Economy

Bar-On v. Knesset

Case/docket number: 
HCJ 4908/10
Date Decided: 
Thursday, April 7, 2011
Decision Type: 
Original
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.] 

 

Is it possible to circumvent a constitutional principle enshrined in a temporary provision set to remain in effect only for the duration of the current government’s administration term?

 

Background: on June 22, 2010 Basic Law: The State Budget (Special Provisions) (Temporary Provisions) (Amendment) (hereinafter: “Basic Law Temporary Provision” or “the Law”) was passed to set the budget for years 2011 and 2012, as a biannual budget in one statute. Basic Law Temporary Provision is a continuation of a previous Basic Law that established, also in a temporary provision, that the state budget for years 2009 and 2010 would be a biannual budget (hereinafter: the original temporary provision). Basic Law Temporary Provision, like the original temporary provision, revises the provisions established in sections 3(a)(2), 3(b)(1) and 3A of Basic Law: The State Economy according to which the state budget is to be set for one year only. The Petitioners ask the Court to pronounce Basic Law Temporary Provision void, or alternatively to strike it down. The parties’ arguments raise two primary questions. First, whether Basic Law Temporary Provision is indeed a basic law for all intents and purposes? Does using a temporary provision infringe the validity or status of the Law and a basic law? And assuming that Basic Law Temporary Provision is indeed a basic law, should it be struck down for changing the balance of powers between the Knesset and the Government in the process of approving the state budget?

 

The High Court of Justice (by President Beinisch, with an expanded panel of seven justices) denied the petition for the following reasons:

 

The formal test: the use of the term “basic law” and the fact that the year of its legislation is not noted in the title were adopted in the case law as a test for identifying basic laws. However, the argument that the formal test was overly simplistic and that a substantive test or a combined test designed to identify a basic law were in order has been raised more than once. Still, even this proposal has both advantages and disadvantages. In this petition, there is no need to determine the issue of how to identify a basic law. Moreover, both applying the formal test and applying the combined test lead to the conclusion that Basic Law Temporary Provision is a basic law.

 

Does using a temporary provision infringe the validity or status of the Law as a basic law? As a general rule, “it is highly doubtful whether the motivations for enacting a basic law – even were it possible to argued they are improper – may themselves constitute a legal flaw warranting judicial review.” Therefore, even were the motivation for enacting the Law, as the petitioners argue, the coalition’s desire to avoid needing to approve the Budget Law once a year, this reason in itself does not call for judicial review, particularly where the requested remedy is declaring a basic law void. On a separate level, there is the question whether the mere fact that the Law was enacted as a temporary provision constitutes an “abuse of power” of the constitutive authority, in a way that infringes the validity of Basic Law Temporary Provision as a basic law.

 

In an ideal situation, where there is a regulated and rigid mechanism for changing and amending the constitution, it is doubtful whether changing the constitution by way of a temporary provision would be possible. However under the current state of the law, in the absence of a Basic Law: The Legislation, the restrictions on legislative procedures or the amendments of basic laws are limited, and in order to enact a basic law in Israel there is no need for special procedures in the Knesset. Under these circumstances, it can not be summarily determined that a basic law can never be changed by way of a temporary provision and it cannot be said that the mere fact that the basic law was enacted by way of a temporary provision inherently voids it or puts it in a lower legislative status than a regular statute, as the Petitioners argue.

 

However, in can also not be said that this practice is free of difficulties. Setting a temporary legislative arrangement does indeed harm the status of basic laws and should be done sparingly, if at all. In certain cases, which cannot be detailed or determined in advance, it is possible that enacting a basic law by way of a temporary provision may amount to an “abuse of power” of the title “basic law” in a way that would justify judicial intervention in the basic law’s legislation. In examining each case, we must consider, among others, the existence of extreme circumstances that justify making a temporary arrangement rather than a permanent one, the subject matter regulated by the basic law, and the measure of the temporary basic law’s infringement upon principles of governance and other basic rights.

 

Having said all this, the Knesset would do better to refrain from using temporary provisions to amend constitutional instructions in the future. In any event, as long as no path was established for legislating, changing, and amending basic laws, such a legislative procedure must be reserved for extreme, uncommon and unique circumstances, in light of the status of basic laws.

 

Other arguments regarding the reasonability of the basic law and the majority with which it was passed in the different readings in the Knesset were similarly rejected. Without taking any position on the advantages or disadvantages of a system of biannual budgeting, considerations of the Law’s reasonability are not among the considerations that warrant the Court’s intervention in basic laws. Arguments that the Law should have been passed by a majority of 61 Knesset Members in all three readings are also unsubstantiated, as section 36A of Basic Law: the Knesset is not protected. Any change to it, therefore, does not require a special majority. The argument that Basic Law Temporary Provision explicitly or implicitly changes section 24 of Basic Law: The Knesset, and thus the Knesset must have enacted it with a special majority, must also be rejected. Section 34 is not a general section that defines when the Knesset can be dispersed, but rather a section the addresses the Knesset’s authority to decide to disperse – a decision that may be made by a statute passed by a majority of Knesset Members. Therefore, moving to a biannual budget cannot be considered an implicit change to section 34 of Basic Law: The Knesset.

 

Additionally, the argument that the Law must be struck down because it changes the balance of powers between the Knesset and the Government in the process of approving the budget was also rejected. This argument puts up for discussion the doctrine of the non-constitutional constitutional amendment – the Court’s authority to void a Basic Law because it infringes the basic principles of our legal system. This doctrine was discussed at length in foreign legal systems and it is also mentioned in several obiter dicta of this Court’s jurisprudence, but it has yet to be used in Israel. Indeed, there are several basic principles that may not be altered, which are at the foundation of our existence as a society and as a state, any harm to which may raise hard question of authority, including doubts as to whether they alter the constitution or establish a new constitution. However, in this case, and without determining the question of the application or the scope of the application of the non-constitutional constitutional amendment doctrine in Israel, the harm caused to the Knesset as a result of the move to a biannual budget does not amount to a harm to the over-arching principles of our system in a way that justifies voiding the basic law under the non-constitutional constitutional amendment – regardless of the scope of its application in Israel.

 

Finally, the High Court of Justice called for completing the legislative project and enshrining the procedures for enacting basic laws and their amendment through Basic Law: The Legislation. 

Voting Justices: 
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majority opinion
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concurrence
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Full text of the opinion: 

 HCJ 4908/10

1. MK Ronnie Bar-On

2. Kadimah Party

v.

1. Israel Knesset

2. Speaker of the Knesset

3. Knesset Finance Committee

4. Joint Committee of the Finance Committee and the Law and Constitution Committee for deliberation of the Economic Efficiency and State Budget for the Years 2009 and 2010 Bill

5.  Chairman of the Finance Committee

6.  Chairman of the Law and Constitution Committee

7.  Government of Israel

8.  Prime Minister of Israel

9.  Minister of Finance

 

The Supreme Court sitting as the High Court of Justice

[January 11, 2011]

Before President D. Beinisch, Vice President E. Rivlin, Justices A. Grunis, M. Naor, E. Arbel, E. Rubinstein, U. Vogelman

 

 

Israeli legislation cited:

Basic Law: Freedom of Occupation

Basic Law: The Government (old and new)

Basic Law: Human Dignity and Liberty

Basic Law: Israel Lands

Basic Law: Jerusalem the Capital of Israel

Basic Law: The Judiciary

Basic Law: The Knesset

Basic Law: The Military

Basic Law: The  President of the State

Basic Law: The State Budget (Special Provisions) (Temporary Provision) (Amendment)

Basic Law: The State Comptroller

Basic Law: The State Economy

Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002,

Basic Law (Temporary Provision)

Budget Law 2012

Elections to the Eighth Knesset and to Local Government (Temporary Provision) Law 1974

Law of Return, 1950

 

Foreign legislation cited:

Basic Law for the Federal Republic of Germany, art. 79(d)

Constitution of the Republic of Turkey, art. 4

 

Israeli Supreme Court cases cited:

[1]        CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village  [1995] IsrSC 49(2) 221.

[2]        HCJ 5160/99 Movement for Quality Government in Israel v. Law and Constitution Committee  [1999] IsrSC 53(4) 92.

[3]        EA 1/65 Yardur v. Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

[4]        HCJ 142/89 La’Or Movement  - One Heart and One Spirit v. Central Elections Committee for the Sixteenth Knesset [1990] IsrSC 44(3) 529.

[5]        CA 733/95 Arpel Aluminium Ltd. v. Klil Industries Ltd. [1997] IsrSC 51(3) 577.

[6]        HCJ 4676/94 Mitral Ltd. v. Israeli Knesset [1996] IsrSC 50(5)  15.

[7]        HCJ 6427/02 Movement for Quality Government in Israel v. Israel Knesset (not yet reported, 11.5.2006).

[8]        HCJ 4124/00 Yekutieli  v. Minister for Religious Affairs (not yet reported, 14.6.2010).

[9]        HCJ 1438/98 Conservative Movement v. Minister for Religious Affairs [1999] IsrSC 53(5) 337. 

 

 

For the petitioners — E. Rosovsky, E Burstein

For respondents 1-6  — E. Yinon, G. Blai

For respondents 7-9 — D. Briskman, Y. Bart

 

Petition to the Supreme Court sitting as the High Court of Justice for an Order Nisi 

 

JUDGMENT

 

 

President D. Beinisch

1. On 22.6.2010, Basic Law: State Budget (Special Provisions) (Temporary Provision) (Amendment) (hereinafter: the Law or Basic Law (Temporary Provision)) passed its second and third readings in the Knesset. Basic Law (Temporary Provision) provides that the state budget for the years 2011 and 2012 will be a biennial one, enacted in a single law. Basic Law (Temporary Provision) is the continuation of an earlier basic law that stated, also as a temporary provision, that the state budget for the years 2009 and 2010 would be a biennial one (hereinafter: Original Temporary Provision). Basic Law (Temporary Provision), like the Original Temporary Provision, changes the provisions of ss. 3(a)(2), 3(b)(1) and 3A of Basic Law: The State Economy, whereby the state budget is to be set for a single year only.

2.    The background to the enactment of the said basic laws, as emerges from the pleadings of the parties, lies in the unfolding of events after the resignation of the then Prime Minister, Ehud Olmert. On 11.2.2009, general elections were held, and a new government was sworn in on 31.3.2009. Parallel to these events, the global economy was experiencing an economic crisis, one whose ramifications for the Israeli economy could not be assessed. These events made it impossible to approve the 2009 budget before the second half of the year, and the budget was based on that of the year 2008. On 5.4.2009 the Government decided to submit to the Knesset for approval a biennial budget for the years 2009 and 2010 by way of a temporary provision. The Explanatory Notes to the Bill stated that due to the unique situation that had arisen as a result of the delay in approving the state budget for the year 2009, and the negative impact of the global crisis on Israel, it was proposed to introduce a special arrangement, one that would apply to the state budget for the years 2009 and 2010.

3.    The introduction of a biennial budget proved to be a successful experiment, as evident from the pleadings of the respondents and from the protocols of the discussions in the Joint Committee of the Finance Committee and the Law and Constitution Committee (hereinafter: the Joint Committee or the Committee). Senior officials in the Treasury were therefore of the opinion that the possibility of transitioning to a system of biennial budgets on a permanent basis should be considered. For this purpose, it was proposed to conduct a trial, for an additional two years, in which the budget would be biennial. Accordingly, a proposal was submitted to amend the Original Temporary Provision to make it applicable to the budget for the years 2011 and 2012 as well. In the Explanatory Notes to the Memorandum of the Basic Law (Temporary Provision) Bill it was noted that following the implementation of the biennial budget, the Government became aware of the advantages of this system of budgeting, leading it to think about changing the budgetary system in Israel. The Memorandum to the Bill lists the advantages of a biennial budget, together with the disadvantages of this system. For example, the creation of greater certainty for the government and the economy, and the freeing up of management resources in order to make long term plans comes up against the difficulty of predicting state income for a period of two years, which requires special professional experience. It was therefore proposed –

‘To conduct a full examination of the application of the biennial system by way of a trial in the years 2011 and 2012, as a temporary provision of the Basic Law, for two main reasons:

1.  In the absence of recognized experience in other states, most of the learning will be done in “real time”, while implementing the first full biennial budget, as proposed.

2.  In the course of the biennial budgetary period it will be necessary to examine the ability to devise a biennial budget and to act upon it, primarily from the perspective of dealing with the difficulties involved in devising a biennial forecast, as well as the need to adapt the provisions of the law, including the adaptations of the Basic Law, according to the experience that has accumulated.’

In the Memorandum to the Bill it was also mentioned that –

‘In view of the significance of the process of fixing the budget from the point of view of the regime, society and the economy, it is important that the process of consolidating a permanent arrangement of this matter and its enactment be done in a wise, orderly fashion, on the basis of the maximum amount of information that has accumulated, and accompanied by an appropriate public investigation. This is also taking into consideration the fact that amendment of basic laws ought to be done in moderation’ (Memorandum to Basic Law: The State Economy (Special Provisions) (Temporary Provision) (Amendment) pp. 4-5).

4.    On 17.3.2010 the Bill was discussed in the plenum of the Knesset and passed its first reading, and on 22.6.2010 it passed its second and third readings.  A few days later, MK Ronnie Bar-On and the Kadimah Party (hereinafter: the petitioners) filed the present petition. The petition raised three main questions in relation to Basic Law (Temporary Provision): first, can the principle stated in Basic Law: The State Economy, whereby the Knesset determines, annually, the priorities of the state in the process of approving the budget, be changed by means of a temporary provision which endures for the duration of the term of office of the present government? Second, is it possible, by means of a temporary provision with limited application, to nullify the constitutional principle whereby if the approval of the Knesset for the budget is not forthcoming once a year, the Knesset will be dissolved and new elections will be held? Third, is it possible to disturb the constitutional balance between the legislature and the executive branch by means of a temporary provision and without obtaining a majority of 61 Members of Knesset at each of the legislative stages?

5.    The petition was first heard before three justices. At the end of the hearing, which was held on 4.10.2010, an order nisi was issued, with the agreement of the respondents, ordering them to appear and to show cause why the Court should not order as follows: that Basic Law (Temporary Provision) is void or alternatively that it should be voided; and that the Israeli Knesset acted ultra vires when it approved the amendment of the Basic Law by means of Basic Law (Temporary Provision) and with a majority of less than 61 Members of Knesset in the first and second readings. It was further decided that the panel of justices should be expanded. Accordingly on 11.1.2011 the Court held a second hearing with an expanded panel of seven justices.

In both the written and the oral pleadings the parties raised serious constitutional questions. A significant number of these questions have not yet been considered or decided in Israeli law. These questions relate, either directly or indirectly, to the status of the basic laws and to the way in which it is possible to refashion constitutional arrangements in Israel. The arguments of the parties also highlight the inherent difficulties in Israel’s constitutional system due to there being no Basic Law: Legislation, and in view of the fact that the formal requirements for amending most of the basic laws are few. Let us mention at this early stage that we believe it is possible at this time to leave some of the questions for future consideration. Although difficulty arises from the arguments of the petitioners, we are not convinced that the present case justifies unprecedented intervention in the legislation of the Knesset in its function as a constituent authority. At the same time, we find it appropriate to outline several principles regarding the legislation and the amendment of basic laws in Israel, in order to lay out a partial roadmap for the Knesset in the absence of Basic Law: Legislation.

Pleadings of the Parties

6.    The petitioners have asked the Court to declare that Basic Law (Temporary Provision) is invalid, or alternatively, to strike it down. According to the argument, Basic Law (Temporary Provision) came about due to considerations connected to the survival of the Government, which sought to take advantage of its parliamentary majority in order to change basic principles of governance. The petitioners argue that approval of the Budget Law on an annual basis is considered a cornerstone of democratic policy, and it is the central tool in the hands of a parliament for overseeing the work of the government and the priorities that it sets. Basic Law (Temporary Provision) detracts from the capacity for oversight by the Knesset, and in fact, it is designed to weaken the Knesset vis-à-vis the government. Basic Law (Temporary Provision), so it is argued, is contrary to the longstanding trend to increase oversight of the government by the Knesset, inter alia by regulation of the specific times at which the government must present the budget to the Knesset plenum. The petitioners add that weakening the power of the Knesset has real practical significance, which manifests itself in preventing the possibility of dissolving the Knesset and toppling the government in the event that the budget is not passed. The petitioners argue that whereas for the purpose of toppling the government by means of a no confidence vote, the opposition must enlist a majority of at least 61 Members of Knesset, for the purpose of dissolving the Knesset and holding new elections by way of non-approval of the State budget, a majority of only 60 Members of Knesset is required. According to the petitioners, this is a very powerful tool, which can bring about a change in the leadership of the State, and it is available to the Knesset only once a year. Basic Law (Temporary Provision) confines the use of this tool to once every two years, in a manner that is detrimental to the intricate web of power and relations between the government and the Knesset.

Regarding the substance of the amendment to the Basic Law, the petitioners argue that in practice, this legislation suffers from lack of reasonability, for two main reasons. First, so goes their argument, it will not allow for effective oversight of the government by the Knesset, due to the amount of information that will be presented to the Members of Knesset in the case of a biennial budget, particularly if it comes together with a broad Omnibus Law of Arrangements in the State Economy, forestalling any possibility of studying the material in the period of time allocated for approval of the budget legislation. Secondly, the petitioners believe that advance approval of the budget for a period of two years requires that accurate predictions of state expenditures and costs be drawn up – a mission that according to them is impossible, especially in the Israeli reality. In addition, the petitioners stress that if the next state budget is not approved on the due date, then by law, the Budget Law for the year 2013 will be derived from the Budget Law of 2012, so that in fact, it is possible that the biennial budget law will actually become a triennial one.

The petitioners also challenge the fact that a basic law was amended by way of a temporary provision. They argue that the attempt to legislate a basic law in a temporary provision stands in clear contradiction to the case law of this Court, whereby basic laws are laws of an “eternal” nature that were designed to constitute chapters of the future constitution of the State of Israel. Therefore, it is argued, basic laws cannot be temporary laws, enacted ad hoc with the aim of serving the temporary political needs of a given majority at a particular time. It was further argued that Basic Law (Temporary Provision) does not merit being considered a basic law – both by virtue of a formal criterion and by virtue of a criterion of substance. According to the petitioners, the fact that the name of the Law mentions  the years during which the temporary provision is intended to apply detracts from its validity as a basic law under the formal criterion, and the fact that the Law lacks an  element of “eternity” detracts from its validity under the substantial criterion. Finally, the petitioners claim that the very process of enactment of Basic Law (Temporary Provision) was defective in that it was not passed with a majority of 61 MKs at each reading. The petitioners argue that this majority is required in view of the fact that Basic Law (Temporary Provision) limits the possibility of Members of Knesset dissolving the government and the Knesset through non-approval of the budget to only once every two years; for this reason, it constitutes an implicit change to s. 34 of Basic Law: The Knesset, which determines when the Knesset is permitted to dissolve itself prior to the end of its term; this, they argue, is an entrenched section.

Arguments of the Respondents

7.    Respondents 1-6 (hereinafter: the Knesset) submitted their response to the petition on 16.8.2010, and their reply after the order nisi was issued, on 5.12.2010. In the response it was argued that even if Basic Law (Temporary Provision) “raises not inconsiderable difficulties with respect to damage to the parliamentary oversight of the Government and the balance of power between the Knesset and the Government,” these arguments still do not justify the intervention of this Court. The Knesset further argued that although there is no disagreement that laying down a norm concerning a biennial budget law in the framework of a temporary provision “raises an inherent conceptual difficulty”, this does not make of Basic Law (Temporary Provision) a “regular” or “inferior” law relative to other basic laws.

The Knesset’s reply cited at length the discussions that were held in the Finance Committee and the Joint Committee. It was also pointed out that most of the arguments raised in the petition were also raised in these Committees, whether by members of the Committee or by people who appeared before it, or by the legal advisors, including the Legal Advisor to the Knesset, the Legal Advisor to the Finance Committee, the Legal Advisor to the Ministry of Finance and the head of the Public Law Division of the Department for Legal Advice and Legislation in the Ministry of Justice. All the legal advisors referred to the difficulties raised by the Bill, including the difficulty inherent in amending a basic law by way of a temporary provision. The position of the Legal Advisor to the Knesset, as expressed before the Joint Committee, was that although “there is no dispute that a basic law and a temporary provision are contradictory things”, nevertheless, as long as the Knesset has not yet enacted Basic Law: Legislation, which is intended to regulate the process of legislation in Israel, the Knesset Rules of Procedure are the sole normative source for legislative procedure in the Knesset, and these do not make any provision regarding the enactment of basic laws or their amendment.

In the Knesset’s reply it was further argued that the petitioners’ contention that Basic Law (Temporary Provision) is not in fact a basic law, and that its normative status is inferior to that of a “regular” basic law, should be dismissed. According to the approach of the Knesset, the accepted criterion in Israel for identifying a basic law is that of form. Under this criterion, conferring the title “Basic Law” on the law and not mentioning the year of its enactment are sufficient to transform a piece of legislation from a “regular” law into a basic law. It was also argued that review of the contents of basic laws is permissible only in exceptional, extreme cases of detriment to the meta-principles of our legal system, and that the Knesset is competent to change the balance between the different authorities.

8.    In their response, respondents 7-9 (hereinafter: the State) described the circumstances that led to the enactment of the Basic Law as a temporary provision, and principally, wanting to allow for a trial period in which the transition to a biennial budget as a permanent arrangement would be examined. According to the argument, the representatives of the Ministry of Finance believed that it was more appropriate to make a change in the basic laws that would expire automatically after two years than to make a permanent change in the basic laws – which, after a trial period – may prove to have been unnecessary. According to the approach of the State, opting for the enactment of a temporary provision that expires automatically after two years allows for the preservation of the stability of the basic laws and prevents their frequent amendment.

The State rejected the petitioners’ argument that the normative status of a temporary provision – whether enacted in the framework of a regular law or a basic law – is inferior to that of a regular law or a basic law. According to the State, because the process of legislating a “regular” basic law and a basic law by way of temporary provision is the same, the Knesset is competent to choose the way in which to legislate, and there is no room for intervention in this discretion. In effect, it was argued, in the past the Knesset occasionally employed the legislative technique of temporary provisions in primary legislation, including basic laws. For example, Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002, stated that for a trial period of one year, a budgetary law would be passed by the Knesset only with the support of at least 50 MKs. After a year, this arrangement became embedded, with several changes, in the provisions of s. 3C of Basic Law: The State Economy. The State also referred to several laws that were enacted by way of temporary provisions which regulated important matters with far-reaching ramifications, including the electoral system in Israel and deferral of military service for full-time Talmudic Academy students.

The State further argued that Basic Law (Temporary Provision) is a basic law for all intents and purposes, by virtue of both the formal criterion and the substantive one, and the fact that it was enacted by way of a temporary provision cannot affect its normative status.  Furthermore, the State also held that in view of the “stable and unchanging” status of the basic laws, it is preferable that in appropriate circumstances, changes to the basic laws be effected by means of temporary provisions and not by means of “regular” basic laws. The State also dismissed the argument whereby Basic Law (Temporary Provision) changes the provision of s. 36A of Basic Law: The Knesset, or changes the balance of power between the branches of government. According to this argument, the purpose of the above section is not to express no confidence in the government, but to express no confidence solely in the budget proposal. The State contends that even if in practice, the result of expressing no confidence in the budget proposal is dissolution of the Knesset, Basic Law (Temporary Provision) cannot be viewed as containing any substantive change of the balance of power between the government and the Knesset. The State does indeed agree that “the power given to the Knesset to approve the budget is  [ ] a ‘sacrosanct’ power”, but, according to its approach, “there is nothing ‘sacrosanct’ about the Knesset using this power annually.” The State further argued that even if Basic Law (Temporary Provision) may have the effect of changing the balance of power between the authorities, it is within the power of the Knesset to make changes to this balance of power. This change, so goes the argument, does not need to be passed with a majority of at least 61 Members of Knesset in each of the readings, as argued by the petitioners, in view of the fact that s. 36A is not an entrenched section. Similarly, there would be no requirement for such a majority even if the argument of the petitioners, whereby Basic Law (Temporary Provision) implicitly changes the provision of s. 34 of Basic Law: The Knesset, were accepted, for neither is the said s. 34 entrenched. The State also dismissed all the other arguments of the petitioners regarding the motives of the Members of Parliament in enacting Basic Law (Temporary Provision), regarding the concern about expanding the Arrangements Law and regarding the unreasonableness of the Basic Law. These arguments, contends the State, are not acceptable on their merits and in any case they are not arguments by virtue of which it would be justified to strike down a basic law.

Deliberations

9.    The arguments of the parties raise two major questions. First, is Basic Law (Temporary Provision) indeed a basic law for all intents and purposes? Determination of this question, naturally, impacts on the validity of the amendment to Basic Law: The State Economy and on the extent of intervention of the Court in the arrangement laid down in Basic Law (Temporary Provision). Examination of this question necessitates a discussion of two secondary questions. The first relates to the manner of identification of the outcome of the activity of the Knesset as a constituent authority. Is the criterion for the identification of a law as a basic law one of form, one of substance, or a combination of the two? The second question relates to the fact that the amendment of Basic Law: The State Economy is for a set, predetermined period of time. Is the use of a temporary provision detrimental to the validity or the status of the Law as a basic law? The second central question – on the assumption that Basic Law (Temporary Provision) is indeed a basic law – is whether it is in order to nullify it because it changes the balance of power between the Knesset and the government in the budgetary approval process?

We will begin with the first question.

Are we Dealing with a Basic Law?

10.  As is known, basic laws in Israel are the outcome of that historical compromise reached by the constituent assembly – the “Harari decision” of 13 June, 1950 – whereby the Law and Constitution Committee was charged with preparing a draft constitution for the State, “that would be built chapter by chapter in a manner such that each chapter would constitute a basic law in itself” (D.K. 5, 1743 (1950)). Over the years, several basic laws were enacted, the hope that they would eventually be united in a whole constitution, and the conception was accepted whereby in enacting the basic laws, the Knesset was acting as a constituent authority (see the majority opinion in CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village  [1995] IsrSC 49(2) 221, which was accepted against the minority opinion of Justice M. Cheshin).

It is this constitutional structure, in which the same body – the Knesset – acts as both the constituent and the legislative authority that creates a need to identify the characteristics of the legislative outcomes and determine whether a law that is produced by the Knesset belongs with those legislative acts that have a meta-legal normative status or whether it belongs to the family of “regular” laws. Over the course of the years, this identification was made on the basis of a formal criterion, both by the various Israeli parliaments and by this Court. And thus, all those laws that bore the title “Basic Law” without mention of the year of enactment in the title, were considered to be basic laws that are part of the nascent constitution of the State. Accordingly, over the years twelve basic law were enacted: Basic Law: The Knesset; Basic Law: Israel Lands; Basic Law: The President of the State; Basic Law: The Government (old and new); Basic Law: The State Economy; Basic Law: The Military; Basic Law: Jerusalem the Capital of Israel; Basic Law: The Judiciary; Basic Law: The State Comptroller; Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation.

11.  The formal criterion received further support in the ruling in Bank Mizrahi v. Migdal [1]. In the majority opinion the formal criterion was determined to be that by which basic laws are identified. Justice Barak, with whom the majority concurred, stated in his written opinion (at p. 403):

‘When does a norm that is created [by the Knesset] have constitutional status, and when is it said that the norm is a “regular” law? In my opinion, the answer is that the Knesset uses its constituent authority … when it gives this external expression in the name of the norm and views it as a “basic law” (without indicating the year of enactment).’

Underlying the decision to adopt the formal criterion was the assumption that a simple criterion was needed for identifying basic laws, so that problems and uncertainty would not arise with respect to laws whose normative status was meta-legal. As President Barak pointed out: “This formalistic criterion – use of the term ‘basic law’ – is easy to apply. It grants security and certainty” (ibid., p. 406; and see also ibid., at p. 394: “The reply of the constituent authority doctrine to the distinction between an act of constitution and an act of legislation is simple and clear, for it uses a simple, formalistic criterion”). And indeed, the formal criterion made – and still makes – it possible to classify those legislative acts that constitute part of the state constitution in a class of their own. The formal criterion also enables the Knesset to know in good time when it is acting as a constituent authority, to “enter into” that commitment that is necessary for basic legislation and to “don” its constituent authority hat prior to debating a bill that is destined to become part of the constitution of the state.

12.   The argument has been raised more than once that the formal criterion is too simplistic (see, e.g., Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, Vol. 1: Basic Principles (6th ed., 2005) 96 (Hebrew) (hereinafter: Rubinstein & Medina); see also Aharon Barak, “The Constitutional Revolution: Protected Human Rights”  Mishpat Umimshal 1 (1992), 9, 19 (Hebrew) (hereinafter: Barak, Constitutional Revolution); Ariel Bendor, “The Legal Status of   Basic Laws” in Aharon Barak and Haim Berenson, eds., Justice Berenson Book, vol. 2 (2000), 119, 140-142 (Hebrew) (hereinafter: Bendor). President Barak himself, in his book on constitutional interpretation, raised the argument that in the formal criterion there is no reference to the substance of the legislation (see: Aharon Barak, Legal Interpretation,  Vol. 3: Constitutional Interpretation (1995), 46 (Hebrew) (hereinafter: Barak, Constitutional Interpretation). This being so, provisions that regulate subjects which, from the point of view of their substance, are suitable for inclusion in the constitution, but do not bear the title “Basic Law”, will not be considered part of the constitution. Amongst the regular laws that ought to be endowed, according to the argument, with constitutional status, it is accepted to mention the Law of Return, 1950 (see, e.g. the words of MK Bar-Yehuda, who in presenting (to the Second Knesset) Basic Law: The Knesset – which is the first basic law to have been enacted – points out that during the term of the Second Knesset, “several laws that are clearly in the nature of basic laws, even if not in form, have been enacted; it is sufficient to mention the Law of Return and the Law of Judges (D.K. 15, 57 (5714)). On the other hand, some provisions find their way into the state constitution, despite their questionable suitability for inclusion therein (see, for example, Prof. Itzhak Zamir’s critique of Basic Law: The Knesset, which “spreads over 46 sections, bloated with minute details which ought to have been laid down in a regular law”: Itzhak Zamir, “Basic Laws on the Way to a Constitution”, Introduction to Amnon Rubinstein and Raanan Har-Zahav, “Basic Law: The Knesset”, Commentary to the Basic Laws, (I. Zamir ed., 1992), 11, 13-14 – hereinafter: Zamir). Therefore, the argument is often heard that the substantive criterion should be applied alongside the formal criterion, in such a way that inclusion of the words “basic law” in the title of a law will constitute a preliminary condition, but not a sufficient one, for recognition of the law as a basic law (see: Rubinstein & Medina, p. 96).

13.   This proposal to institute a combined criterion for identification of basic laws has both advantages and disadvantages. On the one hand                                                                                                                                                                                                                                                                                   it allows for an extensive examination of a piece of legislation that is destined to become part of the constitution of the State. The substantive criterion or the combined criterion helps to overcome the problematic nature of the formal criterion, and it ensures that the title “basic law” will not be misused in order to entrench arrangements that are not suited, from the point of view of their substance, to be part of the constitution. On the other hand, recourse to a substantive criterion or some kind of combined criterion is not without its problems. First and foremost, it involves a degree of uncertainty with respect to existing and future legislation regarding the question of whether it constitutes part of the constitution. There is another real difficulty inherent in the substantive criterion, which, in the words of President Barak, “touches on the very relations between the constituent authority (of the Knesset) and the judicial authority (of the court)” (Bank Mizrahi v. Migdal [1], at p. 406), in whose hands will be placed the power to decide whether a statute is suitable, from the perspective of its substance, for inclusion in the constitution.

14.   The question of whether a combined criterion should be applied in Israel is a complex one which I believe can be left for future consideration and which need not be resolved in the framework of the present petition. Indeed, there is merit to the argument that there are some laws which, from the point of view of their substance, ought to be included in the constitution. Similarly, there is merit to the argument that there are sections and provisions in the basic laws in relation to which it is doubtful whether they are of the type of provision that merits inclusion in the constitution. At the same time, this fact alone does not necessarily lead to the conclusion that there is call for departing from the criterion that was accepted to date. There is no dispute that the use of the formal criterion requires self-restraint on the part of the legislature, which has the central authority to determine a priori, which legislative acts will be endowed with constitutional status. The formal criterion supposes that the legislature will not misuse its constituent power by attaching the title “basic law” to legislation that is not worthy of being part of the constitution. A review of the enactment of the basic laws from 1958 till the present shows that there was no such misuse (see also Barak, Constitutional Interpretation, p. 46 n. 51; Bendor, “The Legal Status of Basic Laws”, p. 143). The constitutional history of Israel shows that the Knesset used the term “basic law” in cases in which it was clear to the Knesset and to its members that they were operating within the framework of their competence as a constituent authority that is preparing to enact a chapter in the future constitution of the state. This conclusion emerges from an examination of the protocols of the debates in the plenum when draft bills for the enactment of basic laws were submitted for their first, second or third readings: the Members of Knesset specifically mention the fact that the proposed basic law is part of the constitution of the state (inter alia see: D.K. 15, 57 (1954); D.K. 36, 963 (1963); D.K. 74, 4002 (1975)). To this must be added that even from the relatively small number of basic laws we learn that the enactment of basic laws was not taken for granted, but was considered to be the act of the constituent authority in determining the highest norm of the state.

15.   Furthermore, it is not necessary to decide on the question of the criterion for identifying basic laws in the present case, since recourse to the combined criterion too, leads to the conclusion that Basic Law (Temporary Provision) is a basic law. By virtue of the terms of the formal criterion, the title of Basic Law (Temporary Provision) includes the words “basic law”, and the year of its enactment is not mentioned. The petitioners argued that the fact that the title of the Law includes the years of its application is equivalent to mention of the year of enactment. This argument is not convincing. Mention of the period of application of a basic law is not analogous to mention of the year of its enactment, and it cannot detract from the validity of the Law under the formal criterion. Under the substantive criterion too, the conclusion of the petitioners that the status of Basic Law (Temporary Provision) is that of “legislation that is even inferior to a regular law” is unfounded, even if it is agreed that the Law gives rise to not inconsiderable difficulties. The material dealt with by the law – the state budget – is material that has been regulated in Basic Law: The State Economy, and recognized as an area that constitutes part of the basic laws in Israel. Basic Law (Temporary Provision) changes the constitutional arrangement pertaining to the state budget, in its determination that the budget for the years 2011-2012 will be set as a biennial budget instead of an annual one. For this reason, too, it cannot be said that the Law, from the perspective of its contents, is unsuitable for inclusion in our basic laws.

For all these reasons, I am of the opinion that in the circumstances of the case before us it is not necessary to decide on the question of the application of a combined criterion for identifying basic laws, which raises, as we have said, complex issues regarding both the characterization of legislation as basic legislation and the division of authority between the legislature and the judiciary.

16.   A separate question is whether in the case before us there was misuse of the title “Basic Law”. The petitioners argued at length that it is not possible to override a constitutional principle that is anchored in basic laws by means of a temporary provision whose period of application is determined solely for the duration of the term of the present government. According to this argument, the Israeli Government wishes to exploit its parliamentary majority in order to change the rules of the parliamentary game, “abusing the automatic majority that the present government enjoys in the elected parliament, in order to change a basic law in a temporary and tendentious manner – only until the end of the term of this present government” (petition of 3.6.2010, pp. 2-3). The petitioners further argued that “It was not considerations of the good of the parliamentary regime or the good of democracy that the architects of the Law had in mind, but rather, considerations of convenience and the survival of the government (even at the expense of basic principles)” (ibid., p. 3). According to the petitioners, if the Members of Knesset had wished to conduct a “real” experiment in operating a biennial budget, they should have decided that the biennial budget would apply from the next Knesset onwards.

17.   Let it be said first that as a rule, “it is very doubtful whether motives for the enactment of a basic law – even if it may be argued that they are not worthy – are liable, per se, to constitute a juridical flaw that constitutes cause for judicial review” (HCJ 5160/99 Movement for Quality Government in Israel v. Law and Constitution Committee  [1999] IsrSC 53(4) 92, 96). Even were I prepared to assume that the motivation for enacting this Law, as claimed by the petitioners, is the desire of the Coalition to avoid the need to approve the budget annually, this reason alone, cannot justify judicial review; particularly where the relief sought is an order nullifying the Basic Law. A separate question is whether the very fact that the Law was enacted by way of a temporary provision constitutes “misuse” of constituent authority, thereby affecting the validity of Basic Law (Temporary Provision) as a basic law. The petitioners’ approach, as described at length in the introduction, is that the attempt to define a temporary provision as a basic law is a “contradiction in terms that leads to a degradation of the enactment of basic laws and of the status of the Knesset as a constituent authority” (reply of the petitioners to the response of the respondents dated 4.1.2011, p. 11). According to this argument, there is no conceptual and theoretical possibility of establishing a temporary provision in a basic law, and therefore, it is totally without force.

The respondents, and particularly respondents 1-6, did not deny the conceptual difficulty in establishing a basic law whose period of application was defined in advance and limited in time. The legal advisor to the Knesset, who was invited to the deliberations of the Joint Committee, also gave his professional opinion to the Committee to the effect that this involves an inherent, inbuilt problem. However, according to respondents 1-6, as long as the procedures for the enactment of basic laws have not been set in the framework of Basic Law: Legislation, it is possible for the Knesset to change a basic law by means of another basic law, even if it is a temporary provision. Respondents 7-9 added that indeed, as a rule, the provisions in basic laws are not time-bound, but in suitable circumstances the Knesset has the authority to make temporary provisions even in basic laws; and, on their approach, there is “no contradiction between a piece of legislation being a basic law, and it being a temporary provision.” Moreover, the State also argued that in certain cases, it is possible that “in view of the stable and unchanging status of the basic laws, there is a certain preference for making changes to them, when the continued validity of the changes is doubtful, by means of basic laws that are temporary provisions” (Response to the petition on behalf of respondents 7-9 of 20.9.2010, p. 16).

Does the Fact that the Basic Law was Enacted by Way of a Temporary Provision Affect its Validity?

18.   The question of whether a basic law may be enacted by way of a temporary provision has already arisen in the Knesset. See Movement for Quality Government in Israel v. Law and Constitution Committee [2], in which Amendment no. 9 of Basic Law: The Government, which cancelled the limit that had been set in that Basic Law on the number of members of the government, was reviewed. It is noteworthy that in the deliberations in the Law and Constitution Committee on this proposed Law, the position of the then Attorney General, E. Rubinstein, was presented, whereby alongside the interest in the stability of the constitutional structure, and the need to avoid, insofar as possible, frequent changes to basic laws, it cannot be stated that there is any legal bar to enacting a basic law as a temporary provision. Furthermore, the Knesset already changed a basic law by means of another basic law that was set in a temporary provision (see: Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002), but this matter has not been considered by this Court in the past.

19.   The possibility of enacting a constitutional provision whose beginning and end are predetermined for a set period of time brings to light a series of difficulties in Israeli Constitutional law. It should be recalled that the constitutional structure in Israel is special and it is not complete. Indeed, it is indisputable that the constitutional enterprise in the State of Israel has progressed significantly since the enactment of the first Basic Law in 1958, but this enterprise has not yet been completed (see, e.g., Aharon Barak, A Judge in a Democratic Society (2004), 79). For this reason, our constitution is lacking many characteristics that are normal in states which have a completed constitution. Thus, for example, some basic rights are not protected in basic legislation. Some of the provisions that appear in the basic laws are entrenched, whereas others may be changed by a regular majority. Some of the provisions are formulated in ceremonious, general and brief language whereas some of the provisions are too detailed and convoluted (see: Zamir, Basic Laws on the Way to a Constitution). Some of the basic laws regulate subjects which by their nature were destined to become part of a future constitution, whereas some of them regulate subjects that are not, generally, included in those constitutions of other countries with which we are familiar. Some of the major subjects in constitutions of other countries are not regulated in Israel in basic laws at all, and a question arises as to their constitutional status (see the opinion of President Barak in United Mizrahi Bank Ltd. v. Migdal [1], at pp. 402-403). This is the constitution “Israeli-style”. To a considerable extent, it is a constitution that is still in the process of consolidation.

20.   There is a glaring lacuna in our constitutional regime insofar as the manner of enactment of basic laws is concerned. In view of the fact that Basic Law: Legislation has not yet been enacted, there is as yet no blueprint for amending and changing the constitution; for the majority required for amending the constitution; and for the possibility, if at all, of amending the constitution or amending it in a temporary manner. As a result, the Rules of the Knesset are the central mechanism that applies to the procedures for the enactment of the basic laws, and they do not include a special provision that differentiates between the procedure for enactment of “regular” laws and the procedure for enactment of basic laws. For this reason, basic laws can be enacted by any majority in the Knesset; and basic laws may be changed – unless they are specially entrenched – by any majority as long as the amending law is a basic law. In practice, an examination of the history of the amendments to our basic laws reveals that the basic laws were amended or changed a great number of times (seem e.g., Ariel Bendor, “Flaws in the Enactment of Basic Laws”, Mishpat Umimshal 2 (1995), 443, 444-445 (Hebrew)); much more often than amendments to constitutions in other democratic states (the American Constitution, for example, has been amended 18 times (and in total, 27 amendments) over the 227 years of its existence; the Dutch Constitution, which was passed in 1814, has been amended 24 times; the French Constitution has been amended 8 times since it was passed in 1958. On constitutional amendments in general, see: European Commission for Democracy Through Law (Venice Commission) Report on Constitutional Amendment (2010)).

 21.  The ease with which Israel’s basic laws can be changed detracts from their status. The major characteristic of a constitution – a characteristic that is part of the basic definition of a constitution and also part of the advantages inherent in the existence of a constitution – is its stability. A constitution is intended to withstand frequent changes, and to stand firm in the face of changes in the political composition of the regime and in the face of various social changes. A constitution serves as a normative yardstick for society. It is the complex process of amending the constitution that allows this yardstick to stand firm and unwavering even in the face of a tumultuous society and a changing regime. In Israel this is not the situation. Most of our basic laws are not entrenched, and they can therefore be changed by the Knesset with a regular majority by means of regular enactment procedures. This constitutional reality derives to a great extent from the fact that our constitution is coming into being chapter by chapter, and not in a one-time constituent act subsequent to which every change requires a rigid, and special, process. The basic laws in Israel were enacted over a long period of time. They were not enacted as part of the constituent document of the establishment of the State, nor even in a time of revolution, war, or as a reaction to some other radical change in society or of the regime (see, e.g., Jon Elster, “Forces and Mechanisms in the Constitution Making Process”, 45 Duke L.J.  (1995), 364).

22.   At the same time, it may be said that the basic laws have taken root  in our juridical culture and in the political and public tradition as part of the constitution of the State. To a not inconsiderable degree, the strength of a constitution and of a proper constitutional regime is tested by the ability of the constitution to serve as a normative yardstick for the legislature, the executive, the judiciary and for individual citizens. The greatness of a constitution lies in its success in directing the behavior of individuals and of the state authorities, and in limiting the legislator’s ability to upset constitutional arrangements. As such, the answer to the question of whether the basic laws “have become rooted” in our constitutional tradition is not dependent only on the judicial review undertaken by this Court, but it is also – and even especially – evident in those cases in which the matter does not come to court because the elements involved in the legislative processes, as well as the executive, have internalized the accepted rules of play of the constitutional regime.

23.   In Israel, the superiority of the basic laws and their meta-legal normative status find expression both in the judicial review of regular legislation exercised by this Court and in the legislative procedures in the Knesset in recent decades. In practice, the question of the relationship of a proposed law to the existing basic laws has become one that is inseparable from the procedures for examining proposed laws. The directive of the Attorney General even states that “when a proposed law is submitted on behalf of the government for discussion by the government or by a ministerial committee, attached to it will be an opinion … on the question of the validity of the proposed law in light of the basic laws” (The relevant part of the Directive appears in Amnon Rubinstein’s article, “The Knesset and the Human Rights Basic Laws”, Mishpat Umimshal 5 (2000), 339, 352-3 (n. 9) (Hebrew)). A constitutional examination of proposed laws in light of the basic laws is conducted at each stage of the legislative process by the staff of the legal advisor to the Knesset (see ibid., p. 352). The deliberations in the Knesset plenum and in the various Knesset committees also indicate that the Members of Knesset are aware of the constitutional status of the basic laws and of the legislative constraints that derive from the superiority of the basic laws. This is evident, as will be discussed at length below, in the present case as well. The constitutional awareness that expresses itself in the process of examining the compatibility of the proposed legislation with the basic laws is a necessary process in every properly-functioning constitutional state, particularly so in the special circumstances of the constitutional law in Israel, which demand a great deal of self-restraint on the part of the Knesset in order to preserve the status of the basic laws and the stability of the arrangements they embody. Alongside this self-restraint, there is also a need for  judicial review by the Court aimed at ensuring that legislation, acts and decisions of the authorities and other public bodies do not change the basic laws or detract from them, but rather that they comport with the conditions established in the basic laws themselves and in the case law of this Court.

24.   Where does Basic Law (Temporary Provision) fit into the constitutional tapestry that we have described? Does self-restraint on the part of the Knesset mean that there is no room for changing basic laws for short, defined periods of time? It appears that no one would argue that a temporary provision contradicts the basic idea whereby the provisions of the constitution are fixed, and some would say even eternal. As stated, at the basis of a constitution stands the will to ensure stable principles, social identity and common values that are not easily changed, in order that they endure beyond that which is temporary and passing. The amendment of a constitution by way of a temporary provision assumes that it is possible to revoke a constitutional principle for a limited time. Is this unlawful?

In an ideal state of affairs, in which there exists a regulated and rigid mechanism for changing and amending the constitution, it is doubtful whether amendment of the constitution by way of a temporary provision would be possible. See, for example, the ruling of the Constitutional Court in the Czech Republic from September 2010: 2009/09/10 – PL. US 27/09 (for an English translation of the decision, see:  http://www.usoud.cz/en/decisions/?tx_ttnews%5Btt_news%5D=468&cHash=44785c32dd4c4d1466ba00318b1d7bd5) in which the constitutional court struck down a constitutional act that shortened the term of office of the sitting Chamber of Deputies and led to early elections. The reason for this nullification was that the one-off provision was incompatible with the eternity clause fixed in the Constitution. It is doubtful whether this rigid approach would be suited to the basic constitutional conception in Israel. In any case, according to the present situation in Israel, the rigid approach in relation to the legislative processes does not have a suitable framework. As stated, in the absence of Basic Law: Legislation, the restrictions on the procedures for legislation or amendment of the basic laws are few, and in order to enact a basic law in Israel there is no need for special procedures in the Knesset. In these circumstances, it cannot be said that the very fact that the basic law was enacted by way of a temporary provision fundamentally disqualifies it or  places it on a normative rung that is lower than a regular law, as the petitioners contend. At the same time, it may also not be said that this practice is problem-free. Setting  a temporary constitutional arrangement indeed denigrates the status of the basic laws, and it should be done only sparingly, if at all. In certain circumstances, which cannot be determined in advance, it is possible that the enactment of a basic law as a temporary provision may amount to “misuse” of the title “basic law”. In considering each case on its merits, attention must be paid, inter alia, to the existence of exceptional circumstances that justify the making of a temporary arrangement rather than a permanent one; the subject being regulated by the basic law must be examined; and an assessment must be made of the extent of damage wrought by the temporary basic law on the principles of the regime and other basic rights. It is important to note that application of these criteria to an examination of the constitutionality of a temporary provision is linked, by its very nature, to the question of the applicability of a substantive criterion for the identification of basic laws. At the same time, this question can also stand as an independent one. As stated, in certain, exceptional circumstances, the very recourse to a temporary provision may justify intervention in the basic legislation.

25. From the discussions in the Joint Committee it transpires that the decision to enact the Basic Law under discussion by way of a temporary provision derived from the professional position of senior Treasury officials, who felt that they do not have the tools to determine that the advantages of the biennial budget are greater than its disadvantages without conducting an actual “experiment”. The Treasury officials therefore sought to avoid a permanent amendment to the basic laws until after a “pilot” had been conducted, following which the Ministry would formulate a recommendation as to whether there should be a transition to a permanent biennial budget (see the protocol of the Joint Committee of the Finance Committee and the Law and Constitution Committee, 11.5.2010).

The problems involved in enacting a basic law by way of a temporary provision did not escape the Members of Knesset. The members of the Joint Committee devoted several discussions to the subject, and sought to ascertain the legality and the constitutionality of the draft law before them. As part of this effort, two legal opinions were submitted for review by the members of the Committee, and four legal advisers appeared before the Committee. The Committee also allowed the petitioner, MK Ronnie Bar-On, to address it at length. MK Bar-On laid out in detail the main arguments that were raised in the present petition. Inter alia, MK Bar-On spoke about the alleged harm to the balance between the powers, and about the central role of the Knesset in its oversight of the government in the process of approving the budget. MK Bar-On also mentioned his position that enactment of the amendment to Basic Law: The State Economy by way of a temporary provision constitutes misuse of the Basic Law for the purpose of obtaining a short-term political goal (Protocol of the Joint Committee, 11.5.2010, pp. 5-20). In two written opinions submitted by the legal adviser to the Finance Committee, the legal adviser pointed out that “it is a commonplace that basic laws and temporary provisions are contradictory concepts, and they are not compatible”, and it was also mentioned that a change to a basic law must be done in a basic law, and that determining the state budget is a constitutional norm. It was further pointed out in the written opinion that “the enactment of the biennial budget law is reserved for exceptional circumstances and ought not to be turned into the norm barring such circumstances without a comprehensive discussion of the basic values of our system”; and that transitioning to a biennial budgetary regime is liable to upset the balance between the executive branch and the legislative branch with respect to approval of the budget. In the wake of these opinions, and in the wake of what was said in the Committee, the members of the Joint Committee invited the legal advisor of the Treasury to its sessions, and asked for the professional opinion of the Ministry of Justice regarding the enactment of the Law by way of a temporary provision. Advocate J. Baris, the legal advisor to the Ministry of Finance, gave his opinion:

‘This matter [of determining an arrangement by way of a temporary provision],  it must be stated clearly, is a matter that is very exceptional and one that must be avoided insofar as possible. This is not a trivial matter … At the same time, it must be understood that this question, more than being a legal question is one of constitutional policy. In other words, does the Knesset as a constituent authority, as a matter of policy for determining constitutional arrangements, believe that this matter justifies a temporary provision or not … The starting point is that today, from a professional point of view, from the point of view of the matters that arise, there are advantages that resulted from the partial attempt that was made at an almost biennial budget … as opposed to the advantages, there are concerns … and the concerns are great and therefore from a professional perspective we are in a situation in which the clear professional recommendation is not to move over to a permanent provision for a biennial budget’ (Protocol of the Joint Committee, 11.5.2010, pp. 43-44).

Adv. Baris added that according to the Ministry of Finance, the present Temporary Provision is exceptional against the background of the accepted temporary provisions in Israeli law. Adv. Baris stated as follows:

‘In our legislation there are two types of temporary provision from a conceptual point of view. There are temporary provisions that stem from a temporary need, when I make a temporary provision in view of that need and it provides a response for that temporary need. There are temporary provisions that begin as a trial and a test … in general there is sometimes a need to conduct a trial, we go into something and we don’t yet know how it will work out, and you want to test the matter.

Now I want to be more accurate and to say that we are on the seam of these two types of temporary provisions. The temporary provision of last year (the original temporary provision) was of the type  of a clear temporary need … we saw the particular advantages of this partial attempt, and then we are at the transition to a temporary provision of the second type where you say that we do not have an annual budget so let’s experiment. I do not know whether in a basic law … you would say that we will move over from situation A to situation B as an experiment, but if you are already in situation B and you say, should we go back to situation A or extend by two additional years in order to make the experiment possible, this is our situation  and this is a coming together of circumstances according to which we believe that there are circumstances in which it is possible to propose a draft basic law as a temporary provision … in these circumstances we have reached the conclusion that it is precisely respect for the basic law that [lies] in the temporary provision. If we were to make a temporary provision in a basic law where there is a possibility that in two years or whenever we will have to submit to the Knesset a repealing provision because the concerns proved to be overriding or to be founded or to be real in the general balance and to justify a return to the annual budget, to submit a counter amendment is less seemly than in these circumstances to say that we are extending the temporary provision that began due to the special circumstances of the period in which we can for the first time truly examine the biennial budget (ibid., pp. 44, 45-46).

Adv. Eyal Zandberg, Head of the Public Law Section of the Advice and Legislation Department of the Ministry of Justice, pointed out to the Committee that several options for changing the Basic Law were available to the Government; one of these was the option that was chosen – that is, the enactment of a temporary provision for two years. Like Adv. Baris, Adv. Zandberg too pointed out that this track is not problem free, although it is possible from a legal standpoint. According to Adv. Zandberg:

‘… from a legal standpoint, from the point of view of the idea, the problem, and this is the problem here and I admit that there is a problem. I do not think that it disqualifies the proposal, but there is a problem, it cannot be ignored,  with a temporary provision in a basic law … We asked and we were convinced that there is no desire here to protect the current government, there were professional explanations why this arrangement is required for two years, and for two years only …. Hence the conclusion was … that it cannot be said to the Government that it is not within its authority to submit a bill that amends a basic law and establishes, in circumstances as I have described, this arrangement as a temporary arrangement for a specific period of time that is actually intended to allow the State as a whole, not only the Government, to try this out … and we did not think it correct to say that such an amendment to a basic law amounts to an illegal amendment. What is more, it must be said, that not every text that bears the title “basic law” legitimizes what is written beneath the title. This is not our position – let this be clear. I do not think that it may be argued that the contents of the basic law are in themselves unsuited to a basic law, according to their substance, and the difficulty is a conceptual one, how is it that a basic law, a segment of the law [should be “constitution”, D.B.], a permanent arrangement – how can the foundation stones be temporary? How can those walls of stone be built as plasterboard, which may easily be cut? This is a difficulty, but this is the explanation that we found for our professional legal opinion’ (Protocol of the Joint Committee of the Finance Committee and the Law and Constitution Committee from the discussion of the Economic Efficiency and the State Budget for the years 2009-2010, 31.5.10 p. 3).’

26. After hearing these opinions, the legal advisor of the Knesset, Adv. Eyal Yinon, was also invited to appear. Like the legal advisors who presented their views to the Joint Committee before him, the legal advisor to the Knesset, too, explained to the members of the Committee the complexity of the issue facing them. Adv. Yinon said that “it is clear that the biennial budget is a constitutional matter, a matter pertaining to the regime”, in that it is the type of provision that appears in constitutions throughout the world and in basic laws in Israel. Adv. Yinon further stated that “no one disputes that basic laws and temporary provisions are contradictions in terms”, but, in his view –

‘Due to the absence of a legislative arrangement of the issue of amendment of basic laws, it is difficult to argue that the proposed amendment is not constitutional or is not compatible with the basic values of the system. But of course the MKs must understand that their assent to an amendment of this type, beyond detracting from the ability of the Knesset to oversee the government … also contains an erosion of the status of the basic laws and of the protection that the Knesset is supposed to afford to the basic constitutional principles of our regime’ (Protocol of the session of the Joint Committee relating to the Economic Efficiency and State Budget Law for 2009-2010, 15.6.2010, pp. 5-6).

The members of the Joint Committee were persuaded that it is possible to enact that Basic Law as a temporary provision, but in order to address the difficulties that arose from the Bill, including the concern about weakening the Knesset’s power of oversight of the government, the Joint Committee made several changes to the proposal. The framework of the biennial budget was retained, but it was determined that the government will be obliged to submit the budgetary plan within 90 days prior to the commencement of the 2012 fiscal year; a section relating to a budget of adjustments for the fiscal year 2012 was introduced, designed to allow flexibility in the mode of execution of the budget in the course of implementing the biennial budget; a duty was imposed on the Minister of Finance to report to the Joint Committee within 120 days from the beginning of the 2012 fiscal year  regarding his position on the transition to a biennial budget on a permanent basis; the Knesset Finance Committee was authorized to determine the date for submission of the budgetary laws to the Knesset under s. 3(b)(1) of Basic Law: The State Economy. It is noteworthy that this last amendment was a permanent amendment and not a temporary provision.

27.   We have cited at length what was said in the Joint Committee because in our view, the professional and detailed discussion in the Joint Committee indicates that the enactment of the Basic Law by way of a temporary provision was a conscious decision; in the process of enactment there was a serious discussion and the question of the possibility of enacting the Basic Law as a temporary provision was duly considered. This fact must be taken into account when the constitutionality of the Law is being considered, for it can demonstrate that the Knesset acted with the understanding that it was applying its constituent authority while relating to the complexity this involved.

28.   The entire array of circumstances in the present case – including the identification of Basic Law (Temporary Provision) as a basic law under both the formal and the combined criteria; the material it regulates; and the combination of circumstances that led to the decision to introduce a biennial budget for two years – leads to the conclusion that even if we identify substantial difficulties in temporary enactment or amendment of basic laws, a determination that Basic Law (Temporary Provision) is void is unwarranted. As emerges from the deliberations in the Knesset, it was the special circumstances that gave rise to the wish to attempt to implement a biennial budget that lay at the basis of the decision to introduce a temporary change to Basic Law: The State Economy. As pointed out by Adv. Baris, the Ministry of Finance refused to draw up a permanent amendment, because it was not possible, from a professional point of view, to support a permanent transition to a biennial budget. Were it not for the economic crisis and the unexpected elections that led to the approval of a biennial budget for the years 2009-2010, it is doubtful whether the senior Treasury officials would have proposed conducting such an “experiment”. However, in the circumstances that unfolded, it was decided to examine the advantages of the budget and to study the ability of the Treasury to correctly assess the forecast of expenses and income of the State for a period of two years. We will further mention that even had we thought that additional considerations underlay the legislation before us, this too would not have been enough to constitute cause for intervention in the legislation, and certainly not in basic legislation (see para. 17 above).

29.   In summary: We are of the opinion that Basic Law (Temporary Provision) is a basic law for all intents and purposes. In the circumstances of the case before us, there is nothing in the use of a temporary provision in itself that would justify a determination that the basic law is void or that it should be struck down. At the same time, it would be better if in the future, the Knesset would avoid resorting to temporary provisions for amending constitutional provisions. In any case, as long as the framework for the enactment, amendment and change of a basic law has not been determined, a legislative procedure of this kind should be reserved for exceptional, extreme and special cases, due to the status of the basic laws. In this context, the words of Justice D. Levin are apt:

‘Amendment of a constitution should not be done as a matter of routine; a constitution and the constitutional values it embodies should never bend and change with every passing wind. The stability of the law, and a fortiori, of the constitution, are a value in themselves. Therefore, the legislature should consider this before passing a law, for a law, and a fortiori a constitution, are intended to lay down norms and principles that must guide the citizen’s conduct through the days and the years to come’ (United Mizrahi Bank Ltd. v. Migdal [1], p. 456).

30.   The additional arguments that were raised by the petitioners concerning the reasonability of the Basic Law and the majority by which it was passed in the various readings in the Knesset must also be dismissed. Without taking any position on the advantages or disadvantages of a biennial budgetary system, considerations regarding the reasonability of the Basic Law are not among those considerations that justify the intervention of this Court in basic legislation. Arguments whereby the Law should have been passed by a majority of 61 MKs in the three readings are also not founded, for s. 36A of Basic Law: The Knesset is not an entrenched section. Its amendment, therefore, does not require a special majority. The argument whereby Basic Law (Temporary Provision) explicitly or implicitly changes s. 34 of Basic Law: The Knesset, and therefore the Knesset should have passed it with a special majority, must also be dismissed. We accept the State’s position and that of the Knesset whereby s. 34 is not a general section that defines when the Knesset is dissolved, but rather a section that deals with the possibility of the Knesset deciding on its own dissolution – a decision that can be made by a law that is enacted by a majority of Members of Knesset. Consequently, the transition to a biennial budget should not be viewed as  an implicit change of s. 34 of Basic Law: The Knesset.

The Doctrine of the Unconstitutional Constitutional Amendment

31.   Having determined that Basic Law (Temporary Provision) is indeed a basic law, let us now address another central argument raised by the petitioners in the petition – although they would appear to have abandoned it in the course of the oral pleadings – that concerns the possibility of the Court nullifying Basic Law (Temporary Provision) because it contradicts fundamental values of our legal system. This issue, which in comparative legal literature is termed “the unconstitutional constitutional amendment”, deals with judicial review of a constitutional amendment made by the constituent authority.

According to this argument, Basic Law (Temporary Provision) upsets the constitutional balance between the legislative authority and the executive authority, and violates the constitutional principle under which if Knesset approval of the budget is not secured once a year, both the government and the Knesset are dissolved (in accordance with s. 36A of Basic Law: The Knesset). The petitioners cited many legal sources and extra-legal sources as the basis for their argument to the effect that approval of the budget in a democratic state in general, and in the State of Israel in particular, has special significance. In approving the state budget, so argue the petitioners, the Knesset gives concrete expression to its sovereignty and superiority vis-à-vis the government; and in the period of approval of the state budget, the government is under the review of the Knesset, and conducts debates with the Knesset concerning the priorities of the state (see, inter alia: Chen Freidberg and Reuven Chazan, Knesset Oversight of the Government (Israel Democracy Institute, 2009) pp. 33-34 (Hebrew)). Basic Law (Temporary Provision), it is argued, weakens the Knesset and detracts from its ability to oversee the work of the government, its mode of operation and the priorities that it sets. This, according to the petitioners, justifies the intervention of this Court by way of nullification of a basic law, since “approval of the Budget Law on an annual basis is considered one of the foundation stones of a democratic state the world over, and in Israel in particular” (Petition of 30.6.2010, p. 3). Moreover, the petitioners argued that the Basic Law violates another fundamental principle – the ability to bring about the dissolution of the Knesset and new elections by means of only 60 Members of Knesset, if the state budget is not approved within three months of the beginning of the fiscal year.

32. The doctrine of the unconstitutional constitutional amendment has been discussed at length in foreign legal systems (for a comparative review of this issue see: Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study (2008); and see: Aharon Barak, “The Unconstitutional Constitutional Amendment” (forthcoming, Bach Book) (Hebrew)). At its base, the doctrine of the unconstitutional constitutional amendment addresses the question of whether the courts have the authority to examine the constitutionality of amendments to the constitution. The answer to this question is directly connected to the nature and the character of the constitution in the framework of which the constitutional amendment is examined. Accordingly, there are states whose constitutions include “eternity clauses” – constitutional provisions that cannot be amended (see, e.g., art. 4 of the Constitution of the Republic of Turkey; art. 79(d) of Basic Law for the Federal Republic of Germany). In a number of states, courts have struck down amendments to the constitution on the basis of eternity clauses. There are states, such as India, in which the constitution does not include an eternity clause, but despite that the court has struck down amendments to the constitution for the reason that they were injurious to “the basic structure of the constitution” (for a review of the decisions of the Indian Supreme Court, see Gözler, pp. 88-95). In both situations – cases based on eternity clauses and those in which there was no such clause – the courts that were prepared to subject constitutional amendments to judicial review did so where the constitutional amendment breached or changed a fundamental, basic meta-principle of the constitution and the regime in the relevant state (such as the republican structure and the secular regime in Turkey. See also the abovementioned ruling of the Czech Constitutional Court, which nullified the law for bringing forward the elections based, inter alia, on an eternity clause in the Constitution according to which “any changes in the essential requirements for a democratic state governed by the rule of law are impermissible.” For further examples, see Gözler, ibid.).

33.   This doctrine, which recognizes “eternal” meta-principles in some form or other, has also been mentioned several times in obiter dicta in the case law of this Court, but it has not yet been applied (see: EA 1/65 Yardur v. Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365, 389-390, per Justice Y. Sussman; HCJ 142/89 La’Or Movement  - One Heart and One Spirit v. Central Elections Committee for the Sixteenth Knessset [1990] IsrSC 44(3) 529, 551-554, per [then] Justice A. Barak; Bank Mizrahi v. Migdal [1], pp. 394, 546, per President A. Barak and Justice M. Cheshin; CA 733/95 Arpel Aluminium Ltd. v. Klil Industries Ltd. [1997] IsrSC 51(3) 577, 629-630, per Justice M. Cheshin; HCJ 4676/94 Mitral Ltd. v. Israeli Knesset [1996] IsrSC 50(5)  15, 28, per President A. Barak; Movement for Quality Government v. Law and Constitution Committee [2], p. 96, per Justice D. Dorner; HCJ 6427/02 Movement for Quality Government in Israel v. Israel Knesset (not yet reported, 11.5.2006), per President A. Barak, para. 74; per Deputy President (ret.) M. Cheshin, para. 11). In Israel, in view of the fact that a complete constitution – including, in that framework, the procedures for enacting and amending the basic laws – has not yet been established, the doctrine takes on special meaning. In these circumstances, the question of whether the court in Israeli is competent to strike down basic legislation because it contradicts meta-principles of our system is a complicated one that reaches to the very root of the legitimacy of the constituent authority instituting constitutional arrangements that change the nature of the basic laws, and to the core of the competence of the Court to exercise judicial review of the outcome of the acts of the Knesset as a constitutive body. At the same time, the courts in Israel have recognized the existence of principles that are irrevocable. Our basic laws, too, have laid down a central constitutional principle, the ability to change which is doubtful, relating to the Jewish and democratic nature of the State. When the constitution of the State will be complete, the question of the inclusion of eternity clauses that express the meta-principles of the regime and society in Israel will come up for discussion. In this context, President A. Barak made the following observation in his article on this subject:

‘With the conclusion of the enterprise of basic laws and its ratification by the people, and with the introduction of a new complete constitution, there will be room for making a decision concerning the unconstitutional constitutional amendment. It may be that the constitution itself will solve this problem explicitly; it may be that it will contain eternity clauses that can help provide a solution to the question; the constitutional text may have nothing to say on this issue and the Supreme Court will be required to make a decision on whether to adopt the doctrine of the basic structure of the constitution or some similar doctrine or to reject them; it is possible that amendment of the law will be so difficult and complicated that the question will not even come up for discussion.

Does this mean that at the present stage of constitutional development in Israel, there is no call to consider the place of the question of unconstitutional constitutional amendment?  Indeed, in the comprehensive, complete sense of this doctrine in comparative law, it has no place in Israel. This is because the concept of constitutional “amendment” is in itself problematic in Israel. The constitutional enterprise is an enterprise in the making. The mission is not yet complete. The “complete” is yet to be completed, and in any case the constitutional amendment has not yet ripened. Nevertheless, in Israel there is a process of  establishing basic laws. At times, a basic law is enacted in an area in which there was previously no basic law; at times, an amendment to an existing basic law comes about by way of enacting an amending basic law. Against this background, the following question may be raised in Israel: are there constraints on the power of the Knesset, as a constituent authority, in its determination of the substantive contents of the basic laws, such that we can talk about an unconstitutional basic law? In this regard is there a difference between an area which has already been addressed in basic laws and needs amendment and between an area in which no basic law has yet been established?

In my opinion, there is room for an approach according to which the constituent power of the Knesset is not absolute. This is so regarding the establishment of a new basic law and regarding the amendment of an existing basic law. In both cases the Knesset, as a constituent authority … must act within the framework of the basic principles and basic values of our constitutional structure … The Knesset was not given authority to harm the “democratic core, and the minimum requirements for the character of the state as democratic.” Similarly, it was not authorized to harm the core of Israel as a Jewish state and the minimum requirements for this aspect of its character’ (Barak, Unconstitutional Constitutional Amendment)

 

34.   Indeed, I too believe that there are basic principles standing at the very basis of our existence as a society and a state, the breach of which would raise difficult questions of authority, including doubts as to whether at issue is a change in the constitution or the establishment of a new constitution. In such a case – and it would be best were it never to occur – the Court will be called upon to decide whether the Knesset has overstepped its constituent authority and violated the basic foundations of the state as a Jewish and democratic state. The case before us is not such a case. True, the relationship between the government and the Knesset in the process of approving a state budget is undoubtedly a very important relationship that expresses the principle of separation of powers. There is also no dispute that Knesset oversight of the government is an integral part of the principle of separation of powers. But does the requirement that the approval of the Knesset be obtained once every two years instead of annually constitute, for example, a negation of the democratic or Jewish character of the State? Does a decision to adopt a biennial budget for two years constitute a breach of the fundamental principles of the regime, as expressed in the Declaration of Independence? The answer is negative. Even if there is a detraction from the authority of the Knesset when it is asked to approve the budget once every two years instead of annually, the Members of Knesset have the option of choosing to change the period of the budget. To this must also be added the special positon of the Budget Law on the scale of constitutional norms (see: HCJ 4124/00 Yekutieli  v. Minister for Religious Affairs (not yet reported, 14.6.2010); HCJ 1438/98 Conservative Movement v. Minister for Religious Affairs [1999] IsrSC 53(5) 337). Hence, the damage caused to the Knesset as a result of the transition to a biennial budget does not amount to damage to the meta-principles of our system in a way that would justify the nullification of the basic law by virtue of the doctrine of the unconstitutional constitutional amendment – whatever be the scope of its application in Israel. In the circumstances of the present case it is not necessary for us to decide on this question.

 

35.   In conclusion: for all the reasons elucidated above, I propose to my colleagues to deny the petition. Basic Law (Temporary Provision) is indeed a basic law, and the harm that it allegedly harbors is not of the type that justifies the intervention of the Court in basic legislation, even if the Law was enacted in a manner which it would have been better to avoid. As stated, we leave pending the question of the possibility of applying a substantive criterion for identifying basic laws, and we do not think that we ought to decide on the question of the application, or the scope of application, of the doctrine of the unconstitutional constitutional amendment in Israel. Determination of these two issues is not necessary in the case at hand, and we hope that we will not require it in the future.

36.   Apropos of the above discussion we would point out that above all, the present petition is an indication of the need to complete the constitutional enterprise and to entrench the procedures for enacting and changing basic laws through the mechanism of Basic Law: Legislation (see, in this context, the various Basic Law: Legislation Bills that have been submitted to the Knesset; see, for example, Basic Law: Legislation Bill, H.H. 5761 2988 and the earlier draft laws  mentioned in the Explanatory Notes. See also Dan Meridor, “Major Principles in Basic Law: Legislation Bill” Mishpat Umimshal  1 (1992), 387 (Hebrew)).  The fact that the procedure for changing basic laws is liable to have significant ramifications for the constitutional regime cannot be ignored. The manner in which basic laws may be changed and the degree of rigidity of the procedure have a direct impact on the status of the basic laws, on the stability of the arrangements they prescribe, and on the extent of the power of an accidental majority to change the political, social and value-related identity of the State of Israel (see also, on the argument that the procedure for amendment affects the nature of the regime that the constitution establishes, Avichai Dorfman, “The Theory of the Rule of Constitutional Change” Mishpat Umimshal 10 (2007), 429 (Hebrew)). As stated, there have been several attempts in the past to formulate draft laws to regulate the procedures of enactment of basic laws. These bills did not develop into a fully-fledged comprehensive basic law. It would seem that today, ten decades after the enactment of the first basic law, the time has come to do so.

 

Justice U. Vogelman

I concur.

 

Justice M. Naor

1.     I concur in the opinion of the President.

2.     The question that is central to this petition, as emerges from the discussion that took place before us in the hearing on 11.1.2011, is whether the fact that the Basic Law was changed by way of a temporary provision is a reason for striking down the Law. In my opinion too, this must be answered in the negative. My colleague the President emphasized the need to complete the legislative enterprise and to entrench the procedures for enacting basic laws and their amendment by means of Basic Law: Legislation. In the present legal situation, however, it cannot be ruled categorically that a basic law may never be changed by way of a temporary provision. All appear to agree that there are exceptional situations in which there is no avoiding a change in this manner. An example of this may be found in the provisions of the law that postponed to a small extent the date of elections to the Knesset and the Local Authorities due to the 1973 Yom Kippur War, thereby extending the term of the sitting Knesset. The Law to which we are referring is the Elections to the Eighth Knesset and to Local Government (Temporary Provision) Law, 1974, the provisions of which apply notwithstanding the provisions of Basic Law: The Knesset (s. 10). This temporary provision was at the time dictated by reality.

 

3.     Indeed, creditable constitutional arrangements must leave a narrow opening at least for changing basic laws by way of temporary provisions, due to what the legal advisor to the Ministry of Finance, Adv. Baris, in the section cited by the President, called “the needs of the hour”. The matter at hand is not one of “the needs of the hour”, but the present constitutional structure in Israel does not rule out the amendment of a basic law by way of a temporary provision that is a basic law. I agree with my colleague that determining a temporary constitutional arrangement detracts from the status of the basic laws, and it should be done sparingly.

 

4.     The present case touches upon the fabric of the relations between the legislative and the executive authorities. This is not a matter of a violation of human rights, nor, in my view, of a breach of the fundamental principles of the regime. The determination that a budget will be an annual one (as opposed to a biennial one) is not, in my opinion, a fundamental constitutional principle. I can understand the objection of the petitioner, who feels that the amendment was intended to achieve a political end, even though an examination of the legislative history does not evince this. However, like the President I do not find cause for the intervention of the High Court of Justice regarding the constitutionality of the Law only because the Basic Law was amended by way of a temporary provision.

 

Justice E. Rubinstein

1.     This case, even if outcome is denial of the petition, highlights, in my opinion, a resounding systemic failure – to instill in the Israeli people, and even sadder, in its parliamentary representatives, a constitutional awareness. The fact that the constitutional texts – basic laws – are “as clay in the potter’s hands; he expands it at will and contracts it at will”, in the words of the prayer recited in the Synagogue on the Eve of Yom Kippur , is sad evidence of this. We live in ongoing eras of, on the one hand, “quasi-constitution” – basic laws, including constitutional judicial review within the bounds of Bank Mizrahi v. Migdal [1] and the subsequent rulings, and on the other hand, a degradation of the basic laws as if they were a “request program”. The question facing us is whether it is possible, by way of judicial action, to achieve greater respect for the constitutional text? The answer is not clear.

2.     The specific issue at hand is in my mind a two-fold one. One is whether a basic law may be changed by way of a temporary provision. The second, continuing from this, is the slippery slope of the degradation of the constitutional dignity of a basic law.

3.     On the juridical plane it is hard to state categorically that a law cannot be changed by way of a temporary provision absent Basic Law: Legislation, and even more so prior to completion of the constitution. The reply of the Knesset quotes from my letter of 19.7.99 – when I was serving as the Attorney General – to the chairman of the Law and Constitution Committee of the Knesset which was discussing the attempt of the Government to change Basic Law: The Government so as to remove the limitation that then existed in the Basic Law on the number of ministers. The proposal seemed problematic from a legal perspective, and I expressed my reservation in view of the constitutional entrenchment in the existing Basic Law of the number of ministers; my reservation also related to “the interest in the stability of the constitutional structure and the need to refrain, insofar as possible, from frequent changes in the basic laws …”. I added, however, that “to the extent that this is done in accordance with the provisions of the relevant Basic Law, I cannot say that there is a legal bar to this.” In view of the problematic nature of the matter, and in order to achieve a balance between what the Government wants and the needs it has presented on the one hand, and wanting to refrain from fixing the extension for a long period on the other, the Ministry of Justice suggested –  and the Government agreed – that the proposal be entrenched in a temporary provision for the term of that Knesset. In another letter to the Chairman of the Committee dated 21.7.99, I pointed out that for the sake of lessening the problem, I had raised the possibility of a temporary provision, and that it could indeed be argued that –

‘It is preferable and dignified to amend a basic law by way of a temporary provision, because we are dealing with a constitutional document.  However, matters must be weighed on the scales of profit and loss in the long term as well, and in my view the damage done by transmitting a message of the possibility  of permanently expanding the government outweighs the difficulty – which I do not underestimate – of amending a constitutional text by means of a temporary provision (and regrettably, we have not yet succeeded in endowing most of the constitutional texts, the basic laws with the aura of “constitutionality” in the public and in the Knesset for various reasons).’

I was of the opinion that a temporary provision would necessitate the instigation of renewed processes in the future, and that the wheel would possibly turn back; at that time too there were examples of temporary provisions – s. 10 of Basic Law: Freedom of Occupation. I was of the opinion therefore that “the balance is tending towards a temporary provision, in order not to permanently fix something that is liable to transpire as being a temporary necessity.” The Knesset ultimately decided on a permanent amendment, with which we are living to this very day in our minister-rich governments.

4.     I cited the above at some length in order to explain the circumstances of “Woe to me from my Creator and woe to me from my evil inclination” (B. T. Berachot 61a). The Basic Laws have not been accorded the status that they deserve, as evinced, inter alia, by the vicissitudes of Basic Law: The Government, which was enacted, amended (not necessarily by way of a temporary provision) and replaced, in large part according to changing situations of coalition needs which mostly have no relation to constitutional dignity (and see my article: “Basic Law: The Government in its Original Formulation – Theory and Practice” Mishpat Umimshal 3 (1996) 521, 578-583 (Hebrew), published also in my book Paths of Government and Law (2003) 79, 86-91 (Hebrew). Therefore, when the Government wished to increase the number of ministers in 1999, I thought, as the Attorney General, that this was an error and it was a pity that it should be fixed (as ultimately occurred) as an “eternal lament”; consequently I was of the opinion that a temporary provision was preferable, as stated, in the sense of “choosing the lesser of two evils”, in the words of the Mejelle. Today, too, I cannot say unreservedly that a constitutional temporary provision has no basis in law such that it would have to be struck down, as we are asked to do today, and I say this with regret.

5.     The subject on which the petition turns is not a trivial one. Suffice it to say that the budget is one of the central pillars on which parliamentary oversight of the government rests. I personally do not believe that a constitutional text is an experimental field, as those seeking the amendment would like to argue. Let us admit the truth: a temporary provision that stems from clear necessity – for example the temporary provision concerning the elections after the Yom Kippur War, as mentioned by my colleague Justice Naor (para. 3) – is rare. Temporary provisions will usually stem from coalition and political needs, which are virtually unrelated to a constitution that symbolizes permanence, eternity of the state and the nation, human citizens’ rights, including the rights of minorities. In the present case, the idea of a biennial budget is not in essence conjunctural and it has some basis – as demonstrated to us – in the professional approach and from the international perspective, but it involves, as stated, the ability of the Knesset to exercise oversight of the Government; ought it to be the subject of constitutional experimentation and a weather vane?

6.     Furthermore, I will not refrain from stating here that a biennial budget might well appear to be the younger sibling of the Arrangements Law, which is not well thought of – not to say infamous; a Law that continues, despite several improvements following a certain parliamentary awakening and legal and judicial remarks, to accompany every budget as a persistent slap in the face to the notion of creditable legislation, and in my view also as lack of respect for the Knesset, and much has already been written and said on this,  and to add would be to detract.

 

7.     But after having said all this, in order to strike down the Basic Law (Temporary Provision) a stronger juridical entrenchment than that which exists would be required, even though I would not padlock the door with a view to the future; in the circumstances there is not the critical mass which would entail its nullification. My colleague Justice Naor (in para. 3 of her opinion) stated that “indeed creditable constitutional arrangements must leave a narrow opening at least for changing basic laws by way of a temporary provision.” I would leave this pending future investigation; for example, in the United States an amendment to the Constitution (under art. 5 thereof) necessitates an extensive, drawn-out procedure, that combines Congressional decisions with the consent of the States. But I certainly can agree with Justice Naor, that if the thing is done and the temporary provision is passed, it must be done sparingly, and as far as I am concerned, exceedingly sparingly. In any case at the present time and in the present case and in the existing juridical situation, we cannot dignify the Knesset more than it dignifies itself, and therefore we cannot grant the petition.

I will conclude by concurring in the words of my colleague the President with respect to the need for completing the constitutional enterprise. I will say clearly and somewhat stridently: the main reason for it not having been completed until now, so it seems to me – and let us recall that for nearly two decades, not even one basic law has been passed, despite efforts having been made – is not because of what will be written in the Constitution, but apparently because of the question of who will interpret it. The last basic laws came into being in 1992, but in 1995 a ruling was handed down in the case of Bank Mizrahi v Migdal [1] which determined the constitutional authority, and since then there has been a “silence of the constitution” in the operative sense, as opposed to various proposals. It seems that parts of the Knesset are not happy with the constitutional authority of this Court, and are afraid that additional constitutional texts will add to its power. I will merely say that not only is the power of judicial review exercised by this Court cautiously and sparingly, but whoever looks into the matter will find that when it has been exercised, it has always been in areas that for the most part are not the areas that worry those who are concerned. We live in a world of appearances and public and media-related perceptions that feed off themselves. It would be good if the scrutiny would sometimes be directed at the substance of issue, if one may make this modest request, even though criticism is of course legitimate, and also in the court itself there are majority and minority decisions. But scrutiny is always a good thing, so that the criticism can follow and not come before. Why do I believe in the importance of completing the constitution, although we in fact live in a quasi-constitutional regime? For educational reasons, to perpetuate the values of Israel as a Jewish and democratic state, as a text that will teach and will constitute a historical fountain spouting the values of the nation and the individual as one. The Declaration of Independence, which constitutes a major source of interpretation by virtue of s.1 of Basic Law: Freedom of Occupation and s.1 of Basic Law: Human Dignity and Liberty, can fill some of these roles (see the article by myself and N. Solberg, “The Declaration of  Independence of the State of Israel – After it has (Almost) Waxed Old, Shall It  Have Pleasure”, Netivei Mimshal Umisphat 179, 191-195 (Hebrew)). But a complete constitution would be an upgrade and an empowerment on the educational plane and for the long term, and for this reason it ought to come into being.

9.     As stated, in the circumstances I concur in the ruling of my colleague, the President.

 Justice E. Arbel

I concur in the judgment of my colleague, the President.

Vice President E. Rivlin

I concur.

 

Justice A. Grunis

I concur.

 

The petition was denied as stated in the ruling of the President D. Beinisch. There is no order for costs.

 

3 Nissan 5771.

7 April 2011.

 

 

Full opinion: 

Wael & Co. v. National Water and Sewage Authority

Case/docket number: 
CA 4926/08
Date Decided: 
Wednesday, October 9, 2013
Decision Type: 
Appellate
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.]

 

An appeal addressing the Water (Extraction Levy) Regulations, 5760-2000, in the framework of which the extent of the water levies for extracting water in Israel were prescribed (hereinafter: the "Water Regulations" or the "Regulations"), the legality thereof and the validity of the process of promulgation thereof. The main question in the matter at hand relates to whether or not, pursuant to Section 116(d), as worded at the time of the publication of the Regulations, pursuant to which - "The water extractors and the consumers from the water source with respect to which a levy shall apply, shall be granted the opportunity to voice arguments prior to the extraction levy being determined" - there was a duty to also publish the invitation to voice arguments prior to promulgating the Water Regulations, in Arabic, concurrently with the publication in Hebrew in the national press.

 

The Supreme Court (by Justice S. Joubran, with the consent of Justices E. Rubinstein and N. Hendel) ruled:

 

There was a duty to also publish the invitation to voice arguments in Arabic and in the Arabic press, concurrently with the publication in Hebrew in the national press. However, in light of the unique circumstances of this case, notwithstanding the flaw of refraining from publishing the invitation in Arabic and in the Arab press, and pursuant to the relative voidness doctrine, it is inappropriate to invalidate the Water Regulations or the notices of debt that were sent by virtue thereof, and therefore, subject to the there being a duty to also publish the invitation to voice arguments in Arabic when the water extraction levies are updated – the appeal is denied based on the following grounds:

 

According to Israel's common law, in the framework of which the rules of administrative law, including the rules of natural justice, are prescribed through case law, the authority's obligation to grant any party who could be adversely affected by its actions an opportunity to voice arguments, does not apply in a procedure of promulgating regulations of legislative effect. Hence, only in cases in which there is an explicit statutory provision which imposes upon the authority an obligation to allow the voicing of arguments in a secondary legislating procedure, or that grants the said right to voice arguments, will the individual who is to be adversely affected by the regulations be entitled to voice his arguments, all in accordance with the terms and conditions appearing in the law. This is also the case in the case before us, in the provisions of Section 116(d). (At hand is a constitutive section, in the sense that it creates the right, which otherwise would not exist).

 

In light of the above, there is no doubt that the promulgation of the Water Regulations pursuant to Section 116(a), as was previously worded, is subject to the Minister of Infrastructures' obligation to give the public that may be adversely affected by the regulations that prescribe the extent of the water levy, a proper opportunity to voice its arguments. This raises the question whether the duty to grant an opportunity to voice arguments, as stated in Section 116(d), includes the duty to inform the relevant public of the anticipated promulgation of the Regulations and to invite them to voice their arguments with respect thereto; and if the answer is affirmative, we also shall address the question of the language of notification.

 

There is no dispute that there is no real substance to the right to voice arguments or to the duty to grant an opportunity to voice arguments, if the individual is not informed, at the relevant time, of the administrative procedure which may adversely affect or impact him. The realization of the right is intertwined with knowledge of its existence and of the occurrence of the event that creates the circumstances upon which its realization depends. In the case at hand, in order to be able to voice arguments regarding the Water Regulations, the extractors and the consumers must be aware of their said right and of the fact that the minister is contemplating the promulgation of regulations with respect to which they are entitled, pursuant to the law, to voice their arguments, prior to their promulgation.

 

However, at hand is a type of public hearing which is distinguished from a personal private hearing on a number of levels, the most important of which relates to the right of being notified and the extent of notification that will be deemed reasonable. According to the Court, in a public hearing, the duty to inform, with respect to the publication of the invitation to voice arguments, does not require taking measures that would ensure universal notification, and general publication via popular media channels, or by any other means to which the majority of the relevant public is likely to be exposed, is sufficient. Since, as mentioned above, in the absolute majority of cases, excluding a few exceptions, most of the claims that relate to the matter will be argued, and consequently, the data, or at least the majority of the data, necessary for reaching a reasonable and proportional decision that is based on a broad factual basis, will be brought to the authority's attention. This also obtains in the case at hand. The Respondent was not required to send each water extractor and consumer a personal invitation to voice arguments in order to fulfill its duty to inform. Therefore, Respondent's decision to publish the invitation to voice arguments in the press, in and of itself, does not, in principle, deviate from the zone of reasonableness.

 

However, this raises the question whether the duty to inform includes the duty to adjust the content of the invitation to the Arabic speaking public, by means of publishing the invitation also in the Arab press and in the Arabic language. The Court's answer to this question was affirmative.

 

Section 82 of the Palestine Order in Council, 1922 (hereinafter: "Section 82"), which is entitled "Official Languages", provides that the Arabic language is, alongside the Hebrew language, an official language in Israel. The justices differed, however, in their opinions as to the practical significance of Arabic having the status of an official language.

 

Justice Joubran reaches the conclusion regarding the duty to also publish the invitation in the Arabic press and in the Arabic language, according to each of the three interpretative methods presented in HCJ 4112/99 In Re Adalah which addressed the use of the Arabic language on municipal signs.

 

Literal interpretation of Section 82 – This section imposes a duty to use Hebrew and Arabic in all "the ordinances, official notices and official forms of the government". The Court's position is that the publication of the invitation to voice arguments falls within the definition of "official notices" (in accordance with the criterion of the identity of the publishing party and the linkage between the publication and the governmental function). Accordingly, based on the literal interpretation of the text of Section 82, there emerges a duty to publish the invitation, which, as mentioned, is an official notice, both in Hebrew and in Arabic.

 

Even if we shall refrain from searching for the meaning of the term "official notice" and from answering the question whether or not the invitation in the press falls within the definition thereof, this outcome can be established also in accordance with the courses that were presented in the positions of the majority justices in the Adalah Matter – President Barak and Justice D. Dorner.

 

According to Justice D. Dorner's approach, the essence of the provision in Section 82 is the determination of the status of the Arabic language as an official language of the State of Israel and the specification in the section is not an exhaustive list. Justice Dorner reaches this conclusion by interpreting Section 82 with reference to the historical background.

 

There can be no dispute that the intensity of the positive facet of the right deriving from the Arabic language's status as an official language and by virtue of which an individual has a claim against the authority, changes in accordance with the objective and importance of the publication. For this matter, the right of the Arab minority "to live its life in the State of Israel in its own language" and to "only know Arabic" (as spoken by Justice D. Dorner), imposes upon the authority a duty to make the information and its relevant publications accessible to the group to which the members of the Arab population belong. Otherwise, what would remain from the duty of the "authorities to grant the Arab minority the possibility of living its life in the State of Israel in its own language" other than fine words devoid of content? It follows, that in the case at hand, based on the interpretative approach adopted by Justice D. Dorner, there was a duty to also publish the invitation in Arabic, by virtue of the duty in Section 82 of the Palestine Order in Council.

 

In Re Adalah, President A. Barak was of the opinion that Section 82 does not include the duty to include Arabic writing on municipal signs, so he turned to the section appearing in the Municipalities Ordinance, empowering and authorizing the local authorities to post municipal signs. According to this approach, in the case at hand, our interpretation should be of the duty pursuant to Section 116(d) of the Water Law. This section imposes upon the minister a mandatory power and authority, instructing him to grant an opportunity to voice arguments, but it does not determine the terms and conditions regarding the manner of exercising this power and authority. In this situation, the exercise of the power and authority (the discretion) is limited by the special purposes that underlie it and by its general purposes, and the balance between them (a balance between the purposes of protecting an individual's right to his language and ensuring equality, including making the authority's services accessible to a language minority group, on the one hand, and the purpose of the efficiency of administrative authority's actions, on the other hand). Such a balance, in accordance with the analytical course outlined by President A. Barak in Re Adalah, leads to the conclusion that there is an obligation to publish the invitation to voice arguments also in Arabic.

 

Hence, the decision not to publish the invitation in Arabic and via a platform to which the Arab public is exposed, is unreasonable, based upon the three approaches mentioned above. It was clarified that it should not be implied that these approaches are mutually exclusive. Be the preferred approach of the interpreter as it may, the conclusion that emerges from the entire context is that the decision to only publish the invitation to voice arguments in Hebrew and in the Hebrew press is not a reasonable one, and, at the very least, it is a decision that was made in violation of a statutory obligation, all as per the interpretational approach applied.

 

However, in light of the unique circumstances of the case - in light of the fact that the Appellants' arguments, even had they been presented before the Minister of Infrastructures, would probably not have changed the Regulations' wording that became binding; in light of the manner in which the Appellants chose to attack the violation of the obligation to conduct a hearing in their matter – by means of an indirect attack; in light of the extensive damage to the public interest and the public funds which would be caused by invalidating the Regulations; and in light of the associated damage of the cancellation of the Appellants' debt – the Court reached the conclusion, based on the relative voidness doctrine, that despite the flaw of refraining from publishing the invitation in Arabic and in the Arabic press, it is inappropriate to invalidate the Water Regulations or the notices of debt that were sent by virtue thereof, and the Court's order that that when the water extraction levies are updated, it shall be mandatory to also publish the invitation to voice arguments in Arabic (this obligation is currently imposed on the Water Council pursuant to Section 116(d) of the Water Law), is sufficient. Now, therefore, subject to that stated, the appeal is denied.

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Full text of the opinion: 

The Supreme Court sitting as a Court of Civil Appeals

CA 4926/08

 

Before:                                                The Honorable Justice E. Rubinstein                                                                                                 

The Honorable Justice S. Joubran                                                      

The Honorable Justice N. Hendel

 

The Appellants:                      1.    Nashef Wael & Co.

                                               2.    Abd Elkader Nashef

                                               3.    Tibi Muneer

                                               4.    Munder Haj Yichye

                                               5.    Hadran Ltd.

 

v.

 

The Respondent:                    The National Water and Sewage Authority

 

An appeal against the judgment of the Haifa District Court sitting as a Court of Water Affairs dated March 13, 2008, in Appeals Committee 111/01 and in Appeals Committee 620/05, given by the Honorable Judge R. Shapira, and Representatives of the Public Mr. S. Shtreit and Mr. G. Hermelin.

 

On behalf of Appellants 1-4:      Adv. Tibi Taufik

 

On behalf of Appellant 5:           Adv. Eyal Sternberg; Adv. Ortal Mor

 

On behalf of the Respondent:    Adv. Limor Peled

 

JUDGMENT

 

Justice S. Joubran:

 

1.The appeal presented before us addresses the Water (Extraction Levy) Regulations, 5760-2000 (hereinafter: the "Water Regulations" or the "Regulations"), the legality thereof and the validity of the process of promulgation thereof. I shall present the matters hereinbelow in an orderly manner.

 

Normative and Factual Background

 

2.On February 4, 1999, the Knesset adopted the State's Economy Arrangements (Legislative Amendments to Attain the 1999 Tax Year Economic Policy and Budget Goals) Law, 5759-1999. In the framework thereof, the legislator indirectly introduced amendments to the Water Law, 5719-1959 (hereinafter: the "Water Law"). The amendment to the Water Law resulted in significant changes in the regulation of water extraction, motivated by the desire to create a network of incentives, both positive and negative, for the extraction of water from a wide range of sources, in order to optimize the level of water utilization,  in light of the regional and national water shortage. Since, the historical background of Israel's water economy, which created the need for legislative amendments, was elaborately described in HCJ 9461/00 The Jordan Valley Water Association, Collective Agricultural Association Ltd. v. The Minister of National Infrastructures (not published, December 12, 2006), it is not necessary to elaborately address it again here (for elaboration, see: ibid, paragraphs 5-14), or to address all of the aspects of the said amendment. Suffice it to say that the amendment of the Water Law focused on Sections 116-124. The dispute in this appeal revolves around Section 116 which, in its previous wording, is relevant to the case at hand, prescribed as follows:

 

Extraction 116.
Levy

(a)The Minister of National Infrastructures, with the consent of the Minister of Finance, upon consultation with the Water Council, and with the approval of the Knesset's Finance Committee, shall determine a levy to be paid by water extractors to the State's Treasury (hereinafter – an Extraction Levy)

(b)The Extraction Levy shall be imposed on all extractors of water from a specific water source and shall be calculated in accordance with the units of the volume of the extracted water; the extent of the levy shall reflect the regional and national shortage of water, and may be different for each water source and with respect to each of the purposes of the water and the uses thereof.

(c)The Extraction Levies shall be updated in the same manner the water tariffs are updated pursuant to Section 112(a), mutatis mutandis.

(d)The water extractors and the consumers from the water source with respect to which a levy shall apply, shall be granted the opportunity to voice arguments prior to the extraction levy being determined.

 

 

In 2007, Section 116 was re-amended and extensive changes were made in the framework thereof, however the wording that is relevant to the case at hand is the wording quoted above. By virtue of this section, and in accordance with the authority vested therein in sub-section (a), the Minister of National Infrastructures promulgated the Water Regulations, in which the extent of the extraction levies was determined. A distinction was made between consumption and extraction purposes (residential, agricultural and industrial consumption) in the case of the Coastal Aquifer, while a uniform levy was prescribed for all of the consumption and extraction purposes in the case of all the other sources.

 

3.In the case before us, the contents of the Regulations do not bear any special significance, but the significance lies in the manner in which they were adopted and the extent to which the secondary legislator abided by the terms and conditions prescribed in Section 116(d) of the Water Law. The section provides that the water extractors and consumers must be given an opportunity to voice their arguments prior to the determination of the extraction of levies. Meaning, Section 116(d) requires the secondary legislator to grant the water extractors and consumers an opportunity to voice their arguments before determining the extent of the extraction levy with respect to a certain water source. In the case before us, such an opportunity was indeed granted, after a notice, regarding the extraction levy that was about to be determined, was published in Hebrew in the national printed press. The Appellants, however, who possess extraction licenses, did not voice their arguments regarding the extraction levies that were determined in the Regulations, at the designated time. The Water Regulations were published on July 30, 2000, and annual bills, based on the extent of the levies determined therein, were sent to the Appellants for the volume of water approved in the extraction licenses they possess. The said charges related to the years 2000-2005.

 

The Dispute between the Parties and the Litigation To Date

 

4.The Appellants filed two appeals to the Haifa District Court, sitting as a Court of Water Affairs (Appeal Committee 111/01 and Appeal Committee 620/05), which were heard together, and in which they argued against being charged water levies during 2000-2005, pursuant to the new Water Regulations.

 

The Appellants argued, inter alia, that the Water Regulations are ab initio null and void and lack any validity towards them since they were not published in the Arabic press. As such, Appellants argue they were de facto denied their right to voice their arguments regarding the contemplated levies prior to the promulgation of the Regulations. They argue that since notice of the Regulations was not published in the Arabic press, arguments unique to the Arab population were not presented to the drafters of the Regulations, and therefore the Regulations are ultimately flawed in that they ignore considerations that are unique to the Arab population of extracters and consumers, in general, and to the Appellants, in particular. It is alleged that the importance of the right to be heard (audi alteram partem) is elevated in this case, due to the severe impairment to property rights entailed in the adoption the Regulations. The Appellants wished to convince the District Court that the lack of publication in Arabic, amounts to prohibited discrimination. The Appellants further argued against the legality of the extraction levy charges in their case, because they were imposed via a flawed process, since the charges for 2002-2004 were retroactively imposed in 2005, contrary, so they claim, to the annual charging procedure. Additionally, Appellants complained that they continued to be charged after the suspension of the extraction licenses in their possession, since, so they claim, upon the suspension of their licenses, they cease being extractors for the purpose of the extraction levy. In this matter, the Appellants added that once the collection processes were stayed and the licenses were suspended, they should not have been charged with a special levy for extracting water without a license. Furthermore, according to the Appellants, the Respondent should have considered the water loss, i.e., the amount of water that is lost during the extraction process, as a result of the archaic extraction system in their possession. The Appellants stated, in this context, that the Respondent should assist them in renovating and maintaining that system, rather than charging expensive levies. The Appellants further claimed in this matter that, due to the state of the agricultural sector, they had not managed to exhaust the license's quota, while the Respondent charges as per the amount approved in the extraction license.

 

5.The Respondent, on the other hand, claimed that the Appellants had extracted water for many years without paying the levy and the ancillary payments. According to the Respondent, the imposition of the levies upon all of the extractors was done by law and not by the Regulations. The Regulations only prescribe the rate of the levy. The Respondent further claimed that there is no obligation in the law to publish the adoption of the Regulations in Arabic and that the Appellants did not demonstrate that publishing in the national and Hebrew press is insufficient or that it prejudices the Arabic speaking population. The Respondent further claims that the Appellants did not establish a factual basis which could support their claim regarding prohibited discrimination. Finally, the Respondent claims that if the Appellants were of the opinion that the records of the actual extractions were mistaken, they should have taken care of that immediately, informed the Respondent, and disputed the amounts specified in the bills when they were prescribed or charged, and they cannot raise such a claim at this stage.

 

6.On March 13, 2008, the Court of Water Affairs (the Honorable Judge R. Shapira and Representatives of the Public S. Shtreit and G. Hermelin) denied the appeals, after ruling that the authority's act of publishing the invitation regarding the Regulations only in Hebrew, does not deviate from the zone of reasonableness. The Court reviewed the case law that addresses the status of the Arabic language and reached the conclusion that in the case presented before it, there is no obligation to publish the invitation in the Arabic language press. Appellants' claim regarding prohibited discrimination was also denied, since it was not proven that publishing only in the national press prejudices the Arab population. The Court stated, in this context, the purpose of the publication is to reach the broad public, and just as there are Hebrew speakers who do not read Hebrew newspapers, there are Arabic speakers who do read Hebrew newspapers, and therefore, so it was ruled, one cannot accept the argument that the publication in the national press, prejudices the entire Arab population. The Court additionally ruled, after hearing the merits of their arguments and determining that they are irrelevant to the matter of prescribing the extracting levies, that even had the invitation been published in the Arabic press and the Appellants would have consequently voiced their arguments against the Regulations, this would not have changed the Regulations that were promulgated or the water levy charges that were imposed thereon.

 

The Appellants' claims regarding the amounts of extracted water and the water loss were also denied, as it was ruled that they were irrelevant to the matter at hand. The Court ruled that to the extent that the Appellants extract less water than that stated in the extracting license, it is presumed that they shall update the Respondent so that it shall update the charges in accordance with the actual consumption. The same applies with respect to the alleged loss, as it was ruled that the levy is calculated based on the amount of water extracted, and if the system is inefficient, it is the Appellants', not the Respondent's, duty to improve the system and take action to repair it. As for the Appellants' argument regarding the delayed arrival of the bills, the Court ruled that it is incumbent on the Appellants to update the authority of their current address. It was further ruled that the Appellants know that they possess water extraction licenses and that they are required to pay for the extraction of water, and therefore, if and to the extent the notices did not arrive on time or to the correct location, they should have approached the authority, inquired about the delay, and updated their mailing address. Additionally, the Court was convinced that the bills were sent to the Appellants each year.

 

And now, to the appeal before us.

 

The Parties' Arguments

 

7.In the framework of the appeal, the Appellants reiterate some of the arguments they raised before the Court of Water Affairs. Additionally, they claim to an error in the judgment, as the legal analysis therein relies on the current wording of Section 116(d), while the Regulations were promulgated by virtue of the authority vested by the previous wording of Section 116(d), and they emphasize that the law obligates granting a right to be heard, and that this is not a right granted to the general public, but rather to the limited public of water extractors and consumers of a relevant water source, who could be adversely affected by the levy.

 

8.The Respondent, on the other hand, claims that the Court's reliance on the new wording of the section is irrelevant to the rulings in the judgment, since both wordings essentially address the same matter, i.e., granting the water extractors and consumers the right to be heard, and the two wordings differ in the entity responsible for determining the extent of the levy and which is obligated to grant the opportunity to voice the arguments. The Respondent also claims that there is no duty to publish in Arabic, and that in cases where the legislator wished to impose such a duty, it did so explicitly. It was further argued that that even if there is such a duty, non-compliance therewith does not result in the revocation of the Regulations. The Respondent further argues that the Regulations apply to the broad public of water extractors and consumers, and not, as the Appellants argue, to a limited public. It was argued, in this matter, that the right to be heard in the case of a general change is not the same as the right to be heard in the case where the change’s effects are personal and direct. Furthermore, the Respondent claims that even were it to be ruled that the Appellants' right to be heard was violated, application of the relative voidness doctrine to the case at hand leads to the result that the Regulations should not be revoked, since, as ruled by the Court of Water Affairs, the Appellants' arguments against the Regulations would not have changed them. The Respondent also mentions in this context, that, if and to the extent the Appellants' principled argument were to be accepted, there is yet an additional consideration against the revocation of the Regulations – the Appellants' indirect attack of the Regulations. The Respondent also draws attention to the severe damage that shall be caused to the water economy if the Regulations are revoked.

 

9.During the hearing before us, we suggested that the parties communicate and reach a settlement regarding the extent of the Appellants' accumulated debt. On April 24, 2012, the parties' attorneys informed us that Appellant 4 reached an agreement with the Respondent regarding payment of his debt, and his specific matter, therefore, is no longer before us. The discussions between Appellants 1-3 and Appellant 5 and the Respondent did not bear fruit, and therefore we must rule in the matters raised in the parties' arguments that were presented above.

 

Discussion

 

10.The main question underlying the appeal before us relates to whether or not there was a duty, pursuant to Section 116(d), as worded at the time of the publication of the Regulations, to also publish the invitation to voice arguments against them, in Arabic. The answer to this question is divided into two. First we shall rule whether or not there is a principled obligation to publish the invitation in Arabic. If and to the extent our conclusion shall be that there is indeed such an obligation, we shall examine the consequence of the violation thereof in the case before us, in terms of the relief.

 

Prior to discussing the central issue, I shall note that I do not find merit in the Appellants' other arguments and I agree with the Court's conclusions in its judgment on those matters. As for the wording of the section upon which the Court relied, I find that there is no material difference between the two wordings in terms of the question of principle that the Appellants raise, and in my opinion the outcome that flows from one wording, is also relevant to the other, and vice versa.

 

The Duty to Hear the Water Extractors and Consumers

 

11.The rules of natural justice, including the right to be heard (audi alteram partem rule), were, as most fields of administrative law, developed through case law. In the framework of these rules, it is a known rule that the administrative authority is obligated to grant an individual the opportunity to voice his arguments prior to reaching a decision that may prejudice him (see: HCJ 4112/90 The Association for Civil Rights in Israel v. GOC Southern Command, PD 44(4) 626, 637-638 (1990); HCJ 654/78 Gingold v. National Labor Court, PD 35(2) 649, 655 (1979); HCJ 113/52 Zachs v. The Minister of Trade and Industry, PD 6(1) 696, 703 (1952)). The right to voice arguments, however, is not an absolute right, but rather, is a right that is subject to exceptions that were outlined and formulated over the years (see, for example, HCJ 7610/03 Yanuh-Jat Local Council v. The Minister of Interior, PD 58(5) 709 (2004); HCJ 598/77 Deri v. The Parole Board, PD 32(3) 161, 165 (1978); HCJ 185/64 Anonymous v. The Minister of Health, PD 19(1) 122, 127 (1965); HCJ 3/58 Berman v. The Minister of Interior, PD 12(2) 1493 (1958) (hereinafter: "Berman")). In Berman, it was ruled that the right shall be applied according to the criterion of adverse affect. According to the criterion, the right to voice arguments exists de facto for whoever is or may be adversely affected by the authority's actions (see: Berman, page 1508; Baruch Bracha "The Right to be Heard: In Regulation Promulgation Procedures As Well? Following HCJ 1661/05 Hof Azza Regional Council v. The Knesset" Moznei Mishpat 6 428 (2006) (hereinafter: "Bracha, The Right to be Heard"). This is the rule, and it has its exceptions. One of the exceptions relates to the proceedings of secondary legislation. As early as in Berman, it was ruled that the duty to hear arguments "does not apply to legislative actions, or to actions of a governing-sovereign nature, in the proper sense of this term" (Berman, 1509; in this context, see also: HCJ 335/68 The Israel Consumer Council v. Chairperson of the Commission of Inquiry for the Supply of Gas, PD 23(1), 324, 334 (1969); Baruch Bracha Administrative Law 223 (Volume A, 1987); Yoav Dotan Administrative Guidelines 125-126 (1996); Raanan Har-Zahav The Israeli Administrative Law 292 (1996)).

 

12.The ruling in Berman, pursuant to which the right to be heard does not apply in legislative procedures, in general, and in secondary legislative procedures, in particular, has been reinforced over and over again, and has recently been addressed again in the framework of the petition filed by the Gush Katif evacuees against the Disengagement Plan Implementation Law, 5765-2005, in which, inter alia, the argument regarding not granting an opportunity to voice arguments against the Disengagement Plan Implementation (Gaza Strip) Order, 5765-2005, and the Disengagement Plan Implementation (Northern Samaria) Order 5765-2005, was discussed again (see HCJ 1661/05 Hof Azza Regional Council v. The Knesset of Israel PD 59(2) 481, 719-728 (2005)). In that judgment it was ruled that the evacuation orders have legislative effect, and as such are not subject to the duty of a hearing prior to being promulgated. In this context it was emphasized that:

 

"With regard to the hearing obligation in the case of secondary legislation, the longstanding ruling in Berman is the law currently presiding in Israel, and while there are some who have expressed reservation - and there is merit to the criticism, at least in certain types of secondary legislation – the operative rule has never been changed. The Petitioners are of the opinion that it is time for a change; however we do not find, that the matter before us warrants such a change." (ibid, paragraph 427).

 

13.The essence of the matter is that according to Israel's common law, in the framework of which the rules of administrative law, including the rules of natural justice, are prescribed through case law, the authority's obligation to grant any party who could be adversely affected by its actions an opportunity to voice arguments, does not apply in a procedure of promulgating regulations of legislative effect. This exception has been subject to much criticism both in case law and in legal literature (see: LCA 3577/93 The Israeli Phoenix v. Moriano, PD 48(4) 70, 86 (1994); Aharon Barak Judicial Discretion 487 (1987); Yitzhak Zamir The Administrative Authority Volume B 1047-1048 (Second Edition, 2011); Bracha, The Right to be Heard, on page 429), and it has even been presented as an issue of principle that has not yet been ruled upon (see: HCJ 6437/03 Tavori v. The Ministry of Education and Culture, PD 58(6) 369, 378 (2004)). However, the exception still stands (see: Bracha, The Right to be Heard, page 431). Hence, only in cases in which there is an explicit statutory provision which imposes upon the authority an obligation to allow the voicing of arguments in a secondary legislating procedure, or that grants the said right to voice arguments, will the individual, who is adversely affected by the regulations, be entitled to voice his arguments, all in accordance with the terms and conditions appearing in the law. This is also the case in the case before us: The origin of the duty to allow voicing arguments in the framework of the promulgation of the Water Regulations – the right the Appellants are claiming – is not under the purview of the common law right, which, as mentioned, excludes secondary legislation procedures, but rather is under the provisions of Section 116(d) itself, which is not merely declaratory, in the sense that it declares a right that already exists, but is rather constitutive, in the sense that it creates a right, which otherwise would not exist.

 

14.In light of the above, there is no doubt that in the case at hand, the promulgation of the Water Regulations pursuant to Section 116(a), as was previously worded, is subject to the Minister of Infrastructures' obligation to give the public that may be adversely affected by the regulations that prescribe the extent of the water levy, a proper opportunity to voice its arguments. The said Section 116(d) prescribes as follows:

 

(d)       The water extractors and the consumers from the water source with respect to which a levy shall apply, shall be granted the opportunity to voice arguments prior to the extraction levy being prescribed.

 

As can be seen, all that the section prescribed is the duty to grant the opportunity to voice arguments. The section does not regulate the manner in which the authority shall fulfill its duty. Questions as to the scope of the duty and as to what derivative duties derive therefrom also arise in this context. An extensive answer to the said questions is not required in order to resolve the principled and practical dispute in the case at hand. All we are required to rule on is whether the duty to grant an opportunity to voice arguments includes the duty to inform the relevant public of the anticipated promulgation of the Regulations and to invite them to voice their arguments with respect thereto; and if the answer is affirmative, we also shall address the question of the language of notification.

 

The Duty of Informing and its Manner of Performance

 

15.There is no dispute that there is no real substance to the right to voice arguments or to the duty to grant an opportunity to voice arguments, if the individual is not informed, at the relevant time, of the administrative procedure which may adversely affect or impact him. The realization of the right is intertwined with knowledge of its existence, and of the occurrence of the event that creates the circumstances upon which its realization depends. In the case at hand, in order to be able to voice arguments regarding the Water Regulations, the extractors and the consumers must be aware of their said right and of the fact that the minister is contemplating the promulgation of regulations with respect to which they are entitled, pursuant to the law, to voice their arguments, prior to their promulgation. However, the procedure in the case at hand is not the same as the procedure in cases in which the right to voice arguments is only granted to individuals. Contrary to a private hearing that is conducted due to the authority taking an action which could adversely affect or impact a known or limited number of individuals, a public hearing takes place when the action with respect to which the hearing is required adversely affects an undefined public or a large number of persons. As clarified above, according to Israeli law, in the case of the latter category of administrative actions, the right to voice arguments is granted, in general, only if the law explicitly provided therefor.

 

16.In any event, the nature of the hearing, whether private or public, along with other parameters, prescribes the manner in which it is conducted. In the context of our case, the means by which the existence of the hearing is brought to the attention of the interested parties – be it an individual to whom the authority's decision is personally addressed or, as in our case, a large group of individuals – also varies accordingly. For example, while it can be expected that the authority take action to locate a person whose license it wishes to invalidate and invite him to voice his arguments prior to a decision being reached, the same effort is not to be expected with respect to an administrative action by which potentially all of the citizens or an undefined public of persons could be adversely affected. In such cases, general publication might be sufficient. It is clear that if it were possible to personally inform each and every person who could potentially be adversely affected that would be ideal, however, this is not feasible when dealing with a broad public. It follows that publishing the matter via popular media channels, or by any other means to which the majority of the relevant public is likely to be exposed, could be sufficient.

 

17.Indeed, other than personally contacting each person who potentially could be adversely affected, every method entails certain inadequacies, yet it is clear that a publication inviting the public to voice arguments, which reaches the majority of the public, will result in a situation in which the arguments, or at least the majority of the arguments, that are relevant to the individuals who were not exposed to the publication, and did have the opportunity to voice their arguments, are voiced by others. One of the purposes of conducting a public hearing is to ensure that the authority has the information required to reach an informed and balanced decision based on the broadest possible relevant data available at that point in time. Therefore, in matters in which there is a duty to hear arguments, it is likely that most of the data relevant to reaching the decision, which the competent authority had not seen, will appear in the arguments raised by part of the public that wishes to exercise the right to be heard that was granted thereto, and thus the purpose of imposing the duty is realized.

 

18.In light of the above, it is my opinion that even if the manner in which the authority chose to inform the public, regarding the public hearing that is being conducted, does not ensure fully informing all of the individuals who may be adversely affected by the administrative action, this does not constitute a deviation from the scope of reasonableness, and does not sacrifice the purpose of the right to be heard. This is so, since, as mentioned above, in the absolute majority of cases, excluding a few exceptions, most of the claims that relate to the matter will be argued, and consequently, the data, or at least the majority of the data, necessary for reaching a reasonable and proportional decision that is based on a broad factual basis, will be brought to the authority's attention. This is also in the case at hand. The Respondent was not required to send each water extractor and consumer a personal invitation to voice arguments in order to fulfill its duty to inform. Therefore, Respondent's decision to publish the invitation to voice arguments in the press, in and of itself, does not, in principle, deviate from the scope of reasonableness.

 

Duty to Inform in Arabic

 

19.I have expressed the position that the duty to inform, in the context of publishing the invitation to voice arguments, does not require taking measures that would ensure perfectly universal notification. Obviously, it is desirable that the information, which is the subject of the publication, reach the entire public related to the matter, so that it can exercise its legally granted right to be heard. However, as was explained, the reasonableness principle does not demand this; there is no doubt that publication that can be assumed to reach the entire public related to the matter, shall be deemed reasonable. Another question in this context is whether the duty to inform includes the duty to adjust the content of the invitation to the Arabic speaking public, by means of publishing the invitation also in the Arabic press and in the Arabic language. In my opinion this question should be answered in the affirmative. I shall specify my reasons below. But beforehand, I shall briefly address the principled case law regarding the status of the Arabic language in Israel.

 

The Arabic Language in Israel

 

20.The Arabic language is, alongside the Hebrew language, an official language in Israel, by virtue of Section 82 of the Palestine Order in Council, 1922 (hereinafter: "Section 82"), a Mandate statute that provides as follows:

 

Official 82.
Languages

 All the ordinances, official notices and official forms of the government and all official notices of local authorities and municipalities in areas to be prescribed by order of the High Commissioner, shall be published in English, Arabic and Hebrew. Subject to any regulations the High Commissioner may promulgate, the three languages may be used in the Government offices and the courts. In the case of any contradiction between the English version of any ordinance or official notice or official form and the Arabic version or the Hebrew version, the English version shall prevail.

 

 

 

21.Section 82 was adopted into Israeli law in the Law and Administration Ordinance, 5708-1948 (hereinafter: the "Ordinance"). However, the requirement to use the English language was repealed in the framework of Section 15(b) of the Ordinance, and it was provided that "any provision in the law that requires using the English language is repealed," while the obligation to use Hebrew and Arabic was maintained, so that the official status of both languages as official languages was maintained. The ramifications of this status has not yet been fully clarified and in cases previously presented to this Court concerning the practical significance of Arabic’s status as an official language, the justices have differed in their opinions (see for example: HCJ 4112/99 Adalah -- Legal Center for Arab Minority Rights in Israel v. Tel Aviv Municipality, PD 56(5) 393 (2002) (hereinafter: "Adalah"); Justice Cheshin's judgment in LCA 12/99 Mar'ei v. Sabek, PD 53(2) 128 (1999) (hereinafter: "Mar'ei")). For example, in Adalah, which dealt with the use of the Arabic language on municipal signs, Justice D. Dorner was of the opinion that "the official status of the Arabic language is not expressed only in the uses specified in Section 82. The specification in the section is not an exhaustive list. The essence of the provision is the determination of the status of the Arabic language as an official language of the State of Israel" (on page 478). On the other hand, Justice (as was his title at the time) M. Cheshin was of the opinion that the status of the Arabic language as an official language does not, in and of itself, impose a duty upon the authorities to use it other than within the boundaries drafted in the section itself. President A. Barak was of the opinion that Section 82 does not include the duty to include Arabic writing on municipal signs and ruled that the solution to the issue lies in the proper interpretation of the section authorizing the local authorities to post municipal signs, while striking a balance between the various purposes. Therefore, President A. Barak found that when interpreting the authority to post municipal signs, the balance between the special purposes of the Section (making the city and its streets accessible to the public, warning about traffic dangers, and the need for clear and legible signs), and the general purposes (the right to equality, the freedom of language and the uniqueness of the Arabic language compared to other minority languages, on the one hand; and the preferred status of the Hebrew language, and the importance of uniformity and national solidarity, on the other hand) "leads to the conclusion that Arabic writing should be added, alongside the Hebrew writing, on the municipal signs in the responding cities" (on page 419).

 

22.It appears that it will be difficult to infer from Adalah a general duty to use the Arabic language alongside Hebrew. Adalah does not extend beyond the boundaries of the narrower issue addressed therein, regarding the duty to add Arabic writing to municipal signs in mixed cities (see: HCJFH 7260/02 The Ramla Municipality v. Adalah, The Legal Center for Arab Minority Rights in Israel (not published, August 14, 2003)). It follows that the question regarding the ramifications of the status of Arabic as an official language remained unresolved and in the case at hand it requires our attention. The question at hand is whether the Respondent's duty to inform also includes the duty to inform in Arabic. While, as written above, Adalah does not have direct implications for this case, in my opinion, the issue presented before us is to be examined in accordance with one of the frameworks presented to resolve the issue in Adalah, as shall be specified below. I shall note, in this context, that I do not share the opinion expressed by the honorable Justice (as was his title at the time) M. Cheshin, in Adalah, that the status of the Arabic language and the ramifications thereof is a matter best left to the political system. The courts are the authorized interpreters of the law, and the case before us raises a question regarding the interpretation of a statute. Therefore, this is not a political matter that the court must refrain from addressing. Therefore, in the case at hand, we must ask whether to prefer President A. Barak's position and rule in the case at hand by interpreting Section 116 purposively, or rather to follow the path paved by Justice D. Dorner and analyze the implications of Section 82 on the case at hand? A third option is to cling to the language of Section 82 and examine whether the publication of the invitation to voice arguments falls within the boundaries of one of the alternatives therein, i.e. "ordinances, official notices and official forms".

 

23.It is my opinion that, in the circumstances of this case, all three options lead to the same outcome, and therefore we do not have to determine which is preferred, even though, in my opinion, the three are not necessarily mutually exclusive, as I shall clarify below. Indeed, theoretically there could be cases in which the results from applying the above methods will be different, and in such cases this Court would have to rule on this question. However, as mentioned, in my opinion, in the case at hand we shall leave this matter for further discussion. I shall now specifically discuss each of the three courses separately and elaborate on the outcome of their application.

 

Interpreting Section 82

 

A.Interpreting Section 82 – the Meaning of the Term "Official Notices"

 

24.As mentioned, Section 82, entitled "Official Languages", imposes a duty to use Hebrew and Arabic in all "the ordinances, official notices and official forms of the government". This raises the question whether the Minister of Infrastructures was, in virtue of the said duty, also obligated to publish the invitation in Arabic. It is my position that this question must be answered in the affirmative. It appears that it is not difficult to classify the invitation to voice arguments, published in the newspaper by the relevant governmental authority, as an official notice. The dictionary definition of the term "notice" is: "Information published to the public, a written notification, an announcement. Examples: Notice boards in the streets, a notice in the newspaper announcing an upcoming performance, an obituary notice. (See: Avraham Even-Shoshan, The New Dictionary – Third Volume 1252 (5727)). It follows, that textually speaking, the invitation to voice arguments that was published in the press falls within the meaning of the term "notice", and the question which remains is whether this is an official notice. In my view the criteria for classification of a notice by a given authority as an official notice should be the identity of the publishing party and the linkage between the publication and the governmental function. If a governmental authority or a party serving a governmental function publishes a notice that has a linkage to the governmental function or the work of the authority, in the framework of the function it serves, the notice is most likely an official one. On the other hand, if, for example, a city resident wishes to publish a notice on the municipal billboard (without addressing the other terms and conditions related to local government), this would be a private notice that does not fall within the definition of the term "official notice", notwithstanding the official platform on which it was published, and is therefore not subject to the duty imposed by Section 82 (see for example: CA 105/92 Re'em Engineers Contractors Ltd. v. The Nazareth Illit Municipality, PD 47 189 (1993) (hereinafter: "In Re Re'em Engineers ").

 

25.In the case before us, the invitation to the public to voice arguments was published via the national press, on behalf of parties in the Ministry of Infrastructures, and has a tight linkage to the Minister of Infrastructures' function as a secondary legislator. It would appear then that this is an official notice on behalf of a governmental ministry. Accordingly, based on the literal interpretation of the text of Section 82, there is a duty to publish the invitation, which, as mentioned, is an official notice, both in Hebrew and in Arabic.

 

While, we could stop here, I shall also analyze the matter before us in accordance with the frameworks presented by the majority justices in Adalah, in order to reinforce the outcome reached according to the approach presented in this section.

 

B.Interpreting Section 82 with Reference to the Historical Background (Justice D. Dorner's Approach)

 

26.In my opinion, even if we refrain from searching for the meaning of the term "official notice" and from answering the question whether an invitation in the press falls within its scope, thus adopting Justice D. Dorner’s interpretative technique in Adalah, we would reach the same outcome. In this context, suffice it to say that in resolving the issue, Justice D. Dorner does not ignore the historical background of Section 82, rather she establishes her interpretation of the Section upon it, and concludes that the fact that the duty to publish in English was repealed while the obligation regarding Hebrew and Arabic remained, ratifies the "status of the Arabic language as an official language of the Jewish and democratic State of Israel" (paragraph 4 of her opinion). In this matter, Justice D. Dorner summarizes as follows: "the official status of the Arabic language is not expressed only in the uses specified in Section 82. The specification in the section is not an exhaustive list. The essence of the provision is the determination of the status of the Arabic language as an official language of the State of Israel" (paragraph 5 of her opinion). Therefore, even if, as mentioned, we take this path and abandon the attempt to interpret the term "official notice", it is clear, so I believe, that a publication addressed to the entire population of extractors and consumers calling them to come and voice their arguments, is subject to the duty prescribed in Section 82, even were we to reject the approach that the publication which is the subject of this appeal falls within the definition of an "official notice". In this context the positive facet of the rights that derive from Arabic's official status and the value of equality are interconnected, as was expressed in Adalah:

 

"The conclusion, then, is that while Hebrew is the primary official language of the State of Israel, being the national language of the majority, the Arabic language's status as an official language pursuant to the amended Section 82 is meant to realize the Arab minority's freedom of language, religion and culture. […] The realization of this freedom is not limited to protecting the Arab population from a prohibition to use its language, but rather it obligates the authorities to grant the Arab minority the possibility of living its life in the State of Israel in its own language. The assumption is that Arab citizens in Israel may only know Arabic, or in any event, may only be fluent in this language. […] This purpose derives from the value of equality" (Paragraph 7 of Justice D. Dorner's opinion).

 

There can be no dispute that the intensity of the positive facet of the right deriving from the Arabic language's status as an official language and by virtue of which an individual has a claim against the authority, changes in accordance with the purpose and importance of the publication. For this matter, the right of the Arab minority "to live its life in the State of Israel in its own language" and to "only know Arabic" (from Justice D. Dorner's above words), imposes upon the authority a duty to make the information and its relevant publications accessible to the group to which the members of the Arab population belong. Otherwise, what would remain of the duty of the "authorities to grant the Arab minority the possibility of living its life in the State of Israel in its own language" other than fine words devoid of content? It follows, that in the case at hand, based on the interpretative approach adopted by Justice D. Dorner, I find that there was a duty to also publish the invitation in Arabic, by virtue of the duty in Section 82 of the Palestine Order in Council.

 

Interpreting the Duty Pursuant to Section 116(d) (President A. Barak's Approach)

 

27.As mentioned, President A. Barak was of the opinion that Section 82 does not include the duty to include Arabic writing on municipal signs, so the course he adopted in that case can provide guidance were the two above interpretation approaches to be rejected. President A. Barak turned, in this context, to the section appearing in the Municipalities Ordinance [New Version], empowering and authorizing the local authorities to post municipal signs. In this context it was noted that: "This power is a discretionary power. This discretion is never absolute […]. This is limited discretion. It is limited by the special purposes that underlie the authorizing legislation; it is limited by the fundamental values and fundamental principles of the legal system, which constitutes the general purpose of any legislative act" (paragraph 14 of his opinion).

 

28.Section 116, as worded at the time relevant to this appeal, granted the Minister of Infrastructures the power and authority (the result of the exercise of which is contingent upon the consent of the Minister of Finance, in consultation with the Water Council and with the approval of the Knesset Finance Committee), to prescribe the water levy to be paid by the water extractors to the State's treasury (Section 116(a)). Section 116(d) imposes a duty upon the Minister of Infrastructures to allow the voicing of arguments from the extractor and consumer publics, prior to prescribing new water levies. It follows that the power and authority to prescribe the water levies is already limited by a number of provisions within the section itself: The section, inter alia, limits the minister's discretion by requiring approval by additional parties and by requiring hearing the arguments of the parties which could potentially be adversely affected by the prescription of the new levy. Hence, the section imposes upon the minister a mandatory power and authority (see: Yitzhak Zamir, The Administrative Authority – Volume A 319-325 (2010)), instructing him to grant an opportunity to voice arguments, but it does not determine the terms and conditions governing the manner of exercising this power and authority. This does not imply that the Minister of Infrastructures' discretion with respect to the manner of exercising the mandatory power and authority pursuant to Section 116(d), regarding those parts not regulated by the law, is unlimited. To the contrary, the exercise of the mandatory power and authority that is defined in Section 116(d) is limited, both by the special purposes that underlie it, and by the general purposes, which, as mentioned, constitute the fundamental values and principles of the legal system. Therefore, we must consider the special purposes that underlie the duty prescribed in Section 116(d) and the general purposes, in order to examine the boundaries of the discretion granted to the Minister of Infrastructures, and the conclusion regarding the reasonableness of the decision only to publish the invitation to voice arguments in Hebrew and in the national press will naturally follow.

 

A.The Special Purposes

 

29.The duty to grant an opportunity to voice arguments in the framework of secondary legislation procedures is uncommon; one can even say, quite rare. I mentioned hereinabove the case laws that outlined the rule and the exception regarding the right to be heard (see paragraphs 11-13 above), and there is no need to repeat them. However, as mentioned above, one of the exceptions that was ruled in Berman, and was reaffirmed in the rulings of this Court, provides that, in general, the right to be heard is not applicable in legislation procedures, including secondary legislation procedures. It follows that when, in a certain matter, the legislator does impose the duty upon a minister to enable the public, which may be adversely affected, to voice arguments in secondary legislation procedures, this imposition should be viewed as an indication of the great importance of the issue at hand. Therefore, it can be said that Section 116(d) is intended to serve an purpose viewed by the legislator to be particularly important: the presentation of all of the data before the secondary legislator so that it can make an informed, proportional, and reasonable decision, based on as extensive a factual basis as possible. The flip side of this coin is granting the potentially adversely affected party the opportunity to present the minister – directly or indirectly – with relevant information for making the decision regarding the extent of the water levy, and which serves the purpose of involving a defined public in proceedings that impact it as well as signaling to that public that the authority is speaking with it rather than at it.

 

B.The General Purposes

 

30.Due to the great similarity between this case and Adalah, it seems that some of the general purposes listed by President A. Barak there (see: his opinion in paragraphs 16-21) are also relevant to the case at hand. Whereas, as mentioned, these purposes are external to the specific norm and constitute the fundamental values and principles of the legal system in Israel. It follows that it is unnecessary to further elaborate beyond that which was presented in President A. Barak's opinion, and it will suffice to list those purposes briefly.

 

31.The first general purpose, relevant to the case at hand, is the protection of a person's right to his language; the second general purpose is ensuring equality; in this context President A. Barak states that:

 

"The meaning of the matter in the case at hand is that the (local) authority must ensure equal use of its services […]. If part of the public cannot understand the municipal signs, their right to equally benefit from the municipality's services is prejudiced. Indeed, once language has a significant importance to an individual and his development, it is necessary to ensure that his opportunities as an individual are not limited due to his language" (paragraph 19 of his opinion).

 

Meaning, the purpose of making the authority's services equally accessible to individuals can be included under the general purpose of ensuring equality. In this context, President A. Barak drew attention to two additional purposes: the status of the Hebrew language and the recognition of the importance of language as an element of national solidarity and of defining the sovereign state. It does not appear that these purposes are substantial in the case at hand. The purpose of protecting the status of the Hebrew language does indeed impact the question regarding the language of signs in general, and municipal signs, in particular, since the signs are not just functional, but also bear some symbolism. One could even say that the language of municipal signage is the face of the city, and that therefore there is good reason to examine the question whether or not it is appropriate to add an additional language to the municipal signs, also in terms of the status of the Hebrew language. In the case at hand, however, the purpose regarding the status of the Hebrew language does not have much impact, since it would be difficult to say that one of the purposes of the mandatory power and authority to grant an opportunity to voice arguments is to protect the status of the Hebrew language or to promote the value of "the existence, development and flourishing of the Hebrew Language…" (In Re Re'em Engineers, 208). The same logic applies with respect to the purpose of recognizing the importance of the language as an element of national solidarity and of defining the sovereign state. On the other hand, one can think of an additional general purpose which did not appear in Adalah - the purpose of the efficiency of the administrative authority's action, and in our context this could support refraining from publishing in Arabic.

 

C.Striking a Balance between the Purposes

 

32.It is known that any purpose, when examined individually, could lead to a different conclusion. However, under the Israeli legal system, there are no absolute values and principles, rather, the view that they are relative, is predominant. It follows that after identifying both the special and the general purposes that vie for priority, each must be granted its relative weight and must be weighed against the others in order to discover the point of equilibrium (see for example, HCJ 6163/92 Eisenberg v. The Minister of Building and Housing, PD 47(2) 299, 264 (1992); HCJ 935/89 Ganor v. The Attorney General, PD 44(2) 485, 513 (1990)). It should be emphasized, in this context, that there may be cases in which balancing might lead to several points of equilibrium, any of which, if chosen when exercising discretion, would be reasonable (see: HCJ 5016/96 Chorev v. The Minister of Transportation, PD 51(4) 1 (1997)). I believe that in the case of the duty to publish the invitation to voice arguments in Arabic, the balance between the purposes of protecting an individual's right to his language and ensuring equality, including making the authority's services accessible to a language minority group, on the one hand, and the purpose of the efficiency of administrative authority's actions, on the other, leads to the conclusion that there was a duty to publish the invitation to voice arguments in Arabic. It follows that the decision in the case at hand was made by the deciding entity without having considered all of the relevant considerations – the status of the Arabic language, making the publication accessible, equality, etc. – and it can be said, on these grounds alone, that the decision is unreasonable. However, in light of the above discussed balance, it emerges that the decision deviates from the scope of reasonableness, on its merits as well.

 

33.I shall mention that Section 116(d) prescribes a duty, which can be fulfilled in a number of ways in other words, there is a scope of reasonableness, within which there are several options which the Minister of Infrastructures could have selected. For example, the Ministry of Infrastructures could have personally approached the potentially adversely affected parties and invited them to voice their arguments; however the option chosen was that of publishing in the press, an option, which, in and of itself, like its predecessor, is certainly reasonable. One can think of other reasonable means of publishing means, which the Ministry of Infrastructures could have taken to fulfill the duty to inform. The platform of publication, however, is not the only matter that should be examined; so, too, should the matter of the language of publication, which was discussed above and which the Minister of Infrastructures should have weighed and considered in his final decision.

 

34.I note that the assumption that most, even if not all, of the Hebrew reading and speaking public will encounter the publication in the Hebrew press, is definitely a reasonable one. This assumption is incorrect, however, with respect to the Arab public. Indeed, one can say that the publication in the press, in general, is a reasonable means of fulfilling the duty imposed in the framework of Section 116(d). This is even the manner adopted to inform the public regarding the deposit of a plan in the framework of the Planning and Building Law, 5725-1965 (hereinafter: the "Planning and Building Law") (see: Section 89). As clarified above, in the case of the duty to inform, the scope of reasonableness includes the possibility that the information which is the subject of the publication will not actually reach the entire relevant public. Publishing only in the Hebrew press, however, while refraining from publishing in Arabic, through a platform that is widespread among the group of Arabic speakers, is unreasonable. The reasonableness principle could not sanction a situation in which the authority published only via a platform to which the majority of the water extractors and consumers are not exposed. Similarly, a situation in which the majority of a distinct group among the extractor and consumer public is not exposed to the publication, is unreasonable as well. Yet, that is what publication in the Hebrew press is for Arab extractors and consumers, the majority of whom are likely to not be exposed to such publications, and, at the very least, whose exposure to the Arab press is significantly greater. It follows that with respect to such a public, by refraining from publishing via a platform to which the majority of such a public is exposed, and which is in their language, the authority deviated from the scope of reasonableness.

 

35.It is necessary to clarify that while different languages are spoken in the State of Israel, due to Jewish immigration from various countries around the world, this differs from the Arab population, in terms of the purpose of protecting an individual's right to his language. In Adalah, President A. Barak expressed the following, relevant to the case at hand:

 

“Does our approach not imply that residents of different towns in which there are minority groups of speakers of various languages, will now be able to demand that the signs in their towns will be in their language as well? My response is negative, since none of those languages is the same as Arabic. The uniqueness of the Arabic language is twofold. First, Arabic is the language of the largest minority in Israel, which has lived in Israel since far far in time. This is a language that is linked to cultural, historical, and religious attributes of the Arab minority group in Israel. This is the language of citizens who, notwithstanding the Arab-Israeli conflict, wish to live in Israel as loyal citizens with equal rights, amid respect for their language and culture. The desire to ensure dignified coexistence between the descendants of our forefather Abraham, in mutual tolerance and equality, justifies recognizing the use of the Arabic language in urban signs-in those cities in which there is a substantial Arab minority (6%- 19% of the population)-alongside its senior sister, Hebrew . . . […]. Secondly, Arabic is an official language in Israel (see paragraph 12 above). Many languages are spoken by Israelis, but only Arabic – alongside Hebrew – is an official language in Israel. Arabic has, then, been granted a special status in Israel. This status does not have a direct application in the case at hand, but does have an indirect application. […] the fact that the Arabic language is "official" "has surplus and unique value" (Adalah, paragraph 25).

 

These two explanations – the fact that Arabic is the language of the largest minority in Israel and an official language – justify, in our case as well, granting the Arabic language special treatment compared to the languages of other minorities. In this matter, it is clear that there is an interest that the Arab minority learn the language of the majority, which is the dominant language in the country. However, due the unique status of the Arabic language, a situation in which an individual belonging to the Arab minority in Israel is adversely affected due to only being fluent in his language, cannot be allowed.

 

Interim Summary

 

36.As presented above, I posit that the decision not to publish the invitation in Arabic and via a platform to which the Arab speaking public is exposed, is unreasonable, based upon the three above mentioned approaches: the interpretation of Section 82, both as per the term "official notice" and in accordance with Justice D. Dorner's approach in Adalah, and the interpretation of the obligation prescribed in Section 116(d), as per President A. Barak's approach. I note, in this context, that although I discussed each approach separately, this should not imply that they are mutually exclusive. While President A. Barak rejected Justice D. Dorner's interpretative approach in Adalah, his approach of interpreting power and authority, in light of their (special) underlying and (general) overarching purposes can indeed coexist with Justice D. Dorner's broad interpretation of Section 82. This is also true with respect to the interpretation of the term "official notices", which can coexist alongside President A. Barak's approach and alongside Justice D. Dorner's approach. While it may appear prima facie that in the latter matter there is an inherent contradiction, de facto, nothing stands in the way of accepting the proposed interpretation of the term "official notices" and agreeing to the approach that the overall interpretation of Section 82 must be applied based on the historical circumstances that encompassed its legislation during the Mandate period and its adoption by the Israeli legislator. This matter, however, goes beyond what is necessary in the case at hand, such that I am not required to rule on this matter here.

 

Be the preferred approach of the interpreter as it may, the conclusion that emerges is that the decision to publish the invitation to voice arguments exclusively in Hebrew and in the Hebrew press is not a reasonable decision, and, at the very least, is a decision made in violation of a statutory obligation, all as per the interpretative approach applied. It follows that the question we must now ask is: what is the consequence in the case before us? In other words, what is the warranted relief under the circumstances? I shall now turn to this question.

 

The Relief

 

37.The case before us raises two interrelated flaws. First, the lack of concurrent publication in Arabic of the invitation to voice arguments, and second the result thereof, i.e., the denial of the Appellants' right to actually voice their arguments. As for the consequence of the lack of publication in Arabic, I do not believe the appropriate relief, by virtue of this flaw per se, is to invalidate the Water Regulations. It would be sufficient to order that when the water extraction levies are updated it shall be mandatory to also publish the invitation to voice arguments in Arabic (this obligation is currently imposed on the Water Council pursuant to Section 116(d) of the Water Law).

 

38.Appellants' matter also relates to their inability to exercise their right to be heard, which was indeed violated in the case before us. This raises the question: How is such violation to be treated? Prima facie, the results of an action that deviates from the scope of reasonableness or that is tainted by illegality, should be null and void. However, it is known that according to the relative voidness doctrine or the relative consequence theory, which have been accepted in our system, one must distinguish between the flaw and the consequence thereof (see: CrimA 1523/05 Anonymous v. The State of Israel (not published, March 2, 2006)). In this matter, it has been said that:

 

"Case law regarding relative voidness (which, for the sake of accuracy, should be referred to as “relative legality”), provides that one must distinguish, in the framework of judicial review of an administrative decision, between two levels: the first level – the flaw in the decision; and the second level – the consequence of the flaw. With respect to the first level, the Court must examine and determine if there was a flaw in the decision such as: ultra vires, violation of the right to be heard, conflict of interests, irrelevant considerations, and the like. If the Court ruled, on the first level, that there was a flaw in the decision, then it must, on the second level, consider the consequence of the flaw, i.e. the appropriate relief. The Court's considerations differ greatly at the two levels: at each level the Court has different objectives and uses different tools" (LCrimA 4398/99 Harel v. The State of Israel, PD 54(3) 637, 643 (2000)).

 

This is the case when dealing with an administrative flaw (see: AAA 3518/02 Rajby v. Chairperson of the Local Planning and Building Committee, Jerusalem, PD 57(1) 196 (2002); HCJ 10455/02 Amir v. Israel Bar Association, PD 57(2) 729 (2003)). This is also the case regarding a void contract to which the administrative authority is a party (see: CA 6705/04 Beit Harechav Ltd. v. Jerusalem Municipality (yet to be published, January 22, 2009)), and is also the case in judicial review of secondary legislation of the legislative authority (see: EA 92/03 Mofaz v. Central Elections Committee Chairman for the Sixteenth Knesset, PD 57(3) 793 (2003)).

 

39.The right to be heard is an important right in Israeli law, and, as mentioned above, is grounded in the rules of natural justice. In the case before us, the Appellants were entitled to voice their arguments, or, at the very least, to an opportunity to voice them, which was not made possible, due to the Minister of Infrastructures’ not complying with his obligation to publish the invitation to voice arguments in Arabic. The violation of the rules of natural justice, including the right to be heard, is deemed ultra vires (see: CA 183/69 Petach Tikva Municipality v. Avraham Tachan of "Amishav" Laboratory, PD 23(2) 398, 404-406 (1969)), and constitutes a cause to invalidate an administrative decision. However, all this is still subject to the relative voidness doctrine. When examining the consequence of the violation of the right to be heard, the considerations are as follows:

 

"… the question is, what is the consequence of the violation of the mandatory hearing. Does the violation revoke the decision ab initio? Not necessarily. […] According to the relative voidness theory, it is appropriate to adapt the consequence of the violation (including the relief granted by the Court) to the circumstances. In each case, the matter is placed at the Court's discretion. The Court may, inter alia, consider: the severity of the violation; whether at hand is a direct or indirect attack of the decision; whether the decision is being attacked by a person directly adversely affected by the decision or by someone else; the timing of the attack on the decision; the damage caused to the person, due to having been denied a prior hearing, the damage that could be caused to the public, were the decision to be invalidated and the chances to cure the wrong by means of a later hearing". (HCJ 2911/94 Backi v. Kalaji – General Manager of the Ministry of Interior PD 48(5) 291, 305-306 (1994)).

 

40.The question, then, is how the flaw in the case at hand should be treated. In my opinion, vacating the Water Regulations, only due to the fact that the Appellants did not have the opportunity to voice their arguments at the time relevant to the promulgation, is unwarranted. Additionally, I find it unwarranted to order the vacating of the notices of debt sent to the Appellants due to the water extraction bills they had to pay pursuant to the extraction licenses in their possession. One can, indeed, find a causal connection between the lack of publication of the invitation to voice arguments in Arabic, and via platforms widespread among the Arab population, and the Appellants not knowing, as emerges from their affidavits, about the amendment of the Water Regulations. However, Appellants did nothing, or at least it was not proven to us that they took any action, related to the notices of debt issued in the Appellants' matters, related to a period spanning over five to six years, concerning these debts, of which they should have been aware. The Appellants did not, during said period, ask the authority about the extent of their debt for water they extracted nor did they demonstrate any effort to discuss the authority's conduct (which they are now criticizing) at the time of the promulgation of the Regulations. Passively waiting until the authority acted to collect the debt, which, in the interim, had accumulated to large amounts, is inappropriate. Furthermore, Appellants chose to attack the lack of publication of the invitation to voice arguments, and the amount they were charged, by means of an indirect attack, notwithstanding the fact that, as mentioned above, the debts accumulated over a number of years. An indirect attack is not the standard course in matters such as these, which serves as an additional consideration supporting my conclusion that neither the Regulations nor the debt notices should be voided.

 

41.I shall further note that I agree with the District Court's rulings regarding the potential impact of the arguments that the Appellants raised before it (and before us) regarding the contents of the Water Regulations and the consequence of the arguments on the wording of the Regulations, had the Appellants been granted the opportunity to voice them before the secondary legislator. The general purpose of Section 116 of the Water Law, which the promulgation of the Water Regulations was meant to realize, is to prescribe the water extraction levies with the goal of incentivizing extractors to make the extraction process more efficient and to conserve the limited resource, in light of the difficulties faced by the Israel water economy. If, and to the extent that, the Appellants have reservations regarding their physical ability to use their allocated extraction quota, these are arguments that relate to the terms and conditions of the water license, which are inappropriate to raise in the framework of determining the extent of the levies. Additionally, the lack of alternative water sources in the vicinity of the aquifers from which the Appellants extract water is irrelevant to the purpose of treating the shortage in the various reservoirs in accordance with their condition, as is reflected from time to time. Similarly, questions regarding the socio-economic condition of the water extractors and consumers are irrelevant in the framework of determining the water levies.

 

42.Thus, in light of the fact that Appellants' arguments, even had they been presented before the Minister of Infrastructures, would probably not have changed the Regulations' wording that became binding; in light of the manner in which Appellants chose to attack the violation of the obligation to conduct a hearing in their matter – by means of an indirect attack; in light of the extensive damage to the public interest and the public funds which would be caused by a invalidating the Regulations; and in light of the associated damage of the cancellation of the Appellants' debt, I have been convinced, based on the relative voidness doctrine, that, despite the flaw of not publishing the invitation to voice arguments in Arabic, it is inappropriate to invalidate the Regulations or the notices of debt in the Appellants' matter.

 

Before Summation

 

43.In the framework of its arguments, Respondent claimed that, contrary to other laws, such as the Planning and Building Law (Section 1A(a)(2)), the Mandatory Tenders Regulations, 5753-1993 (Regulation 15(a)), and the Freedom of Information Regulations (Availability of Environmental Information to the Public), 5769-2009, the legislator did not prescribe anything in Section 116(d) of the Water Law regarding the manner of publication, nor did it include a duty to publish in Arabic. Meaning, it can be understood from its argument that the Respondent wishes to infer from the legislator's silence that it, and, similarly, the Minister of Infrastructures before it, are exempt from the obligation to also publish in Arabic. I cannot accept this argument. As is known, in Adalah too there was no express obligation to include Arabic writing on the municipal signs in the Municipalities Ordinance itself, yet the Court did not deduce from this that there was no duty, since one cannot infer that the legislator's silence in the matter at hand was deliberate, as that inference is not necessary in order to properly realize the purpose of the law (see: BAA 6045/02 Binstock v. Tel Aviv District Committee of the Israel Bar Association, PD 58(2) 1, 5 (2003); HCJ 212/03  Herut – The National Jewish Movement v. Justice Mishael Cheshin, Chairman of the Central Elections Committee for the Sixteenth Knesset, PD 57(1) 750, 758-759 (2003)). As I have ruled above, the balancing of the purposes of Section 116(d), in accordance with the framework outlined by President A. Barak in Adalah, leads to the conclusion that there is also an obligation to publish the invitation to voice arguments in Arabic.

 

44.I shall further wish to note that while the Water Council is currently responsible for updating the water levies pursuant to Section 116, at the time relevant to this appeal, it was the Minister of Infrastructures who was responsible. Therefore, it would have been desirable had the Appellants added the Minister of Infrastructures as a respondent. I have been convinced, however, that we can rule on the matter before us without hearing the minister's position, given that the Respondent chose not to raise claims on this level and itself defended the path taken by the minister at the time of the publication of the invitation to voice arguments.

 

Summary

 

45.The appeal before us raises questions regarding the manner of exercising the discretion granted to the Minister of Infrastructures (which is currently in the hands of the Water Council), whilst fulfilling the duty, as defined in the Section 116(d), to allow arguments to be voiced before promulgating the Water Regulations that determine the extent of the levies for extracting water in Israel. The aforementioned voicing of arguments constitute a type of public hearing, distinguished from a personal hearing on several levels, primarily with regard to the right to be informed and to the extent of informing deemed reasonable. Clearly, the authority must ensure broad exposure of the invitation to voice arguments, in order to enable the majority of the relevant public to exercise their granted right to be heard. This does not mean, however, that in order to reasonably fulfill this duty, the authority must see to it that notification is universal. Equally important to the matter at hand is the question whether there was an obligation, concurrently with the publication in Hebrew in the national press, to also publish the invitation to voice arguments in Arabic and in the Arab press. I have answered this question in the affirmative, following three interpretative theories, two of which focus on the interpretation of Section 82, while the third is based on interpreting the mandatory power and authority grounded in Section 116(d) of the Water Law. Finally, and in light of the unique circumstances of this case, I have reached the conclusion that despite the flaw of refraining from publishing the invitation in Arabic and in the Arab press, and pursuant to the relative voidness doctrine, it is inappropriate to invalidate the Water Regulations or the notices of debt that were sent by virtue thereof.

 

46.Therefore, subject to that which is presented in my opinion, I recommend to my colleagues to deny the appeal.

 

Given the circumstances of the matter, each party shall bear its own expenses.

 

Justice

 

Justice E. Rubinstein:

 

A.I concur with the outcome reached by my colleague Justice Joubran and with the core of his reasoning. My colleague, however, deemed it appropriate to elaborate on the matter of the status of the Arabic language in Israel, in connection with the matter of the publication of the notices pursuant to Section 116 of the Water Law, 5719-1959 (prior to its amendment) in Arabic. My colleague embarked on a principled discussion of this matter, even though Respondent already declared in the court of lower instance (the Court of Water Affairs) that future notices will also be published in Arabic. Respondent’s attorney even reiterated this worthy commitment in the hearing before us, in response to our questions. Yet, since my colleague has discussed the principle, I shall add a few remarks of my own. I shall note at the outset, that in my opinion this is among the matters to which the saying of our sages, spoken by Shammai, "Say little, do much" (Ethics of the Fathers [Pirkei Avot] 1:15) applies, since the more one studies the Arabic language and applies a broad approach to its use, the better; while the more one treads on questions that impinge upon the sensitive sphere of political debate, even when they are presented as legal questions, the more complicated matters get. Fair-mindedness and pragmatic common sense is good counsel for such matters.

 

B.I shall emphasize that, beyond the legal question, I am of the opinion that the study of the Arabic language by the Jewish public in Israel should be promoted. Regrettably, despite extended efforts in the educational system, this remains far from being sufficiently developed. Arabic speakers are a large minority in Israel. The majority of these speakers today do indeed know Hebrew, which is the dominant language in the country, the language of the majority, and the primary official language. Given the fact that native Arabic speakers are a large minority among us, as well as the fact that Israel is surrounded by neighbors who are all Arabic speakers, with some of whom we even have peaceful relations, the knowledge of Arabic among Jews in Israel, except for the older generation of Jews who originated from certain Arab countries, is, in my opinion, far from satisfactory. Not to mention the fact that the Arabic language is a fundamental part of a rich and ancient culture. I shall take the liberty, at this opportunity, to add my voice to those calling for enhancing the study and knowledge of Arabic and the culture related thereto; this could only bring benefit to the relationship between the State of Israel and its domestic minorities as well as with its surrounding neighbors. I shall quote, in this matter, from a speech I gave, while serving as Attorney General, in Tishrei 5760 (October, 1999) at Givat Haviva, which was published in Kiryat Hamishpat A (5761), 17, and in my book Netivei Mimshal Umishpat (5763), 278.:

 

"As is known, the Arabic language has the status of an official language in the State of Israel. However, knowledge and use of Arabic in Israel falls short, both in terms of convenience for Arab citizens, residents, and visitors, and for use by the Jewish public. Incidentally, this would be an appropriate place to mention that in my opinion more should be done in terms of teaching Arabic grammar in schools in Israel. I myself am a graduate of the Middle-Eastern studies department, in its format, which preceded the Six Day War, when peace seemed a far and unreachable goal. At a time when the circle of peace is opening and extending, I would be all the more happy if Arabic was taught more. There is nothing quite like familiarity with the Israeli Arabs that live among us and the surrounding Arab world. That familiarity is lacking. Language is one the best means for familiarity."

 

It was further said (page 281) that "The Ministry of Transportation was instructed to add Arabic inscription to new license plates on Israeli vehicles. This... taking the peace process into consideration and the possibility that vehicles with Israeli plates will be able to travel in the neighbors' territories". It was further said (ibid) that "Including the Arabic language in official publications of the State of Israel is not only in order to grant it its proper standing, but that at times the very use of the language, in and of itself, grants the opportunity to attain equality". This is true also in the matter of the obligation to publish tenders in Arabic: "There is no proper meaning to equality through participation, if there is no language accessibility, inter alia, due to language barriers" (page 282). See also my paper "The State and Israeli Arabs: The Struggle for Equality in the Framework of a Jewish, Democratic and Tormented State" (ibid, 293, published in its essence in Kiryat Hamishpat, C, 107)

 

In my recent capacity as Chairman of the Central Elections Committee for the Nineteenth Knesset, I felt it necessary, inter alia, to give the Arabic language proper standing by including a segment in Arabic in my address to the citizens of Israel in the traditionally broadcasted Central Elections Committee Chairman’s call to participate in the elections.

 

C.Indeed, much of the matter before us addresses, beyond the legal aspects, questions of respecting the minorities among us (see, on this matter, my paper "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (2013) 140, 142-144); I expressed my opinion (page 145) that "The study of Arabic is one area in need of repair. The majority of Israeli Arabs today know Hebrew, because they live with the majority, Jewish society. Among the Jewish population – other than among immigrants of earlier generations who immigrated from Arab countries and whose mother tongue is Arabic – the situation is vastly different. Lack of knowledge of Arabic is most regrettable…" He who respects – is to be respected. I am of the view that the promotion of the Arabic language should be kept as distanced as possible from the political debate concerning the Arab-Israeli conflict, and should be strongly encouraged in practice. The more the focus is on the practical sphere, on promoting studying the language and using it, the better; it must not be perceived by the public as part of a struggle to alter the Jewish and democratic essence of the state, i.e., to remove the Jewish label from the state, so as not to create unnecessary antagonism. This is what common sense demands: proper respect, proper study, proper use – but not, heaven forbid, a tool for harming the State's Jewish, Jewish and democratic identity. In my opinion, the more we remove this matter from the principled struggles and focus on establishing appropriate practical arrangements, the more the effort will bear fruit. "The essence is not study, but deed", as spoken by Rabbi Shimon Ben Gamliel (Ethics of the Fathers [Pirkei Avot] 1:17). Of course, I shall not claim that there is no point in legal deliberation, in appropriate cases, as demonstrated by those petitions that were accepted. However, in my opinion, ultimately, legal rulings are most appropriate when a worthy request, which, with a little bit of goodwill, could have been met, is not satisfied.

 

D.As mentioned, too much talk can often be counter-productive. I shall illustrate this from the highly-informative book by historian Dr. Nathan Efrati, Hebrew and the State – Hebrew's Public Status since the Establishment of the State (5770 - 2010), which extensively reviews the evolution of both the parliamentary and public discussion, related to the issue of the Hebrew language and its status, and consequently, to the issue of the Arabic language, going back to the establishment of the state. A summary of the remarks with respect to Arabic are presented below in order to draw attention to the inherent sensitivity of the matter. The author mentions (on page 9), that in the United Nations resolution of the 29th of November, 1947 (the Partition Resolution), it was stated with respect to Arabic that "In the Jewish State adequate facilities shall be given to Arab-speaking citizens for the use of their language, either orally or in writing, in the legislature, before the Courts and in the administration". When the matter of the Arabic language was raised in the People's Council, by Meir Grabovski (Argov), a signer of the Declaration of Independence and eventually a member of Knesset, in an argument regarding the wording of the Declaration of Independence and assuming equal rights to both languages in Israel, David Ben-Gurion replied that "No-one will object to there also being freedom of language", however "the language of the state is Hebrew. This does not prevent other residents from using their language anywhere" (pages 9-10); Eventually, Section 15(b) of the Administration of Rule and Justice Ordinance, 5708-1948, was adopted, which repealed the requirement to use English – but did not change the status of Arabic (see also the notes at ibid, page 10). See also ibid, pages 36, 127-128, 131-134 regarding various bills proposed over the years regarding the Arabic language and its relation with Hebrew. The author summarizes the failed attempts for special legislation regarding the status of Hebrew (page 134) "The bills always failed due to the implications of such legislation on the status of the Arabic language"; this occurred, for example, in the discussions of a private bill regarding Hebrew by MK Ora Namir in 1982, "despite the fact that Namir explicitly provided that the law was intended to protect the Hebrew language without in any way derogating from the existing status of the Arabic language" (ibid, page 230). Similarly, see page 243 with respect to the position of both left and right wing governments and the great sensitivity they demonstrated in this matter. On a personal note, I shall mention that the author discusses (page 230-231) remarks of mine from a meeting of the Education and Culture Committee (dated 23rd of Cheshvan, 5743 - November 9, 1982), in a discussion regarding MK Namir's bill, when I served as legal counsel of the Ministry of Foreign Affairs (page 230-231), "On behalf of the Ministry of Foreign Affairs, [he] praised Namir for the third section of her bill that provided that the rights of the Arabs shall not be prejudiced, as stated in Section 82 of the Palestine Order-in-Council, of 1922, i.e. the status of the Arabic language shall be preserved. He expressed his hope that this law would be publicized so that this fact shall also become known abroad, and not be interpreted as an offensive change". For a review of Supreme Court rulings on the matter, see ibid 231-232. The author further mentions that, when faced with private bills regarding the Hebrew language, which frequently declared that they do not intend to prejudice the Arabic language, the government's position was to consistently oppose any change in the status of the Arabic language (ibid, page 236); and inter alia, ministers also expressed the spirit of this position; while, as opposed to them, "No appeal was heard from the Arab members of Knesset with respect to the preferred status of the Hebrew language in the State of Israel" (page 236), and MK Raleb Majadele, the Minister of Culture and Sport, when submitting a bill to establish an Academy for the Arabic Language (Knesset Education and Culture Committee Hearing, February 19, 2007; ibid page 236), spoke of enhancing Arabic’s prestige as the "second official language".

 

The result is that the attempt to formally anchor the status of Hebrew in a law, beyond that which exists in Section 82, did not succeed, due to the sensitivity of the Arabic issue. On the other hand, the author reviews "Adalah"'s efforts to, in his words, "undermine the preferred status of the Hebrew language", and challenge the Jewish character of the State – as appears in a document of constitutional nature published on its behalf in 2007, (pages 246-247), while defining Israel as a "democratic bilingual and multi-cultural state, as opposed to its current definition as a Jewish and democratic state"; see also footnotes on page 246.

 

E.Furthermore, it is known that the legal status of the Arabic language is complex, as demonstrated by the case law presented by my colleague Justice Joubran. It is clear that, on the one hand, the Hebrew language is in fact the main language of the State, a Jewish state, as per the Declaration of Independence, and democratic in its essence, and a Jewish and democratic state, as per its definition in the Basic Law: Human Dignity and Liberty and in the Basic Law: Freedom of Occupation. That an overwhelming majority of this country’s citizens are Jewish, and that the various governmental institutions conduct themselves first and foremost in Hebrew are well known facts that do not require evidence. It is undisputable that the revival of the Hebrew language, from Eliezer Ben Yehuda and his friends and onwards – a revival, which, without resorting to excess mysticism, can be deemed miraculous – and the unimaginable success of transforming Hebrew from a sacred tongue to a living language, spoken by the multitudes of immigrants and ingathered exiles, is an enormous part, of the Jewish national revival in Israel, and whose importance cannot be overstated. As Ephraim Kishon said ("This is the Country", in The Knitted Kipa and Some More Pro-Israel Satires (5753 – 1993) 5) "This is a country where a mother learns the mother tongue from her children". Having said that, the Arabic language has legal status as an official language by virtue of Section 82 of the Palestine Order-in-Council, 1922; see Y. Zamir The Administrative Authority (2010) (2nd Edition) on page 66, where Arabic is described, in the framework of the rights of the Arab public, as a "second official language". It is not superfluous to note that a few years back the Knesset adopted the Law for the Supreme Institute for the Arabic Language, 5767-2007, the drafting of which parallels the language of the Law for the Supreme Institute for the Hebrew Language, 5713-1953 (the law that establishes the Academy of the Hebrew Language); see also Efrati, ibid, 233. "In the Supreme Institute for the Arabic Language Law, the institute was charged, inter alia, with 'Research of the eras and branches of the Arabic language' (Section 391), and with 'Conducting relations and exchange of information with the Hebrew Language Academy and with Arabic and Hebrew research institutions in Israel and around the world." (Section 3(5)).

 

Over the years, the legal issue has been discussed in the case law, in scholarly publications and in the opinion pages of the press. As far back as 1967, Advocate (and eventually Judge) Avigdor Salton published his article "The Official Languages in Israel" (Hapraklit 22 (5727 - 1967) 387), in which he reviewed the then current legal status of the Arabic language (page 391 and onwards), concluding on page 397 with the opinion that "legally speaking, there is no duty for government ministries or courts to respond in Arabic", and that is rather " only a license" (emphases original) granted to the authorities, subject to preventing a miscarriage of justice; see page 395. Furthermore, "As for the question of the official languages in Israel, in general, it appears to me that in this field more is concealed than in revealed, and the Knesset should address this important question" (p. 397). The matter arose later on in HCJ 527/74 Khalef v. The District Planning and Building Committee, Northern District, PD 29(2) 319 (1975) in a matter similar to the case at hand, and there was no dispute that a plan that was deposited should have also been published in Arabic, as per Section 89(a) of the Planning and Building Law, 5725-1965 (as was amended in 5733 - 1973).

 

F.In LCA 12/99 Jamal v. Sabek (1999), Justice (as was his title at the time) M. Cheshin noted (paragraph 18), regarding the right to vote and the use of Arabic, that Arabic has – in the provision of Section 82 of the Palestine Order in Council – an "especially exalted status, and there are even those who believe that it is an official language (whatever the interpretation of the term "official" may be) … the main point being that the Arabic language is the language of a fifth of the State's population – the language of the public, language of the culture, language of the religion, and that this portion of the population is a significant minority whom, and whose language, we must respect"; see also CA 8837/05 Marshud v. Shorty (2009) (paragraph 21). The matter was extensively addressed in HCJ 4112/99 Adalah v. The Tel Aviv - Jaffa Municipality, PD 56(5) 393 (2002). My colleague reviewed the three opinions that were presented therein regarding signs in mixed cities where the Petitioner requested that it be applied universally. My position there as the Attorney General was, as President Barak summarized (paragraph 3 on page 405):

 

"In a notice on his behalf (on behalf of the Attorney General – E.R.) it was noted that in his opinion the respondent municipalities do not have an obligation to post signs in Arabic. Such an obligation does not stem from Section 82 of the Palestine Order-in-Council, 1922. Arabic, however, is an official language of a large and respected minority in the State. This status that it has - alongside the Hebrew language, which has a primary status - creates an obligation that the governmental authorities consider the use of the Arabic language in accordance with the matter in question. In terms of the respondent municipalities, it follows that certain criteria are expected of them when exercising their discretion in those cities in which there is a significant Arab minority. First of all, a distinction can be drawn between main arteries and side streets. The obligation to also post signs in Arabic applies primarily to signs on the main streets and central roads. Secondly, the obligation to post signs in Arabic applies mainly in areas in which there is a large Arabic-speaking population. Thirdly, signs directing to public institutions, as well as directional signs within the public institutions themselves must also be in Arabic. Fourthly, updating the signs in all such places where adding Arabic writing shall be required, shall be made within a reasonable time frame. The Attorney General added that consideration must be given to the general interest of readers' comprehension, i.e., the public interest that everyone understand the signs. The main importance of this interest is readers' comprehension of safety and warning signs. It is of lesser importance in other signs (directing signs, including road and roundabout signs and signs in public squares, as well as other public signs). The Attorney General added that some of the Arab public is able to read and understand Hebrew and English signage".

 

Further on (in paragraph 6 on pages 406-407) the President quoted from my complementary position that in the case of localities with a significant Arab minority "practical considerations, as well as considerations of respecting the language of the Arab public, could justify expanding the scope of the signs in Arabic beyond the main streets and central roads, and beyond those areas in the local authority’s jurisdiction which include a large Arabic-speaking population", with the details being determined by the local authorities.

 

The majority opinion, with President Barak and Justice Dorner applying different normative interpretations, was that it is appropriate for an obligation of Arabic writing to be applied in its entirety. President Barak did not see this through the prism of Section 82, although he was of the opinion (paragraph 13 on page 411) that consideration should be given to the official status of the language, and therefore viewed the source to be in the mere authority to post municipal signs in the language of the largest minority in Israel (paragraph 25 on pages 417-418). Justice Dorner was of the opinion that the matters derive from Section 82, since (paragraph 7 on page 478) "…while Hebrew is the primary official language of the State of Israel, being the national language of the majority, the Arabic language’s status as an official language pursuant to the amended Section 82, is meant to realize the Arab minority’s freedom of language, religion and culture …", in accordance with the principle of equality. Justice (as was his title at the time) Cheshin (paragraph 16 on page 429) emphasized that the fact that the Arabic language is referred to as "official" "grants the language an exalted status, but one should not infer an operative legal conclusion from such status other than in circumstances in which this is required and in subordination to the law. The material is sensitive and delicate, … and therefore we must be guarded: we shall be cautious and refrain from reaching operative legal conclusions from the fact that the language is "official", unless this is required in consequence of applying another fundamental principle of law…" Freedom of language – yes, but without being dragged into politics. Justice Cheshin added (paragraph 61 on page 460) that "The real matter of the petition before us is not the street signs of the respondent municipalities. The matter – in its essence: from its beginning through to its end, is the cultural and national rights of the Arabs in Israel… The matter of granting these - or such - rights - is, first and foremost, a political one, which, in any event, is to be decided upon by the political authorities. The question is delicate and complicated, with far-reaching implications for both the image and character of Israel as a Jewish and democratic state…".

 

G.See also I. Saban "The Collective Rights of the Arab-Palestinian Minority, Do They or Do They Not Exist and the Extent of the Taboo" Iyunei Mishpat 26(1) (2003) 241, 260 and onwards, regarding Arabic's status and for a critical overtone regarding the matter of the practical realization of the language's official status; I. Saban "A Sole (Bilingual) Voice in the Dark", following HCJ 4112/99 Adalah v. The Tel-Aviv Municipality" Iyunei Mishpat 27(1) (2003) 109, and particularly 130-133; I. Saban and M. Amara "The Status of Arabic in Israel: Law, Reality and Borders: Using the Law to Change Reality", Medina Vechevra 4 (5765 - 2004) 885; A. Hacohen "Multiplicity of Opinions and a Human's Right to Speak his Language" Parashat Hashavua Bereshit 32 (5772); A. Harel-Shalev "The Status of the Arabic Language in Israel - Comparative Perspective" Adalah's Electronic Newsletter 14 (2005); Alaa Mahajna "The Arabic Language and its Indigenous Status in Israel" Adalah (2008); Dr. A. Bakshi "The Status of Arabic in the State of Israel,” The Zionist Strategy Institute (5772-2011). This collection of articles, reflecting different legal, public, and political directions, indicates the sensitivity, not to mention the volatility, of the matter, and the conflicts therein. In any event, more than a few of the authors emphasize the practical aspect, the gap between the legal analysis and the facts on the ground. There is no dispute, including among those of the opinion that the status of an official language should be reserved exclusively for Hebrew, that "also as a matter of values, one must protect the linguistic autonomy of the Arab minority and its rights of freedom of expression and linguistic accessibility to government services" (Bakshi, ibid 36). I have not addressed the various proposals for enacting a constitution in Israel and the references therein to the matter of language; that matter lies outside the purview of this case. Therefore, prima facie, as opposed to the sharpened legal and political disputes, in all that relates to the practical level, the gap is not really that wide.

 

H.I shall return to my opening remarks. The essence is not study, but deed, and, with it, common sense. There is a proper place for legal disputations and from every possible angle. They are part of the dialog, and at times the debate, in the political, public, academic and legal arena, which probably will not end in the near future. Perhaps we will see this debate concluded if the State of Israel completes its constitutional project, a goal to which I personally aspire. In the meantime, however, my advice, as stated above, is “say little and do much”, both in terms of studying the Arabic language and in terms of using it, out of respect towards the minorities among us. This does not prejudice the Hebrew language or Israel's essence as a Jewish and democratic state. On the contrary, in the very honor it bestows upon its minorities, the majority society shall gain honor for itself.

 

Justice

 

Justice N. Hendel:

 

I concur with my colleague Justice S. Joubran's extensive and thought provoking judgment and with Justice E. Rubinstein's important remarks.

 

 

Justice

 

 

Now, therefore, it was ruled as per Justice S. Joubran's judgment.

 

Given today, the 5th of Cheshvan, 5774 (October 9, 2013)

 

 

Justice                                     Justice                                     Justice

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