiliya, a 40% drop in caseloads has been noted.  The report further notes that completed barrier sections have had a serious impact on agriculture.  Tens of thousands of trees have been uprooted.  Farmers, separated from their land, and often also from their water sources, must cross the barrier via the controlled gates. Recent harvests have perished due to the irregular opening and closing times of the gates.  According to the Secretary-General's report, the barrier has severely restricted movement and access for thousands of urban Palestinians in Jerusalem.  The wall at Abu Dis has already affected the access to jobs and essential social services, notably schools and hospitals.  The north part of the barrier in Jerusalem has damaged long standing commercial and social connections of tens of thousands of people.  This phenomenon will be repeated along much of the route through Jerusalem.  The report states that some Jerusalem identity card holders are outside the barrier, and some of West Bank identity card holders are within the barrier.  This raises concerns about the future status of residency for Palestinians in occupied East Jerusalem under current Israeli laws. The report states that if Israel persists in construction of the barrier, some of its economic and humanitarian impact can be limited if Israel allows regular movement through a series of 41 gates to Palestinians living east of the barrier who need to access their farms, jobs, or services in the closed area.  Such access cannot compensate for incomes lost from the barrier's destruction of property, land, and businesses.  This raises concerns over violations of the rights of the Palestinians to work, health, education, and an adequate standard of living.  At the end of the report appears a short summary of the positions of the government of Israel and of the PLO. 

 

41.       The Secretary-General's report was prepared before the General Assembly resolution.  After that resolution, the Secretary-General added a written statement updating his report (on January 29 2004).  In the Secretary-General's written statement, the Secretary-General repeated some of the data from his first report, and gave an update regarding the developments in the three months which had passed since it was filed.  The statement reported that at the time of its writing, 190 km of the barrier had been completed, and two main crossing terminals had been built.  The Secretary-General's written statement surveys the various segments of the barrier, according to the phase of construction to which they belong.  Phase A, according to the updated data, 150 km long, includes a double barrier around the Baka Sharqiya enclave.  The written statement notes, regarding this enclave, that according to the original route completed in July 2003, the barrier was erected east of the Green Line, such that the enclave included about 6700 Palestinians.  At the end of November 2003, Israel began to build a new barrier along the Green Line, west of the enclave.  Part of the new barrier passes through the town of Nazlat Issa, where a wall 800 m long has been built.  The United Nations has been informed that the east side of the barrier will eventually be pulled down.  The Secretary-General's written statement further states than south of Tulkarm, on the Green Line, a major crossing terminal is being built, modeled after the Karni crossing in the Gaza Strip.  The written statement notes that Israel has removed the permanent checkpoint at the east entrance to Qalqiliya.  In addition, in mid January 2004, construction started on underpasses connecting Qalqiliya to Habla, under the access road to Alfei Menashe.  Regarding phase B, the written statement mentions the completion of barrier segments running along the Green Line or adjacent to it, from the Gilboa Mountains to the Al Mutilla valley.  In January 2004, construction began on an additional segment, in the direction of the Jordanian border.  A third segment is planned to run south and away from the Green Line, toward the Taysir village.  The written statement notes that Israeli officials informed the UN that this segment may not be completed. The written statement further updates regarding construction of the crossing terminal at Jalameh, north of Jenin, which is to serve as the primary point of entry between Israel and the northern West Bank. The written statement further describes phase C of the barrier, including its three sub-phases (phase C1 – from Elkana to the Ofer Camp military base; phase C2 – the Ariel salient; and phase C3 – "the depth barriers").  Construction has begun of 4 km of phase C1, mostly near the Green Line, out of 40 planned kilometers.  The remainder of the planned route deviates from the Green Line, reaching up to 7 km inside the West Bank.  Phase C3 includes two planned "depth barriers", up to 9 km inside the West Bank – one east of the Ben Gurion airport and the other along the planned highway 45.  It was noted that the exact components of the "depth barriers" had not yet been determined, but that if they are constructed, they will create two enclaves containing 72,000 Palestinians living in 24 communities.  The UN was informed that this segment will to be the last to be built.

 

42.       A considerable part of the Secretary-General's written statement is devoted to the barrier in East Jerusalem.  The statement mentions that construction of the barrier in the southeast of the city had begun at the end of November 2003, along the municipal boundary determined by Israel.  The barrier runs 6 km beyond the Green Line, from El Ezaria to Har Homa.  In residential areas, like El Ezaria, the wall is built to a height of 9 m.  This segment cuts El Ezaria off from Jerusalem, and splits the village of Abu Dis into two.  At least 35,000 people will live east of the barrier along this segment, which has no gates.  The entrance into Jerusalem by those with Jerusalem identity cards will be allowed via a checkpoint beneath the eastern slope of the Mount of Olives.  Another concrete wall has been constructed south of Abu Dis.  The Secretary-General's written statement also spoke of a number of roads which are planned or being constructed adjacent to the barrier around Jerusalem, which will result, inter alia, in the separation of Palestinian traffic from Israeli traffic.  The written statement concludes with a description of the obstacle planned in the north of Jerusalem, which will separate the Al-Ram village from Jerusalem.  The UN was informed that changes in the route of highway 45 in this area are being considered.  Finally, the written statement noted that the government of Israel was continuing to erect the barrier along the route approved by the cabinet (on October 1 2003).  Moreover, noted the written statement, additional components, such as crossing terminals, roads, underpasses, and gates were being constructed. 

 

43.       In addition to the two reports of the Secretary-General, the dossier included two reports by special rapporteurs, appointed by the Commission on Human Rights, which were filed prior to the General Assembly decision.  One report (of September 8 2003) discussed the question of human rights violations in the occupied Arab territories, including Palestine.  Its author is Mr. John Dugard (hereinafter – "the Dugard report").  The second report (of October 31 2003) discusses "the right to food".  Its author is Jean Ziegler (hereinafter – "the Ziegler report").  We shall briefly discuss each of the two reports. 

 

44.       The Dugard report opens and closes with the finding that the fact must be faced, that what we are presently witnessing in the West Bank is a visible and clear act of territorial annexation under the guise of security.  The report describes the process of building the wall.  It points out that Palestinians between the wall and the Green Line will effectively be cut off from their land and workplaces, schools, health clinics, and other social services.  As a result, many Palestinians are leaving their homes and moving into the Palestinian territory beyond the wall.  There is a real concern of the creation of a new generation of refugees or internally displaced persons.  In the opinion of the rapporteur, the construction of the wall is nothing other than de facto annexation of territory.  The construction of the wall should be seen in the context of the building of settlements and the annexation of East Jerusalem.  Settlements in East Jerusalem and the West Bank are the principal beneficiaries of the wall, and approximately half of the 400,000 settler population will be incorporated on the Israeli side of the wall.  This data, along with the high cost of the wall, confirm the permanent nature of the wall.  Therefore, beyond the fact that the wall violates Palestinians' freedom of movement, restricts their access to education and health facilities, and results in the unlawful taking of Palestinian property, the wall also violates two of the most fundamental principles of international law: the prohibition on the forcible acquisition of territory, and the right to self determination.  The construction of the wall creates facts on the ground.  Despite the refrain from use of the term, the wall is annexation for all intents and purposes.  Thus the prohibition against forcible acquisition of territory – a prohibition mentioned in many international conventions, including the UN Charter - is violated.  This prohibition applies irrespective of whether the territory is acquired as a result of an act of aggression or in self-defense.  The building of the wall violates the Palestinians' right to self determination.  The realization of the right to self determination requires territorial sovereignty.  The construction of the wall substantially reduces the already small territory within which the Palestinians can exercise their right to self determination.  Israel responded to the Dugard report (on April 2 2004).

 

45.       Ziegler calls the security fence an "apartheid fence".  The building of the wall constitutes a violation of the obligation to respect the Palestinians' right to food, since it cuts the Palestinians off from their agricultural land, water wells, and other means of subsistence.  The report mentions that the fence route deviates considerably from the Green Line, and is a de facto annexation of territory on Israel's part.  The report presents data from the "B'tselem" organization, according to which 72,200 Palestinians in 36 communities will be cut off from their lands.  128,500 people in 19 communities will be put in enclaves and almost completely imprisoned by the winding route of the wall, including 40,000 residents of Qalqiliya.  11,700 people in 13 communities will be trapped in military closed areas between the wall and the Green Line, cut off from the Palestinian areas, but forbidden from entering Israel.  As a result of the construction of the wall, Israel will effectively annex most of the west aquifer system which provides 51% of the West Bank water resources.  As a result of their detachment from means of existence, many residents will be forced to leave their homes.  According to the estimate, between 6000 and 8000 residents have already left the area of Qalqiliya.  The report refers to the government's position that residents will be allowed to appeal the expropriation of lands.  However, the writer notes that all appeals made to the military Appeals Committee at the time of writing have been rejected, although the area expropriated was reduced in some of the cases.  In any case, the report adds, the speed at which the wall is being built (work continues 24 hours a day) makes it difficult to allow for proper judicial process.  The rapporteur concludes with a finding that if the wall continues to be built as planned, it will bite off almost half of the area remaining for the future Palestinian State.  Thus, the possibility of establishing a viable Palestinian state will be eliminated, and the Palestinians right to food will be denied.  Israel responded to the Zeigler report (on November 26 2003).

 

            2.         The ICJ's Jurisdiction and Discretion

 

46.       The International Court of Justice held, in the first part of its opinion, that it has jurisdiction to give the requested opinion, and that that jurisdiction is a discretionary power.  The ICJ further held that it sees no compelling reason for it not to give the opinion.  In this context, the opinion held that the ICJ has sufficient information and evidence to enable it to give the requested opinion.  This information is from the dossier submitted to the ICJ by the UN Secretary-General, written statements submitted to the ICJ by a number of states, Israel's written statement which, although limited to the question of jurisdiction and judicial propriety, included observations on other matters, including Israel's security concerns.  Additional documents issued by Israel on that issue, which are in the public domain, also stood before the ICJ.  This part of the Advisory Opinion was given by a majority of ICJ judges, with Judge Buergenthal dissenting.  According to the opinion of Judge Buergenthal, the ICJ should have exercised its discretion and declined to render the requested Advisory Opinion, since it did not have before it the requisite factual bases for its sweeping findings.  Judge Higgins and Judge Kooijmans noted in separate opinions, that they agree with the ICJ's opinion regarding exercise of jurisdiction with considerable hesitation.  Judge Higgins noted that she gave her vote in favor of the ICJ's finding that the building of the wall violates international law, since the wall undoubtedly has a significant negative impact upon portions of the population of the West Bank, without it being able to be excused on the grounds of military necessity.  On this issue, Israel did not explain to the ICJ why its legitimate security needs can  be met only by the route selected.  Judge Owada noted that the ICJ is lacking material explaining Israel's side of the picture, especially regarding the question why and how the wall, as it is actually planned and implemented, is necessary and appropriate. 

 

 

 

            3.         The Legality of the Fence in International Law

 

47.       The second part of the opinion is devoted to answering the question posed to the ICJ by the General Assembly.  The ICJ briefly described the historic background, beginning with the establishment of the British mandate at the end of the First World War and ending with the political agreements between Israel and the PLO in the 1990's.  The ICJ concluded this analysis with its conclusion that the territories between the Green Line and the eastern boundary of mandatory Palestine were occupied by Israel in 1967, and are held by her pursuant to customary international law, as an occupying power.  Following this introduction, the ICJ proceeded to analysis of the factual basis before it.  It referred, on this issue, to the Secretary-General's report and to his written statement.  At the conclusion of the analysis, the ICJ noted that 975 km2 (which are 16.6%) of the West Bank, containing 237,000 Palestinians, will lie between the Green Line and the wall.  If the full wall should be completed, an additional 160,000 Palestinians would live in almost completely encircled communities, described as enclavcs.  Nearly 320,000 Israeli settlers (178,000 of whom in East Jerusalem) would be living in the area between the Green Line and the wall.  It was further stated that the area between the Green Line and the wall had been declared as a closed area.  Residents of this area may no longer remain in it, nor may non-residents enter it, unless holding a permit or identity card issued by the Israeli authorities. Most residents have received permits for a limited period.  Israelis may remain in, or move freely to, from and within the Closed Area without a permit.  Access into and exit from the closed area are possible through access gates, which are open for short and infrequent periods. 

 

48.       Following the description of the factual basis, the ICJ proceeded to determining the principles of international law relevant to the examination of the legality of the actions taken by Israel.  The ICJ referred to §2(4) of the Charter of the United Nations, which prohibits use or threat of force.  The ICJ also referred to the principle of self determination.  The ICJ further determined that The Hague Regulations have become part of customary international law.  The Fourth Geneva Convention apply as well.  The ICJ further found that the international conventions on human rights also apply to the occupied Palestinian territory.  In this context, the ICJ held that the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the United Nations Convention on the Rights of the Child apply in the area. 

 

49.       Against the background of this normative outline, the ICJ proceeded to examine the question whether the building of the wall is in breach of rules and principles of international law.  The ICJ noted, in this context, the rule prohibiting acquisition of territory by force, the international recognition of the Palestinian people's right to self determination, and its position that the Israeli settlements in areas occupied in 1967 are illegal, as they are contrary to the terms of §49(6) of The Fourth Geneva Convention.  Against this background, the ICJ noted the factual findings presented before it, according to which most Israelis and most of the Israeli settlements are expected, when the wall is completed, to be on its "Israeli" side.  This fact, held the ICJ, raises concern of de facto annexation of the territory on the "Israeli" side of the wall, as well as concern of promoting forced transfer of Palestinians from the seamline area to the "Palestinian" side of the wall.  All these severely impinge upon the Palestinian's right to self determination, a right which Israel must respect.  Judge Higgins, in her separate opinion, criticized the ICJ's finding that the fence impedes upon the Palestinian's right to self determination.  Judge Kooijmans noted, in his separate opinion, that the ICJ would have done well to have left the question of self determination to the political process.

 

50.       At this point, the ICJ proceeded to examine a number of specific provisions of humanitarian law and of human rights law, which appear in international conventions.  In this analysis, the ICJ relied upon the Commission on Human Rights' two rapporteurs' reports.  On this issue, the ICJ held: first, that there is no justification for building the wall in regulation 23(g) of The Hague Regulations, as this regulation is included in the second part of the regulations, which does not apply; second, the building of the fence is contrary to the provisions of regulations 46 and 52 of The Hague Regulations, and of §53 of The Fourth Geneva Convention.  Third, the fence restricts the Palestinians' freedom of movement.  That restriction is aggravated by the fact that the gates where passage is permitted are few in number, and their opening hours are restricted and unpredictably applied.  Thus, for example, the city of Qalqiliya, with a population of 40,000, is encircled by the wall, and the residents can enter it or exit from it through one military checkpoint, which is open from 7am until 7pm.  Fourth, the building of the wall damages agricultural produce and many water wells, which are the principle means of subsistence for many Palestinians.  Fifth, the wall makes difficult many Palestinians' access to health, education, water, and electricity services, while effectively annexing most of the western aquifer system in the area.  The wall has caused many businesses to shut down.  Last, as a result of the building of the wall, many Palestinians will likely be forced to move from their present place of residence to another place of residence.  These repercussions, together with the establishment of Israeli settlements in the area, tend toward a change of the area's demographic composition.

 

51.       In light of the ICJ's holdings regarding the breach of international law resulting from the building of the wall, the ICJ examined whether there are legal sources which derogate from the application of that law or qualify its application.  The ICJ held that there are no such sources.  It was held that The Hague Regulations and The Fourth Geneva Convention do not qualify the prohibition of transfer of civilian population into the occupied territory.  Regarding the qualification in The Geneva Convention regarding military necessity, it was determined that this qualification may apply in periods in which there is no active combat, but the ICJ was not persuaded that such necessity exists in this case.  Nor did the ICJ find that any of the recognized qualifications in international human rights conventions apply.  Israel did not qualify her duties pursuant to these conventions in the relevant context, and the exemptions in them do not arise in these circumstances.  Nor was the ICJ persuaded that Israel's actions in building the wall were taken for the purposes of promoting the general welfare (as required by §4 of The International Covenant on Economic, Social and Cultural Rights).  Judge Kooijmans commented, in his separate opinion, that even if the wall was being built for the military purpose of defending the legitimate rights of the Israeli citizens, it would fail the test of proportionality. 

 

52.       The ICJ summed up this aspect of its opinion by saying:

 

“To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated regime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments” (paragraph 137 of the opinion).

 

This conclusion was criticized by the dissenting judge, Judge Buergenthal.  He noted that the ICJ's opinion failed to address any facts or evidence specifically rebutting Israel’s claim of military exigencies or requirements of national security. On this subject, the ICJ ignored Israel's position.  The ICJ determined that it was "not convinced" that the route of the wall was chosen for security reasons, without showing why it was not so convinced.  Therefore, according to Judge Buergenthal, the conclusions of the ICJ are not convincing.  Judge Owada also noted in his separate opinion that the ICJ did not have before it the material explaining the Israeli side of the picture regarding the security necessity of the fence.  Judge Owada wrote, that even if such material cannot prevent the conclusion that international humanitarian law has been breached, presentation of such material is important for fairness in the proceedings.

 

53.       The ICJ proceeded to examine the argument that justification for the building of the wall is to be found in Israel's right to self defence, as provided in §51 of the Charter of the United Nations.  It was determined that §51 recognizes the existence of an inherent right of self-defence in the case of armed attacks by other states. However, Israel does not claim that the attacks against it are imputable to a foreign state.  Even the Security Council's resolutions (no. 1368 and 1373 of 2001), which recognized certain aspects of war against terrorism as included in §51 of the charter, do not justify the construction of the wall, since Israel is arguing that the attack against it originates in territory in which it exercises control, and not in territory beyond its control, as was the case in those resolutions.  The ICJ found that §51 of the charter has no relevance in the case.  This approach of the ICJ spurred the criticism of a number of judges.  Dissenting Judge Buergenthal did not accept the ICJ's position that only when a state is attacked by another state, is it entitled to exercise its right to self defence.  In his opinion, the terrorist attacks upon Israel from the territory under belligerent occupation grant Israel the right to self defence.  Judge Higgins as well, in her separate opinion, distanced herself from the ICJ's position regarding self defence.  In her opinion, there is nothing in the text of §51 of the Charter of the United Nations which stipulates that self-defence is available only when an armed attack is made by a State. Judge Higgins also failed to understand the ICJ’s view that an occupying power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory – a territory which it has found not to have been annexed and is certainly ‘other than’ Israel. However, she did not vote against the ICJ's opinion on this issue, both since she was unconvinced that non-forcible measures (such as the building of a wall) fall within self-defence under Article 51 of the Charter, and since the building of the fence, even if it can be seen as an act of self-defence, would need to be justified as necessary and proportional. Those justifications, according to Judge Higgins, have not been explained. Judge Kooijmans noted in his separate opinion, in this context, that a state has the right to defend itself against international terrorism.  He opined that Israel does not have this right, since the terrorism against her originates in territory held by her.

 

54.       Finally, the possibility of basing the building of the wall upon customary international law regarding "state of necessity" was rejected.  The ICJ stated that this doctrine allows such acts only if they are the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction. The construction of the wall on its present route does not meet this condition.  The ICJ writes:

 

"The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population.  It has the right, and indeed the duty, to respond in order to protect the life of its citizens.  The measures taken are bound nonetheless to remain in conformity with applicable international law" (paragraph 141).

 

In this context, Judge Higgins noted, in her separate opinion, that the ICJ should have said that defense of civilians is not only the duty of the occupying state, but is also the duty of those seeking to liberate themselves from occupation (paragraph 19).

 

55.       At the conclusion of its opinion, the ICJ detailed the normative results stemming from it.  The ICJ held that the construction of the wall is contrary to international law. The ICJ further held that Israel is under an obligation to terminate its breaches of international law, and to cease forthwith the works of construction of the wall. Israel must dismantle all that she built, and repeal or render ineffective forthwith all acts relating thereto. According to the Advisory Opinion, Israel is under an obligation to make reparation for all damage caused by the construction of the wall. It was further determined, on the international plane, that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall.  Judge Kooijmans voted against this final conclusion regarding the duty of the states.

 

E.        The Advisory Opinion of the International Court of Justice at the Hague and The Beit Sourik Case

 

            1.         The Legal Status of the Advisory Opinion

 

56.       The opinion of the ICJ – as its title testifies, and in contrast to a judgment by the same court – is an Advisory Opinion.  It does not bind the party who requested it.  As the ICJ itself noted in its opinion (paragraph 31), it does not bind the states.  It is not res judicata (see S. Rosenne The Perplexities of Modern International Law 122 (2002)).  However, the opinion of the International Court of Justice is an interpretation of international law, performed by the highest judicial body in international law (S. Rosenne 3 The Law and Practice of the International Court, 1920-1996 1754 (3rd ed. 1997)).  The ICJ's interpretation of international law should be given its full appropriate weight.

 

            2.         The Difference Between the Conclusions of the Advisory Opinion of the ICJ and of The Beit Sourik Case

 

57.       The basic normative foundation upon which the ICJ and the Supreme Court in The Beit Sourik Case based their decisions was a common one (see Watson "The 'Wall' Decisions in Legal and Political Context" 99 A.J.I.L. 6 (2005); hereinafter – Watson).  The ICJ held that Israel holds the West Bank (Judea and Samaria) pursuant to the law of belligerent occupation.  That is also the legal view at the base of The Beit Sourik Case.  The ICJ held that an occupier state is not permitted to annex the occupied territory.  That was also the position of the Court in The Beit Sourik Case.  The ICJ held that in an occupied territory, the occupier state must act according to The Hague Regulations and The Fourth Geneva Convention.  That too was the assumption of the Court in The Beit Sourik Case, although the question of the force of The Fourth Geneva Convention was not decided, in light of the State's declaration that it shall act in accordance with the humanitarian part of that convention.  The ICJ determined that in addition to the humanitarian law, the conventions on human rights apply in the occupied territory.  This question did not arise in The Beit Sourik Case.  For the purposes of our judgment in this case, we assume that these conventions indeed apply.  The ICJ held that the legality of the "wall" (the "fence" in our nomenclature) shall be determined, inter alia, by regulations 46 and 52 of The Hague Regulations and §53 of The Fourth Geneva Convention.  This was also the position of the Supreme Court in The Beit Sourik Case.  The ICJ held that as a result of the building of the "wall", a number of rights of the Palestinian residents were impeded.  The Supreme Court in The Beit Sourik Case also held that a number of human rights of the Palestinian residents had been impeded by the building of the fence.  Finally, the ICJ held that the harm to the Palestinian residents would not violate international law if the harm was caused as a result of military necessity, national security requirements, or public order.  That was also the approach of the Court in The Beit Sourik Case.

 

58.       Despite this common normative foundation, the two courts reached different conclusions.  The ICJ held that the building of the wall, and the regime accompanying it, are contrary to international law (paragraph 142).  In contrast, the Supreme Court in The Beit Sourik Case held that it is not to be sweepingly said that any route of the fence is a breach of international law.  According to the approach of the Supreme Court, each segment of the route should be examined to clarify whether it impinges upon the rights of the Palestinian residents, and whether the impingement is proportional.  It was according to this approach, that the fence segments discussed in The Beit Sourik Case were examined.  Regarding some segments of the fence, it was held that their construction does not violate international law.  Regarding other segments of the fence, it was held that their construction does violate international law.  Against the background of this difference, two questions arise: The first, what is the basis of this difference, and how can it be explained?  The second, how does the explanation of the difference between the conclusions of the two courts affect the approach of the Supreme Court of Israel regarding the question of the legality of the separation fence according to international law generally, and the question of the legality of the separation fence in the Alfei Menashe enclave, specifically?  We shall discuss each of these two questions separately.

 

            3.         The Basis of the Difference Between the Conclusions of Each of the Two Courts

 

59.       The basis of the main difference between the legal conclusions of the International Court of Justice at the Hague and the judgment in The Beit Sourik Case can be found in the ICJ's concluding passage.  We discussed this passage (see paragraph 52, supra).  In light of its importance, we shall quote it again:

 

"To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives.  The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.  The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments" (paragraph 137).

 

From this passage – as well as the rest of the opinion – it appears that, based on the data before the ICJ, it was not persuaded that the route of the wall – which severely impedes the rights of the Palestinian residents – is necessary for achieving the security objectives which Israel contended.  In contrast, the Supreme Court in The Beit Sourik Case ruled that there is a military necessity to erect the fence.  However, it ruled that some discussed segments of the fence route violate the Palestinian residents' rights disproportionately.  What is the basis of this difference between the two judgments?

 

60.       The answer to that question is that the main difference between the legal conclusions stems from the difference in the factual basis laid before the court.  This difference was affected, in turn, by the way the proceedings are conducted and by the legal problem before the court.  We shall discuss this difference.

 

            4.         The Difference in the Factual Basis

 

61.       The main difference between the two judgments stems primarily from the difference in the factual basis upon which each court made its decision.  Once again, the simple truth is proven: the facts lie at the foundation of the law, and the law arises from the facts (ex facto jus oritur).  The ICJ drew the factual basis for its opinion from the Secretary-General's report, his written statement, the Dugard report, and the Zeigler report.  The Supreme Court drew the facts from the data brought before it by the Palestinian petitioners on the one hand, and the State on the other.  In addition, The Supreme Court received an expert opinion by military experts who requested the opportunity to present their position as amici curie.  Despite the fact that the data which each court received regarded the same wall/fence, the difference between each set of data is deep and great.  This difference is what ultimately led to the contrary legal conclusions.  In what is this difference manifested?   

 

62.       The first difference, and the most important one, regards the security-military necessity to erect the fence.  This necessity was presented expansively before the court in The Beit Sourik Case.  The State laid out before the Court the full data regarding the terrorism which has plagued Israel since September 2000; regarding the character of this terrorism, which spares no means, including "human bombs" which explode in buses, in shopping centers, and in markets; regarding the thousands killed and injured; regarding the various military action taken in order to defeat the terrorism ("Defensive Wall" in March 2002; "Determined Path" in June 2002), which did not provide a sufficient solution to it; regarding the additional plans which were suggested, yet rejected due to legal reasons (see, e.g., The Ajuri Case) or were of no avail.  Against this background came the decision to construct of the fence.  From the evidence presented before the Court, the conclusion arose that the decision to erect the fence was not the fruit of a political decision to annex occupied territory to Israel.  The decision to erect the fence arose out of security-military considerations, and out of security-military necessity, as a necessary means to defend the state, its citizens, and its army against terrorist activity.  Against this background, we wrote, in The Beit Sourik Case:

 

"We examined petitioners’ arguments.  We have come to the conclusion, based upon the facts before us, that the reason the fence is being erected is a security reason. As we have seen in the government decisions concerning the construction of the fence, the government has emphasized, numerous times, that 'the fence, like the additional obstacles, is a security measure.  Its construction does not reflect a political border, or any other border' (decision of June 23, 2002).  'The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the 'Seamline Area,' is a security measure for the prevention of terrorist attacks and does not mark a political border or any other border” (decision of October 1, 2003)" (p. 830).

 

Later in our judgment, we dealt with the affidavit submitted to us by the military commander:

 

"In his affidavit he stated that 'the objective of the security fence is to allow effective confrontation of the array of threats stemming from Palestinian terrorism.  Specifically, the fence is intended to prevent the unchecked passage of residents of the area into Israel and their infiltration into certain Israeli communities located in the area. The choice of the topographic route was derived from the security consideration' (affidavit of April 15 2004, sections 22-23). The commander of the area detailed his considerations behind the choice of the route. He noted the necessity that the fence pass through territory that topographically controls its surroundings; that it pass through a route as flat as possible, which will allow surveillance of it; and that a 'security zone' be established which will delay infiltration into Israel. These are security considerations par excellence. In an additional affidavit which was submitted to us, Major General Kaplinsky testified that 'it is not a permanent fence, but rather a fence erected temporarily, for security needs' (affidavit of April 19 2004, section 4).  We have no reason to give this testimony less than its full weight, and we have no basis for not believing in the sincerity of the military commander's testimony" (p. 830).

 

We concluded our discussion on this question, stating:

 

"We devoted seven sessions to the hearing of the petition.  We intently listened to the explanations of officers and workers who handled the details of the fence.  During our hearing of the petition, the route of the fence was altered in a number of locations. Respondents showed openness to various suggestions which were made. Thus, for example, adjacent to the town of Har Adar, they agreed to move the fence passing north of the town to the security zone closer to the town, and distance it from the lands of the adjacent village of El Kabiba.  We have no reason to assume that the objective is political rather than security-based. Indeed, petitioners did not carry the burden and did not persuade us that the considerations behind the construction of the separation fence are  political rather than security-based. Similarly, petitioners did not carry their burden, and did not persuade us that the considerations of the Commander of the IDF Forces in the area, in determining the route of the separation fence, are not military considerations, and that he has not acted to fulfill them in good faith, according to his best military understanding" (p. 831).

 

63.       The security-military necessity is mentioned only most minimally in the sources upon which the ICJ based its opinion.  Only one line is devoted to it in the Secretary-General's report, stating that the decision to erect the fence was made due to a new rise in Palestinian terrorism in the Spring of 2002.  In his written statement, the security-military consideration is not mentioned at all.  In the Dugard report and the Zeigler report there are no data on this issue at all.  In Israel's written statement to the ICJ regarding jurisdiction and discretion, data regarding the terrorism and its repercussions were presented, but these did not find their way to the opinion itself.  This minimal factual basis is manifest, of course, in the opinion itself.  It contains no real mention of the security-military aspect.  In one of the paragraphs, the opinion notes that Israel argues that the objective of the wall is to allow an effective struggle against the terrorist attacks emanating from the West Bank (paragraph 116).  That's it.  In another paragraph, the ICJ discusses the force of §53 of The Fourth Geneva Convention, according to which it is prohibited for an occupier state to harm local property, "except where such destruction is rendered absolutely necessary by military operations".  Regarding that, the ICJ stated:

 

“[O]n the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations” (paragraph 135).

 

Further on, the ICJ discussed human rights according to the international conventions.  It notes that the conventions allow restriction of human rights.  In this context, the ICJ mentioned the freedom of movement (§12 of The International Covenant on Civil and Political Rights).  It noted that pursuant to §12(3) of that convention, it is permissible to restrict the freedom of movement, if the restriction is necessary for the defense of national security or public order (ordre public). The ICJ ruled out these restrictions' application to the wall, since:

 

 “On the basis of the information available to it, the Court finds that these conditions are not met in the present instance” (paragraph 136).

 

The ICJ concluded its position, holding:

 

“[T]he Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives” (paragraph 137).

 

Finally, the ICJ discussed the necessity defense.  The ICJ analyzed the elements of this defense, noting:

 

“In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interest of Israel against the peril which it has invoked as justification for the construction” (paragraph 140).

 

64.       This minimal factual basis regarding Israel's security-military necessity to erect the fence did not go unnoticed by the judges of the ICJ.  The dissenting judge, Judge Buergenthal, noted in his opinion:

 

“I am compelled to vote against the Court’s finding on the merits because the Court did not have before it the requisite factual bases for its sweeping findings” (paragraph 1).

 

Judge Buergenthal mentioned the possibility that, on the basis of all the facts, the conclusion would be that the building of the wall violates international law; however, in his opinion,

 

“[To] reach that conclusion with regard to the wall as a whole without having before it or seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right of self defence, military necessity and security needs, given the repeated deadly terrorist attacks in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel has been and continues to be subject, cannot be justified as a matter of law. The nature of these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the Court, and the dossier provided the Court by the United Nations on which the Court to a large extent bases its findings basely touches on that subject” (paragraph 3).

 

In his separate opinion, Judge Kooijmans stated his opinion that:

 

“[T]he present Opinion could have reflected in a more satisfactory way the interests at stake for all those living in the region. The rather oblique reference to terrorist acts which can be found at several places in the Opinion, are in my view not sufficient for this purpose” (paragraph 13).

 

A similar attitude can be found in the separate opinion of Judge Owada.  He notes that the ICJ had ample material before it regarding the humanitarian and socioeconomic effect of the building of the wall.  In contrast,

 

“What seems to be wanting, however, is the material explaining the Israeli side of the picture, especially in the context of why and how the construction of the wall as it is actually planned and implemented is necessary and appropriate” (paragraph 22).

 

Judge Owada quotes the statement in the Advisory Opinion that, on the basis of the material before the ICJ, it is not convinced that the fence route is necessary for achieving the security objectives (pargraph 137 of the Advisory Opinion), and adds:

 

“It seems clear to me that here the Court is in effect admitting the fact that elaborate material on this point from the Israeli side is not available, rather than engaging in a rebuttal of the arguments of Israel on the basis of the material that might have been made available by Israel on this point” (paragraph 23).

 

65.       We need not determine, nor have we a sufficient factual basis to determine, who is to blame for this severe oversight.  Is it the dossier of documents submitted to the ICJ?  Is it the oversight of the State of Israel itself, or was it the ICJ's unwillingness to use the data submitted to it by Israel and other data in the public domain?  Or maybe it is the method of examination, which focused on the fence as a totality, without examining its various segments (see paragraph 70, infra)?  Whatever the reason may be, the reality is that the ICJ based its opinion on a factual basis regarding impingement of Palestinian residents' rights, without the factual basis regarding the security-military justification for this impingement.  In contrast, in The Beit Sourik Case, an expansive factual basis was laid before the court, both regarding the impingement upon the local residents' human rights and regarding the security-military needs.  This comprehensive factual basis made it possible for the Court to decide that certain parts of the separation fence violate the rules of international law, and that other parts of the fence do not violate those rules.  Thus, we have the first explanation for the difference between the conclusions of the ICJ and the conclusions of this Court in The Beit Sourik Case.

 

66.       The other difference between the two judgments regarding the factual basis regards the scope of the impingement of the local residents' rights.  This impingement stood at the foundation of both judgments.  However, the factual basis was different.  In The Beit Sourik Case, the petitioners brought various data regarding the scope of the impingement of their rights due to the construction of the fence on their lands.  The State brought its own data.  The Court examined the different positions.  It examined each part of the route before it, separately.  On the basis of the totality of the evidence before it, the scope of the impingement of the local residents' rights was established.  This impingement was by no means a light one.  Thus wrote the Court:

 

"Having completed the examination of the proportionality of each order separately, it is appropriate that we lift our gaze and look out over the proportionality of the entire route of the part of the separation fence which is the subject of all of the orders. The length of the part of the separation fence to which the orders before us apply is approximately forty kilometers. It impinges upon the lives of 35,000 local residents. Four thousand dunams of their lands are taken up by the fence route itself, and thousands of olive trees growing along the route itself are uprooted.  The fence cuts off the eight villages in which the local inhabitants live from more than 30,000 dunams of their lands. The great majority of these lands are cultivated, and they include tens of thousands of olive trees, fruit trees, and other agricultural crops. The licensing regime which the military commander wishes to establish cannot prevent or substantially decrease the extent of the severe injury to the local farmers.  Access to the lands depends upon the possibility of crossing the gates, which are very distant from each other and not always open. Security checks, which are likely to prevent the passage of vehicles and which will naturally cause long lines and many hours of waiting, will be performed at the gates. These do not go hand in hand with a farmer’s ability to work his land. There will surely be places where the security fence must cut the local residents off from their lands. In these places, passage which will reduce the injury to the farmers to the extent possible should be ensured" (p. 860).

 

Later in the judgment the Court held:

 

"The damage caused by the separation fence is not restricted to the lands of the residents and to their access to these lands.  The damage is of a wider scope. It strikes across the fabric of life of the entire population. In many locations, the separation fence passes right by their homes. In certain places (like Beit Sourik), the separation fence surrounds the village from the west, the south and the east.  The fence directly affects the ties between the local residents and the urban centers (Bir Nabbala and Ramallah). These ties are difficult even without the separation fence. This difficulty is multiplied sevenfold by the construction of the fence" (p. 861).

 

Against this background - and balancing with the security-military needs – it was decided which fence segments illegally violate the rights of the local population according to international law, and which fence segments are legal.

 

67.       The ICJ based its factual findings regarding impingement upon the local residents' rights, upon the Secretary-General's report and his supplemental documents, and upon the Dugard report and the Zeigler report (see paragraph 133 of the opinion).  In their arguments before us, State's counsel noted that the information relayed to the ICJ in these reports is far from precise.  We shall discuss some of these arguments of the State:

 

(a)        The ICJ quotes data relayed by a special committee, according to which 100,000 dunams of agricultural land were seized for construction of the first phase of the obstacle.  The State contends that this figure is most exaggerated.  According to its figures, the area seized for the construction of phase A of the fence is 8300 dunams, 7000 of which is private land.

 

(b)        the reports upon which the ICJ relied describe a cutoff between the residents of the seamline area and the other parts of the West Bank.  According to figures presented to us, that is not precise, as a regime of permits allows entry and exit from the seamline area.

 

(c)        The opinion quotes the Zeigler report, according to which Israel is annexing most of the western aquifer system, which supplies 51% of the water consumption of the territories, by erecting the obstacle.  The State claims that this is completely baseless.  It was mentioned before us that in the framework of the interim agreement between Israel and the PLO, detailed arrangements regarding the water issue were stipulated.  The construction of the fence does not affect the implementation of the water agreements determined in the agreement.

 

(d)       A number of paragraphs in the opinion discussed the city of Qalqiliya.  The ICJ quotes the Dugard report, according to which the city is sealed off from all sides.  Residents are allowed to exit and enter through one military gate which is open from 7am to 7pm.  This conclusion contradicts the Secretary-General's written statement, according to which there is no checkpoint at the entrance to the city.  The State adds that two open access roads now lead to the city of Qalqiliya.  Part of the obstacle east of the city was dismantled.  Parts of the Dugard report and the Zeigler report, according to which 6000 to 8000 residents left the city of Qalqiliya and 600 stores were closed in that city, were mentioned in the opinion.  The State contends that since April 2004, approximately 90% of the stores which closed have been reopened.  Regarding residents' leaving, in the State's opinion, it is very difficult to reach a clear cut conclusion on this issue.  The ICJ's opinion held, on the basis of the Secretary-General's report, that as a result of the building of the wall, a 40% drop in caseload at the UN hospital in Qalqiliya had been recorded.  From a graph submitted to us by the State it appears that the number of hospitalization days in 2004 is higher than that of 2002.  The conclusion is that it cannot be said that the separation fence brought to a decrease in the number of hospitalized patients.  The graph also shows that in 2003 there was a considerable rise in the number of beds in hospitals.  In addition, a new private hospital was opened in Qalqiliya in 2003, and the Palestinian Authority also opened a hospital in 2002.  In the opinion of the State, it is reasonable to assume that the opening of the new hospitals affected the caseload of the UN hospital in Qalqiliya.

 

68.       The difference between the factual bases upon which the courts relied is of decisive significance.  According to international law, the legality of the wall/fence route depends upon an appropriate balancing between security needs on the one hand and the impingement upon the rights of the local residents on the other.  We have a scale before us: on one side rests the impingement upon the rights of the local residents, and on the other side rest the security and military considerations.  Delicate and sensitive balancing between the two sides of the scale, taking into account the need to ensure the proportionality of the security measures' impingement upon the local residents' rights, and taking into account the margin of appreciation given the state, brings about the appropriate solution.  In The Beit Sourik Case, data were laid before the Court on both sides of the scale.  In certain parts of the route discussed before the court, the considerations regarding the impingement upon human rights prevailed.  At other parts of the route, the security-military needs prevailed.  Not so was the opinion of the ICJ.  As a result of the factual basis presented to the ICJ, full weight was placed on the rights-infringement side; no weight was given to the security-military needs, and therefore the questions of the proportionality of the impingement or of the margin of appreciation were not discussed at all.  The result was the ICJ's conclusion that Israel is violating international law.  The different factual bases led to different legal conclusions.  This stands out especially in the case of those parts of the ICJ's opinion dealing with Qalqiliya.  On one side of the scale, the ICJ placed the severe impingement of the rights of Palestinians in Qalqiliya.  Even if we remove the imprecision of these figures, the remainder is sufficient to indicate a severe impingement of their rights.  On the other side of the scale, the ICJ did not place – due to the factual basis laid before it – any data regarding the security and military considerations.  It was not mentioned that Qalqiliya lies two kilometers from the Israeli city of Kfar Saba; that Qalqiliya served as a passage point to Israel for suicide bomber terrorists, primarily in the years 2002-2003, for the purpose of committing terrorist attacks inside of Israel; that the Trans-Israel highway (highway 6), whose users must be protected, passes right by the city; that the majority of the fence route on the western side of the city runs on the Green Line, and part of it even within Israel; that since the fence around Qalqiliya was built – including the wall on the western side which borders upon highway 6 – terrorist infiltrations in that area have ceased.

 

69.       The difference in the factual bases was affected by the difference between the proceedings which took place in the ICJ and the proceedings in The Beit Sourik Case (see Weston, at p. 24).  In the proceedings before the ICJ, the injured parties did not participate. Israel was not party to the proceedings.  There was no adversarial process, whose purpose is to establish the factual basis through a choice between contradictory factual figures.  The ICJ accepted the figures in the Secretary-General's report, and in the reports of the special rapporteurs, as objective factual figures.  The burden was not cast upon the parties to the proceedings, nor was it examined.  In contrast, the parties to the proceedings in The Beit Sourik Case stood before the Court.  An adversarial process took place.  The burden of establishing the factual basis before the court was cast upon the parties.  The parties' factual figures were examined and made to confront each other, as the factual basis which would determine the decision was established.  The proceedings themselves lacked strict formalities, and allowed the parties to make suggestions for alternative routes, which were examined by the other party, and the fence route was altered during the hearings themselves.  All these aspects had an effect on the legal conclusions reached by the ICJ and the Supreme Court of Israel in The Beit Sourik Case (see Y. Shany "Capacities and Inadequacies: a Look at the Two Separation Barrier Cases" 38 Isr. L. Rev. 230 (2005)).

 

70.       We would especially like to point out an important difference in the scope of examination.  Before the ICJ, the entire route of the fence was up for examination.  The factual basis which was laid before the ICJ (the Secretary-General's report and written statement, the reports of the special rapporteurs) did not analyze the different segments of the fence in a detailed fashion, except for a few examples, such as the fence around Qalqiliya.  The material submitted to the ICJ contains no specific mention of the injury to local population at each segment of the route.  We have already seen that this material contains no discussion of the security and military considerations behind the selection of the route, or of the process of rejecting various alternatives to it.  These circumstances cast an unbearable task upon the ICJ.  Thus, for example, expansive parts of the fence (approximately 153 km of the 763 km of the entire fence, which are approximately 20%) are adjacent to the Green Line (that is, less than 500 m away).  An additional 135 km – which are 17.7% of the route – are within a distance of between 500 m and 2000 m from the Green Line.  Between these parts of the route and the Green Line (the "seamline area") there are no Palestinian communities, nor is there agricultural land.  Nor are there Israeli communities in this area.  The only reason for establishing the route beyond the Green Line is a professional reason related to topography, the ability to control the immediate surroundings, and other similar military reasons.  Upon which rules of international law can it be said that such a route violates international law?  Other parts of the fence are close to the Green Line.  They separate Palestinian farmers and their lands, but the cultivated lands are most minimal.  Gates were built into the fence, which allow passage, when necessary, to the cultivated lands.  Can it be determined that this arrangement contradicts international law prima facie, without examining, in a detailed fashion, the injury to the farmers on the one hand, and the military necessity on the other?  Should the monetary compensation offered in each case, and the option of allocation of alternate land (as ruled in The Beit Sourik Case (Id., at p 860)) not be considered?  There are, of course, other segments of the fence, whose location lands a severe blow upon the local residents.  Each of these requires an exacting examination of the essence of the injury, of the various suggestions for reducing it, and of the security and military considerations.  None of this was done by the ICJ, and it could not have been done with the factual basis before the ICJ.   

 

71.       Of course, prima facie, the ICJ could have determined, that on the basis of the examination of the totality of the fence, it had reached the conclusion that the motivation behind its construction is political and not security-based, and that the intention of the government of Israel in erecting the fence was its desire to annex parts of the West Bank which lay on the "Israeli" side of the fences.  The ICJ did not, however, do so; nor was a factual basis placed before it, which would have enabled it to do so.  The ICJ came extremely close to such an approach, stating:

 

“Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature . . . it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated regime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation” (paragraph. 121).

 

However, this statement – which expressed grave concerns – is not a positive finding that the fence is political, and that its objective is annexation.

 

72.       The method of the Supreme Court of Israel was different.  The Beit Sourik Case dealt with five segments of the separation fence, approximately forty kilometers long.  Other segments of the fence have been discussed by the Supreme Court in other petitions, which were examined by various panels of Supreme Court justices.  Since the construction of the separation fence, about 90 petitions have been submitted to the Supreme Court.  The hearing of 44 petitions has been completed.  In most of them the parties succeeded, after negotiations, and usually after amendments were made to the route as requested by the Palestinian petitioners, to reach a compromise, so that no legal decision on the merits was needed.  Approximately 43 petitions are still pending before the Court.  In most the arguments have been completed, and they are waiting for our decision regarding the effect of the Advisory Opinion of the ICJ upon the ruling of the Supreme Court of Israel.  They examine the legality of the route of the fence.  These petitions can be divided into three main types: the first type of petition is a petition by farmers for the impingement upon their rights caused by the fact that the separation fence separates them from their lands.  The Beit Sourik Case itself belongs to this type.  The second type is a petition regarding the large blocs of settlements, which in some instances create enclaves of communities which are cut off from their urban infrastructure, or impede Arab farmers' access to their lands.  The petition before us belongs to this type.  The third type includes petitions regarding the fence route around Jerusalem.

 

            5.         The Effect of the Advisory Opinion of the International Court of Justice at the Hague upon the Rulings in The Beit Sourik Case

 

73.       Our point of departure was that the basic normative foundation upon which the ICJ and the Supreme Court based their judgments is a common one.  Despite that, the two courts reached different conclusions.  The ICJ held, in its opinion, that the route of the wall contradicts international law, as a majority of it passes through the West Bank.  The Supreme Court in The Beit Sourik Case ruled in its judgment that a sweeping answer to the question of the legality of the fence according to international law should not be given, and that each segment of the fence route should be examined separately.  Against this background, it was decided in The Beit Sourik Case, that part of the route discussed in that petition sits well with international law and that part of it violates international law.  We asked ourselves: what is the explanation for this difference?  We answered that question by saying that the difference stems from the factual basis that was laid before the ICJ, which was different from that which was laid before the Court in The Beit Sourik Case.  We also noted that the difference in the model of proceedings also contributed to the different results.  Against this background, we must answer the following question: what is the effect the Advisory Opinion of the ICJ on the future approach of the Supreme Court on the question of the legality of the separation fence according to international law, as determined in The Beit Sourik Case?

 

74.       Our answer is as follows:  the Supreme Court of Israel shall give the full appropriate weight to the norms of international law, as developed and interpreted by the ICJ in its Advisory Opinion.  However, the ICJ's conclusion, based upon a factual basis different than the one before us, is not res judicata, and does not obligate the Supreme Court of Israel to rule that each and every segment of the fence violates international law.  The Israeli Court shall continue to examine each of the segments of the fence, as they are brought for its decision and according to its customary model of proceedings; it shall ask itself, regarding each and every segment, whether it represents a proportional balance between the security-military need and the rights of the local population.  If its answer regarding a particular segment of the fence is positive, it shall hold that that segment is legal.  If its answer is negative, it shall hold that that segment is not legal.  In doing so, the Court shall not ignore the entire picture; its decision will always regard each segment as a part of a whole.  Against the background of this normative approach – which is the approach set out in The Beit Sourik Case – we shall now turn to examining the legality of the separation fence in the Alfei Menashe enclave.

 

F.         The Separation Fence at the Alfei Menashe Enclave

 

            1.         The Enclave

 

75.       The Alfei Menashe enclave is an 11,000 dunam area (see the appendix to this judgment).  It includes Alfei Menashe (population 5650) and five Palestinian villages (Arab a-Ramadin (population approximately 180); Arab Abu Farde (population approximately 80); Wadi a-Rasha (population approximately 180); Ma'arat a-Dara (population approximately 250) and Hirbet Ras a-Tira (population approximately 400); total population of the five villages is approximately 1200).  The enclave is located on the "Israeli" side of the separation fence.  It is part of the seamline area.  The enclave and Israel are territorially contiguous, meeting at highway 55.  Exit from the enclave into the area, by car and foot, is through one crossing ("crossing 109") to Qalqiliya.  This crossing is open at all hours of the day.  The separation fence also includes three gates (the Ras a-Tira gate; the South Qalqiliya gate; and the Habla gate).  At first, we shall discuss petitioners' arguments and the state's response in detail.  Then, we shall examine the arguments and the answers to them according to the standards determined in The Beit Sourik Case.

 

            2.         Petitioners' Arguments

 

76.       Petitioners expand upon the severe damage to the fabric of life of the residents of the five Palestinian villages within the enclave.  These are small villages which are unable to provide necessary services such as employment, medical care, education, and community services by themselves.  Thus, for example, the schools attended by enclave residents are located in Palestinian communities outside the enclave, with the exception of the elementary school of Ras a-Tira and a-Daba.  The fence cuts the residents of the villages off from the Palestinian communities which provide them necessary services.  The fence traps the residents of the villages inside of an enclave cut off from the Palestinian population in the West Bank.  The residents of the villages are unable to enter a Palestinian community outside the enclave without passing through the gates in the fence or a checkpoint (crossing 109).  Residents who wish to travel from the villages of the enclave to the adjacent towns of Habla and Ras Atiyeh are forced to pass long and wearying roads, which require travel by car, just to get to a place which in the past was reachable by foot.  Petitioners note that the availability of cars for enclave residents, especially for women, is most minimal.

 

77.       According to petitioners, the enclave has caused mortal injury to all areas of life – freedom of movement; employment and commerce; health; education; family, community, and social ties; religious services; and more.  Almost all of the Palestinian residents of the enclave have lost their sources of income since the construction of the fence.  The fence cuts the residents of the villages off from pastures, hothouses, and agricultural lands.  The regime of permits has turned the enclave into a place that non residents do not enter.  The residents of the enclave are thus denied the possibility of holding social events in their villages.  As for the future, the fence has destined the five villages to economic, social, and cultural destruction. 

 

78.       Soon after the petition was filed, petitioners submitted an expert opinion on the subject of planning, prepared by the nonprofit society known as "Bimkom – Planners for Planning Rights," which works to strengthen the ties between civil and human rights and the Israeli planning system.  The expert opinion was prepared by four architects and urban planners.  They reached the conclusion that the current route of the fence critically injures the Palestinian population living in the Alfei Menashe enclave.  Prior to the construction of the fence, the Palestinian villages in the enclave relied upon the array of villages and cities in the Qalqiliya district and in the West Bank.  The fence route chopped the area into three enclaves (the Qalqiliya enclave, the Habla and Hirbet Ras Atiyeh enclave and the Alfei Menashe enclave which includes the five Palestinian villages), and caused immediate damage to the system of spatial interrelations which existed prior to construction of the fence.  The fence was constructed without any spatial planning logic.  The fence cuts off main roads and access roads, crosses through built areas, chops up contiguous cultivated agricultural lands, and separates villages from their agricultural lands.  As a result of the construction of the fence, two villages have even been cut off from the wells which provide them and their agricultural lands with water.  The fence and associated permit system make access to regional civil services very difficult, and damage economic potential and existing social structure.

 

79.       According to the expert opinion, the fence has a substantial effect on the Palestinian villages' continued functioning in all areas of life.  As far as economy and employment are concerned, hundreds of dunams of the villages and thousands of dunams of the cultivated agricultural lands, mostly olive groves, were expropriated for the construction of the fence.  The fence cut off farmers' access to markets in Habla and Qalqiliya.  It also decreased access to all sources of employment in the West Bank.  In the area of employment there is, therefore, a substantial rise in unemployment, and a trend of finding undesirable jobs requiring no skills in Alfei Menashe.  In the area of education, the fence makes students' access to schools in Habla and Ras Atiyeh very difficult, and within a year a substantial rise in dropout level was noted in the education system.  In the area of health, only partial and irregular health services are now provided in the villages.  The fence cut the villages off from health and medical services, and access of emergency vehicles from the Habla area has been cut off.  In terms of family and social ties as well, the fence's damage has been severe.  The permit regime cuts enclave residents off from their relatives and friends, from ceremonies and family events, and threatens to disenfranchise them of their status and connections in Palestinian society.  As time goes on, this is likely to lead to abandonment of the villages and the cessation of the present communities' existence.       

 

80.       Petitioners' legal argument is that the construction of the fence surrounding the Alfei Menashe enclave, built completely in the area, violates the principles of public international law and is illegal.  Petitioners' position is based upon two main pillars: ultra vires and lack of proportionality.  First it is contended that respondents have no authority to erect the fence around the enclave, both due to the lack of security necessity and due to the creation of de facto annexation of the enclave territory to the State of Israel.  The arguments on this issue rely, inter alia, upon the Advisory Opinion of the ICJ.  Petitioners further argue that the enclave was not created for military or national security reasons, and not even for the security needs of Alfei Menashe residents.  The construction of the fence around the enclave was intended to put Alfei Menashe west of the fence, and make it territorially contiguous to the State of Israel.  It is an act whose entire purpose is to move the effective border of the state, and it is not legal according to the laws of belligerent occupation.  According to petitioners, the decision to erect the fence on the present route was made under pressure from the residents of Alfei Menashe and of the residents of the Matan community, who requested that a road alternative to highway 55 not be built near it.  According to the original plan, highway 55 was to be left east of the fence, and thus security officials decided to pave a new road to connect Alfei Menashe with Israel via the Matan community.  However, in light of Matan residents' opposition to the new road, the fence route was altered so that highway 55 would be included in the enclave.  Petitioners contend that the fence does not serve a military need.  Military necessity does not include defense of settlement residents.  Petitioners argue that leaving the Palestinian villages west of the fence does not fit the military need, as presented by army officials.  The fence creates a long term change, whose meaning is practical annexation of the lands in the enclave to an area in absolute control of the State of Israel.  Cutting the ties between the residents living in the enclave and those living beyond it creates a new geopolitical entity.

 

81.       Petitioners' second argument is that the enclave – according to the route upon which it was created – is disproportionate.  The enclave creates a wide scale impingement upon the basic rights of protected civilians.  It seriously impinges upon property rights, freedom of movement, and rights to make a living, to education, to health, to food, to dignity and honor, and to equality.  International law, like Israeli law, includes the condition that impingement of rights be proportionate.  Petitioners add that international human rights law also applies to the petition, and that the prohibitions upon violation of petitioners' basic rights flow from it as well.  Petitioners contend that the fence route around the enclave causes damage which is disproportionate, both due to the fact that it is unnecessary for achieving its declared objective, and due to the lack of any serious interest which would justify it.  It is contended that the fence route around the enclave does not satisfy any of the three subtests of proportionality.  The first subtest (fit between the injury and the objective) is not satisfied, since there is no rational connection between construction of the fence and an Israeli security goal.  The second subtest (the least harmful means) is not satisfied, as it is possible to realize the legitimate objective of defending the residents of Israel by pushing the fence back to the Green Line.  Petitioners claim that a fence along the Green Line would serve the security objectives better, since it would be much shorter, straight and not winding, and would leave a considerable Palestinian population east of the fence.  The third subtest (proportionality in the strict sense) is not satisfied, since the impingement upon petitioners' rights is not proportional to the danger which it is intended to confront.  The injury to the residents of the villages is all-encompassing; moving the fence to the Green Line, on the other hand, will not bring about any decrease in security. 

 

82.       Petitioners' third argument is directed against the legal regime put into force in the enclave, which requires non Israeli residents to hold permits.  Petitioners contend that the legal regime in the seamline area is a discriminatory regime based upon nationality, and is therefore to be annulled.  The enclave regime creates legal classes according to ethnicity, and only obfuscates itself with security claims.  The very existence of the permit regime is a shameful and illegal legal situation, of formalized discrimination on the basis of ethnic-national background.

 

83.       The remedy requested by petitioners is that the separation fence be dismantled and moved to the Green Line.  To the extent that Alfei Menashe needs a separation fence, such a fence can be built around that community, on the basis of the existing fence around it.  In any case – so argue petitioners – there is no justification for including the enclave villages inside of it.

 

            3. The State's Response

 

84.       In its first response to the petition (of September 9 2004), respondents announced that as a result of the judgment in The Beit Sourik Case, staff work is being done in order to examine the patterns of life in the seamline area.   They announced that there is a most reasonable possibility that there will be alterations to the arrangements in the seamline area.  Improvements in the arrangements will decrease the injury to the residents and affect the balancing point between the rights of the residents and the security needs.  Respondents requested that the proceedings in the petition be stayed, in order to allow them to formulate their position.  In these circumstances, it was contended that the petition, as a petition demanding the dismantling of the fence, is prima facie an early petition, and that it is appropriate to wait for the formulation of final decisions.  However, respondents emphasized that the decisive need for the existence of a fence in this area leads to the conclusion that, in any case, no order to dismantle the fence in the Alfei Menashe area should be issued.

 

85.       In a supplementary statement by respondents (of December 5 2004), they raised a number of preliminary arguments for rejecting the petition.  The first argument claimed that the petition suffered from severe laches (delay).  According to respondents, petitioners' request to dismantle the fence a year and a half after its construction was completed, when its dismantling will cause severe damage to respondents, suffers from most serious laches.  Petitioners had many opportunities to voice their claims against the route.  They were served the land seizure orders at the end of 2002 and the beginning of 2003, and they had the opportunity to submit appeals.  Regarding the objective element of the law of laches, dismantling the fence will cause most severe security damage, as well as severe economic damage.  On the other hand, the injury to petitioners is not as severe, as it can be moderated and minimized to a large extent by various improvements which are being made, and will yet be made, by respondents.  The second preliminary argument raised by respondents regards the petition's character as a "public petition," at a time when there are specific potential petitioners who refrained from petitioning.  Petitioners are residents of two of the five villages in the enclave.  From the petition itself it appears that residents of the other three villages refused to join the petitioners.  The specific petitioners, as well as the Association for Civil Rights in Israel (petitioner no. 7) are not authorized to speak in the name of all of the enclave residents.  Third, it is argued that the petition should be preliminarily rejected due to a lack of prior plea directly to respondents.  Although the Association for Civil Rights in Israel wrote to the Prime Minister and the Minister of Defense prior to the petition, requesting that they order alteration of the fence route at the segment under discussion, these pleas were most compact, and most of the arguments in the petition weren't mentioned in them at all.

 

86.       On the merits, respondents argue that there is no justification for altering the Alfei Menashe route.  The fence indeed changed the reality of life for the residents of the villages left on the Israeli side of the fence.  This stems from the decisive security need to defend the citizens of Israel against terrorist attacks.  The injury to the residents of the villages is proportionate, considering the decisive security need to leave the fence where it is.  Respondents noted that just prior to construction of the fence, the military commander's civil administration collected data regarding the enclave residents and their way of life, and that on the basis of the collected data, they issued permits to the residents of the enclave which enable them to live in the enclave and move to the area from it, and back.  Today, there are approximately 1200 permits in force, held by the residents of the enclave.  Respondents informed us that the permits are soon to be replaced with permanent identity cards for seamline area residents, which will be valid as long as the declaration is in force.  Approximately 1065 entrance permits have also been issued, for workers of international organizations, infrastructure workers, traders, educators, medical services, and similar purposes.  The Commander of IDF Forces in the area recently decided that the various permits will be replaced by a uniform permit, valid for a two year period (the current permits are valid for a period up to three months).  The permits allow entry into the enclave through four gates.

 

87.  In their response, respondents discussed a list of infrastructure and logistic improvements intended to relieve the situation of the residents of the villages to the extent possible.  First, crossing 109, located at the north end of the enclave near the eastern entrance to Qalqiliya, is open constantly, all day long.  Permanently on site is a representative of the coordination and liaison administration, whose role is to handle problems which may arise.  Second, the eastern entrance to Qalqiliya (DCO Qalqiliya) is open to free movement, and at present, no checkpoint operates there (except in the case of a security alert).  Thus, those wishing to enter or exit Qalqiliya are spared the prolonged wait at the city entrance.  Exit from the enclave through passage 109 and through the entrance into Qalqiliya are thus free.  Third, close to the time the petition was submitted, an underpass connecting Habla to Qalqiliya was opened under highway 55.  Fourth, The Commander of IDF Forces decided to keep the agricultural fence at Ras a-Tira, which connects the enclave to Habla and Ras Atiyeh, open longer, so that the gate will be open to travel by foot and car during most hours of the day.  For that purpose, a specialized military force will be allocated, which will also ensure more precise opening hours of the two additional agricultural gates.  Fifth, respondents are running transportation, funded by the civil authority, of all pupils living in the enclave who go to school beyond it.  Sixth, a permanent staff of doctors, equipped with entrance permits, visits the enclave villages through crossing 109, according to a regular schedule.  In the case that urgent medical care is needed, it is possible to travel to Qalqiliya and other areas through crossing 109, which is open at all hours of the day.  Seventh, the coordination and liaison administration, in coordination with an international organization by the name of ANERA, commenced a project to connect the villages of Ras a-Tira and Hirbet a-Daba to the water system.  The rest of the villages also enjoy regular supply of water.  Eighth, approval has been given, in principle, for a plan to improve the access road from the villages to crossing 109 and for a plan to improve the road which goes along highway 55, in order to make it passable and safe for wagons.       

 

88.       Respondents further noted in their response that most of the enclave residents' agricultural lands are inside the enclave itself, and that the fence does not have any effect on residents' access to them.  Farmers whose lands are located in the Habla and Ras Atiyeh area are able to reach their lands through the agricultural fences.  Moreover, a large part of enclave residents make their living in the community of Alfei Menashe.  The possibility of working in Alfei Menashe has not only not been decreased by the construction of the fence; it has been improved.

 

89.       In respondents' supplementary response (of June 19 2005), respondents presented their general position regarding the construction of the security fence on lands in the area, including such construction for the purpose of protecting the Israeli communities in the area.  Respondents also presented their position regarding the effect of the Advisory Opinion of the International Court of Justice at the Hague (of July 9 2004) upon the petition before us.  Regarding the state's position on the implications of the Advisory Opinion on the issue of the fence, respondents referred to their position in HCJ 4815/04 and HCJ 4938/04 (discussing the separation fence at the village of Shukba and the village of Budrus).  We discussed this position in the part of our present judgment which was devoted to the Advisory Opinion of the International Court of Justice at the Hague.

 

90.       The state's position is that the construction of the fence is a security act par excellence.  It is intended to provide a temporary solution to the terrorism offensive, both in Israel and in the area.  It is intended to provide a solution to existing and future threats of terrorism, until it will be possible to reach a stable and reliable political arrangement.  Respondents clarify that the contacts underway between Israel and the new Palestinian Authority leadership do not remove the need for construction and completion of the obstacle.  According to respondents, the present route of the obstacle is temporary.  The seizure orders, issued for the purpose of obstacle construction within the area, are restricted to a definite period of a few years.  The obstacle is not a permanent one.  It is intended to protect the residents of Israeli communities in the area as well.  The obstacle itself provides defense not only to the community itself, but also to the access roads to it and to its surroundings.  However, the selected route is not the ideal route from a security standpoint.  That is the case, due to the duty to protect the conflicting interests of the Palestinian residents, who are harmed by the construction of the obstacle due to seizure of lands, harm to agriculture, restrictions of movement, and impediment of daily life.  Respondents recognize this harm, and are working to minimize it to the extent possible, both at the time of construction of the obstacle and by protecting the residents' fabric of life after its construction.

 

91.       Respondents claim that the military commander is authorized to defend the Israeli communities in the area both pursuant to international law and pursuant to internal Israeli administrative and constitutional law.  Israel's right – which is also her duty – to defend her citizens, is the fundamental legal source which grants it the right and the duty to defend its citizens living in the area.  Respondents are of the opinion that the construction of the obstacle satisfies the restrictions in the law of belligerent occupation.  The military commander is required, pursuant to rules of international law, to protect all present in the area held under belligerent occupation, and that includes Israeli citizens living in the area or traveling on the roads in the area.  The duty of the military commander to protect those present in the occupied territory is not limited to those defined as "protected" in The Fourth Geneva Convention.  This duty is not conditional upon the legal status of the Israeli communities in the area in terms of international law, which will be decided in the permanent status agreement between Israel and the Palestinian Authority.  Respondents note that the political agreements between Israelis and Palestinians also leave the authority to protect the Israeli citizens in the area in the hands of the State of Israel, until the issue is arranged in the permanent status agreement.  The internal security legislation in the area also reflects Israel's responsibility for the security of the Israelis in the area.  On this point, respondents refer to §6 of the Interim Agreement Implementation Proclamation (Judea and Samaria)(No. 7).  An additional source of the duty to protect the Israelis in the area is the Israeli administrative law and the Basic Laws of the State of Israel.  The state claims that the military commander is obligated to protect the basic rights of Israeli citizens (both those pursuant to the Basic Laws and those stemming from "common law").  Exercise of the authority must be proportionate.  The military commander is therefore authorized to protect Israeli citizens in the area, and even to impinge upon other rights for that purpose, as long as the impingement is a proportional one which stems exclusively from the security purpose.        

 

 

            4.         Petitioners' Response to Respondents' Response

 

92.       Petitioners informed us, in their response, that the planned alterations to the enclave do not provide a real solution to the hardships which enclave residents confront.  Most of the changes are cosmetic, and a few of them are of low significance.  The most significant change is the decision to lengthen the opening ours of the Ras a-Tira gate, but at the time the response was submitted, it had not yet been implemented.  Petitioners ask us to reject all of the preliminary arguments raised by respondents.  They argue that there is no justification for rejecting the petition as a "public petition".  Among petitioners are private people, and the damage described in the petition is caused to them personally, in addition to the similar damage caused to their neighbors.  Regarding lack of prior direct plea, petitioners state that petitioner no. 7's letters (of March 10 2004 and July 19 2004) contained the main arguments against the route, and these pleas are to be seen as worthy ones.  Petitioners also ask that we reject the argument regarding laches.  There was no subjective delay, as the petitioners' awareness of the damage came about only after daily life in the enclave had entered a regular pattern.  Regarding objective delay, the only damage in this case is economic damage, and it is lesser in severity and weight than the violations of basic rights and of the rule of law.

 

            5.         The Alfei Menashe Local Council's Response

 

93.       The Alfei Menashe Local Council was joined as a respondent to the petition, at its own request.  It argues that the fence does not harm the Palestinian residents, and certainly not in the way described by petitioners.  Regarding the security aspect, the fence should be left in its present place, where it is able to provide security for the residents of Alfei Menashe and harms the Palestinian residents only minimally.  The Local Council wished to present a different picture regarding the reality of life for the Palestinian residents in the enclave, especially that of the residents of the a-Ramadin tribe.  It was claimed that Alfei Menashe is an honorable source of employment for many of the residents of the villages.  Employment problems, to the extent that they exist, are not the result of the fence or its location.  It was further claimed that the issue of movement from the village of Habla and the city of Qalqiliya, and that of medical services, are not a problem for the members of the a-Ramadin tribe.

           

            6. The Outline of the Discussion of the Legality of the Alfei Menashe Enclave

 

94.       We shall commence our discussion of the legality of the Alfei Menashe enclave with an examination of the state's preliminary arguments.  Then, we shall proceed to examine the question whether the construction of the separation fence around the enclave was intra vires.  This discussion will examine the reasons behind the construction of the fence generally, and the route determined for it at Alfei Menashe, specifically.  After examining the question of authority, we shall proceed to examine the scope of the damage to the local residents.  Against this background we shall examine whether this damage is proportional.  We shall conclude our discussion with an examination of the appropriate remedies as a result of the legal analysis.

 

            7.         The Preliminary Arguments

 

95.       In its response, the state raised three preliminary arguments.  The first is a claim of laches (delay) in petitioning the Supreme Court.  The state argues that construction of the separation fence in the Alfei Menashe enclave was concluded approximately a year and a half prior to the filing of the petition.  Petitioners could have attacked the land seizure orders which were served to them at the end of 2002 and the beginning of 2003.  At the same time, surveys along the planned route were held for the residents, and they were given the opportunity to appeal the route.  Even after that – previous to or during fence construction work – it was possible to petition this Court.  In petitioners' response to the state's response, petitioners state that their awareness of the damage came about only after daily life in the enclave entered its regular pattern.  In any case, due to the severe affront to the rule of law, the laches claim should not be accepted.  In our opinion, petitioners are right.  We accept their claim that they could not assess the scope of the impingement upon their rights before life in the Alfei Menashe enclave entered a regular pattern.  Only when the permit regime had been formulated; only when the opening and closing hours of the gates had been set; only when the cutoff from health, education, and commerce institutions in Qalqiliya and in Habla began to take their toll – only then was it possible to know what the scope of the damage was.  In fact, even at the time the petition was filed, the pattern of life in the enclave had not yet reached its final format.  Respondents themselves announced that there is a most reasonable possibility that there will be alterations to the arrangements in the seamline area, and in that context they even claimed that "the petition is early".  In this state of affairs, the fact that petitioners waited for the formulation of the regular pattern of life in the seamline area does not provide a basis for a claim of laches.

 

96.       Respondents' second preliminary argument regards petitioners' standing, as it arises from the petition itself.  Petitioners no. 1-3 are residents of Ras a-Tira, and petitioners no. 4-6 are residents of Wadi a-Rasha.  Petitioner no. 7 is the Association for Civil Rights in Israel.  The state argues that the petition shows that the three other villages (Hirbet a-Daba, Arab a-Ramadin, and Arab Abu Farda) refused, for undisclosed reasons, to join as petitioners in the petition.  Under these circumstances, it is doubtful that petitioners represent all of the residents of the two villages.  They certainly do not represent the other three villages.  The petition regarding the latter villages is a public petition.  The state contends that such a petition should not be allowed, as individual potential petitioners exist, yet refrain, for undisclosed reasons, from petitioning the Court.  We have no need to examine this argument, seeing as petitioners' counsel noted before us in oral argument that he possesses a letter (of March 30 2005) written by the five council heads of the enclave villages.  In this letter, they authorize counsel to act on their behalves in the petition before us.  Thus this issue was solved.  We can therefore leave the open the question whether it was impossible to suffice ourselves with the petitioners before us, for further hearing of the petition.

 

97.       The third preliminary argument is that petitioners did not make a direct plea to respondents before their petition to the Court.  This argument is rejected.  As it appears from the material before us, petitioner no. 7 (The Association for Civil Rights in Israel) wrote (on March 10 2004 and July 19 2004) to the Prime Minister and the Minister of Defense.  In these pleas, that petitioner raised the main points of its opposition to the fence route at the Alfei Menashe enclave, emphasizing the severe injury to the residents of the villages (in the first letter) and the disproportionate level of injury (in the second letter, written after The Beit Sourik Case).  This is sufficient to satisfy the direct plea requirement.

 

            8. The Authority to Erect the Separation Fence in General, and at the Alfei Menashe Enclave, Specifically

 

98.       The military commander is authorized to order the construction of the separation fence in the Judea and Samaria area, if the reason behind it is a security-military one.  He is not authorized to order the construction of the fence, if the reason behind it is a political one (see The Beit Sourik Case, at p. 828).  In The Beit Sourik Case we examined - using the legal tools at our disposal - the motivation behind the government decision.  We reached the conclusion, on the basis of the data before us, that the motivation behind construction of the fence is not political.  That is our conclusion in the petition before us as well.  Here as well, we have been persuaded that the decision to erect the fence was made in light of the reality of severe terrorism which has plagued Israel since September 2000.  Justice D. Beinisch discussed this in a case dealing with the northeast segment of the fence, in the area surrounding the territory discussed in this petition:

 

"The decision to erect the separation fence was made on April 14 2002 by the Council of Ministers on National Security, in order 'to improve and reinforce the operational assessments and capabilities in the framework of confronting terrorism, and in order to frustrate, obstruct, and prevent infiltration of terrorism from Judea and Samaria into Israel'.  This decision was approved after a government debate on June 23 2002, in which the decision was made to erect a 116 kilometer long obstacle, particularly in sensitive areas through which terrorists – sowing destruction and blood – often passed in order to commit terrorist attacks. The final route of the obstacle was selected by security and military officials, in cooperation with relevant professionals, and was approved by the Committee of Ministers on National Security on August 14 2002.

 

The seamline area is intended to block passage of suicide bombers and other terrorists into the State of Israel.  According to the view of the security and military officials responsible for this subject, the creation of a seamline area is a central component of the fight against terrorism originating in the Judea and Samaria area.  To the extent that the obstacle will not create a hermetic seal against terrorist infiltration, the purpose of the obstacle is to delay the infiltration into Israel for a period of time which might allow security forces to reach the point of infiltration, and thus create a geographic security area which will allow the combat forces to pursue the terrorists before they enter the state.

 

There is no doubt that the creation of a seamline area injures the Palestinian residents in that area.  Agricultural land is being and will be seized for construction of the obstacle, which is liable to harm residents' ability to utilize their lands; their access to the land is also liable to be impeded.  Such harm is a necessity of the hour, and it is a result of the combat situation in the area which has continued for more than two years – a situation which has cost many human lives" (HCJ 8172/02 Abtasam Muhammad Ibrahim v. The Commander of IDF Forces in the West Bank (unpublished)).

 

99.       We asked state's counsel why the separation fence cannot be built on the Green Line.  We understood from the state's response, that security and military considerations prevented that possibility.  Their response was based upon three considerations:  first, the Green Line "passes under a mountain ridge located east of the line.  The line is crossed by many east-west riverbeds.  In many of its segments, there is thick vegetation.  This topography does not allow attainment of the obstacle's goals by a route which passes only within Israel.  Erecting the obstacle exactly on the border line of the Judea and Samaria area does not allow for defense of the soldiers patrolling it, who in many cases would be in disadvantaged topographic positions.  Nor does such a route allow surveillance of the Judea and Samaria area, and would leave IDF forces in a situation of operational disadvantage, in comparison with terrorists waiting on the other side of the obstacle" (paragraph 64 of the state's response of February 23 2005); second, "at many segments, Israeli communities and other important locations inside of Israeli territory are in close proximity to the boundary of the Judea and Samaria area.  For example, the communities of Kochav Yair, Tzur Yigal, Matan, Maccabim, Mevasseret Tzion, the neighborhood of Ramot in Jerusalem, et cetera.  Laying the route inside of Israel would require constructing the obstacle on the fences of these communities and locations with no alert zone to allow security forces to arrive prior to infiltration.  Such an alert zone is necessary to allow hitting terrorists liable to cross the obstacle, before they commit their attack.  Such a route would allow sabotage of locations by way of gunfire from beyond the obstacle (Id., id.); third, the separation fence is intended to protect Israelis living in Judea and Samaria as well.  The fence is also intended to protect other important locations, such as roads and high voltage lines.

 

100.     On the basis of all the material at our disposal, we have reached the conclusion that the reason behind the decision to erect the fence is a security consideration, of preventing terrorist infiltration into the State of Israel and into the Israeli communities in the area.  The separation fence is a central security component in Israel's fight against Palestinian terrorism.  The fence is inherently temporary.  The seizure orders issued in order to erect the fence are limited to a definite period of a few years.  So it also appears from the government decisions, whose reliability we have no basis for doubting, including the decision of February 20 2005, which brought about a change in the separation fence route as a result of the judgment in The Beit Sourik Case.  This change was especially apparent in phases C and D of the separation fence, which had not yet been constructed, or was in stages of construction.  So it also appeared from the affidavits submitted to us and from the rest of the material at our disposal.  Thus, for example, according to the figures of the General Security Service, in the (approximately) 34 months between the outbreak of the armed conflict and until the completion of the first part of the separation fence, the terrorist infrastructure committed 73 mass murder attacks in the Samaria area, in which 293 Israelis were killed, and 1950 injured.  Since the completion of the separation fence – that is, the year between August 2003 and August 2004 – the terrorist infrastructure succeeded in committing five mass murder attacks, in which 28 Israelis were killed and 81 injured.  Comparison between the year prior to commencement of work on the separation fence (September 2001 – July 2002) and the year after construction of the fence (August 2003 – 2004) indicates an 84% drop in the number of killed and a 92% drop in the number of wounded.  The respondents brought to our attention an example of the security efficacy of the separation fence.  The Islamic Jihad organization wished to detonate a suicide bomber from the Jenin area at a school in Yokneam or Afula.  The suicide bomber and his guide left Jenin in the early morning, and intended to reach Wadi Ara, and from there, Afula or Yokneam.  In the pre-separation fence era the terrorists' job was easy.  The seamline area was wide open, and one could easily reach Wadi Ara.  This route is now sealed.  Therefore, the terrorist had to travel to Wadi Ara through a much longer route, through an area where the separation fence had not yet been constructed, a detour which lengthened the route from 27 km to 105 km.  The long detour allowed the security forces to gather intelligence, arrange the forces and locate the two terrorists en route.  After they were caught, the explosive belt was located, and the attack was avoided.  This is only one of various examples brought to our attention.  They all indicate the security importance of the fence and the security benefit which results from its construction. 

 

101.     Such is the case regarding the separation fence generally.  Such is also the case regarding the separation fence route around the Alfei Menashe enclave.  The decision regarding that segment of the fence was made by the government on June 23 2002.  It is a part of phase A of the separation fence.  It appears, from the interrogation of various terrorists from Samaria – so we were informed by respondents' affidavit (paragraph 14) – that the separation fence in this area indeed provides a significant obstacle which affects the ability of the terrorist infrastructure in Samaria to penetrate terrorists into Israel.  It also appears from the interrogations that, due to the existence of the obstacle, terrorist organizations are forced to seek alternative ways of slipping terrorists into Israel, through areas in which the obstacle has not yet been built, such as the Judea area.  We examined the separation fence at the Alfei Menashe area.  We received detailed explanations regarding the route of the fence.  We have reached the conclusion that the considerations behind the determined route are security considerations.  It is not a political consideration which lies behind the fence route at the Alfei Menashe enclave, rather the need to protect the well being and security of the Israelis (those in Israel and those living in Alfei Menashe, as well as those wishing to travel from Alfei Menashe to Israel and those wishing to travel from Israel to Alfei Menashe).  Our conclusion, therefore, is that the decision to erect the separation fence at the Alfei Menashe enclave was made within the authority granted to the military commander.  We shall now proceed to examination of the question whether the authority granted to the military commander to erect the security fence has been exercised proportionately.  We shall deal first with the fabric of life in the Alfei Menashe enclave.  Then we shall examine whether the injury to the local residents' lives is proportionate.

 

 

            9.         The Scope of the Injury to the Local Residents

 

102.     Respondents accept that "the security fence erected in the Alfei Menashe area altered the reality of life for the residents of the villages west of the fence" (paragraph 44 of the supplementary statement of December 5 2004).  There is disagreement between petitioners and respondents regarding the scope of this injury.  We shall discuss a number of central components of the fabric of life, including education, health, employment, movement, and social ties.

 

103.     Petitioners claim that most of the children in the enclave villages attend the elementary, middle, and high schools located in Habla and Ras a-Atiyeh, that is to say, on the other side of the separation fence.  Prior to construction of the fence, the children were driven to school by their parents.  Some of the children (from the villages adjacent to Habla) even walked to school by foot.  Now, in order to reach school, they must pass through the gates in the fence.  Respondents informed us, regarding this issue, that the civil administration funds regular transportation of all the pupils from the enclave villages to school and back.  Of course, parents cannot reach their children during school hours, and the children cannot return to their villages on their own.

 

104.     There are no hospitals or clinics in the enclave villages.  Medical services were previously provided in Qalqiliya and Habla.  There is a government hospital in Shchem (Nablus).  Petitioners argued before us that prior to construction of the fence, doctors from Qalqiliya or Habla would visit the villages, and village residents would travel to them to Qalqiliya or Habla, within a few minutes.  After the construction of the separation fence, one must prearrange a visit with a doctor, who must pass through one of the fences, during fence opening hours.  There is no solution in the case of an urgent medical situation.  Entrance by ambulances from Qalqiliya or Habla requires coordination which takes many hours.  In their response, respondents state that permits have been issued to a permanent staff of doctors, who visit the enclave villages according to a regular schedule.  Ambulances enter on a basis of need, through coordination with a coordination officer available 24 hours a day. 

 

105.     Petitioners claim that the construction of the separation fence had a severe effect upon the employment status of the residents of the enclave villages.  About ten percent of the lands of the village of Ras a-Tira are on the other side of the fence.  Eight dunams of hothouses belonging to residents of the village of Wadi a-Rasha are located on the other side of the separation fence.  The residents of the village of Arab a-Ramadin make their living primarily from growing sheep.  The fence separates the village and its pasture grounds.  The residents of the village of a-Daba make their living from agriculture (production of olive oil, and vegetable and other seasonal crop growing).  The fence separates the village from its agricultural lands.  The residents of the village of Abu-Farda made their living from cattle and goat commerce.  After construction of the fence, the village was cut off from the pasture grounds and the customers, who are unable to reach it.  The residents of the village had no choice but to sell the cattle.  Some residents of the villages worked as Palestinian Authority officials in Qalqiliya.  Due to the separation fence, they have difficulty reaching their place of work.  Many of the workers who worked in agriculture lost their jobs, due to their inability to reach their jobs at the times necessary for agriculture.  They have found jobs as workers in Alfei Menashe.  In their response, respondents mention that the residents of the villages are able to get to the cities and villages of the West Bank through the crossing and gates in the separation fence.  Farmers can pass through the agricultural gates at Habla and Ras a-Tira.  Respondents add that most of the agricultural lands of enclave residents are located within the enclave itself.  A significant part of the families living in the villages of the enclave make their living from work in the Alfei Menashe community.

 

106.     Petitioners claim that the separation fence severely damages the ties between the enclave villages and Qalqiliya and Habla.  Prior to the construction of the fence, it was possible to reach Qalqiliya within a few minutes.  After construction of the fence, and resulting from the need to pass through the gates, the journey takes many hours.  Moreover, a permit to pass through the gates by car is granted only to a car owner who is a resident of the enclave.  Relatives and friends are not allowed to receive a permit.  Most residents of the villages have no car of their own, and as a result – and due to fact that one can not be assisted by the car of a relative or friend – most residents of the villages are bound to their villages.  This also causes damage – regarding the village of Arab a-Ramadin – to religious services.  There is no mosque in that village.  The residents of the village used to pray in the mosque in Habla, which was walking distance from the village.  The fence now separates the village from the mosque.  Considering the fact that there are only five cars in the village, residents of the village have no practical possibility of attending prayer on Fridays and holidays.  In addition, the fence separates the residents of the villages from their relatives and friends.  It is difficult to invite guests to various ceremonies (like weddings and funerals), as entry requires a permit, which is not given at all, or given only a long time after the request date. 

 

107.     Petitioners argue that the separation fence has brought financial and social destruction to the Arab residents of the Alfei Menashe enclave.  It has created a cutoff between the residents and their agricultural lands and all the services necessary for normal life.  Petitioners contend that "due to the construction of the fence, the lives of hundreds of people have turned into miserable lives, sentenced to a economic, social, and cultural withering" (paragraph 4 of the petition).  Petitioners claim that the residents' freedom of movement, and rights to family life, health, education, equality, subsistence, and human dignity and respect have been impinged upon.  These impingements are not proportionate, and legally, they are destined to be annulled.

 

108.     Respondents recognize that the separation fence impinges upon the rights of the Arab residents of the Alfei Menashe enclave.  However, respondents' position is that the general regime in practice in the seamline area, and the new arrangements regarding crossings and gates, have generally turned the injury to the Palestinians, and specifically to the residents of the villages in the enclave, into proportionate ones.  On this subject, we were informed that in July 2004 the declaration was amended, so that permanent residents of the seamline areas were issued a "permanent resident card".  The holder of such a card needs not hold a permit in order to enter into the seamline area or to stay in it.  In order to preserve the fabric of life in the seamline area, checkpoints, allowing passage from one part of the separation fence to the other, have been established.  The checkpoints are manned every day of the year, all day long.  In addition, the agricultural fences have been opened, allowing farmers to pass from their place of residence to their fields.  The gates are open three times a day, for regular, published periods of time.  When these times are insufficient, they can be extended.  The gates are open for a longer time during periods of intensive agricultural cultivation, like during the olive picking season.

 

109.     In the separation fence at the Alfei Menashe enclave there are one crossing and three gates.  The crossing ("crossing 109") is open at all hours of the night and day, every day of the year.  Enclave residents can pass through it, after a security check, by foot or by car, to Qalqiliya and all other parts of Judea and Samaria, whether for employment purposes or for any other reason.  From Qalqiliya, it is possible to continue on to Judea and Samaria with no additional checkpoint.  It should also be mentioned that a new underpass connecting Qalqiliya to Habla has been opened.  It passes under highway 55, which leads to Alfei Menashe.  Movement through this underpass is unrestricted.  In addition to the underpass, there are three gates in the enclave: the Ras a-Tira gate, the Habla gate, and the South Qalqiliya gate.  The Ras a-Tira gate connects the enclave to Habla and to Ras a-Atiyeh.  It was decided that it would be open from one hour after sunrise until one hour before sunset.  Both other gates are open three times a day for one hour.  The farmers can reach their lands through these gates.

 

            10.       The Proportionality of the Injury to the Local Residents

 

110.     Is the injury to the residents of the enclave villages proportionate?  According to the caselaw of this Court – and in the footsteps of comparative law – proportionality is tested according to three subtests.  The first subtest holds that the injury is proportionate only if there is a rational connection between the desired objective and the means being used to achieve that objective.  The second subtest determines that the injury is proportionate only if there is no other less injurious means which can achieve the desired objective.  The third subtest holds that the injury is proportionate only if the impingement upon human rights is of appropriate proportion to the benefit reaped from it.  We applied this standard in The Beit Sourik Case.  Is it satisfied in the case before us?

 

111.     Petitioners contend that the first subtest (rational connection) is not satisfied in the Alfei Menashe enclave.  That is since the current route "annexes, de facto, the residents of the five villages that found themselves in the enclave, into Israel; and instead of creating the that 'separation' (which is, to our understanding, the essence of the fence's security doctrine), it creates a reality in which hundreds of Palestinians find themselves west of the fence, without any checkpoint or gate between them and the cities of Israel.  Therefore, it is difficult to see how the impingement upon the rights of the residents of the villages promotes the security of the State of Israel, of the IDF, or even of Alfei Menashe, none of which are separated from the residents of the villages; au contraire" (paragraphs 140-141 of the petition).  We cannot accept this argument.  The separation fence creates a separation between terrorists and Israelis (in Israel and in the area), and from that standpoint, the required rational connection exists between the objective and the means for its attainment.

 

112.     Is the second subtest (the least injurious means) satisfied?  Is it possible to ensure the security of Israelis through a different fence route, whose impingement upon the rights of the local residents would be a lesser one?  Petitioners answer this question in the affirmative.  According to their argument, it is possible to protect the Israelis through a fence constructed on the Green Line. We cannot accept this argument. In their arguments before us, respondents correctly noted that construction of the separation fence on the Green Line would leave Alfei Menashe on the eastern side of the fence.  It would be left vulnerable to terrorist attacks from Qalqiliya, Habla, and the remaining cities and villages of Samaria.  Movement from it to Israel and back would be vulnerable to acts of terrorism.  Indeed, any route of the fence must take into account the need to provide security for the 5650 Israeli residents of Alfei Menashe.

 

113.     Against this background arises the question whether the security objective behind the security fence could not be attained by changing the fence route such that the new route would encircle Alfei Menashe, but would leave the five villages of the enclave outside of the fence.  Such a route would create a natural link between the villages of the enclave and Qalqiliya and Habla.  It would create a link to the array of civil services which were provided to the residents prior to the construction of the fence.  Most of the injuries to the residents of the villages would be avoided.  Indeed, the lives of the residents under to the present route are difficult.  The enclave creates a chokehold around the villages.  It seriously damages the entire fabric of life.  The alteration to the route, which will remove the villages from the enclave, will reduce the injury to the local residents to a large extent.  If it is not possible to remove all five villages from the enclave, is it possible for most of them to be removed from it?  Indeed, based upon the factual basis as presented to us, the existing route of the fence seems strange.  We shall begin with the southwest part of the enclave.  We are by no means persuaded that there is a decisive security-military reason for setting the fence route where it presently is.  Why is it not possible to change the route in a way that the three villages in this part (Wadi a-Rasha, Ma'arat a-Daba, and Hirbet Ras a-Tira), or most of them, remain outside of the fenced enclave?  There is a planning scheme, which has been filed, for the development of Alfei Menashe in the direction of the southwestern part of the enclave.  But as Mr. Tirza, who presented the enclave map to us, stated before us, that is not a consideration which should be taken into account.  We shall now turn to the northern and northwestern part of the enclave.  Why should the villages of Arab a-Ramadin and Arab Abu-Farde not remain outside of the fence?  A main consideration in this issue might be the need to defend highway 55, which connects Alfei Menashe to Israel.  On this issue, Mr. Tirza noted that the location of highway 55 raises security problems.  Israelis have been shot on it from the direction of Qalqiliya.  We learned from the material before us, that according to the original plan, the segment of highway 55 which connects Alfei Menashe to Israel was to be cancelled.  Instead, a new road was supposed to be paved, which would connect Alfei Menashe to Israel, southwest of the enclave, adjacent to the Matan community inside the Green Line.  Petitioners argue – an argument which is supported by the material they submitted to us – that this plan was not approved due to the opposition of the Matan community, who thought that it would harm its quality of life.  Mr. Tirza noted before us that the road connecting Alfei Menashe to Israel (highway 55) should be viewed as a temporary road.  In this state of affairs, we were by no means convinced that it is necessary, for security-military reasons, to preserve the northwest route of the enclave.  If this route will indeed be altered, it will have an additional implication, in that it will be possible to cancel the two gates separating Qalqiliya and Habla, and reconnect them into a large urban bloc, as it was in the past, and not make due only with the new underpass which connects them.

 

114.     Thus, we have by no means been convinced that the second subtest of proportionality has been satisfied by the fence route creating the Alfei Menashe enclave.  It seems to us that the required effort has not been made, and the details of an alternative route have not been examined, in order to ensure security with a lesser injury to the residents of the villages.  Respondents must reconsider the existing route.  They must examine the possibility of removing the villages of the enclave – some or all of them – from the "Israeli" side of the fence.  Of course, this alteration cannot be done in one day, as it requires the dismantling of the existing fence (in the northern part, the northwestern part and the southwestern part) and the building of a new fence, while canceling highway 55 which connects Alfei Menashe to Israel and buiding a new road southwest of Alfei Menashe.  Respondents must examine, therefore, the preparation of timetables and various sub-phases, which can ensure the changes to the route within a reasonable period.

 

115.     Has the third condition of the proportionality test (narrow proportionality) been satisfied?  In order to answer this question, we must determine whether the existing route of the separation fence at the Alfei Menashe enclave has an alternative route which provides Israelis (in Israel and Alfei Menashe) the required level of security.  If such an alternative route exists, we must examine the intensity of injury to the fabric of life of the village residents.  Thus, for example, if it is possible, according to the security considerations, to reduce the route of the fence so that the enclave will contain only Alfei Menashe, then there is no doubt that the additional security provided by the existing route (compared to the alternate route) does not measure up to the additional injury which the existing route (compared to the alternate route) causes to the local residents (for "relative" implementation of narrow proportionality: see The Beit Sourik Case, at p. 840).

 

116.     And what will be the case if examination of the alternative route leads to the conclusion that the only route which provides the minimum required security is the existing route?  Without it, there is no security for the Israelis.  With it, there a severe injury to the fabric of life of the residents of the villages.  What will the case be in such a situation ("absolute" implementation of narrow proportionality: see The Beit Sourik Case, at p. 840)?  That is the most difficult of the questions.  We were not confronted with it in The Beit Sourik Case, since we found that there was an alternative which provides security to Israelis.  How shall we solve this difficulty in the case before us?  It seems to us that the time has not yet come to confront this difficulty, and the time may never come.  We hope that the examination of the second of the proportionality subtests will allow the alteration of the fence route, in the spirit of our comments, so that a new route can be found, whose injury to the lives of the local residents will be much lesser than that caused by the current route.  We can therefore leave the examination of the satisfaction of the third subtest open, while focusing the examination at this time upon the second condition, that is, examination  of the possibility of reducing the area of the enclave.

 

            Therefore, we turn the order nisi into an order absolute in the following way:  respondents no. 1-4 must, within a reasonable period, reconsider the various alternatives for the separation fence route at Alfei Menashe, while examining security alternatives which injure the fabric of life of the residents of the villages of the enclave to a lesser extent.  In this context, the alternative by which the enclave will contain only Alfei Menashe and a connecting road to Israel, while moving the existing road connecting Alfei Menashe to Israel to another location in the south of the enclave, should be examined.

 

 

Justice D. Beinisch:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice A. Procaccia:

 

I concur in the judgment of my colleague, President A. Barak.

 

 

Justice E. Levy

 

I concur in the result of the judgment of my colleague, the President.

 

 

Justice A. Grunis:

 

I agree that the petition is to be allowed, as proposed by my colleague, President A. Barak.

 

 

Justice M. Naor:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice S. Jubran:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice E. Chayut:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Vice President M. Cheshin:

 

I read the comprehensive opinion of my colleague President Barak, impressive in scope and depth, and I agree with his legal decision, and with the way he traveled the paths of the facts and the law until he reached the conclusions he did.  Usually I would not add anything to my colleague's words – as we all know that often, he who adds, actually detracts – however, I found the decision of the International Court of Justice at the Hague to be so objectionable, that I said to myself that I should take pen to paper and add a few words of my own.

 

2.         International law has undergone many welcome revolutionary changes in recent decades.  I remember that 50 years ago – when I was a young student at the Faculty of Law of the Hebrew University of Jerusalem – the subject of Public International Law (as opposed to Private International Law) was a negligible and peripheral subject (even though it was taught as a required course).  Public International Law was not seen by us – we the students – as worthy of the title "law", and the institutions of the international community, including the International Court of Justice, received the same treatment.  The years passed, and public international law got stronger and began to stand on its own two feet as a legal system worthy of the title "law".  That is the case, at least, as far as certain areas or certain states on the face of the globe are concerned. It is fortunate that public international law has developed in that way, although the road is long before it will turn into a legal system of full standing; as a legal system whose norms can be enforced against those who violate them. In the same context, we should know and remember that the International Court of Justice at the Hague, even when asked to write an Advisory Opinion, is still a court.  Indeed, when the ICJ sits in judgment as the giver of an advisory opinion, the proceedings before it are not regular adversary proceedings, and its decision does not have immediate operative force – as opposed to the decision of a regular court. However, the way in which the ICJ writes its opinion is the way of a court; the proceedings of the ICJ are, in principle, like the proceedings of a court; and the judges sitting in judgment don the robes of a judge in the way familiar to us from regular courts.  Take these procedural distinguishing marks away from the ICJ, and you have taken away its spirit as a court.  For we have no lack of political forums.

 

3.         I read the majority opinion of the International Court of Justice at the Hague, and, unfortunately, I could not discover those distinguishing marks which turn a document into a legal opinion or a judgment of a court.  Generally, and without going into piecemeal detail, there are two main parts to the judgment of a court, and likewise, to an opinion of the ICJ: one part lays a basis of facts which were properly proven before the tribunal, and upon this basis is built the other part - the legal part.  Thus is also the case with the opinion of the ICJ before us, one part of which is the factual part, and the other part – which builds itself on the first part – is the legal part.  Regarding the legal part of the opinion of the ICJ, I shall not add to what my colleague the President wrote.  We have seen that there are no essential disagreements between us and the ICJ on the subject of law, and that is fortunate.  However, if that is the case regarding the legal part, regarding the factual part – the part which is the basis upon which the judgment is built – I should like to disagree with the ICJ.

 

4.         As we saw in my colleague's survey, the factual basis upon which the ICJ built its opinion is a ramshackle one.  Some will say that the judgment has no worthy factual basis whatsoever.  The ICJ reached findings of fact on the basis of general statements of opinion; its findings are general and unexplained; and it seems that it is not right to base a judgment, whether regarding an issue of little or great importance and value, upon findings such as those upon which the ICJ based its judgment.  The generality and lack of explanation which characterize the factual aspect of the opinion are not among the distinguishing marks worthy of appearing in a legal opinion or a judgment.  Moreover, generality and lack of explanation infuse the opinion with an emotional element, which is heaped on to an extent unworthy of a legal opinion.  I might add that in this way, the opinion was colored by a political hue, which legal decision does best to distance itself from, to the extent possible.  And if all that is not enough, there is the ICJ's almost complete ignoring of the horrible terrorism and security problems which have plagued Israel - a silence that the reader cannot help noticing – a foreign and strange silence.  I can only agree with Judge Buergenthal, and partly with Judge Higgins, Judge Kooijmans, and Judge Owada, that the factual basis upon which the judgment was built is inadequate to the point that it is inappropriate to pass judgment upon it, even by way of opinion.  As Judge Buergenthal wrote (paragraph 1 of his opinion):

 

". . . I am compelled to vote against the Court's findings on the merits because the court did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case . . ."

 

Thus also further on in his opinion (see paragraph 64 of the President's judgment).  I am sorry, but the decision of the ICJ cannot light my path.  Its light is too dim for me to guide myself by it to law, truth, and justice in the way a judge does, as I learned from those who preceded me and from my father's  household.

 

 

Decided according to the judgment of President A. Barak.

 

Given today, September 15 2005.

 

 

             

 

Full opinion: 
PDF icon Mara'abe v. Prime Minister.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/04/570/079/A14/04079570.a14.pdf

Manning v. Attorney General

Case/docket number: 
CrimFH 532/93
Date Decided: 
Monday, August 16, 1993
Decision Type: 
Appellate
Topics: 
Administrative Law
Discretion
Criminal Law
Criminal Procedure
Abstract: 

Facts: The petitioner was tried for murder in the United States. The trial was declared a mistrial after the jury failed to reach an unanimous verdict, and the prosecution cancelled the indictment, reserving the right to submit a new one.

 

The petitioner returned to Israel. The United States requested her extradition to stand trial for the same murder, and the District Court declared her to be extraditable. Her appeal to the Supreme Court was denied, but the President of the Supreme Court granted her application to hold a further hearing on the question of whether the defence of double jeopardy was relevant to the extradition proceedings.

 

The petitioner argued that although under American law she would not have a defence of double jeopardy, she would have this defence under Israeli law if tried in Israel, and therefore Israel should not extradite her to the United States.

 

Held: If tried in Israel, the petitioner would not have a defence of double jeopardy under Israeli law. She was therefore extraditable.

Voting Justices: 
Goldberg, Eliezer
Primary Author
majority opinion
Barak, Aharon
Author
concurrence
Mazza, Eliahu
Author
concurrence
Dorner, Dalia
Author
concurrence
Levin, Shlomo
Author
concurrence
Full text of the opinion: 

CrimFH 532/93

Rochelle Manning

v.

Attorney-General

 

The Supreme Court sitting as the Court of Criminal Appeal

[16 August 1993]

Before Justices A. Barak, S. Levin, E. Goldberg, E. Mazza, D. Dorner

 

Further hearing in the Supreme Court, on the judgment of the Supreme Court (Justices A. Barak, S. Levin, E. Mazza) on 18 January 1993 in CrimA 2998/91, in which the Supreme Court dismissed the appeal of the petitioner on the judgment of the District Court which declared the petitioner extraditable.

 

Facts: The petitioner was tried for murder in the United States. The trial was declared a mistrial after the jury failed to reach an unanimous verdict, and the prosecution cancelled the indictment, reserving the right to submit a new one.

The petitioner returned to Israel. The United States requested her extradition to stand trial for the same murder, and the District Court declared her to be extraditable. Her appeal to the Supreme Court was denied, but the President of the Supreme Court granted her application to hold a further hearing on the question of whether the defence of double jeopardy was relevant to the extradition proceedings.

The petitioner argued that although under American law she would not have a defence of double jeopardy, she would have this defence under Israeli law if tried in Israel, and therefore Israel should not extradite her to the United States.

 

Held: If tried in Israel, the petitioner would not have a defence of double jeopardy under Israeli law. She was therefore extraditable.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992.

Extradition Law, 5714-1954, ss. 2, 8.

Penal Law, 5737-1977, ss. 30, 300(a)(2).

 

Israeli Supreme Court cases cited:

[1]        CrimA 72/60 Attorney-General v. Juiya [1960] IsrSC 14 1093.

[2]        CrimA 244/73 Rever v. State of Israel [1974] IsrSC 28(1) 798.

[3]        CrimA 250/77 State of Israel v. Krishinsky [1978] IsrSC 32(1) 94.

[4]        HCJ 20/50 Schwartz v. Presidency of the Supreme Military Tribunal [1950] IsrSC 4 185.

 

American cases cited:

[5]        Arizona v. Washington 434 U.S. 497 (1978).

[6]        Wade v. Hunter 336 U.S. 684 (1949).

 

For the petitioner — Y. Golan.

For the respondent — R. Rabin, Head of the International Affairs Department, State Attorney’s office.

 

 

JUDGMENT

 

 

Justice E. Goldberg

1.    The Government of the United States applied to extradite the petitioner and her husband, in order to put them on trial for an offence which, according to its basic elements, is equivalent to an offence of murder under section 300(a)(2) of the Penal Law, 5737-1977.

            The District Court granted the application of the Attorney-General and declared the petitioner and her husband extraditable. Their appeal to this court in CrimA 2998/91[*] was denied unanimously in a judgment given on 18 January 1993 (hereafter — ‘the judgment’).

            The petitioner and her husband submitted a petition to hold a further hearing, and their application was considered by the President of this court. In his decision on 1 March 1993, the President denied the application of the husband, but with regard to the petitioner he held:

‘With regard to Rochelle Manning’s petition for a further hearing, which addresses a question about the previous proceeding in the United States, I find there are grounds to hold a further hearing on the question whether it is relevant, from the viewpoint of the laws of extradition, that a prior criminal proceeding against the petitioner took place in the United States, which was declared a mistrial, and I so order.

Therefore Rochelle Manning’s application for a further hearing is granted.’

2.    The facts forming the basis of the extradition application are set out in the opinion of Justice Mazza,[†] and we will quote what he says in so far as it is relevant to the question before us:

‘When the investigation [of the United States’ authorities] was completed, Mrs Manning was put on trial, on an indictment that is identical in content to the indictment which is now the basis of the application to extradite her and her husband. The indictment, before a grand jury, was apparently also filed against the appellant and Bill Ross, but because Mr Manning was absent from the United States, the trial was held with regard to Mrs Manning and Bill Ross only. The trial, which took place in December 1988 and January 1989, did not lead to a verdict, for the jury were unable to reach an unanimous verdict. The court therefore decided to discharge the jury and it declared a mistrial. Thus the trial was terminated, and the prosecution cancelled the indictment, reserving the right to submit a new indictment.

The appellant was consequently released from arrest and she returned to Israel. After a while (on 27 July 1990), the new indictment was filed against the appellants; this is identical in content to the previous one, and their extradition was requested (on 27 December 1990) on the basis of this’ (square parentheses added).

3.    Within the framework of the appeal, the petitioner’s learned defence counsel argued, as stated in the judgment, that —

‘Since the appellant has been put on trial once, she should not be extradited in order to allow her to be put on trial a second time: first, because putting her on trial a second time is contrary to the double jeopardy rule, whereby a person should not be put in jeopardy of conviction, for one act, more than once. Second, because even if, under the law prevailing in the United States, starting a new trial, after the previous trial is terminated as a mistrial, does not constitute a breach of the double jeopardy rule, the extradition application should not be granted on the basis of a wide interpretation of the double jeopardy rule, whereby a mistrial is the “comparative equivalent” of an acquittal.’[‡]

4.    This argument was rejected by Justice Mazza for three reasons:

‘First, because it does not accord with the provisions of the law and the convention; second, because there is not a sufficient basis for determining that putting the appellant on trial a second time will breach the double jeopardy rule within the meaning thereof in American law; and third, because even on the basis of the wide interpretation of the requirement of double criminality, a mistrial cannot be construed, under our law, as an acquittal verdict.’[§]

The detailed reasoning of Justice Mazza is stated in his opinion, and the reader is referred to it.

5.    Justice Barak did not see fit to determine the question whether section 8 of the Extradition Law, 5714-1954, ‘includes a closed list of issues that allow a petition for extradition to be denied from the outset.’[**] In his opinion, ‘this approach is not absolutely certain,’[††] and he would have been prepared ‘to adopt a different approach’.[‡‡] However he accepted the opinion of Justice Mazza, ‘that in the circumstances of the case before us — and in view of the law relating to a mistrial in the United States — the appellant does not have… a defence of “double jeopardy” in the United States.’[§§]

With regard to the argument of the learned defence counsel about the ‘comparative equivalent’ whereby ‘a person wanted for trial should not be extradited if, were he to be put on trial in Israel, he would have a defence of ‘double jeopardy’, even if this defence is not available to him in the country asking for his extradition (the United States),’[***] Justice Barak said that indeed ‘the question of the comparative equivalent… may arise only within the framework of the requirement of ‘double criminality’ (enshrined in s. 2 of the Extradition Law).’[†††] However, whereas Justice Mazza rejected the argument of the defence counsel while expressing a reservation about the approach of Prof. S.Z. Feller (in his book Law of Extradition, the Harry Sacher Institute for Research of Legislation and Comparative Law, 1980, at 167) that one should examine double criminality both in abstracto and in concreto, Justice Barak left the question undecided ‘since prima facie “double criminality” must be examined — as Prof. Feller says, ibid. p. 170 — both in abstracto and in concreto.’[‡‡‡]

Justice S. Levin also agreed that the appeal should be denied.

6.    The starting point in the argument of the learned defence counsel in this petition was that the petitioner does not in fact have a defence of ‘double jeopardy’ under the law in the United States. Moreover, he did not argue in the appeal that a mistrial in the law of the United States is equivalent to an acquittal in our law. His argument is that in order to declare the petitioner extraditable, it is not sufficient that under the law in the United States it is possible to put her on trial a second time, and that she will not succeed with a defence of ‘double jeopardy’. The Israeli court must further determine that even under our law the petitioner does not have this defence. This cannot be said to be the case, since —

‘The “double jeopardy” rule, in its wide meaning, is a fundamental principle of our legal system. It guarantees the freedom of the individual and his right not to be put on a criminal trial once again, after he already was in danger of being convicted. It has even become a “constitutional” right with the legislation of the Basic Law: Human Dignity and Liberty… and this “constitutionality” must influence the method of interpretation that must be adopted with regard to the Extradition Law.’

It follows that —

 ‘Whatever the reasons for the laws of the United States may be, and whatever the circumstances may be there, from our viewpoint, and because of considerations based on the principles of our legal system, it is fitting that the outcome of a proceeding where such a decision was made should be an acquittal, and therefore we should refrain from extraditing someone who has been discharged because of a mistrial. Just as we would not put him on trial once again before our court, so we should not agree that he should be put on trial once again before the courts of the country making the application.’

This outlook, according to the argument of the learned defence counsel, is similar to what is stated by Justice Barak in the judgment, since Justice Barak asks:[§§§]

‘Take the case of a wanted person who is put on trial in Israel, and although he is not acquitted or convicted in Israel, he has in Israel a defence of “double jeopardy” against being put on trial once again in Israel… is it clear and obvious that he should be extradited to a country where he does not have a defence of double jeopardy?’

This is the heart of the petitioner’s argument, that she has a defence of ‘double jeopardy’ in Israel, and why, therefore, was the court in the judgment content merely because under the laws of mistrial in the United States the petitioner does not have a defence of ‘double jeopardy’ there?

The learned defence counsel further argues that if Justice Barak raises in his judgment the question:  ‘Would we ever extradite to a foreign country a ten-year-old minor, who has no criminal liability in Israel, but has criminal liability in the foreign country?’[****], how can the petitioner, who does not have criminal liability under our laws because of ‘double jeopardy’, be extradited merely because she has such liability in the foreign country?

It is unnecessary to emphasize that the thesis raised by the learned defence counsel is based on the argument that the list of situations set out in s. 8 of the Law is not a closed list, and that the law does not set out all the laws of extradition exhaustively, and alongside it we should apply the principles of the Israeli legal system and its values. Consequently a person wanted for extradition has the defence that under the extradition laws, in their wide meaning, he is not extraditable because of the application in Israel of the ‘double jeopardy’ rule.

7.    The judgment was based on the premise that ‘the application in our law of the double jeopardy rule with regard to an accused whose first trial was terminated and never reached a verdict, either of conviction or acquittal, was not in doubt’ (per Justice Mazza[††††]) and that it is well-known that ‘even though the “double jeopardy” rule is not mentioned expressly in the Criminal Procedure Law [Consolidated Version], it is available to every accused in Israel…’ (per Justice Barak[‡‡‡‡]). This assumption about the existence of the ‘double jeopardy’ rule in our law, even though it is not enshrined in legislation, will continue to appear in our deliberation, even though it has already been said in CrimA 72/60 Attorney-General v. Juiya [1] at 1097, that the court was not referred ‘to any precedent in which a person was acquitted in Israel on the basis of the defence that an indictment constituted a double jeopardy,’ and this is also true of case-law reported until the present.

The defence of ‘double jeopardy’ is one branch of the rule ‘of long standing that a person should not be put on a criminal trial for the same matter more than once’ (CrimA 244/73 Rever v. State of Israel [2], at p. 801). However, although the defence of a prior conviction or prior acquittal relies upon res judicata, ‘the prohibition of “double jeopardy” relies on the danger of conviction for an offence that an accused faced in a previous trial’ (Attorney-General v. Juiya [1], at p. 1097).

It follows that this defence will succeed only if the accused was put on trial in the first proceeding under a ‘proper’ indictment, and before a competent court, for only then was he in danger of being convicted (CrimA 250/77 State of Israel v. Krishinsky [3] at p. 96).

The reasons given in American case-law for the rule in the Fifth Amendment of the Constitution that forbids double jeopardy are that the State, which has the resources and the power, should not be allowed to make repeated attempts in order to convict an accused of the same offence:

‘subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’

Moreover the accused has a —

‘valued right to have his trial completed by a particular tribunal, which also is not absolute but must at times give way to the public’s interest in fair trials designed to end in just judgments.’

The defence of ‘double jeopardy’ has an additional significance, since the State has an advantage in the second proceeding over the accused, in that it has found out from the first proceeding the strength of his defence and its weak points. See W.R. LaFave and J.H. Israel, Criminal Procedure, St. Paul, 1985, at 898-9, and also 21 Am. Jur. 2nd, Rochester and San Francisco, 1981, at 440.

8.    What can we learn from the aforesaid about the classification of the ‘double jeopardy’ rule within the framework of criminal liability?

            In the defence of ‘double jeopardy’ the defendant does not attack the facts in the indictment, and he does not claim that they do not disclose a criminal offence. The assumption in this defence is that the criminality of the act does apparently exist, but despite this the accused should not be put on trial a second time with a danger of being convicted, after the first proceeding was terminated without a decision about his guilt. If so, raising the argument of ‘double jeopardy’ has nothing to do with negating criminality.

‘Double jeopardy’ does not fall, therefore, within the sphere of justice (like ‘necessity’ and ‘justification’) where there is no offence ab initio, nor is ‘double jeopardy’ concerned with an exemption (such as repenting of encouragement, under s. 30 of the Penal Law), in which the act led to a criminal offence, but a later event is what cancels the criminal liability. We are also not concerned with the absence of a preliminary condition for the existence of the offence (such a minority and insanity), in which framework are included the cases of incapacity. In other words, the ‘double jeopardy’ rule, in essence, does not fall within the category of limitations to the criminality of the act (see Feller, Principles of Criminal Law, the Harry Sacher Institute for the Investigation of Legislation and Comparative Law, volume 2, 5747, at 503-507).

From this it can be seen that the defence of ‘double jeopardy’, after the first proceeding, presents merely a barrier to the realization of criminal liability, under the assumption that this exists. The act was prima facie an offence before the first proceeding and it also remains so thereafter, but because of the first proceeding the criminal liability, which arose prima facie when the act was committed, cannot be realized. From this the defence of ‘double jeopardy’ can be seen as an extension of the category of limitations to the realization of criminal liability, where ‘the limitation to the realization of criminal liability assumes, as implied by this very expression, the existence of an act that constitutes an offence and criminal liability that already rests with a person who ought to be tried for it, or with a person who has already been tried for it, but its realization is barred, in some degree, because of a special reason, which arises later, and which is the limitation itself’ (Feller, ibid., vol 2, at pp. 619-20).

9.    So it transpires that the question whether the ‘double criminality’ required in section 2 of the Extradition Law must be considered, only in abstracto or also in concreto, does not arise at all when the person whose extradition is requested raises the defence of ‘double jeopardy’, which he does not have in the country making the request. This is because, as explained above, the prima facie criminality of the act, also under our law, is the point of origin for the actual defence, and here lies the basic difference between this defence and a defence that the act attributed to the person wanted is not an offence under Israeli law (because, for example, of the young age of the person requested).

       After reaching this point, the question whether section 8 of the law includes a closed list of issues that allow an extradition application to be rejected becomes superfluous, for even if you say that it is not, extending the list can only be done for value considerations ‘reflecting the normative system of the State’, which prevent it from extraditing a person requested ‘by disregarding its law and public policy’ (Feller, ibid., at p. 181). We have already said that the defence of ‘double jeopardy’ does not attack the criminality of the act even under our system, and all that is argued is that there is a barrier to realizing the criminal liability even if this exists. It cannot be said that extradition of a person to a country where such a barrier does not exist (when in Israel it arises only ‘in rare circumstances where the trial of an indictment filed lawfully before a competent court is “terminated”, and there are no provisions in the law that determine the nature of the “termination” and its significance in the context under discussion’ (Y. Kedmi, On Criminal Procedure, Dionon, 1993, at p. 590)) harms the fundamental principles of our system or the ‘basic principles of the society and the country’ (see Feller, ibid., at p. 211), to such an extent that the person requested should not be extradited. Not only has the defence of ‘double jeopardy’ not succeeded empirically in our case-law until now, but we do not even regard as ‘double jeopardy’ a case where the State appeals the acquittal of an accused, even though he may be convicted on appeal.

            From the above it appears that even if the petitioner had the barrier of ‘double jeopardy’ in Israel because of the mistrial, her argument should be rejected for two reasons: first, there is no absence of double criminality, and, second, the barrier of ‘double jeopardy’ when a trial is terminated is not a principle that conflicts with the basic principles of our system.

10. It is not superfluous to add that the defence of ‘double jeopardy’ which the petitioner raises would also not succeed if the petitioner were brought to trial in Israel, under the rule in HCJ 20/50 Schwartz v. Presidency of the Supreme Military Tribunal [4]. In that case a proviso was applied that the defence of ‘double jeopardy’ cannot succeed when the first trial is terminated ‘before it is completed, for reasons that are not the fault of the court or the public prosecution.’ As stated there, on p. 193 —

‘Just as in a case where the jury is discharged, a need arises [in that case] to discharge the panel of the court in the first trial. This need and this discharge forestall the applicant’s defence arguments in the second trial, and his defence of double jeopardy will not succeed’ (square parentheses added).

It follows that the petitioner would not be able to raise a defence of ‘double jeopardy’ after her first trial was terminated ‘in circumstances not the fault of the court and the public prosecution’. This is the case when the first trial is terminated as a mistrial, and we must apply the ‘comparative equivalent’.

11. For the said reasons, I would deny the petitioner’s petition.

 

 

Justice S. Levin

1.    I agree with my esteemed colleague, Justice Goldberg, that the defence of double jeopardy, in the circumstances in which it arises in the case before us, does not concern the issue of criminal liability. Notwithstanding, we are not released from considering the question whether the court in Israel may deny the extradition application even though the matter does not fall within section 8 of the Extradition Law.

2.    Just as in the first hearing, I am also now prepared to assume, without deciding the issue, that the provisions of the aforesaid section 8 do not constitute a closed list; notwithstanding, I would hesitate before making even a general categorization of exceptional cases where the application would be denied in circumstances that are not included in the said section. I am prepared to assume that perhaps it is possible to include in the said category extreme cases where granting the extradition application would be contrary to public policy in Israel; but even the formula that the court will refuse an application in circumstances where the foreign law (apart from with regard to criminal liability) conflicts with fundamental principles of our legal system is problematic. Thus, for instance, it has already been said more than once that cross-examination is an established principle in the Israeli legal system; will we refrain from extraditing someone, when all the conditions justifying his extradition are fulfilled, merely because in the legal system of the country making the request the adversarial system is not practised? What would we say if a country with which we have made an extradition treaty refused to grant an extradition application merely for the reason that the rules of procedure and evidence in our country are different from the law applicable there?

3.    With regard to the case before us, I should cite once again the remarks of my esteemed colleague, Justice Mazza, who wrote the following in his judgment:[§§§§]

‘…(that) the question whether there exists an obstacle to retrying someone an accused or wanted person, who raises the defence of double jeopardy, should under the (prevailing and the proper) law be considered in the courts of the country making the application, and not within the framework of the extradition application. The law prevailing in this matter in the other country, with which we have made an extradition treaty, may be consistent or inconsistent with the criteria whereby the issue is determined under our law. However entering into the treaty, as long as the treaty is in force, obliges the State of Israel to respect the right of the other country to deal with the said issue under its laws. In this respect we should also consider the principle of reciprocity, and there is no need to discuss at length its importance in extradition law as an international norm.’

I agree with this completely; and I do not consider that the circumstances of the case before us justify a deviation from the reasons set out in section 8 of the law, even if I were to determine this deviation to be possible under the law.

I too would deny the petition.

 

 

Justice E. Mazza

For the reasons that I gave in my judgment at the appeal stage, and in agreement with the additional reasons of my esteemed colleague, Justice Goldberg, I agree with the conclusion that the petition should be denied.

 

 

Justice D. Dorner

I agree, for the reasons stated by my colleague, Justice Goldberg, that the petition should be denied.

Like my colleague, I too am of the opinion that, in addition to the cases where the conditions of section 8 of the Extradition Law are not fulfilled, a wanted person should not be extradited if putting him on trial is contrary to the fundamental principles of the Israeli legal system.

The defence of ‘double jeopardy’ — as distinct from the defence of res judicata — cannot prevent extradition under section 8, and it also does not reflect a fundamental principle of our system.

 

 

 

 

Justice A. Barak

1.    I agree that the petition should be denied. My reason for this is that in the circumstances of the case before us, the petitioner would not have a defence of double jeopardy if she were put on trial in Israel. My colleague, Justice Goldberg, discussed this issue, and pointed out that ‘the defence of “double jeopardy” which the petitioner raises would also not succeed if the petitioner were brought to trial in Israel.’ I agree with Mr Golan that the relevant question in this matter is not whether the petitioner has a defence of ‘double jeopardy’ in the United States. My reasoning in this regard in the appeal was wrong. The relevant question is whether the petitioner could defend herself in Israel, if put on trial here, with a defence of double jeopardy. As stated, my answer to this question is in the negative. The reason underlying this opinion of mine is that — as pointed out by my colleague Justice Goldberg and as discussed by my colleague Justice Mazza in the appeal — in view of the procedural stage where the petitioner stands in the United States, her trial has not yet ended because of a manifest necessity. The declaration of a mistrial means, in the circumstances of the case, that the proceeding has not yet ended, and that its non-completion is not the fault of the prosecution. In these circumstances, the jeopardy faced by the petitioner has not yet ended. This is the reasoning given in the United States for the rules of double jeopardy (see 21 Am. Jur. 2d, supra, at 462). According to the approach in the United States, when a trial is terminated — after a mistrial occurs because of the existence of a hung jury — it is not seen as a trial that has ended. The accused continues to be regarded as facing the first jeopardy that he faced in the past (see Arizona v. Washington (1978) [5]). Of course we do not have juries in Israel, and therefore the question of a hung jury cannot arise. We are therefore compelled to consider the ‘comparative equivalent’. This comparison must be made on the basis of the reason underlying the rules of ‘double jeopardy’. It is also the attitude in Israel that if the trial has not yet finished for reasons that do not depend on the prosecution, the jeopardy faced by the accused should be regarded as continuing to exist (see Schwartz v. Presidency of the Supreme Military Tribunal [4] at p. 192). Therefore if the trial in Israel were terminated for a reason that is not dependent on the prosecution, like the termination of a trial by the court for one reason or another, this would not be regarded as double jeopardy under Israeli law. This result is indeed the right one. It makes the proper balance in taking account of the legitimate interests of the accused and the legitimate interests of the public. The Supreme Court of the United States discussed this in one case, and it stated:

‘The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of the law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again… What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.’ (Wade v. Hunter (1949) [6] at 688).

It follows that the petitioner does not have a defence of double jeopardy in Israel, and her petition should be denied.

2.    In view of this conclusion, I do not need to decide the important questions that arose in the appeal and the further hearing. I have pointed to some of these questions in my opinion in the appeal. I left them undecided. Here too I would like to leave them undecided. In any event I wish also to leave undecided the question whether the criterion proposed by my colleague, Justice Goldberg — the violation of fundamental principles of our legal system — is the proper criterion, or whether it is perhaps too wide in certain cases (such as the example of cross-examination brought by my colleague, Justice S. Levin) and too narrow in certain cases (such as a procedural immunity that is not based on a fundamental principle). Moreover, can it not be said that the rules about double jeopardy are based on the desire to prevent a miscarriage of justice to the accused? Should this not be regarded as protection of a fundamental principle? I am aware of the sound answers that can be given to these questions, and even of questions that can be raised against those answers. It seems to me that within the framework of the petition before us we do not need to decide them, and I wish, as stated, to leave them undecided.

 

 

Petition denied.

16 August 1993.

 

 

 

[*]               Manning v. Attorney-General [1993] IsrSC 47(1) 573.

[†]               Ibid. p. 578.

[‡]               Ibid. p. 583.

[§]               Ibid.

[**]             Ibid. p. 591.

[††]             Ibid.

[‡‡]             Ibid.

[§§]             Ibid.

[***]            Ibid., p. 592.

[†††]            Ibid.

[‡‡‡]            Ibid.

[§§§]            Ibid., p. 591.

[****]           Ibid., p. 592.

[††††]           Ibid., p. 588.

[‡‡‡‡]           Ibid., p. 592.

[§§§§]           [1993] IsrSC 47(1) at p. 588.

Full opinion: 
PDF icon Manning v. Attorney General.pdf

Association for Civil Rights in Israel v. State of Israel

Case/docket number: 
HCJ 6924/98
Date Decided: 
Monday, July 9, 2001
Decision Type: 
Original
Topics: 
Administrative Law
Discretion
Constitutional Law
Basic Law: The Government
Equality Before the Law
Freedom of Expression
Government
Abstract: 

Facts: In this petition, the petitioner, the Association for Civil Rights in Israel, asked the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance to nullify the appointment of some of the representatives on behalf of the Government in the Israel Lands Council and to appoint in their stead, Arabs as members of the Council.

 

Held: The court analyzed the substance and applicability of the principle of equality and decided that given that the Government is to appoint an additional six representatives on its behalf as members of the Council, the order nisi is to be made absolute in the sense that the respondents are ordered to weigh, in accordance with what was detailed in the judgment, whether it is possible to appoint an additional Arab as a member in the Israel Lands Council.

 

Voting Justices: 
Zamir, Itzchak
Primary Author
majority opinion
Cheshin, Mishael
majority opinion
Beinisch, Dorit
majority opinion
Full text of the opinion: 

HCJ 6924/98

Association for Civil Rights in Israel

v

1.  State of Israel

2.  Minister of National Infrastructures

3.  Minister of Finance

 

The Supreme Court sitting as the High Court of Justice

[9 July 2001]

Before Justices M. Cheshin, I. Zamir, D. Beinisch

 

Objection to an order nisi issued March 14, 1999.

 

Facts: In this petition, the petitioner, the Association for Civil Rights in Israel, asked the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance to nullify the appointment of some of the representatives on behalf of the Government in the Israel Lands Council and to appoint in their stead, Arabs as members of the Council.

 

Held: The court analyzed the substance and applicability of the principle of equality and decided that given that the Government is to appoint an additional six representatives on its behalf as members of the Council, the order nisi is to be made absolute in the sense that the respondents are ordered to weigh, in accordance with what was detailed in the judgment, whether it is possible to appoint an additional Arab as a member in the Israel Lands Council.

 

 

Basic Laws cited:

Basic Law: Israel Lands ss. 1, 2.

Basic Law: Human Dignity and Liberty s. 1.

 

Legislation cited:

Israel Land Administration Law, 5720-1960, ss. 1, 2, 4A.

Israel Lands Law, 5720-1960.

Israel Land Administration Law (Amendment) 5755-1995, s. 5.

Government Corporations Law 5735-1975, ss. 18A, 18A1, 60A

Women’s Equality of Rights Law 5711-1951.

Equal Pay for Female and Male Employees Law, 5724-1964.

Equal Employment Opportunities Law 5748-1988, s. 2.

Authority for Advancement of Women Law, 5758-1998.

Civil Service Law (Appointments), 5719-1959, ss. 15A, 15A (b), 15A (b) (2).

National Insurance Law [Consolidated Version] 5755-1995, ss. 20, 22.

Employment Service Law, 5719-1959, s. 42.

Patient’s Rights Law 5756-1996, s. 4.

 

Draft legislation cited:

         Draft Proposal for the Israel Land Administration Law, 5720-1960 

         Draft Proposal for the Israel Land Administration Law (Amendment) (Israel Land Administration Council) 5755-1994.

         Draft Proposal for the Israel Land Administration Law (Amendment no. 3), 5758-1998.

         Draft Proposal for the Government Corporations Law (Amendment no. 13) (Appropriate Representation for the Arab Population) 5760-2000.

         Draft Civil Service Law (Appointments) (Amendment no. 11) 5760-2000.

          

Israeli Supreme Court cases cited:

[1]      HCJ 6698/95 Ka’adan v. Israel Land Administration Authority, IsrSC 54(1) 258. [2000] IsrLR 51.

[2]      HCJ 453/94 Israel Women’s Network v. Government of Israel, IsrSC 48(5) 501; [1992-4] IsrLR 425.

[3]      HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, IsrSC 52(3) 630.

[4]      HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs, IsrSC 54(2) 164; [2000] IsrLR 133.

[5]      HCJ 421/71 Yaf Ora Ltd v. Broadcasting Authority, IsrSC 25(2) 741.

[6]      HCJ 2814/97 Upper Tracking Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport, IsrSC 54(3) 233.

[7]      HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv-Jaffa, IsrSC 42(2) 309.

 

Israeli books cited:

[8]      Y. Weisman, Property Law – General Part (1993).

[9]      U. Benziman, A. Manzur, Subtenants – Arabs of Israel, their Status and the Policy toward Them (1992).

[10]    I. Zamir, Administrative Power (Volume A. 1996).

 

Israeli articles cited:

[11]    D. Barak-Erez ‘A Dunam Here and a Dunam There: The Israel Lands Administration in the Vise of Interests’ Iyunei Mishpat 21 (1998) 613.

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

[13]    F. Radai, ‘As to Affirmative Action’ Mishpat U’Memshal C (1995-1996) 145.

[14]    A. Rubinstein, ‘On the Equality for Arabs in Israel’ Kiryat Hamishpat A (2001) 17.

 

Foreign books cited:

         [15] D. Kretzmer The Legal Status of the Arabs in Israel (Boulder, 1990).

 

Other:

[16]    State Comptroller – Annual Report 44 for the Year 1193 and for the Accounting Year 1992 (1994).

[17]    Declaration of the Establishment of the State of Israel.

[18]    Report of the Subcommittee as to the Status of Minorities in Civil Service and in Public Services (1989).

[19]    The Regime of the State Israel – Book of Sources (Y. Galnor, M. Hafnung eds., 1993).

 

For the petitioner – Hadas Tagari.

For the respondents – Osnat Mendel, Head of High Court of Justice Department, State Attorney’s Office.

 

 

JUDGMENT

 

Justice I. Zamir

1.    The Association for Civil Rights in Israel (hereinafter: ‘the petitioner’) asks the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance (hereinafter: ‘the respondents’) to nullify the appointment of some of the Government representatives in the Israel Lands Council and to appoint in their place, Arabs as members of the Council.

The Law

2.    The law which establishes the Israel Lands Council (hereinafter: ‘the Council’) is the Israel Land Administration Law, 5720-1960 (hereinafter: ‘the law’).  Section 3 regulates the appointment and the role of the Council in stating:

‘The Government will appoint an Israel Lands Council which will establish the land policy according to which the Administration will operate, will supervise the actions of the Administration, and will approve its budget proposal that will be established in the law’.

The composition of the Council was established in section 4A as follows:

‘4A(A) The Minister, who will be the chairperson, and members whose numbers will not be less than eighteen and not more than twenty four, which the Government will appoint, by proposal of the ministers, will serve in the Council, as detailed below:

(1)  Half of the Council members will be on behalf of the Government, and half will be on behalf of the Jewish National Fund and by its proposal;

(2) (a)  At least half of the members on behalf of the Government will be State employees, holding senior positions in the government offices connected to the matter, and the remainder will be individuals from academia and representatives of the public;

(b)  The members on behalf of the Jewish National Fund will be members of the Board of Directors, employees of the Jewish National Fund or individuals from academia; the Jewish National Fund is also permitted to propose one representative on behalf of the Jewish Agency;

(3) Members of the council who hold positions not in civil service nor in the service of the Jewish National Fund, and who in these positions have an interest in land policy (hereinafter – interest holder in land policy), will not make up more than a third of the number of the Council members, and of them no more than one half will hold positions in the agricultural sector.

(B) The Government will be given details as to the qualifications of the candidates, including their curriculum vitae, their education, their dealings in the past and present, their experience, and any other detail which is substantive and relates to the matter.

(C)  The Minister, with the approval of the Council, will appoint a substitute for the Chairperson from among its members.

(D)  Notice as to the appointment of the members of the Council will be published in the register.

 

Additional clauses in the law establish provisions as to limitations on appointing members to the Council, the period of tenure, the conclusion of the tenure, the appointment of alternates for a member of the Council, protocols in the Council and more.

The minister who today serves as the Chairperson of the Council is the Minister of National Infrastructures.

The two ministers that according to section 4A(a) of the law propose to the Government the names of the candidates for appointment to the Council are today the Minister of Finance and the Minister of National Infrastructures.

3.    The law also establishes the Israel Lands Administration (hereinafter: ‘the Administration’).  Section 2 of the law establishes that the Government will set up the Administration which will ‘administer the Israel Lands’; that it will appoint the Director of the Administration and that the Administration employees will be civil servants.  The authority of the Administration is sweeping authority that is almost not regulated by the law.  However, section 4 of the law establishes that the Director of the Administration will submit to the Council a report of the activities of the Council at least once a year, and it is clear that the Administration must act according to the policy established by the Council, and that it is subject to the supervision of the Council.  See section 3 of the law, supra, paragraph 2.

As to the Administration see HCJ 6698/95 Ka’adan v. Israel Land Administration Authority [1] (hereinafter: ‘the Ka’adan case’) at pp. 269-272.

4.    Israel Lands which are subject to administration by the Administration, were defined in the Basic Law: Israel Lands.  Section 1 of the basic law establishes that Israel Lands are ‘the lands in Israel, of the State, of the Development Authority or of the Jewish National Fund.’  This section further establishes that the ownership of Israel Lands will not be transferred, whether by sale or by any other means.  However, section 2 of the basic law, removes from the application of the prohibition types of lands and types of transactions which have been established for this purpose in the law.  Such transactions were established in the Israel Lands Law, 5720-1960.  As to the Basic Law: Israel Lands and as to Israel lands in general see Y. Weisman, Property Law – General Part [8], p. 195 and on.

In actuality, Israel Lands include more than 90% of all the lands in the State.  See Weisman in his book supra [8] at p. 193.  If so, it is clear that the land policy determined by the Council and the oversight of the Council over the Administration has enormous influence over all that relates to development of the Land both from a national and from a private aspect.  See D. Barak-Erez ‘A Dunam Here and a Dunam There: The Israel Lands Administration in the Vise of Interests’ [11].  From here it is also clear that there is great importance to the composition of the Council.

Composition of the Council

5.    The law that established the Council and the Administration in 1960 – did not state a word about the composition of the Council. How so?  As stated in the explanatory notes to the Draft Proposal for the Israel Land Administration Law, 5720-1960, at that time the covenant between the State and the Jewish National Fund (hereinafter: ‘JNF’), was about to be signed, and it contained provisions as to the Council and the Administration (hereinafter: ‘the Covenant’).  The legislator made due with the fact that the composition of the Council would be coordinated in the Covenant.  And indeed, that Covenant that was signed on November 28, 1961 and published in the Yalkut Pirsumim 5728-1968, no. 1597, arranged the composition of the Council.  According to the Covenant, the number of the members in the Council would be thirteen, and half less one would be appointed by proposal of the JNF.

Over the years the number of Council members was increased on three occasions, until it reached twenty-seven.  The number was increased, as stated by the State Comptroller, without the need for this being clarified and with the numerical relationship between members from the JNF and other members being maintained.  See State Comptroller – Annual Report 44 for the Year 1993 and for the Accounting Year 1992 [16] at pp. 224-225.

6.    The situation in fact was not satisfactory.  It raised criticism on the part of the State Comptroller.  See said Annual Report of the State Comptroller [16] at p. 221 and on.  Following the report of the State Comptroller a private Draft Law (on behalf of three members of Knesset) was submitted to the Knesset which was primarily intended to arrange the composition and the functionality of the Council:  Draft Proposal for the Israel Land Administration Law (Amendment) (Israel Land Administration Council) 5755-1994.  In the explanatory notes to the Draft Law (p. 179) it was stated:

‘The actions of the Administration in all that relates to Israel lands take place via an internal legislative body which is the Council of the Administration.  This Council operates by power of undefined arrangements, primarily internal, and in a manner which deviates from the proper order and the proper administration.

In report 44 of the State Comptroller, criticism was expressed . . .  in that report the State Comptroller revealed that in fact a majority that is connected in one way or another to the agricultural sector in actuality controls the Council and its various committees.  Indeed, the law does not relate to the need to give expression in the Council to one sector or another, but it would be preferable, if there were not in the Administration Council a majority for a specific economic group.’

On the basis of this Draft Law, the Israel Land Administration Law (Amendment) 5755-1995 (hereinafter: ‘the amending law’) was passed.  The amending law added section 4A to the law, which regulates the composition of the Council, and additional sections which related to the Council.  See supra paragraph 2.  In accordance with section 5 of the amending law, the period of tenure of the Council members ended in February 1997, and the Government was meant to appoint new members to the Council in accordance with the amending law.

7.    Looking toward the appointment of new members to the Council the petitioner, in February 1997 approached the respondents in a letter.  In the letter, it said, inter alia, as follows:

‘The actions of the Council have great impact over various sectors in the population, and in fact the composition of the Council, has to date reflected the interests of various sectors of the public.  However, this representation did not apply as to the Arab population, and as said today not even one Arab member has been included in the Council.  Therefore, we turn to you with a request that in the Council that is to be appointed there will be appropriate representation of Arab members, of appropriate professional experience and qualifications.

We are of the view that the situation that has existed to date, according to which there is no representation for the Arab population in the body that determines the policy of the Administration, is illegitimate at its core.  The Arab population which is about a fifth of the State’s population has unique interests on the subject of lands, interests which are not represented by other entities.  The principle of equality necessitates that this population will be granted appropriate representation in the Israel Lands Council.  Half of the members of the Council – twelve out of twenty four – are representatives of the government, of which at least six are senior civil servants, and the rest (up to six) are individuals from academia and representatives of the public.  This diverse composition that the law established, and in particular the membership of about six members who are individuals from academia and representatives of the public, was intended to enable flexibility in determining the composition of the Council, flexibility that would ensure proper representation for diverse publics.’

8.    On March 21 1997, the Government decided to appoint eighteen members to the Council: of them nine on behalf of the Government, all civil servants who represent various government offices, and nine on behalf of the JNF.  Among the members that were appointed there was not a single representative of the public nor was there a single Arab member.

On June 15, 1997 Dan Meridor, the then Minister of Finance wrote to the petitioner and said as follows: ‘I am of the view that there is nothing to prevent the appointment of Arab citizens to the Israel Lands Council.  Your proposal will be taken into account in my considerations, at the time of making a decision as to the inclusion of additional [members] to the Administration Council.’

In the meantime, as arises from the pleadings, five additional members have been appointed (at an unknown date), of which three are on behalf of the Government and two on behalf of the JNF, and among them there is not one Arab member.

Since the quota of members on behalf of the Government as established in section 4A of the law was filled, no available space remained for an Arab member in the Council.  ‘There is therefore no other recourse’ so wrote the legal counsel of the Ministry of National Infrastructures on July 26, 1998 to the petitioner ‘but to amend the law in order to create more spaces for representatives of the public.’

9.    On June 15, 1998, a government sponsored draft law was published which proposed to increase the maximum number of members in the Council from twenty-four to thirty: Draft Israel Land Administration Law (Amendment no. 3), 5758-1998.  In the explanatory notes to this draft law (p. 374) it was stated: ‘. . . with the goal of ensuring representation on behalf of the public in the Israel Lands Council, it is proposed to establish that the number of representatives on behalf of the Government who are civil servants will  not be greater than twelve.’

The legal counsel in the Ministry of National Infrastructures announced to the petitioner that the Minister intends to act, after the draft law becomes law, to appoint a representative from among the Arab public out of the quota of representatives of the public in the Council.

However, the draft law, although it passed a first reading in the Knesset (on July 7, 1998), was never submitted for a second or third reading, and it is impossible to know if and when it will be made into law.

The petition

10.  This being so, the petitioner filed the petition to this Court, in which it requests that the Government nullify the appointment of some of the Government representatives on the Council and appoint in their stead Arab members in a proportion which constitutes an appropriate representation of the overall Council members.

After an initial hearing on the petition the Court issued an order nisi (on March 14, 1999).  The response to the petition was submitted in two levels: the level of principle and the level of practice.  On the level of principle, the respondents claimed that the Government on whose behalf half of the members are appointed must appoint senior civil servants who will represent the government offices which have a connection to the matter and will act to implement the land policy of the Government.  Moreover, the respondents claim that even if the Government appoints representatives of the public to the Council, it is not clear that it must give ‘appropriate representation’ to the Arab population.  In any event, according to their claim, there is no need for the Court to make a determination on this question in the level of principle, as the question is standing before a resolution in the practical level.

In the practical level, the respondents gave notice that the government intends to appoint an Arab member to the Council in the near future even if the Draft Israel Land Administration Law (Amendment no. 3) (supra paragraph 9) is not passed.  In the view of the respondents, the appointment of an Arab member to the Council out of the maximum quota of six representatives of the public is an appropriate representation of the Arab population in the Council.

11.  Indeed, after a time, the Government decided (on May 14, 1998) to appoint Mr. Salah Suleiman as a representative of the public who represents the Arab sector in the Council.  However, following the request of the Attorney General to conduct a re-examination of the question of Mr. Suleiman’s political affiliation the Government decided to limit the appointment to a period of about half a year.  Later (in the month of January 2001) the Government extended the appointment for an additional half a year until the month of July 2001.

In a supplementary notice by the State Attorney’s office (from April 5, 2001) it was stated that the Attorney General directed the legal counsels from the various government offices which relate to the matter to prepare for the appointment of an Arab member to the Council, who would replace Mr. Suleiman, in the month of July, 2001.  Even at the time of the hearing it was said to the Court by the counsel for the respondents that the Government intends to appoint an Arab member to the Council when the period of tenure of Mr. Suleiman ends.

Based on what has been stated, the Court presumes that when the time comes an Arab member will be appointed as a representative of the public in the Council in the place of Mr. Suleiman.

12.  The respondents, who object to the claim that they have a legal duty to give appropriate representation to the Arab population on the Council, are of the opinion that even if there is such a duty imposed on them they have fulfilled it by appointing one Arab representative of the public to the Council.  Is this indeed so?  The question what the duty to give appropriate representation necessitates where such a duty is imposed is a difficult question.  The answer depends to a great extent on the context, including the statutory provisions, the identity of the entity, the essence of its role, and the other circumstances of the given case.  See HCJ 453/94 Israel Women’s Network v. Government of Israel (hereinafter: ‘the first Israel Women’s Network case’) at pp. 527-528.

However, be the duty to give appropriate representation what it may be, in the given case it is clear that the appointment of one Arab member as a representative of the public out of a maximum quota of six representatives of the public on the Council fulfills the duty of appropriate representation of the Arab population among the representatives of the public on the Council.

Therefore it becomes unnecessary to discuss and determine in this petition the question if indeed a duty is imposed on the respondents to give appropriate representation to the Arab population among the representatives of the public on the Council.

13.  The petitioner is not satisfied with the appointment of one Arab among the representatives of the public to the Council.  It claims that the Government has a duty to give the Arab population appropriate representation not only among the representatives of the public but in the Council in its entirety.  In the Council there are twenty four members.  One Arab member is not considered, according to its claim, appropriate representation for the Arab population which makes up about one fifth of the population in Israel.  Therefore, it requests that additional Arab members be appointed to the Council.

Indeed, the petitioner, who is aware that the law requires the appointment of half of the members of the Council on behalf of the JNF, does not ask for the appointment of Arab members on behalf of the JNF.  The explanation for this is, apparently, that the JNF is a Jewish organization which is obligated, by its articles of incorporation to purchase lands for the settlement of Jews in the land of Israel.  However, the petitioner asks for the appointment of additional Arab members on behalf of the Government in order to reach an appropriate representation of the Arab population in the Council.  It claims that such representation is necessitated by the principle of equality.

The question that is before the Court is therefore whether the principle of equality necessitates the appointment of additional Arabs as members of the Council.

Principle of equality

14.  As to the importance of the principle of equality it is no longer necessary to go on at length.  In the words of Justice M. Cheshin ‘It is a first among principles in royalty, head and shoulders above all the other principles.’ HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs (hereinafter: ‘the Second Israel Women’s Network case’) [3] at p. 650.  As to equality in general see I. Zamir, M. Sobel ‘Equality before the Law’ [12]. 

The Court has given a broad meaning to the principle of equality in a large number of decisions and has applied it to almost every type of distinction between people on the basis of irrelevant considerations.  Thus, for example, a distinction between people who seek to receive a subsidy based on the place they live or the date of application may be considered a violation of the principle of equality.  However, the original meaning of the principle of equality, and it appears that it is also the precise definition, is a narrower definition.  In this meaning, which is also accepted in other countries, the principle of equality relates to a limited list of defined grounds which can be called the classic grounds of equality, and Justice M. Cheshin calls them generic grounds of equality.  These are for example, religion, race, nationality and gender: every person is entitled to equality without distinction as to religion, race, nationality and gender.  The principle of equality in this sense, as distinguished from the broad sense, is considered in many states, and is worthy of being considered, a constitutional right.  Not without a reason did the Declaration of the Establishment of the State of Israel [17] note the obligation of the State to keep up ‘total social and political equality of rights for all its citizens without distinction as to religion, race and gender.’

Violation of the principle of equality in the narrow sense is considered particularly severe, and so said Justice M. Cheshin in the Second Israel Women’s Network case [3] (at pp. 658-659):

‘An additional example of generic discrimination [in addition to the discrimination against a woman for being a woman. I.Z.] is the discrimination against a person for the color of their skin or for their race.  Generic discrimination, as has already been said, is discrimination which mortally wounds human dignity.’

See also the Ka’adan case [1] (supra paragraph 3) at pp. 275-276.

15.  Such is also discrimination against an Arab for being an Arab, and it is the same if the discrimination is based on religion or nationhood.  It is a violation of the principle of equality in the narrow sense.  Therefore, it carries particular severity. 

The principle of equality in this sense is the soul of democracy.  Democracy demands not only one vote for one person in elections, but also equality for all at all times.  The real test for the principle of equality is anchored in the treatment of the minority: religious, national or other.  If there is no equality for the minority there is no democracy for the majority.

This is also so as relates to equality toward Arabs.  However, the difference between the question of equality toward Arabs and the question of equality toward others is not to be ignored.  Thus, for example, is the question of equality toward women.  This question is not unique to the State of Israel.  It is universal.  Discrimination against women in the State of Israel like in other states stems primarily from prejudicial opinion.  The struggle against such opinion has been taking place for some time with determination in Israel, based on broad social consensus, and it is achieving a significant amount of success.  So too, as an additional example, is the struggle for equality of people with disabilities.  This struggle, as well, takes place on a broad foundation of understanding and empathy.  These struggles do not awaken, at least in an open realm, fundamental resistance or emotional recoil.  This is not so with the question of discrimination against Arabs.  Indeed in the legal realm there is no fundamental difference between the question of equality toward the Arab population and the question of equality toward another group.  In that realm the question of equality is the question of equality toward a religious or national minority, be it what it may be.  This too is a universal question and it too has a universal answer.  The answer is that a religious or national minority, and especially such a minority, is entitled to equality.  However, in the practical realm in the State of Israel there is a special significance to the question of equality toward Arabs.  This question is connected to a complex relationship that has developed between Jews and Arabs in this country over a long period of time.  Despite this, and perhaps particularly because of this, there is a need for equality.  The equality is vital to life together.  The good of society and in the real calculation the good of every individual in society necessitate nurturing the principle of equality between Jews and Arabs.  In any event, this is the dictate of the law, and therefore it is the duty of the Court.

And President Barak said as follows in the Ka’adan case [1] (supra paragraph 3, at pp. 282).

‘The State of Israel is a Jewish state in which various minorities, including the Arab minority, live. Each of the minorities living in Israel enjoys complete equality of rights. It is true, members of the Jewish nation were granted a special key to enter home (see the Law of Return-5710-1950), but once a person is lawfully at home, he enjoys equal rights with all other household members. . .  There is, therefore, no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens. The opposite is true: equality of rights for all people in Israel, be their religion whatever it may be and be their nationality whatever it may be, is derived from the values of the State of Israel as a Jewish and democratic state.’

16.  According to the principle of equality there is, inter alia, a duty to allocate State resources in an equal manner to Arabs as to Jews. See HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [4] (hereinafter: ‘the Adalah case’).  Civil service jobs also constitute resources of the state.  These are particularly important resources, as they carry with them the possibility of impact on many issues, including on the distribution of monetary and other resources.  Therefore, the principle of equality necessitates that state jobs are allocated without discrimination between Jews and Arabs.  The meaning is that a person’s appointment to a state job is not to be prevented just because he is an Arab.

However, does this also mean that the Arab population is entitled to appropriate representation in civil service and associated entities, such as, for example, the Israel Lands Council?

The duty of appropriate representation

The principle of equality in its common meaning, both the narrow meaning and the broad meaning, does not necessitate appropriate representation.  Indeed there is a connection between the principle of equality and appropriate representation, but there is also a difference between them.  The principle of equality in its common meaning is fundamentally a passive concept: it may prohibit a person from taking into account irrelevant considerations such as religion, nationality, race or gender.  On the other hand appropriate representation is at its core an active concept: it may require a person to act to reach appropriate representation, including taking into account considerations such as religion, nationality, race or gender as a relevant consideration.

The essence of appropriate representation is expressed in the first Israel Women’s Network case [2] (supra paragraph 12).  Section 18A of the Government Corporations Law 5735-1975 stood at the center of this case.  And this is the language of the section:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of both genders.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the gender that is not properly represented at that time on the board of directors of the corporation.’

In the decision, Justice Mazza clarified that the duty established in section 18A to give proper expression to representation of both genders, is a duty of affirmative action.  Affirmative action is generally directed at correcting a social distortion that has harmed equality.  In said case it stems from the reality of sub-equality in the representation of women in boards of directors of government corporations and is directed at advancing equality between the genders on these boards of directors.  Therefore, said Justice Mazza, affirmative action, while it appears to harm equality because it preferences members of a certain group on the basis of considerations of religion, nationality, race, gender and the like, in fact is derived from the principle of equality and serves as a means to achieve equality.  As to affirmative action see F. Radai, ‘As to Affirmative Action’ [13]; Zamir and Sobel, in said article [12] at pp. 200-204.

18.  Is there a place to analogize the first Israel Women’s Network case [2] and the present case?  In this case, like in the first Israel Women’s Network case [2] the petitioner is not asking the court to direct the respondents to act in the appointment of members according to the common meaning of equality, as the petitioner is not making the claim that the Government rejected a candidate for membership in the Council because he is an Arab.  But what? The petitioner is requesting that the Court order the respondents to act in appointment of members to the Council by way of affirmative action toward the Arab population.  The Court so ordered in the first Israel Women’s Network case [2] since women had weak representation in the boards of directors of government corporations; in the petitioner’s opinion, it is to be similarly ordered in this case, since Arabs have weak representation in civil service, and included in this in the Council.

Despite this, there is no room for analogy between the first Israel Women’s Network case [2] and the present case.  In the first Israel Women’s Network case [2] a duty was imposed on affirmative action in order to advance the appropriate representation of women in an explicit statutory directive, meaning in section 18A of the Government Corporations Law.  On the other hand in the present case there is no such an explicit provision which requires appropriate representation of Arabs in the Council.  There is therefore no statute that provides a foundation for the petitioner’s claim that there is a duty to provide the Arab population appropriate representation in the Council.

19.  The petitioner claims, however, that the duty to give the Arab population appropriate representation in the Council does not require an explicit statutory directive, but it exists by power of the principle of equality.  The basis for this claim is the decision in the second Israel Women’s Network case [3] (supra paragraph 14).  How is the second Israel Women’s Network case [3] different from the first Israel Women’s Network case [2]?  In the second Israel Women’s Network case [3] the Court applied the duty of appropriate representation to women even without an explicit statutory directive.

In the second Israel Women’s Network case [3] the appointment of a deputy to the Director of the National Insurance Institute was discussed.  At that time the Director of the National Insurance Institute had eight deputies including a woman who was on vacation, apparently for the purpose of retirement.  After the position of one of the deputies was vacated the Minister of Labor and Welfare decided to appoint a certain person, a man and not a woman, to the position that was vacated, for a trial period.  The petitioner asked that this appointment be nullified and that the minister be obligated to appoint a woman to the position that was vacated in order to advance the representation of women among the Deputy Directors of the National Insurance Institute.

The Court examined statutes and case law as to the principle of equality of the genders, including the requirement of appropriate representation of women in civil service, and the applicability of statutes and case law to the management of the National Insurance Institute.  As the Court noted, at first came the Declaration of the Establishment of the State of Israel [17], which declared the obligation of the State to fulfill complete political and social equality of rights without difference as to religion, race and gender.  Later came the Women’s Equality of Rights Law 5711-1951, and statutes which required equality between the genders in the work area, including, Equal Pay for Female and Male Employees Law, 5724-1964, Equal Employment Opportunities Law 5748-1988,  and Authority for Advancement of Women Law, 5758-1998.  Alongside the statutes the Court ruled clearly that every administrative authority is required, even without a statutory provision, to fulfill the equality between genders.  Against this background Justice M. Cheshin (Ibid [3] at p. 658) said as follows:

‘Statutes we have brought and case law we have surveyed have seemed to us as points of light, and the light is the light of equality, equality for man and woman in each and every matter.  We will go from one point of light to another, and the doctrine of equality will reveal itself before us in its full glory.’

On this foundation of statutes and case law against discrimination on the basis of gender statutory provisions grew which required affirmative action in order to advance appropriate representation of women in public service.  Section 18A of the Government Corporations law requires ‘appropriate expression’ for the representation of women in the Boards of Directors of government corporations, and section 60A of this statute requires that it will also be so with certain entities (detailed in the addendum to the law) that were established by statute, such as the Council for Film Critique and the National Council for Planning and Construction.  Section 15A of the Civil Service Law (Appointments) 5719-1959, requires ‘appropriate expression’ for the representation of women ‘among the employees in civil service’.  This requirement also applies to the appointment of employees to local councils.  See ibid [3] at p. 661.  And since section 22 of the National Insurance Law [Consolidated Version] 5755-1995 establishes that appointments of employees of the Institution will be according to the rules established for appointment of civil servants, the duty of appropriate representation of women, as established in section 15A of the Civil Service Law (Appointments), also applies to the appointment of employees in the National Insurance Institute.  Justice M. Cheshin summarized the statutory provisions and said (at pp. 662-663):

‘These representation directives were not intended only to instruct about themselves.  They came to instruct about a new direction in the Israeli legal system, a direction which we have not recognized or known in the past.  A new and good wind has begun to blow among Israeli statutes. . .  We have likened legal provisions which deal with equality for women and prohibit their discrimination as points of light.  We have drawn a line between all the points of light and here a doctrine in the law of the land has revealed itself before us, a doctrine whose force goes beyond the particular legal provisions.  Joining the points of light one to its neighbor created a type of critical mass and so the doctrine was created, whose ramifications reach far. . .  all the representation directives, despite the differences between them, constitute – each to itself – a crystallization of that matter and express the same core principle.  And the principle is: the provision of appropriate representation to women and men in public bodies as a need made necessary by the principle of equality.’

However, as it turned out, the legal provisions as to appropriate representation for women, while they cover the majority of the civil service, they leave islands here and there that are not covered.   This is so, among others, in the National Insurance Institute.  Indeed the duty of appropriate representation for women, as determined in section 15A of the Civil Service Law (Appointments) applies to the appointment of employees of the Institute, as said in section 22 of the National Insurance Law [Consolidated Version]; however, ‘surprisingly’, in the words of Justice M. Cheshin, this duty does not apply to the appointment of the management of the Institute, meaning the Director, the Assistant Director, and the deputies, that according to section 20 of the law are appointed by the Minister.  See ibid [3] at pp. 646,648.  Why and how? There is no explicit or clear answer to this.  Absent a reason the answer that apparently appears is that this is none other than a happenstance omission, meaning a deficiency in the law and not negative regulation.  This being so the power of the doctrine as to appropriate representation of women in public service is great enough to fill in the blank and also apply itself to the management of the Institute for National Insurance.  And indeed this is how the Court ruled in the second Israel Women’s Network case [3].

Appropriate representation for Arabs

20.  Therefore, is there room to make an analogy between the second Israel Women's Network case [3] and the present case?  At the time the petition was filed the answer, apparently, was in the negative.  The statutory provisions and case law which required equality for women, and in particular appropriate representation in public service via affirmative action, were several fold more numerous and heavier than the statutory provisions and case law which required equality for Arabs.  The cumulative weight of the statutory provisions and case law which required equality for women gave a basis to say, as the Court said in the second Israel Women's Network case [3], that ‘a doctrine whose force goes beyond the particular legal provisions’ (Ibid, at p. 622) had been created as to appropriate representation of women in public entities.  See supra paragraph 19.  On the other hand the cumulative weight of statutory provisions and case law which required equality for Arabs was much smaller.  In this situation there was not, apparently, a basis to say that a similar doctrine was created as to the appropriate representation of Arabs in public entities.

21.  Even if this is the case, claims the petitioner, in any event there is a need for a doctrine as to appropriate representation of Arabs in public entities, as the Arab population suffers generic discrimination which violates human dignity.  The petitioner presents data: although Arabs constitute close to a fifth of the total residents in the State, the proportion of Arab employees in civil service is only approximately 4.2%; among the senior employees in civil service the proportion of Arab employees is only about 1% and there are government offices in which the proportion of Arab employees is even lower.  The petitioner relies for this matter on various sources.  See, inter alia: U. Benziman, A. Manzur, Subtenants – Arabs of Israel, their Status and the Policy toward Them [9], and in particular at pp. 142-143 as well as D. Kretzmer The Legal Status of the Arabs in Israel [15].

The respondents have not presented (apparently because they did not see a need to present from a legal standpoint) data as to the relative proportion of Arabs in civil service.  But they also did not deny the data that the petitioner presented.  Indeed, words of truth are apparent in the petitioner’s claim.  In the Report of the Subcommittee as to the Status of Minorities in Civil Service and in Public Services [18] from the year 1989 (which was appointed by the public-professional committee, known as the Koverski Committee, for overall examination of the civil service and of entities supported by the State budget) data was presented as to the relative proportion of minorities employed in eight government offices.  It was found that the proportion of minorities of the overall employees was approximately 5%, and apparently even lower.  The conclusion, as stated in the report, is ‘that the proportion of minorities employed in civil service is generally low and at times even very low’.  See select sections of this report in the book The Regime of the State of Israel – A Source Book, at p. 346.

Recently, Mr. Elyakim Rubinstein, Attorney General, wrote in a published article that ‘the representation of the Arab minority in civil service and public service is far less than their part in the population, and stands at single digit percentages only,’ and he mentioned a government decision from 1993, following a recommendation of the Koverski Committee, to advance educated Arabs at senior levels of civil service by way of creating job openings exempt from the duty of a tender: A. Rubinstein, ‘On the Equality for Arabs in Israel’ [14] at p. 21.

In the second Israel Women's Network case [3] Justice M. Cheshin stated, (at p. 664) as to the representation of women in public entities that ‘the phenomenon that appears to us is this, that the place of women is missing in public entities to a degree and in circumstances that the laws of statistics would have difficulty explaining without adding to the system the element of discrimination as well’.  Is there no place to say so as well as to the representation of Arabs in public entities?

22.  Be the answer what it may be, and be the explanation what it may be, the situation today is different from the situation that was.  It is different first and foremost because of the growing awareness as to the existing situation and the need to change the situation.  And indeed, lately there has been a change.  The change found expression in moderate improvement of representation of the Arab population in civil service, and it found striking expression in new statutes.  A few years only after the statutory provisions as to appropriate representation of women in public service – section 18A of the Government Corporations Law and section 15A of the Civil Service Law (Appointments) – were passed, the legislator came along and also applied these provisions to the appropriate representation of Arabs.  Following this the great gap that existed in legislation between the duty of equality toward women and the duty of equality toward Arabs in all that relates to representation in public entities was almost closed.  Therefore, it now needs to be examined, against the present day legal situation, if there is a basis to say that a doctrine has been created as to appropriate representation of Arabs in public service similar to the doctrine that was created, as determined in the second Israel Women's Network case [3], as to appropriate representation of women.  What arises from this examination?

23.  Most of the legal sources which require equality for women, including appropriate representation for women in public service, also require in the same breath equality, including appropriate representation, for Arabs.

One can open with the Declaration of the Establishment of the State of Israel [17] which speaks of the responsibility of the State to fulfill complete social and political equality of rights without differences as to ‘religion, race, or gender’.  Moreover, the declaration also called to Arabs in Israel, in the height of the War of Independence, to preserve the peace and take part in building the State on the basis of full and equal citizenship ‘and on the basis of appropriate representation in all its institutions, temporary and permanent’.  It is proper to emphasize: appropriate representation in all its institutions.  As has been ruled, the Declaration represents the ‘I believe’ of the State, and therefore it serves the Court as a source for statutory construction.  Moreover, section 1 of the Basic Law: Human Dignity and Liberty declares that the basic rights of a person in Israel ‘will be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel’.

Indeed, the Court has spoken in many decisions, in which it relied on the principle of equality, in one breath on equality in terms of gender and equality in terms of religion and nationality.  Thus, as one example among many, in HCJ 421/71 Yaf Ora Ltd v. Broadcasting Authority [5] at p. 743, Justice H. Cohn stated:

‘. . . it is the law (although for now still unwritten) that any discrimination on the grounds of race, gender, religion, belief, political or other view, or the like, is prohibited to any authority operating by law.’

Accordingly, the court noted the duty of the State to act with equality to Arabs, inter alia, in the allocation of resources of the State.  See lately the Adalah case [4] supra paragraph 15; HCJ 2814/97 Upper Tracking Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport [6].

24.  Similarly in legislation.  Generally it is common in legislation which requires equality to bind together the prohibition to discriminate on grounds of gender with the prohibition to discriminate on the grounds of religion, race or nationality.  See for example: Employment Service Law, 5719-1959, s. 42; Equal Employment Opportunities Law 5748-1988, s. 2; Patient’s Rights Law 5756-1996, s. 4.

25.  Most important of all, in the present matter, after the legislator saw fit to impose an obligation to advance appropriate representation of women in public service, it saw the need after a few years to impose the same duty toward Arabs.  In March 2000 a private draft law was submitted to the Knesset on this issue: Draft Proposal for the Government Corporations Law (Amendment no. 13) (Appropriate Representation for the Arab Population) 5760-2000.  In the explanatory notes of the draft law (at p. 345) it was said that ‘the number of directors from among the Arab population in Government Corporations is very low’; it was therefore proposed to add to the Government Corporations law a provision which would establish, similar to the appropriate representation of women that was established in section 18A of the law, a duty of appropriate representation for the Arab population.  On the basis of this draft proposal section 18A1 was added to the Government Corporations Law, and this is its language:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of the Arab population.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors from among the Arab population.

(c) For purposes of this section ‘the Arab population’ – includes the Druze and Circassian population’

On October 24, 2000, the Attorney General issued a guideline to the Prime Minister and cabinet members as to the implementation of this section.  See this guideline as an addendum to said article by Rubinstein [14] at p. 29.  Inter alia, the Attorney General states in the guideline as follows:

‘It cannot be denied that the said statutory amendment came against the background of a dearth of appointments from among the Arab population for roles of the said type.  This provision therefore comes to achieve a result that it is appropriate to reach for, in these entities and others, by power of basic rules of equality and fairness, even without this being anchored in Knesset legislation.’

And he concludes the guideline with a call to the Prime Minister and the members of the cabinet to fulfill the duty of appropriate representation according to this provision, inter alia, in order to prevent a ground for disqualifying the appointment.

Does the duty of appropriate representation according to this provision also apply to the Israel Lands Council?  The answer is in the negative.  The Council is not a government corporation, as it is defined in the Government Corporations Law.  Indeed according to section 60A of this law the duty of appropriate representation also applies to entities established by statute, and they are detailed in an addendum to this statute.  However the Council is not counted among the entities detailed in the addendum to the law.  The result is that section 18A1 of the law which requires appropriate representation for the Arab population, does not apply to the Council.

26.  Approximately a year ago the Government submitted the Civil Service Law (Appointments) (Amendment no. 11) 5760-2000.  In the explanatory notes to this draft proposal (at p. 496) it was said as follows:  ‘The Arab population, including the Druze population and the Circassian population in the State, although it constitutes almost a fifth of the State’s population, is represented in civil service only at the rate of about 5% of the totality of the government employees, and among the senior position holders in civil service at an even lower rate.’  Therefore, it was stated in the explanatory notes, in continuation of the legislative trend which found expression in the addition of section 18A1 to the Government Corporations Law, it is proposed to establish, in a statute, provisions as to appropriate representation in civil service for the Arab population.  On the basis of this draft proposal section 15A of the Civil Service Law (Appointments) was amended.  The language of the section today is as follows:

‘(a)  Among the employees in civil service, including all the professions and the ranks, in each office, and support unit, appropriate expression will be given, under the circumstances, for the  representation of members of both genders, of people with disabilities, and of members of the Arab population, including the Druze and Circassian (in this law – appropriate representation).

(b)  The Government will operate to advance appropriate representation among the employees in civil service in accordance with the objectives it will set, and for this purpose, inter alia –

(1)  The office or support units which relate to the matter, as well as the Civil Service Commission, each in their field, will undertake the necessary means under the circumstances which can enable and encourage appropriate representation. . .

(2)  The Government may designate job openings in which, to the extent possible, will be employed only candidates who are qualified for the job, from among a group which is entitled to appropriate representation according to the provisions of subsection (a) which is not appropriately represented, as the Government shall determine.

(3)  The Government may order, as to a job opening or a group of job openings or a rank or a group of ranks, which will be detailed in the order, and for a period that will be determined, the granting of preference to candidates from among the group that is entitled to appropriate representation according to the provisions of subsection (a) that is not represented in an appropriate manner, where they have similar qualifications to the qualifications of other candidates. . .

(c) The provisions of this section will apply to all manner of acceptance to employment and advancement in employment according to this statute, including appointment by way of a tender, employment without a tender and appointment in fact.’

The section goes on to establish provisions which do not relate to the matter discussed in the petition as to fulfilling the duty to provide appropriate representation.

27.  It is clear that section 15A of the Civil Service Law (Appointments) establishes a duty of affirmative action for the Arab population in appointments to civil service.  However, the section is not simple.  It raises various questions.  There is no need to discuss them in this petition.  In this petition it is a sufficient question whether the section requires granting appropriate representation to members of the Arab population in the Israel Lands Council.

The Civil Service Law (Appointments) regulates appointments in civil service.  However the Israel Lands Council is not part of the civil service.  Most of the members in the Council are also not civil servants, but representatives of the public or representatives of JNF.  Indeed, the Council is by its composition and its substance, a satellite body, outside of the government mechanism, similar to other public councils, investigative committees, administrative tribunals and more.  As to satellite bodies see I. Zamir, Administrative Power (Volume 1) [10] at p. 411 and on.  It appears that section 15A does not apply to satellite bodies including the Israel Lands Council.

28.  However, even if section 15A of the Civil Service Law (Appointments) does not directly apply to the Israel Lands Council, it still has indirect weight on the question whether it is appropriate to grant appropriate representation to the Arab population in the Council. As in fact, this section joins up as an additional component to a network of legal sources which oblige equal treatment of the Arab population.  See supra paragraphs 22-25.  The cumulative weight of all of these is very similar to the cumulative weight of legal sources which require equal treatment of women.  Therefore, the conclusion also has to be similar.  As to the legal sources which require equality to women, Justice M. Cheshin in the second Israel Women's Network case [3] said that these sources are similar to ‘points of light’, and that ‘Joining the points of light one to its neighbor created a type of critical mass and so the doctrine was created’ (Ibid, at p. 662) as to appropriate representation for women in public entities.  See supra paragraph 19.  Similarly, it is to be said as to legal sources which require equal treatment of Arabs: alongside the doctrine which requires granting appropriate representation to women they create a doctrine which requires granting appropriate representation to Arabs in public service.  What is the duty which stems from this doctrine?

29.  The Court gave the answer in the second Israel Women's Network case [3].  There, the Court ruled that the duty of appropriate representation of women, according to section 15A of the Civil Service Law (Appointments), applies to all the employees of the National Insurance Institute, except for members of the Institute’s management.  See supra paragraph 19.  Here, the duty of appropriate representation of women, people with disabilities, and members of the Arab population, according to that section, applies to all the employees of the Israel Lands Administration, excluding members of the Council.  There, the Court ruled that the doctrine as to appropriate representation for women also extends over the appointment of the members of the management of the National Insurance Institute.  By power of that doctrine, the Court further ruled, that there is a duty on the Minister when coming to appoint a Deputy Director of the Institute to work toward advancing the representation of women.  What does this mean?  This does not mean that there is a duty on the Minister to appoint a woman to this job.  But rather what?  In the words of Justice M. Cheshin (Ibid, at p. 671):

‘It is imposed on the Minister to fulfill his duty according to the doctrine, the duty to act in order to give appropriate representation to women: to make an effort and to diligently work toward finding suitable candidates to fill the job of deputy director in the National Insurance Institute.’

Justice M. Cheshin noted (Ibid, at p. 670) that there exists a difference between the duty to grant appropriate representation according to section 15A of the Civil Service Law (Appointments) and the duty to grant appropriate representation according to the doctrine.  What is the difference?  The duty the statute imposes in section 15A, is not just to act but to achieve a result: the result is ‘appropriate expression’ for the representation of women, of people with disabilities, and of members of the Arab population.  It is clear that a result depends on action: the authorized authority must act to achieve appropriate representation.  For this purpose the statute establishes various means, such as designating positions for employing candidates from among the group entitled to appropriate representation according to section 15A(b)(2) of the Civil Service Law (Appointments).  As long as there is not appropriate representation the authorized authority has the burden to prove that it has done all that is necessary and possible by law under the circumstances to achieve appropriate representation.

On the other hand the duty imposed based on the doctrine relates primarily to the discretion of the authorized authority.  The authority authorized to make an appointment is obligated, like any administrative authority as to any power, to consider all the relevant considerations and give each relevant consideration the appropriate weight.  Generally, religion, nationality and race are irrelevant considerations, and therefore the authorized authority is prohibited from taking them into consideration for purposes of using the power.  However, as to appointment to public service, belonging to the Arab population, is, by force of the doctrine, a relevant consideration.  Accordingly, not only is the authorized authority entitled to bring it into account, but it even is required to bring it into account as one of the relevant considerations and give it the appropriate weight.  There is no great innovation here.  The principle of equality is in any case, and without connection to the doctrine, a relevant consideration that the authorized authority must bring into account when it makes an appointment. See HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv-Jaffa [7]. And still there is innovation in the doctrine.  The innovation is in the substance of the relevant consideration.  According to the doctrine the relevant consideration says that in an appointment to public service it is not sufficient to act with equality toward an Arab candidate but it is also necessary to act with affirmative action toward an Arab candidate with the goal of providing the Arab population with appropriate representation in public service.  See Zamir and Sobel in their article [12] at pp. 200-204.  However, this consideration is still only one from among the relevant considerations.  The authority must weigh all the relevant considerations, and particularly the personal fitness of the candidate to fill the role, in order to reach the proper balance.  However, in the framework of the balancing, the candidate’s belonging to the Arab population is, as long as appropriate representation has not been achieved, a relevant consideration in the candidate’s favor.  This is the affirmative action required by the doctrine in order to fulfill the principle of equality toward the Arab population.

In fact, the difference between the duty imposed by the statute and the duty imposed by the doctrine may be hazy.  But is exists first of all in the fundamental realm, and additionally in the practical realm.  Inter alia, the provisions established in section 15A(b) of the Civil Service Law (Appointments) such as designating jobs in order to advance the appropriate representation, apply only to the duty imposed by the statute.

The present case

30.  What is the conclusion that arises from all that has been said, as to the present case.  Section 4A of the Israel Land Administration Law, establishes that the Government will appoint, by proposal of the ministers, half of the members (in fact, twelve members) in the Israel Lands Council and among them at least half (in fact six) ‘civil servants, holding senior positions in the government offices connected to the matter. . .’ see supra paragraph 2.  This authority is subject to the doctrine.  According to the doctrine it is incumbent on every minister who proposes a candidate for membership in the Council to weigh, inter alia, the need to also give appropriate representation to the Arab population in the Council and to give this consideration appropriate weight.  For this purpose the Minister must inquire whether there is among the senior office-holders in his office an Arab candidate substantively qualified for appointment as a member of the Council.  If there is such an individual, and there is no good reason to deny his candidacy or to prefer another candidate over him, it is proper to propose him for appointment as a member of the Council.

A similar duty is imposed on the Government when it receives the proposals of the Ministers for appointment of members in the Council and must decide on an appointment.  It must consider the question whether there is in these proposals to provide appropriate representation to the Arab population.  If not, it must inquire if nonetheless there is no practical possibility to find a worthy Arab candidate among the senior office-holders in the government offices which relate to the matter in order to advance the appropriate representation of the Arab population.

31.  It is a question what the duty to give appropriate representation to the Arab population in a certain entity requires, and in this case – the Council.  The answer may change depending on the circumstances of the case.  Appropriate representation is not a formal duty, but a substantive duty, that has purpose and an objective.  Therefore it is not correct to say that section 18A of the Government Corporations Law, which requires giving appropriate expression in the Boards of Directors of Government Corporations to women, requires that in every such Board of Directors the women will be half of the overall members.  But it also is not to be said that the symbolic presence of one woman is sufficient in order to fulfill the duty of appropriate expression.  The required extent of representation is dependent on the context.  See the first Israel Women's Network case [2] (supra paragraph 12), at pp. 527-528.  It is also to be said thus as to appropriate representation of the Arab population in Boards of Directors of Government Corporations, as is required by section 18A1 of the Government Corporations Law.  This section does not require that the number of Arab members in every Board of Directors of a Government Corporation will be one fifth of the overall members.  Similarly it is also to be said as to the duty to give appropriate representation in civil service whether for women, whether for members of the Arab population or for persons with disabilities.

The question of what constitutes appropriate representation in a specific entity is dependent, inter alia, on the substance of the entity, including the practical importance of the entity in terms of the group entitled to appropriate representation.  Accordingly, it appears that the importance of representation and the force of representation in the Israel Lands Council are greater as to members of the Arab population than as to, for example, people with disabilities.  The Government and the ministers that relate to the matter are to also bring this consideration into account in the process of appointing members to the Council.

32.  In the present case, the statute establishes that civil servants are not to be appointed as members in the Council unless they are ‘senior’ civil servants in the offices which relate to the matter.  The petitioner presumes that there are no such Arab employees.  The Court does not know if this presumption has a basis.  In any event, this is not sufficient to exempt the ministers who relate to the matter and the government from the duty to employ their discretion in a manner that is intended to advance, if possible, the appropriate representation of the Arab population.  If indeed it turns out that among the ‘senior’ civil servants in the government offices there is not a single Arab employee who will be qualified for appointment as a member of the Council, then this is proof of a distorted situation, which s. 15A of the Civil Service Law (Appointments) and s. 18A1 of the Government Corporations Law were intended to repair.  However, repair of the distorted is a process, and as is the way of such processes it takes time.  In such a case there is no recourse but to wait until there will be senior civil servants in the government offices which relate to the matter, as is necessitated by s. 15A of the Civil Service Law (Appointments).  The Court is not entitled to take, or order the Government to take, a short cut, in contradiction of a statutory provision.  However, according to the law the government must take the road at the appropriate speed.

If it turns out that today there is not among the senior government employees in the government offices which relate to the matter a single qualified Arab employee who is qualified to be appointed as a member of the Council, it is appropriate that the Government also consider the possibility of appointing an additional Arab from among individuals in academia and public representatives which the Government is qualified to appoint as members in the Council.

33.  The petitioner requested that the Government nullify the appointment of some of the members in the Council in order to enable the appointment of Arabs in their place in a manner that will constitute appropriate representation for the Arab population.  However, as the petitioner recently notified the Court, and the respondents affirmed, several Council members recently retired, and of the quota of twelve members who are appointed to the Council on behalf of the Government today only six members are serving in the Council.  Meaning, the Government is now authorized to appoint six additional members to the Council.  Indeed, as the respondents’ counsel notified the Court several days ago, the Minister of National Infrastructures sent the Minister of Finance a proposal for the appointment of six additional members to the Council on behalf of the Government.

The respondents’ counsel did not note in the notice who the candidates are who were proposed by the minister.  However, since the notice does not state otherwise, one would think that there is not an Arab among the candidates.  The notice also does not state that there is not among the senior office-holders in the government offices which relate to the matter an Arab who is qualified to be appointed as a member of the Council.  This being so, the ministers have a duty to consider anew the list of candidates in light of what has been said in this judgment.

Summary

34.  In summary, the Government has appointed during the time of the hearings in the petition an Arab as a representative of the public in the Israel Lands Council, and it has taken upon itself to appoint, upon the conclusion of his tenure, an Arab as a representative of the public in his place.

Now the Government is to appoint an additional six representatives on its behalf as members of the Council.  As to the appointment of these members I propose making the order nisi absolute, which orders the respondents to weigh, according to what has been stated in this judgment, if it is possible to appoint an additional Arab as a member in the Israel Lands Council.

The respondents will bear the court costs of the petitioner in a total sum of 10,000 NIS.

 

 

Justice M. Cheshin

I agree.

 

 

Justice D. Beinisch

I agree.

 

It has been decided as per the decision of Justice Zamir.

 

18 Tamuz 5761

9 July 2001

      

 

 

Full opinion: 
PDF icon Association for Civil Rights in Israel v. State of Israel.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/98/240/069/I26/98069240.i26.pdf

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