HCJ 9029/16

 

 

Petitioners:                1. Yitzhak Aviram, Adv.

                                    2. Shachar Ben Meir, Adv.

                                                v.

Respondents:             1. Minister of Justice

                                    2. The Knesset

                                    3. Judicial Selection Committee

                                    4. Attorney General

                                    5. MK Robert Ilatov

                                    6. MK Isaac Herzog

 

On behalf of the Petitioners: Pro Se, Meir Broch, Adv.

On behalf of Respondents 1, 3-4: Yonatan Berman, Adv.

On behalf of Respondents 2, 5: Gur Bligh, Adv.

On behalf of Respondent 6: Eran Marienberg, Adv., Shimon Baron, Adv.

 

Petition for order nisi and interim order

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice N. Hendel, Justice U. Vogelman, Justice I. Amit

           

           

Israeli Supreme Court cases cited:

[1]       HCJ 3250/13 Hebrew University of Jerusalem v. Minister of Finance, (August 9, 2015)

[2]       HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50(3) 485 (1996)

[3]       CA 1773/06 Shmuel Elef v. Kibbutz Ayelet HaShahar, (Dec. 19, 2010)

[4]       LCA 5247/15 Theophilos Giannopoulos v. Himnuta Ltd. (Aug. 28, 2016)

[5]       HCJ 5167/00 Weiss v. Prime Minister of the State of Israel, IsrSC 55(2) 455, 468 (2001) [https://versa.cardozo.yu.edu/opinions/weiss-v-prime-minister]

[6]       HCJ 3002/09 Israeli Medical Association v. Prime Minister of Israel, (June 9, 2009)

[7]       HCJFH 219/09 Minister of Justice v. Nir Zohar, IsrSC 64(2) 421 (2010) [https://versa.cardozo.yu.edu/opinions/minister-justice-v-zohar]

[8]       HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014)

[9]       HCJ 9/82 Virshubski v. Minister of Justice, IsrSC 36(1) 645 (1982)

[10]     HCJ 849/00 Shatz v. Minister of Justice, IsrSC 56(5) 571 (2002)

[11]     HCJ 1179/90 Ratz Faction v. Ovadia Eli, IsrSC 44(2) 31 (1990)

[12]     HCJ 5/86 Shas Faction v. Minister of Religion, IsrSC 40(2) 742 (1986)

[13]     HCJ 787/89 Likud Faction v. Haifa City Council, (Nov. 1, 1989)

[14]     HCJ 3250/94 Oren v. Petah Tikva City Council, IsrSC 49(5) 17 (1995)

[15]     CA 2663/99 Shamgar v. Ramat Hasharon Local Council, IsrSC 54(3) 456 (2000)

[16]     HCJ 5743/99 Duek v. Mayor of Kiryat Bialik, IsrSC 54(3) 410 (2000)

[17]     HCJ 1020/99 Duek v. Mayor of Kiryat Bialik, (Feb. 7, 2001)

[18]     AAA 7697/14 “Bar” Faction for Governance Control and Quality v. Kiryat Motzkin City Council, (Feb. 21, 2016)

[19]     AAA 1207/15 Ruchamkin v. Bnei Brak Municipal Council, (Aug. 18, 2016) [https://versa.cardozo.yu.edu/opinions/ruchamkin-v-bnei-brak-municipal-council]

[20]     CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995) [https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village]

 

Canadian Supreme Court cases cited:

[21]     Re: Resolution to Amend the Constitution [1981] 1 S.C.R. 753

 

 

 

JUDGMENT

 

Justice N. Hendel:

Is the Knesset under an obligation to ensure that a member of the opposition serves on the Judicial Selection Committee at all times? This issue raises various questions pertaining to the constitutional regime in Israel and the workings of government. It is a delicate subject. On the one hand, it involves fundamental principles of the Israeli constitutional regime. The Judicial Selection Committee is a rarity in that it brings together representatives of the three branches of government—the legislature, the executive and the judiciary. The product of this encounter influences—and might even shape—the judiciary's character. On the other hand, the election of the Knesset's representatives to the Committee is effected by a secret ballot of the Knesset Members. Looking down from above, the Court is called upon to decide upon the characteristics of a Knesset Member who is supposed to select those who are to occupy the bench. But the petition has been submitted. It raises a legal question that must be settled, and the angel of justice commands “Decide!” The petition thus raises an important, delicate and complicated issue.

A. Facts and Arguments

1.         The Judicial Selection Committee (hereinafter: the Committee) consists of nine members: three Supreme Court justices (including the President), two government ministers (among them the Minister of Justice), two representatives of the Israel Bar Association, and two members of the Knesset (sec. 4(b) of Basic Law: The Judiciary). The Members of Knesset on the Committee are elected by the Knesset by secret ballot (ibid; sec. 16(1) of the Courts Law [Consolidated Version], 5744-1984). For over 25 years, since 1990, the Knesset has elected at least one Committee member from the opposition parties in voting for the Judicial Selection Committee. The same happened during the last election to the Committee, held on July 22, 2015. It was during this vote that Respondent 5, Member of Knesset (MK) Robert Ilatov, was elected as a member of the Committee. MK Robert Ilatov's party, Yisrael Beitenu, sat in the opposition at the time. There was no other Member of Knesset selected to the Committee from an opposition party. Then, on May 25, 2016, the Yisrael Beitenu party joined the coalition. Since then, no Member of Knesset from the opposition sits on the Committee. This, in a nutshell, is the background of the petition.

2.         The Petitioners' main argument is as follows: The practice of electing a Knesset Member on behalf of the opposition to the Judicial Selection Committee, which no one disputes, is a binding constitutional custom. By virtue of this custom, a Committee member whose party crossed over from the opposition to the coalition after that member was elected is obligated to resign, at least where there is no Knesset Member left on the Committee whose party belongs to the opposition. The Knesset is under an obligation to appoint a member of the opposition to the Committee instead of the resigning Committee member. Such is the state of affairs as regards MK Ilatov. The Petitioners have other claims as well. They believe that the desired outcome should be arrived at in view of the existence of a binding, enforceable agreement between the opposition and the coalition, or by virtue of a constitutional obligation that exists even in the absence a custom or an agreement.

            Respondents 1-5 (hereinafter: the Respondents) believe that the petition should be dismissed in limine for laches. On the merits, they dispute the Petitioners' position. They hold that constitutional custom has not as yet been declared a binding normative source in Israel. They added that the specific practice of electing at least one Member of Knesset from the opposition to the Committee fails to meet the conditions for the existence of a constitutional custom. It was emphasized that this practice does not, in any case, include the resignation of an incumbent Committee member. In other words, in any event, the practice only pertains to the election of a member on behalf of the opposition parties at the outset, but not to the resignation of a Committee member whose party moved from the opposition to the coalition. As the Respondents see it, even if the existence of a constitutional custom were to be established, it would have been an invalid custom, given the existence of an explicit, detailed constitutional arrangement. The Respondents also disagree with the claims regarding the existence of an enforceable agreement or independent constitutional obligation under which MK Ilatov must resign. Respondent 6 is the Chairman of the Opposition. He supports the Petitioners' position for the reasons detailed in their petition.

 

B. Discussion

3.         Examining a claim of laches in submitting a petition requires examining both the “subjective” delay, from the petitioner's standpoint, and the “objective” delay, which concerns the consequences of the delay from the authority's standpoint. When weighing these perspectives against each other leads to accepting the claim of laches, one must examine the effect of rejecting the petition on the broad public interest (HCJ 3250/13 Hebrew University of Jerusalem v, Minister of Finance [1], para. 19); that is, whether there is serious violation of the rule of law.

            Subjectively speaking, the Petitioners significantly delayed before taking any kind of action. Yisrael Beitenu joined the coalition in May 2016. For around six months, the Judicial Selection Committee went about its normal business. Only in November 2016 did the Petitioners make a move. They first approached the Minister of Justice, and then filed the present petition. The fact that the Yisrael Beitenu party joined the coalition was universally known, as was MK Ilatov's membership on the Committee. The practice of electing at least one Knesset Member from the opposition to the Committee was also within the realm of public knowledge. Indeed, even before Yisrael Beitenu joined the coalition, MK Issawi Frej brought the matter to the attention of the Speaker of the Knesset. In response, the Knesset Legal Advisor, Adv. Eyal Yinon, responded that there was no legal basis to demand MK Ilatov's removal from his tenure, even if Yisrael Beitenu were to join the coalition. Thus, the matter was already clarified by the Knesset Legal Adviser in May 2016. In this state of affairs, there is no satisfying explanation for the long period of time that the Petitioners sat idly by.

            The subjective delay and the objective delay are always intertwined. A period of six months, in itself, does not automatically mean the rejection of a petition by this Court or its further discussion. The subjective delay is examined vis-à-vis its objective consequences in the period of time that elapsed until the petition was submitted. In our case, the six months since Yisrael Beitenu joined the coalition saw the Judicial Selection Committee work intensely. Tens of judges and registrars were selected for office in the various instances. This represents action on a large scale, which has implications and poses difficulty for accepting the Petitioners' claim that the current composition of the Committee is unconstitutional. Add to this another important detail—the timing of the petition's submission. It is no secret that four new judges are expected to be selected to the Supreme Court this year. This is an exceptional occurrence in its scope. The candidates' names have long been selected and published. The Committee started its proceedings to review the candidates before the petition was submitted. Candidates were interviewed. MK Ilatov participated in said proceedings, or at least some of them. The Petitioners knew all about this, and did nothing. They themselves say, in their petition, that this is one of the key reasons for its submission, and the key argument for granting the interim order requested (but not granted). On reading this, one infers that the petition was also meant to influence the actual identity of the new judges to be selected. The relevance of the matter lies, as mentioned, in the consequences of the delay. The selection process is underway. Steps were taken by the Committee and its members to move the matter forward.

            In the hearing before us, the Petitioners said they believed that the matter was handled by some internal Knesset mechanism. Only when they realized that MK Ilatov continued his tenure as a member on the Committee did they turn to the Minister of Justice and the Court. They also added that, in any case, the severity of the matter warranted its discussion on the merits. As noted, in light of the Committee's activity, including publications in the Official Gazette, the only possible determination to be made is that this is a case of subjective and objective laches. This leaves the issue of public interest and the harm to the rule of law. This issue is more complex than the various types of laches claims. I shall elaborate below, but for the moment, I will suffice in stating that the arguments raised in the petition are not simple from a factual or legal perspective. On the merits, some of the arguments are tenuous, the very least. This consideration carries weight when examining whether the public interest overrides objective and subjective laches (HCJ 7111/95 Center for Local Government v. Knesset [2], 499). I believe that under the present circumstances, as detailed above and as will be explained below, the petition should be dismissed for laches. With that said, and in view of the need to examine the question of public interest due to the importance of the issue itself and in order to prevent ambiguity in that regard, we will now address the substantive disagreement between the Parties.

 

C.        On Constitutional Custom

            4.         As stated, the Petitioners premised their petition on three primary arguments: constitutional custom, obligation by agreement or obligation by law deriving from the principles of the system, or a conflict of interests. I believe that the Petitioners have failed to  demonstrate the validity of two of the arguments. I will not dwell on the analysis. Suffice it to say that the Parties have not presented any agreement between actual parties that imposes specific obligations upon the parties—as opposed to a general, ingrained practice. Neither was any legal source presented that requires accepting the Petitioners' position, assuming even the absence of any custom or agreement. Beside that, but not marginally, it is worth addressing a number of points that come up in the petition with respect to constitutional custom. They are of great importance in terms of governance and administration. The Petitioners' chain of reasoning in this context was forged of several links. Each of them raises a complexity of its own from the factual or doctrinal perspective. My intention is to address important points that were raised, which should not be left hanging unaddressed in legal space. The purpose of the following discussion is to note the highlights, without exhausting all of the questions and establishing a conclusive position.

 

5.         The status of constitutional custom in Israel. In various contexts and circumstances, a “custom” or “practice” may acquire binding legal force that can decide rights and obligations under law (CA 1773/06 Shmuel Elef v. Kibbutz Ayelet HaShahar [3], paras. 46-50; LCA 5247/15 Theophilos Giannopoulos v. Himnuta Ltd. [4], para. 21. For the distinction between “custom” and “practice” and the question of the force of customs in various areas of law—including administrative, constitutional, civil and criminal law—see Gad Tedeschi, Custom in Our Contemporary and Future Law, 5 Mishpatim 9 (1973) (Hebrew)). Sometimes, the law itself establishes the legal force of a practice or custom (see, for example, sec. 15 of the Contracts (General Part) Law, 5733-1973). In fact, among the contexts in which the legislature chose to grant binding force to a custom is a certain aspect of the Knesset's work (sec. 19 of Basic Law: The Knesset, titled “Procedure and Rules”: “The Knesset shall itself prescribe its procedure; insofar as such procedure has not been prescribed by Law, the Knesset shall prescribe it by its Rules; as long as the procedure has not been prescribed as aforesaid, the Knesset shall follow its accepted practice and routine”).           

            The justifications for recognizing the binding legal validity of custom are different and diverse. First and foremost, one can point to the parties' consent to grant a given practice binding legal force. At times, such consent may take the form of a general law; at times, a private law—e.g. a contract; and at times, a custom. Notwithstanding the difference among the cases, the basis for legal obligation remains the same: the parties' consent, although, of course, the levels of obligation span a broad scale, from a very real obligation to a lack thereof. Considerable weight also attaches to considerations of reciprocity and reliance, which sometimes surround the custom.

            Case law and the literature have raised the question of whether binding force can be attributed to constitutional or administrative custom under Israeli Law (see Shimon Shetreet, Custom in Public Law, Klinghoffer Book on Public Law, 375 (Yitzhak Zamir, ed., 1993) (Hebrew) (hereinafter: Shetreet); HCJ 5167/00 Weiss v. Prime Minister [5], 468 , per President A. Barak (hereinafter: the Weiss case)). No hard-and-fast rules have actually been laid down in this matter as yet. This Court has even refrained from doing so, choosing to emphasize that it is willing to assume that a custom exists, and accordingly continue its analysis of the issue before it (ibid.). It would even appear that this Court has expressed some support on a number of occasions in the direction of recognizing constitutional custom, or “constitutional convention” (see, for example, HCJ 3002/09 Israeli Medical Association v. Prime Minister [6], para. 9, per President D. Beinisch, regarding the status of the institution called “Deputy Minister with Ministerial Status”; the opinion of Justice I. Zamir in the Weiss case, page 477, regarding how a “transitional government” functions. As concerns the relationship between “constitutional custom” and “constitutional convention”, see Shetreet, pp. 386-391, which links these two concepts and their legal status in Israel). Thus, for example, Justice A. Rubinstein wrote in HCJFH 219/09 Minister of Justice v. Nir Zohar [7], para. 5 of his opinion (hereinafter: the Zohar case):

 

I am very much in favor of the doctrine of the constitutional convention described by President Beinisch. In my view, over and above the criteria that she mentioned, recognition of the institution of a constitutional convention has educational and moral importance. It radiates stability and continuity in the normative system and makes it possible – even in a state in which the work of establishing a constitution has not been completed and whose constitutional institutions are not fully rooted in a constitution which is written like the rest of its law – to instill a sense of a constitutional tradition that passes from generation to generation. In my view, this is a matter of invaluable importance.

 

The Petitioners' argument in this regard thus carries weight. There are certainly grounds to believe that, under certain circumstances, a constitutional custom of binding legal force will be recognized (see, for example, Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. I, 95-96 (5th edition, 1996) (Hebrew)). I would add that a judge recognizes the advantage of the approach whereby a question left undecided should not be ruled upon if enquiry is not required to decide the case. However, I believe that a healthy constitutional system striving for evolution and clarity can expect that fundamental questions will not remain unanswered for decades (see what I said with regard to the definition of a “fundamental right” in my opinion in HCJ 3752/10 Amnon Rubinstein v. Knesset, [8]).  At any rate, as noted, and as shall be explained, since the petition should be dismissed for laches, and since we are concerned with not just the practice but also its interpretation, I do not believe this to be the case that warrants the first ruling on the issue of the binding validity of constitutional custom.

            And yet, it would be proper to proceed along the stages of analysis. The reason for this is that leaving the important issue undecided might convey a misleading message in regard to the lex ferenda as well, despite the Knesset's conduct in the matter for 25 years, and the evolution of the case law and the law on the opposition’s status in the workings of government. In fact, this approach of further analysis without deciding the fundamental issue is in keeping with the case-law tradition, which establishes preconditions for the existence of a constitutional custom without binding rulings on its validity.

 

6.         The existence of a constitutional custom in our case. Case law has suggested three cumulative tests to determine the existence of a constitutional custom in a concrete case, without, as noted, deciding the question of whether this constitutional institution exists in Israel (the Zohar case, para. 32, per President Beinisch). The Parties’ attorneys addressed the meeting of the first two tests. But in my opinion, a closer look at the case law reveals a third test that should be recognized and developed.

            The first test is whether the custom exists, i.e. whether it is possible to point to the existence of an entrenched practice. This is an empirical question. The second test is whether the existing custom is recognized and internalized as such. Is there a “sense of obligation”? That is, did the parties intend to imbue the practice with binding significance when carrying it out. Thus, for example, as opposed to a practice perceived by the parties as desirable but non-binding, or by analogy to contract law—is it merely a kind of gentlemen's agreement that each party may stray from at will with no legal repercussions? The difference between the first two tests is that the first one involves examining conduct historically. It is an objective test. The second test examines how the relevant community perceives the conduct in question. It is a subjective test. Or if you prefer – a factual element versus a mental element. The third test relates to the existence of a logical rationale establishing the practice. I myself would examine to what extent the custom takes normative precedence in light of constitutional principles. This is a normative test.

            At this stage, let us consider the first two tests. The Parties disagree on both. Further along our discussion, we shall turn the magnifying glass to the third test. Although this test occasioned no debate or disagreement between the Parties, it is of great significance for the debate.

7.         The existence of a custom. Is the election of an opposition member of the Knesset to the Committee an entrenched practice? The Parties are not in disagreement about the existence of an entrenched, consistent practice whereby, in electing the Committee, at least one Knesset Member belonging to an opposition party is chosen. This practice has been maintained continuously, without exception, since 1990. During those years, there have been many elections to the Committee. In all of them, at least one Committee member was chosen from the opposition parties. The dispute between the Parties relates to the duty of a Committee member to resign if his party has moved from the opposition to the coalition. According to the material submitted by the Parties, this kind of situation has never occurred before. The Respondents deduce from this that there is no practice in place, and certainly none that is consistent and entrenched. The Petitioners contest this position. In their view, the practice of electing a Committee member on behalf of the opposition parties also incorporates the resignation of the Committee member who was voted in on the opposition-member “ticket” but whose party crossed over at some point to the ranks of the coalition. A more sophisticated version of the argument is that this obligation arises when there is no Committee member left from the opposition parties, as in the circumstances of our case, and this by virtue of the principle of representation for the opposition on the Committee. Thus, it is the interpretation of the practice that is disputed on this plane.

            The question of how to interpret the practice of electing at least one member from the opposition to the Committee is a good one. On the one hand, the Petitioners have a point. If an individual is voted into a given body by virtue of belonging to one political sector or the other to begin with, his conversion to another political sector upsets the balance meant to be created in the composition of said body. On the other hand, the Respondents' argument also stands on firm ground. There is no denying the difference between elections to the Committee and the resignation of an incumbent member. In HCJ 9/82 Virshubski v. Minister of Justice [9] (hereinafter: the Virshubski case), the Court was asked to rule that the membership of a member of the Judicial Selection Committee expired. The background to this petition was the election of that Committee member, MK Dov Shilansky, by virtue of being a Member of Knesset, and his subsequent appointment as deputy a minister. This is what the Court wrote in its decision:

                        The question before us is not whether the Knesset can elect one of its members who is a deputy minister as a member of the Committee, but whether a Member of Knesset who was duly elected to the Committee is disqualified from continuing to serve as a member of that Committee for the interim period pending the election of two other members to the Committee by the new Knesset following his appointment as a deputy minister during the term of the new Knesset. The two questions are not the same, and even if we were to conclude that a deputy minister should not be elected as the Knesset representative on the Committee to begin with, this still does not require the conclusion that in a case like the one before us, the appointment as a deputy minister ends the tenure on the Committee (ibid., p. 649).

 

Let us recall that we are now dealing with interpretative indications as to the scope and content of the practice of electing a Member of Knesset on behalf of the opposition to the Committee. The existence of a custom, after all, is an empirical question. Hence, the interpretation of the custom also involves an empirical aspect. Under this prism, all there is to conclude from what has been said is that there is no necessity to accept the analogy that the Petitioners wish to draw between appointment from the outset and resignation after the fact. A custom in which one criterion applies to choosing the members while another applies to the resignation of an active member makes sense. However, the flip side of the coin is that this position is not necessarily ruled out. After all, the purpose behind the practice of appointing a member of the opposition is the latter's representation on the Committee. This purpose does not change after the election to the Committee (see the opinion of Justice S. Levin in the Virsbubski case). One way or the other, and on the whole, this is not the place to fully explore this question of a change in party affiliation. The letter of the law likewise highlights the difficulty, as we shall discuss below.

8.         Sense of obligation. The Respondents argue, in the framework of the second test for the existence of a constitutional custom, that the practice of electing a Committee member on behalf of the opposition was, in any event, not accompanied by a sense of obligation. The indications adduced for this include, inter alia, the fact that Committee members are selected by secret ballot; that at least on one occasion, two members from the coalition put in their candidacy for the Committee; that in the past, two members on behalf of the opposition served on the Committee; that there have been various bills proposed in the past to institutionalize the custom through legislation. These never matured into legislation. On the other hand, the Petitioners believe that these data in fact support their position that the custom was attended by a sense of obligation.

            A remarkable and surprising fact is that there is no controversy among the Parties about the existence of a practice to select at least one Knesset Member to the Committee from the opposition parties (a practice called “informal agreement” by the Respondents and “constitutional custom” by the Petitioners). The reason for this is that any Knesset Member can nominate himself for election to the Committee, and the elections are held secretly. To ensure the election of at least one Knesset Member from the opposition under this voting system, a carefully planned political mechanism needs to be created. As an illustration, sec. 6(3a) of the Courts Law prescribes that among the Knesset's representatives on the Committee there shall be at least one female Member of Knesset. Section 62(d)(7)(c) of the Knesset Rules of Procedure establishes a mechanism for achieving this goal: “If a female Knesset Member … was not elected to the Committee… a second vote shall take place immediately. In the second vote, only the two female Knesset Members, who were candidates in the first vote, shall stand for election, and the female Knesset Member who received the largest number of votes shall be considered to be the one elected instead of the male Knesset Member who received the second largest number of votes”. As opposed to this, no such mechanism governing the election of a member of the opposition was laid down. Therefore, upon the institutionalization of the practice for doing so, it would have been necessary to create a sophisticated mechanism—and more importantly to our matter: a deliberate and calculated one—that would ensure the appropriate vote in advance. In some cases, the system to ensure such an election was to nominate only one Knesset Member from the coalition for election. However, this was not always the case. Thus, for example, when electing the representatives of the 18th Knesset to the Committee in 2009, two Knesset Members from the coalition parties at the time were in the race – MK David Rotem and MK Eitan Cabel – and still a representative of the opposition was elected. We therefore learn that despite the difficulty involved, since 1990, the practice has been rigorously maintained. This suggests devotion to observing the practice and a high sense of obligation.

            On the other hand, the Respondents' arguments in this context are not convincing. For example, the fact that in some cases two Knesset Members from the opposition were elected cannot testify to a lack of commitment to elect at least one Committee member from the opposition parties. At best, this fact can tell us that there is no custom whereby at least one of the two Knesset representatives on the Committee should belong to the coalition. A consideration of the whole picture suggests that the practice to elect at least one Member of Knesset from the opposition was met with recognition and internalization. The practice gained true weight. It became a generally recognized given. No one challenged its validity. Let us also recall that even in the circumstances of our case, no one actually challenged the force of this practice. In the present Knesset, MK Ilatov was elected as a Committee member from the opposition benches. Even when his party moved to the coalition, the Knesset Legal Advisor addressed the issue and opined that there was no flaw involved. Without taking a position, this at any rate reinforces the force of the custom, if only at the stage of electing the Committee members, as well as the understanding that it must be honored.

            Furthermore, the practice was observed reciprocally, which is of great significance when examining the sense of obligation. A look at the historical list of Knesset representatives on the Committee from the opposition parties shows that the role was filled by many different parties, alternating among them, in a kind of game of musical chairs. Just as the government changed, so did the identity of the party benefiting from the practice. The reciprocity reinforces the validity of the practice and reveals greater devotion to it. One can sum up and say that the practice of appointing a member on behalf of the opposition parties to the Judicial Selection Committee has been accompanied by a sense of obligation for a long period of time.

9.         The existence of a custom alongside a constitutional arrangement. Before we address the third test for the existence of a constitutional custom, we should consider another reservation of the Respondents, regarding the relationship between custom and law. Let us assume that we have cleared all the obstacles so far. Constitutional custom has been determined to be a legally valid institution in Israel. The existence of a specific custom has also been recognized. However, on a general level, such recognition is no guarantee that the Court will necessarily enforce the continuation of the custom. What does this mean? The Knesset and MK Ilatov argue that, according to case law, wherever a constitutional arrangement is regulated in detail in law, a constitutional custom will not hold. This was established, according to them, in President Barak's ruling in HCJ 849/00 Shatz v. Minister of Justice [10]: “What we are saying here has no bearing on the ‘constitutional conventions’, since they are based upon  an absence of a constitutional arrangement or a lacuna” (ibid., p. 575; and see HCJ 1179/90 Ratz Faction v. Ovadia Eli [11], pp. 35-36). Indeed, we have a constitutional arrangement. Basic Law: The Judiciary, the Courts Law and the Knesset Rules of Procedure establish the make-up of the Committee, including the affiliation of its members to the various governmental authorities or to a professional body. The mechanism for electing the Knesset's representatives on the Committee is laid down. The law or the Rules of Procedure even explicitly address questions of continued tenure following changes, and of failure to meet the election criterion (such as adequate representation for women). In none of these is there a trace of the remedy sought by the Petitioners. At the same time, the possibility of resignation by a Committee member is not explicitly ruled out, be it in general or in the circumstances that are the subject of the Petition. The question is, then, whether a situation like the one before us is addressed in law in the form of a negative arrangement, or whether it is a lacuna that the legislation does not at address.

            It is hard to make a case for this being a negative arrangement. In other words, it is hard to accept the idea that the purpose of the law is to prevent a Committee member from resigning given the existence of a constitutional custom meant to ensure membership on the Committee on behalf of the opposition parties. Indeed, at times the letter of the law is explicit in such a way as to render the interpretative dilemma superfluous. Thus, for example, the law specifically states that when a Knesset has reached the end of its term, the Members of Knesset it elected  to the Committee will continue to serve on the Committee until the new Knesset elects other members to replace them (sec. 6(1) of the Courts Law. Compare to HCJ 5/86 Shas Faction v. Minister of Religion, IsrSC 40(2) 742 (1986), regarding the members of the committee for appointing rabbinical court judges). From the explicit letter of the law, one can also infer in which cases a Committee member ceases to serve on the Committee immediately. This happens, for example, when a minister sitting on the Committee has left office (ibid., page 750; the Virshubski case, p. 649). According to the Respondents, in the present case too, we can learn from various details of the legislative arrangement that a Committee member is under no obligation to resign in circumstances like those before us. This can be understood, for example, from the provision of the Knesset Rules of Procedure that provides: “Each of the Knesset Members, who is not a minister or a deputy minister, is entitled to offer his candidature to an appointments committee” (sec. 62(b)3 of the Rules of Procedure). I have considered this provision, as well as other provisions that the Respondents have pointed to. I believe they were unable to point to an arrangement from which one can conclude, explicitly or implicitly, that the remedy sought by the Petitioners runs counter to, or is ruled out by virtue of the language of the provisions of the Rules of Procedure or the law. The law was not at all intended to regulate the issue of the affiliation of the Knesset Members on the Committee to coalition or opposition parties, either in terms of the election or in terms of their continued tenure. The law does not at all address the possibility of a Committee member resigning of his own initiative, by virtue of a parliamentary agreement, or by a custom. If there is a custom pertaining to these aspects, the existing legislation cannot disqualify it.

            To complete the picture, we would note that it can be argued that the practice is binding in the first stage, when the Committee members are elected. However, once a member from the opposition parties has been elected, the practice does not obligate him to resign, even if his party joined the coalition. Admittedly, the letter of the law does not contradict this possibility, and could even be thought to be compatible with it. However, it must be admitted that it is the interpretation of the practice that poses the hard question. In other words, just as there is no dispute that the practice to initially appoint  at least one Member of Knesset from the ranks of the opposition in the first stage has held true for close to a quarter of a century, it is also true that Parties have also failed to adduce a single example where the transitioning of one Member of Knesset from the opposition to the coalition has led to his resignation from the Committee. It is not clear whether this situation ever presented itself. Indeed, this was another reason why I thought that this was not the right case for ruling whether a binding constitutional custom was possible in the Israeli system. The reason for this is that, even if we were to determine as much, we would face another hurdle in the form of the change in the party’s status during the tenure. One way or the other, this is not a case of a negative arrangement in the law or the Rules of Procedure. The law does not prohibit the resignation of a Knesset Member from the Committee. The true question is not, as noted, the interpretation of a law, but the interpretation of a practice.

            Let us now turn to the third test for the existence of a constitutional custom.

10.       The normative component. Case law has suggested predicating a constitutional custom on another test—the logical rationale underlying the custom (the Zohar case, para. 32, per President Beinisch). In my opinion, the importance of the third test is the insufficiency of exclusively empirical checks, which are the purview of the first two tests. As mentioned, these tests examine whether a practice has become ingrained and understood as having binding validity. The shortcoming in both these tests lies in the content of the practice. Does that carry no weight at all? This is what I believe gave rise to the logical-rationale test. The question to ask is: Is the practice good? However, I believe this test needs to be honed and given an added, normative dimension. That is, despite the language in which the test was worded, in truth it is not just an analytic-logical test. The goal of the test is to check the compatibility of the rationale underlying the constitutional custom with the principles of the constitutional regime. In fact, this is how it was applied in the Zohar case (ibid., paras. 23, 33). The Supreme Court, sitting in an expanded panel, addressed the definition of the President’s amnesty power, the nature of the Minister of Justice's countersignature within this framework, and the degree of judicial review in its regard. This is a weighty issue. In order to decide it, attention must be paid to normative aspects and values. This is what we will do. As President Beinisch said:

                        The third test for the forming of a “constitutional convention” examines the rationale underlying the constitutional convention, should the latter have formed. We addressed this rationale above, and stated that the countersignature expresses the parliamentary responsibility for the amnesty power, and the possibility of subjecting the decision to judicial review. This responsibility, as mentioned, derives from the fundamentals of the Israeli regime, which require a process of checks and balances for the exercise of governmental powers (ibid., para. 33).

 

This position, which requires a normative component in recognizing a constitutional custom rested, inter alia, on a ruling by the Supreme Court of Canada, which reads as follows:

                        The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative (Re: Resolution to Amend the Constitution [21], p. 888).

 

That is, it might have been possible to think of a different position, which does not consider the content of the custom but the facts alone—the first two tests. Despite this, a position was chosen that considers the compatibility of the custom with the system's constitutional principles.

Similar principles can be found in Jewish law. The normative status of custom is recognized (for more on the subject, see: Menachem Elon, Jewish Law: History, Sources, Principles, 726-777 (1992) (Hebrew)). The Sages accorded existing custom binding halakhic weight in cases involving interpretation of the law. Thus, for example, in some cases of contention, they ruled based on the common practice “go forth and see how the public are accustomed to act” (TB Berakhot 45a; Eruvin 14b). Similarly, in cases involving a lacuna in halakha (Jewish law), the Sages ruled based on the following custom: “Any law that is flimsy in court and whose essence you do not know, go forth and see what the public custom and practice are” (TJ Pe'ah, Chap. 7, Halakha 5). In some cases, the Sages believed that a custom’s status could even override law: “And custom cancels halakha” (TB Bava Metzia, Chapter 7, Halakha 1). With that said, the normative power of a custom is contingent on its not being an erroneous custom, and on its conformity with the values of Jewish law. In cases where the Sages thought that the custom deviated from the appropriate law, they abolished it, even when it was deeply entrenched. Thus, for example, Rashba [Rabbi Shlomo ibn Aderet, 1235 – 1310] writes: “If it was customary not to at all enforce damage by gazing [hezek re'iya] into houses and courtyards—this is an erroneous custom, not a custom" (Responsa Rashba, Part B, 268; see also the words of Rabbeinu Tam in the Tosafot commentary to TB Bava Batra 2a, s.v. “Parchment” [gvil]). Evidently, the ways of the world remain the same. The Jewish law system also attaches importance to the existence of custom, to the sense of obligation and to logical and normative content. The similarity in law testifies to the universality and importance of these matters. The law does not cover all possibilities. People behave a certain way, and by their behavior they create a custom.

Furthermore, modern case law has even expressed the position that there is a kind of parallelogram of forces between the normative component of a custom and its factual components. The Canadian ruling cited above rested on such a position:

                        We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it"(W. Ivor Jennings, The Law and the Constitution 136 (5th ed., 1959)).

 

Of course, if a custom is to be validated, it must be rational. This does not, however, contradict the observation that the deeper a practice is implanted in the system’s constitutional principles, the easier it becomes to recognize it as a binding constitutional custom. Needless to say, a court will not readily be party to enforcing a bad custom (cf. an “erroneous” custom in our review of Jewish law above). However, it is also the case that a neutral custom is not the same as a worthy custom. Take, for example, a practice pertaining to the technicalities of the vote for a committee. Section 62(d)(1) of the Knesset Rules of Procedure states that the election of the Knesset Members to the committee shall involve the selection of a “ballot committee” by the Speaker of the Knesset comprising two Knesset Members from the coalition parties and two from the opposition parties. Were it proven that there was an entrenched practice of appointing six Knesset Members to this committee instead of four—three each from the coalition and the opposition—there might not be cause to enforce it if a decision was then made to deviate from it. Ours is a different situation. There is no disputing the merit in our case of selecting a member of the opposition to the Committee. This value-related aspect bears upon the custom’s factual aspect. It reinforces its position. This view emanates from the combination in our case—the role of the Judicial Selection Committee vis-à-vis its composition within the bounds of the constitutional mechanism and of Israel’s governance and administration procedures. To understand the full significance of these two, it helps to elaborate on them and their importance in a democratic society.

 

D. Opposition, Majority Rule and Everything in Between—the Principle of Proportional Representation

11.       Beyond the questions of doctrine pertaining to the interpretation of the law, to the status of custom in general, and in the context of the Judicial Selection Committee in particular, the question before us transcends the concrete case and touches on a broad issue in the theory of state: the principle of proportional representation and the minority’s right to participate in decision-making processes. In view of the importance of the subject—and particularly in regard to the Judicial Selection Committee—I wish to elaborate on it level by level. The principle of “proportional representation” frequently reappears in the rulings of this Court relating to the representation of political parties on the various Knesset committees and local authorities (see HCJ 787/89 Likud Party v. Haifa City Council [13]; HCJ 3250/94 Oren v. Petah Tikva City Council [14]; CA 2663/99 Shamgar v. Ramat Hasharon Local Council [15]; HCJ 5743/99 Duek v. Mayor of Kiryat Bialik [16]; HCJ 1020/99 Duek v. Mayor of Kiryat Bialik [17]; AAA 7697/14 “Bar” Faction for Governance Control and Quality v. Kiryat Motzkin City Council [18]). This principle establishes the need to aspire to have parties—including minority parties—proportionally represented according to size on every committee appointed by the public authority (see, for example, Rule 102(a) of the Knesset Rules of Procedure (May 13, 2016); sec. 150A of the Municipalities Ordinance [New Version]; sec. 19(a1)(1)(c) of the Planning and Building Law, 5725-1965). Given the large number of parties in Israel’s parliamentary system, it is not always possible for all parties to have representation. In such cases, it was determined that opposition parties should be allowed to appoint a representative on their behalf (on the constitutional aspects of the issue, see: Yigal Marzel, The Constitutional Status of the Parliamentary Opposition, 38 Mishpatim 217 (2009) (Hebrew), which notes the recognition—formal as well—of the status of the chairman of the opposition). 

In AAA 1207/15 Ruchamkin v. Bnei Brak Municipal Council [19] (hereinafter: the Ruchamkin case), I dwelt on the minority’s right to representation on the various committees, and on the democratic importance of this right from the perspective of political philosophy and the system of Jewish law. This case centered on the appropriate way to select representation of the minority party on the Municipal Property Tax Discount Committee. It was determined that here, too, adequate representation for the minority party was required. While the legislative and normative framework in the Municipalities Ordinance differs from the one in our case, the rationales put forward in the Ruchamkin case also apply to the various Knesset committees, and all the more so—as shall be explained below—to the Judicial Selection Committee.

The Ruchamkin case emphasized that the full realization of the democratic idea is not just majority rule, and does not suffice with the majority’s recognition of the minority's rights—modern democracy sees value in the participation of the minority in leadership and in the decision-making processes:

                        The right of the minority to participate in the decision-making process – and not just its political right to elect the decision makers – was particularly emphasized by many political philosophers in the second half of the twentieth century. It might be said that this is the third stage in the development of the democratic idea. At the principle’s outset – in the Athenian Greek polis – it meant majority rule (the meaning of the word demos is “the people”, and the original meaning of democracy was “rule of the people”, as opposed to monarchic and oligarchic rule). In the second stage, democracy became the majority’s obligation to recognize the rights of the minority, which, in the third stage, developed into the recognition that even the minority must play an integral role in the decision-making process  (ibid., para. 9).

 

The minority's participation does not detract from the majority's status. The majority's governance is reflected in the fact that, by its very definition as the majority, it has a greater share than the minority. As a result, within the democratic decision-making procedure, which adds up the number of votes, the “fingers” of the majority will prevail. However, involving the minority in the decision-making process reflects an egalitarian, respectful treatment of everyone, and allows mutual discussion and persuasion. These ingredients enrich the discourse, and they are what lends legitimacy to majority decisions, even when they are deeply opposed to the minority position:

… minority participation in the process is a central element of the legitimacy of majority decision-making in the eyes of the minority, which must accept the majority decision even when it considers the decision itself to be wrong. The minority must not feel that it has a lesser status than the majority. According to this view, debate and voting are not merely decision-making rules, but also preserve equality, and are the basis of the legitimacy of the majority’s decision(ibid., para. 9).

 

12.       It should be noted that the broader perspective of comparative law also shows that many countries have arrangements that enshrine the minority’s right to participate in the various committees: England and Australia have, alongside specific arrangements relating to the composition of the committees, a general provision of law stating that their composition must mirror that of the parliament (in England, see: Standing Orders of the House of Commons, art. 86(2); in Australia, see: Standing Orders of the Senate Committees, art. 22A(2a). In Canada, the law prescribes an arrangement that makes it mandatory to appoint, alongside the committee chairperson, an official representative for the opposition and another representative of an opposition party (Standing Orders of the House of Commons, art. 106(2)). Now that we have looked at the legislative arrangements practiced in other legal systems, let us also briefly recall the Jewish law's approach to the matter.

13.       As I said in the Ruchamkin case, this is also the approach of Jewish law, wherein the majority decision is only binding when arrived at following debate and minority participation. Based on this principle, Rashba ruled that a rabbinical court’s majority ruling is only binding when it had been made after debating and deliberating matters in the presence of all the judges: “There is no majority consent unless the majority consent is arrived at in the presence of all as a matter of general law” (Responsa Rashba 3:304). This is how this was summarized there:

The Tosefta places the emphasis upon changing times and circumstances: “Rabbi Judah says, why are the opinions of a single person from among the many recorded? So that if the time requires them, they can be relied upon” (Tosefta, Eduyot 1:4). These explanations assume that a majority decision does not make the court’s decision the only one of significance. The rejected minority opinion is not viewed as an error or mistake, but rather as a theoretical halakhic possibility that – while not the position adopted in practice at the time – may become so at other times. This is another reason for granting the minority the opportunity to express its view (ibid., para. 10).

 

This holds true for all those cases where the decisions of the democratic majority are accepted, but they are of special value when it comes to the Judicial Selection Committee. The Judicial Selection Committee is unique in its status, as shall be explained. At the same time, it highlights the principle of proportional representation and even adds to it. This is what I shall now address.

 

E. The Judicial Selection Committee

14.       The judicial appointment procedure is unlike any other appointment procedure carried out by the executive or the legislative branches (on administrative decisions by the legislative branch, see: Yoram Danziger, Strengthening Knesset Decisions, 34 Hapraklit 212 (1982) (Hebrew); Yitzhak Zamir, Administrative Authority, vol. I, 122 (2010) (Hebrew)). This is not an act of vertical delegation that allows the authorities to act via their long arm, as is the case of other committees, but a quasi-“constitutive” decision that establishes a horizontal, independent power that is parallel to the powers that form it, as “tongs are made with tongs” (Mishnah, Avot 5:6). While it is clear how the legislature and the executive are elected – the legislature is established based on the democratic principle of proportional representation, and the executive is based directly and arithmetically on counting the votes of the majority parties – not so the judiciary, which is an independent branch not directly derived from the majority parliamentary vote. The principle of judicial autonomy and independence forms the core of the idea of the separation of powers as regards the judiciary, according to the western tradition of the separation of powers fathered by Montesquieu (a political philosopher, jurist and member of parliament in 17th century France). In order to ensure that justice is done while fully safeguarding civil rights, the judicial branch must be detached from the other branches. Indeed, the principle of judicial independence guarantees that judicial discretion is only exercised with the principles of justice and the rule of law in mind, with no influence from extraneous entities and considerations (for an elaboration, see the volume published by the American Academy of Science: 137(4) Daedalus, on Judicial Independence (2008); in addition, see: Judicial Independence in Context (Adam Dodek and Lorne Sossin, eds. (2010); Aharon Barak, Judicial Discretion 265 (1987) (Hebrew)). One must bear in mind that under the constitutional model adopted by the large majority of western countries and in the Israeli legal system, the judiciary might even strike down decisions by the legislature.

 

Hence, the judicial branch is not—and must not be—the long arm of the legislative or executive branches. The judiciary must be autonomous and independent of the other branches. With that said, the judiciary is one of the three branches of government, and must manifest a commitment to the citizenry and democratic values. It does not operate in a void, but in various aspects, in clear collaboration with the other branches. As in the famous words of President A. Barak:

The judge’s autonomy and independence allow him to brave the daily waves. He must give expression to society’s long-term, fundamental trends, rather than to short-term, fleeting needs… It is in fact the judge, who has neither sword nor purse but only his autonomy and independence, training and experience, who is capable and worthy of reflecting the people’s fundamental perceptions. It is precisely his being divorced from the need to be elected from time to time that detaches the judge from the need to give expression to current sentiments, and it is that which gives him the ability and the power to give expression to deep values, which might at times be unpopular (Aharon Barak, The Role of the Supreme Court in a Democratic Society, 21 Iyyunei Mishpat 15-16 (1998) (Hebrew). See also: CA 6821/93 Mizrahi Bank v. Migdal [20], 427).

 

There is a partition between the judicial branch and the other branches. The same goes for the other branches. Note that this is a partition, not a wall. The life of democratic society and the democratic state as it has developed requires some interaction. Hence, too, the need for checks and balances. The correct measure of these systems is vital, but we will not dwell on this. In our case, we shall focus on the judiciary, the public and the democratic principle. We shall ask how the gap can be bridged between the judiciary's autonomy and independence, and its being one of the three branches of government, owing loyalty to the public. How does one resolve the tension between the two principles?   

15.       The gap between these two requirements is bridged, inter alia, by two basic requirements of the judiciary, beside the demand for autonomy and independence: accountability and reflection (see: Shimon Shetreet, Fundamental Values of the Justice System in Israel, Justice Orr Volume – A Collection of Articles in Honor of Justice Theodor Orr 525 (2013) (Hebrew); Shimon Shetreet, Institutional and Substantive Aspects of the Justice System in Historical Perspectives, 10 Mishpat Ve'Asakim 525, 572-583 (2009) (Hebrew)). In order to fulfil these requirements, there formed, inter alia, a mechanism that is unique to the judicial system, namely the court of appeals. Open hearing constitutes an important tool for the court, as well. However, we will not discuss internal review here, but external aspects. I will briefly specify these requirements, and then show that they, too, lend special weight to the importance of having the minority represented on the Judicial Selection Committee.

A.        Accountability: Even though the judiciary is not directly elected by the public, it is one of the state’s branches of government, it is accountable to the public, and thus to the legislature and the executive, as well. This was aptly expressed by Prof. Yoav Dotan:

A governmental system where the composition of the reviewing body directly reflects the political balance of power in parliament is a system susceptible to a series of failures from a constitutional perspective. For we have already said that at the very heart of the concept of constitutionality stands the view that one is justified in imposing certain limitations on the power of the representative legislator… On the other hand, the fact that the judicial review institution can be (and should be) less representative than the legislature does not mean that these institutions should be free of any duty of democratic accountability (Yoav Dotan, Judicial Review of Legislation – The Accountability Question, 10 Mishpat uMimshal, 495-496 (2007) (Hebrew)).

 

Whereas the principle of judicial independence allows the courts to be loyal to judicial integrity and the values of the law, of morals and of justice, accountability is what ties the judicial branch to the public and its values. This was aptly described by Stephen Burbank, a professor of law at the University of Pennsylvania:

Judicial independence is merely the other side of the coin from judicial accountability. The two are not at war with each other but rather are complements; neither is an end in itself but rather a means to an end (or variety of ends); the relevant ends relate not primarily to individual judicial performance but rather to the performance of courts and court systems; and there is no one ideal mix of independence and accountability, but rather the right mix depends upon the goals of those responsible for institutional architecture with respect to a particular court or court system” (Stephen B. Burbank, Judicial Independence, Judicial Accountability and Interbranch Eelations,137(4) Daedalus, on Judicial Independence 17 (2008)).

 

The judiciary is not an island. Judging—and more precisely, the judge, any judge—must rule to the best of his understanding and conscience, in line with the law and its requirements. The integration of the principle of autonomy and independence with the duty of accountability creates a proper balance between its being one of the branches of the democratic state, and its responsibility for the fundamental principles of the legal system and the binding norms. As a derivation from this duty, scholars and legal experts have emphasized the duty of reflection that applies to the judiciary.

B.        Reflection: As mentioned above, the judiciary must be autonomous and independent. In keeping with this, it is accepted that the principle of representation does not apply—certainly not fully and formally—to the judiciary. The latter must remain neutral and professional, steer clear of political labelling, and remain loyal to the values of law, justice and equity. And yet, even though the principle of representation does not apply to it, it must reflect the public within which it operates. This is the principle of reflection, which was adopted in many western countries and was even expressed in a number of international treaties (Sonia Lawrence, Reflections: On Judicial Diversity and Judicial Independence, in Judicial Independence in Context (Adam Dodek and Lorne Sossin, eds, 2010); Shimon Shetreet, The Administration of Justice: Practical Problems, Value Conflicts, and Changing Concepts, 13 U.B.C.L Rev. 52 (1973); Shimon Shetreet, On Assessing the Role of Court in Society, 10 Manitoba L.J. 399 (1980); The Montreal Universal Declaration on the Independence of Justice, 10 June 1983, Act 2.15; Mt. Scopus Approved Revised International Standards Independence § 7 (2008)). This also appears in the conclusions of the committee on the procedures for the election of judges headed by Justice Y. Zamir (March 12, 2011): “When the professional level and personal qualities exist in due measure, weight should also be attributed to the principle of social reflection” (chap. 16, para. 1).

            However, the relationship between the court and the principle of representation and reflection is more complex and not unidimensional. This relationship is not built upon formal, binding, rigid, arithmetic and mathematical rules, but on social sensitivity in the right dose, alongside professional considerations. This might also be reflected in the way that judges are selected.

            The importance of reflection also stems from considerations of visibility and public trust (Shimon Shetreet, The Doctrinal Reasoning for More Women Judges – The Principle of Reflective Judiciary, in Women in Law 183 (1998)), but more than that, from substantive considerations of justice. Prof. Alon Harel explains that the legitimacy of the court, despite not being subject to the principle of representation, derives from the principle of compatibility, whereby: “… rules and principles need to be sensitive to the public's moral beliefs” (Alon Harel, The Democratic Justification for Judicial Review, 5 Moznei Mishpat 90 (2006) (Hebrew)). Further on, it is explained that reflecting the public's values is a delicate balancing act between contradictory values. It is not the same as an accurate vote count:

                        The normative judgments of citizens involve different, complex values anchored in different practices, ways of life and world views. Sensitivity to such judgments in a democracy involves complex processes, and it is by no means self-evident that the compatibility requirement dictates the adoption of every majority-backed decision. Alternatively, it could be argued that the compatibility aspect of democracy can manifest itself in different ways, and there is no reason to claim a priori that “vote counting'” better serves the compatibility aspect than alternative mechanisms (ibid., p.. 91).

 

The legitimacy of the judiciary stems from and depends on this branch of government fulfilling a different role to that of the other branches. Strip society of the judiciary, and it is doubtful that it would long endure. It is no coincidence that, as Jewish law sees it, the children of Noah—the nations of the world—are subject to a mere seven commandments, of which only one is a positive commandment, namely the adjudication commandment—the duty to maintain a legal system (TB Sanhedrin, 56a). One might ask: Are various systems such as health and education not also vital for society? But Jewish law is resolute. It would seem that the origin and foundation of the public systems together with the individual's relations depend upon the legal system. Of course, the role of the legal system is not only to prevent social chaos, but also to improve society and contribute to making it more just. Against this background, the principle of judicial independence is vital for all of society. Thus, contrary to the decisions of the executive, which acquire their validity by virtue of the majority vote of the executive and even the legislature, judicial decisions also acquire their validity by virtue of reflecting the entirety of the public's values.

16.       The distinctive characteristics of the judiciary—autonomy and independence, the duty of accountability and the principle of reflection—give the representation of the minority on the Judicial Selection Committee a unique added value of great importance. And note, this procedure is not about norms that are binding upon the judiciary itself, but about the arrangements relating to the Judicial Selection Committee. However, as I shall now explain, these arrangements are influenced by the character of the judiciary and the guiding principles applicable to it. It is my opinion, as said, that in addition to the principle of adequate representation that applies to the Judicial Selection Committee as to all other committees, it applies most particularly to this committee. I shall explain.

A.        Autonomy and independence. The judiciary must be a neutral, autonomous entity that is independent of political players. For that to happen, the Judicial Selection Committee must also, to the extent possible, be a neutral committee, which does not patently represent a political faction or party. In this sense, the broader the representation—and if it also includes opposition members—the greater the independence. Where judges are appointed by a committee that is political in nature, this might “taint” the identity of the judges and violate the principle of autonomy and independence. It follows that in order to fulfil this important principle fully, there is value to the Judicial Selection Committee having representatives from both the coalition and the opposition.

B.        Accountability. As explained above, the fact that the judiciary must be independent does not make it unaccountable. It is its accountability that ties the judiciary to the other branches of government and the public. It should be noted that the tension between these two principles lies at the heart of the disagreement on the proper procedure for appointing judges in all western countries (Charles G. Geyh, Methods of Judicial Selection and their Impact on Judicial Independence, 137(4) Daedalus, On Judicial Independence 86 (2008)).

            The way in which the Israeli legislature chose to strike a balance between the principles is by means of the Judicial Selection Committee. In this respect, the Committee has to reflect the fact that the judiciary is not a long arm of the executive, but a twin sister on an equal footing with the executive and the legislature. This being the case, it is right to include the opposition's representative on the Committee, as well. This makes for full representation of the legislative branch. Note that the law itself provides representation for all three branches, and two members of Knesset as far as representing the legislature. It was not for nothing that the legislature decided upon representation by two Knesset Members, allowing the creation of a proper balance—as was indeed with the practice over time—between the coalition and the opposition. One must keep in mind that the appointment of judges is not an act of the executive, but a constituent act of all three branches of government together.

C.        Reflection. The two aspects presented above concern the framework characterizing the judiciary, and not the Committee's effects on the nature of judging. As presented above, the reflection principle expresses a deep, substantive concept of the judge's craft. “A judge sits among his people”. Thus, even though the judiciary is not held to the principle of representation, it is fitting that the choice of those selecting judges should reflect balances within society and the administration. Excluding the opposition from the Judicial Selection Committee could be detrimental to the value of reflection, and thus prevent the enhancement of public faith in the power of the strength of the judiciary.

            This is another expression of the principle of proportional representation. As mentioned in the beginning, substantive democracy is not just a way of deciding by majority, but of including the minority in the decision-making process. Such is the case in all areas and, so too, in the Judicial Selection Committee. In addition, as explained in detail, the special character of the Judicial Selection Committee lends particular importance to the minority's representation on the Committee.

            A substantive clarification is in order. The court is not a political institution, nor is the Judicial Selection Committee. The law says: “A committee member shall vote in accordance with his own discretion, and will not be obligated by the decisions of the entity on whose behalf he is a member on the committee” (sec. 6 of the Courts Law). The members of the Judicial Selection Committee must exercise their own discretion. Some might claim that a different approach can be extracted from the principles of accountability and reflection. This is not so. Accountability and reflection concern the public at large, with its values and principles. These are incorporated in the law. It is in this sense that minority representation is needed. It seems that the minority should be a part of the picture, not outside it. Its presence on the Judicial Selection Committee is desirable. Its values are part of the value system reflected in the law. This is a sensitive distinction: accountability and reflection—yes; representation for specific entities—no. The legislature was aware of this distinction, giving it expression in the Courts Law, which establishes a “representative” division as regards the Committee's composition—three branches of government and professional representatives—alongside a rule of independent discretion. This also explains why the election to the Judicial Selection Committee is secret. Independent discretion is also granted in the process of electing the Committee's members. This delicate way is the right way to look at these matters.                                                                                                                                                                          

17.       I shall now turn to a brief examination of the sources of Jewish law on the issue of appointing judges. The commandment of appointing judges appears in the Torah verses : “Judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment” (Deuteronomy 16:18). The verse does not impose the duty of appointing judges specifically upon the leadership, but uses general language. Bible commentator Don Isaac Abravanel (Spain and Portugal, 15th century) infers from this verse that judges were not appointed by the leadership, but by the people:

                        And the master prophet clarified by this that the judges who are to be in Israel, should not be appointed by the king, or on his behalf, but should be appointed by the people. That is to say, that each and every tribe should appoint the suitable judges in each of their towns. That is why he says: “which the Lord thy God giveth thee, throughout thy tribes”. This implies that the Lord your God assigns the appointment of judges to your tribes, who will appoint them in their gates. Not the king (Abravanel's Torah Commentary, Deuteronomy 16:18. See also: Michael Vigoda, Appointment of Judges, 83 Parashat HaShavua (2002) (hereinafter: Vigoda) (Hebrew)).

 

Abravanel's commentary reflects an awareness that the judicial system has to be autonomous and independent of the executive, and so the appointment of judges should also fall to the public.

            It seems that Abravanel is concerned with the establishment of the judicial system in his and our times, in the absence of a Sanhedrin. For one might say that there is no disputing that at the time of the Sanhedrin, the appointment of judges, called smikhah, was done by the Sanhedrin with the consent of the Nasi, as described in the Jerusalem Talmud: “They decreed instead that the court shall not appoint without the Nasi’s approval, and the Nasi shall not appoint without the court's approval” (TJ Sanhedrin 6b. See also Maimonides’ description in Mishneh Torah, Sanhedrin 4:1). However, even when the appointment was in the hands of the Sanhedrin, the sources show that, beside the importance of the judge's knowledge of the Torah, the sages gave weight to his public stature as a key factor in his ordination. We learn this from the Tosefta in tractate Sanhedrin:

They used to send out and examine every one who was wise, levelheaded, sin-fearing and of mature age, with whom people are content. Such a one they made a judge in his city"(tSanhedrin 7:1).

 

In other words, beside the principle of autonomy and independence reflected in Abravanel's words, the judge must be held in public esteem. Grounds for this requirement can already be found in the Torah. Faced with Jethro's criticism of the burden placed upon him, “why sittest thou thyself alone, and all the people stand by thee from morning unto even?” (Exodus 18:14), Moses seeks out worthy judges capable of sharing in the task of adjudication. To do this, he addresses the public: “Take you wise men, and understanding, and known among your tribes, and I will make them rulers over you” (Deut. 1:13). Rashi, in his comment on the verse, explains the need to appeal to the public in order to find the judges: “Men whom you recognize, for if one were to come before me wrapped in his tallith, I would not know who he is and of what tribe he is, and whether he is suitable. But you know him, for you have raised him. Therefore, it says, ‘known among your tribes’” (Rashi's Commentary on Deut. 1:13). A similar idea is presented by Nahmanides in his commentary on that verse: “And they were known to be judges from the start. For everyone would say: This one is fit to be a judge” (Nahmanides’ Commentary on Deut. 1:13).

            The tension between the aspiration to have the judge be a neutral party with no bias toward those who select him, and the requirement for him to be acceptable to the public and reflect its values, was resolved in different ways in the Jewish communities throughout history (see: Vigoda, ibid, and his references; Michael Vigoda, The Rabbinical Courts and the Appointment of Judges in Jewish Law, 12 Machanaim (1996) (Hebrew)). However, despite the differences between communities in the procedures for electing judges, the two principles—the judge's independence and the principle of reflection and accountability—are also present in the Jewish law sources. On the one hand, a judge must be independent and detached from the ruling authorities, and on the other hand, his appointment depends on his being accepted and esteemed by the public, which is also an active partner in his selection process.

            In our case, of particular interest is the passage in a book written by a justice of this Court—S. Assaf—describing the appointment of rabbinical judges in the Krakow community, as documented in the community journals (pinkasim):

                        On the first day of hol hamo’ed, the four “heads” and five “tovim” [community leaders, parnassim] and the fourteen members of the community council convened and took upon themselves “in true faith, with the consent of the Almighty and the consent of this congregation”, that they have neither undertaken nor shall undertake any conspiracy with anyone regarding the election, and that each of them shall express his opinion for the sake of heaven and in the public interest. Those assembled cast ballots into ballot box, with the name of one person only written on each ballot. The shamash [beadle] draws nine notes from the ballot, and those written on them are considered to be first electors. The nine electors step inside the synagogue, and the shamash has them take an oath before the open Holy Ark to elect five important, honest people as second electors. The shamash immediately gathers the five second electors in the synagogue and makes them swear that, in selecting all the community's officers, they will take into account only the public good. After the oath, they are put into a special room in the community building, where they sit “enclosed and secluded, no one leaves and no one comes to them… with the guards standing even at night to guard their doors”, and they select judges, community leaders, tovim, accountants and the rest of the community's officers for the coming year (from Simcha Assaf, Courts and their Procedures after the Sealing of the Talmud 44 (1924) (Hebrew)).

 

            Rabbinical judges are not appointed directly by the publicly elected officials, but by a special committee of “first electors” appointed by them. This practice reflects a balance between two values: On the one hand, it is the publicly elected officials who appoint the committee, thus maintaining the principle of “reflection”; but on the other hand, the appointment committee is elected in semi-random fashion by a “draw” of nine names out of 23 proposed by the community heads, which is also a way to fulfil the principle of autonomy and independence between the judges and the heads of the community. Thus, one might find some similarity in principle between the selection method used hundreds of years ago and the Judicial Selection Committee in place in Israel.

18.       In concluding this matter, the question of selecting judges is not strictly procedural. It embodies a fundamental question about the democratic and constitutional characteristics of the judiciary. The system that took shape in Israel over the years, with a view to balance the principles, determines that the appointment of judges is to be handled by the Judicial Selection Committee in its aforementioned composition, consisting of professional representatives alongside representatives from all three branches of government. Against this backdrop, the Knesset did well in establishing a practice, for a quarter of a century, whereby the legislature is to be represented by two Members of Knesset, as a requirement for equal representation by a member of the coalition alongside a member of the opposition. I have expressed my position that more weight should be accorded to a practice to the extent that it reflects a worthy constitutional position. This is not a sole consideration. To this one must add, as mentioned, the internalization of the practice, but this consideration adds weight of its own to the validity of the existing practice. The practice has normative components. The convergence of the principle of proportional representation for the minority and the Judicial Selection Committee strengthens the conformity of the practice with the State of Israel's constitutional system of the early 21st century. This is the actual practice, and it should thus be followed—if not more than that—in the future as well.

 

F. Conclusion

19.       Everything we have said can be summarized as follows: The petition's submission was seriously delayed. The Petitioners failed to act in the months following Yisrael Beitenu's crossover to the coalition, with no plausible explanation provided. During these months, the Committee worked intensively. In particular, proceedings were initiated to consider candidates for the Supreme Court. The implications of accepting the petition at the present time might directly affect these sensitive proceedings. Moreover, the Petitioners are asking us for a first-ever decision on the status of constitutional custom in Israel. They want us to determine that such a custom exists in our case, while extending the custom by interpretation to cases in which it was never applied. Consequently, we cannot grant the petition in its current form. With that said, it is important for the Court to state its position on the practice of appointing at least one Knesset Member from the opposition parties to the Committee. In my view, without deciding the issue of constitutional custom, its continued existence is very important, and this by virtue of constitutional principles of the system, which recognize the principle of proportional representation. The current parliamentary thinking is that the opposition should not be left to sit idle in a corner pending the next elections. It has a role to play. Its contribution is important for the Knesset's work. This is what emerges from the law and the case law presented above.

            We have seen the strength of the principle of proportional representation in Israel's governance and administration procedures. We have shown the importance of the Judicial Selection Committee. The legislature itself saw fit to bring together an unusual forum comprising senior members of the judiciary and the executive, as well as representatives of the legislature elected by secret ballot, along with professionals. One would be hard-pressed to point to a forum so unique in its composition in other contexts. However, when it comes to the Judicial Selection Committee, this is required. The combination between the two—the principle of proportional representation and its significance, and the Judicial Selection Committee—sheds light on the practice to elect a representative from the opposition parties to the Committee. The combination explains it historically. It emphasizes its importance as a value against the background of the constitutional principles of the system. All of these serve as an important foundation in examining the existence of a constitutional custom as well.

            Let me stress once more that I am not deciding all of the Petitioners' claims. The questions are not easy. The answers to them raise some complexity. But the wise have eyes to see. Let us say that from a forward looking perspective and in terms of desirable governance—and possibly even beyond—it is right to maintain the practice whereby the opposition parties are represented on the Judicial Selection Committee. Let us spell this out: We are not intervening in the present case. However, should the Knesset decide, come the next election to the Judicial Selection Committee, not to appoint a representative from the opposition parties on its behalf in the election of the Committee—it will face a serious legal hurdle. Moreover, one might think that the Knesset would do well to consider formulating the vague rule into a clear rule. One way or another, should it be decided to depart from this practice, the parties' arguments are reserved for them.

            Let us end by going back to our opening words, where it was clarified that this petition and its content are delicate and sensitive: The relationship between the Court and the Knesset in carrying out its role of appointing representatives to the Judicial Selection Committee. But it seems that, rather than tension, what was created is a kind of normative harmony. The Knesset did well to adopt the practice for 25 years. This is proper. In this, it served as an example for developing society as a Jewish and democratic society.

20.       I would recommend that we dismiss the petition without an order for costs. The very act of submitting the petition made a contribution, even if the petition has been dismissed.

 

 

Justice I. Amit:

I concur in dismissing the petition.

1.         My colleague Justice N. Hendel has painted a broad, fascinating canvas of judicial autonomy, drawing widely on the hidden treasures of our sources and on comparative law. The independence of judges underlies the democratic system, and none dispute the importance of this principle. One of the conditions required in order to guarantee the autonomy and independence of judges in Israel is that the four representatives of the legislative and executive branches not be homogeneous. The great danger inherent in this kind of situation has not escaped the Knesset, and there is a reason why a kind of constitutional convention formed over the years that the votes in the Knesset to elect the representatives to the Committee would be held in such a way that at least one of the two representatives would belong to the opposition (I would note that in one past case, a situation came about where two representatives of the opposition were elected). This is the customary practice and also the proper normative state of affairs, as the Knesset's attorney confirmed to us. The Knesset is therefore to be commended for having followed and for following this practice for years.

2.         The case before us is “accidental”, an exceptional instance born of political vicissitudes, where a party whose members sat on the opposition benches (and I am not addressing the question of whether every party that is not in the coalition is “automatically” considered an opposition party for the purposes of representation on the Committee) crossed the lines to the coalition benches. Cases like these come under section 6(1) of the Courts Law [Consolidated Version], 5744-1984, which states as follows:

6. These provisions shall apply in the matter of the Judicial Selection Committee, where, in accordance with section 4 of Basic Law: The Judiciary (hereinafter: the Committee):

 

(1)The Knesset shall elect by secret ballot the two Members of Knesset who shall serve as members of the Committee; they shall serve as long as they are Members of Knesset, and if the Knesset's term has ended—until the new Knesset elects other members in their stead, and all subject to the provisions of the Knesset Law.

 

It appears that the legislature did not envisage the exceptional case before us, but the provisions of the law are clear, and the practice and custom yield to an explicit law of the Knesset. For me, this is reason enough to reject the petition, and to do so without laying down hard-and-fast rules regarding constitutional custom as a binding legal source.

3.         The petition has raised an important issue that deserves consideration. The legislature would do well to enshrine the customary practice we pointed to above in the Courts Law. This was done in Amendment no. 74 of 2014, which added sec. 6 (3a) to the Law in order to ensure female representation on the Committee:

3a. At least one of the representatives of the Supreme Court justices on the Committee, at least one of the government representatives on the Committee, at least one of the Knesset representatives on the Committee and at least one of the representatives of the Israel Bar Association on the Committee shall be women;

 

            Let me note that in other contexts, the legislature has taken into account the need to guarantee the opposition proper representation. Thus, sec. 13D(a) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951, establishes types of cases where a Knesset Member would be subject “to judgment by the Ethics Committee”, and sec. 13D(b)(1) of said law states as follows:

The Ethics Committee shall consist of the four Knesset Members who will be appointed by the Speaker of the Knesset, for the term of that Knesset, taking into account, inter alia, the parties making up the Knesset, two of them members of the coalition parties and two of them members of the opposition parties; the Speaker of the Knesset shall designate the chairperson of the Ethics Committee from among its members;

 

            The legislature thus saw to it that the Ethics Committee would not be solely made up of Knesset Members belonging to the coalition, in order to ensure the autonomy and independence of this committee. If such is the case for an internal, quasi-judicial Knesset committee, then all the more so when it comes to the Judicial Selection Committee, whose composition is meant to guarantee the principle of autonomy and independence on which the entire judicial system hinges. And indeed, the importance of this issue did not escape the eyes of Knesset Members in the past who tabled private-member bills in each of the last four Knesset terms in order to set this practice in law. But we need not go that far. The incumbent Minister of Justice, Ayelet Shaked, was aware of the importance of this principle while still a Knesset Member, and I shall refer to the private-member bill she submitted at the time, together with MK Yariv Levin (P/1994/19). The private-member bill, as it relates to the Knesset's representatives, proposes that “one shall be a representative of the coalition parties and one a representative of the opposition parties”, and the explanations for the proposed amendment read as follows:

It is proposed to bindingly establish in law the practice whereby the Knesset's representatives to the Judicial Selection Committee are elected one from the ranks of the coalition and one from the ranks of the opposition, in order to ensure that the choice of Knesset representatives, too, reflects the variety of views prevalent among the public as expressed in the elected composition of the Knesset (emphasis added—I.A.).

 

            At the very least, the Knesset would do well to anchor the existing practice in the Knesset's Rules of Procedure, where representation is given to  members of the opposition parties in various frameworks of parliamentary activity.

 

Justice U. Vogelman:

Like my colleague Justice Hendel, I too believe that the petition should be dismissed in limine owing to the delay in its submission. As a result, I did not see fit to take up the hefty question regarding the place of constitutional custom as a binding legal source in our legal system, nor determine the necessary preconditions for its formation. I say this even as I share my colleagues' view that the Knesset's customary practice of electing a representative from a coalition party and a representative from an opposition party for membership on the Judicial Selection Committee is worthy and serves important governance purposes. Therefore, it is also my view, and without deciding the question of whether a constitutional custom applies in general or in the circumstances of this case in particular, that the Knesset would do well to regulate the issue explicitly.

Needless to say, in the absence of such regulation, should the Knesset fail to elect a representative on behalf of the opposition parties during the next elections for the Judicial Selection Committee, the arguments of all parties are reserved for them.

 

The petition is dismissed without an order for costs, as stated in the opinion of Justice N. Hendel.

 

Given this day 5 Shvat, 5777 (Fe. 1, 2017).

 

 

 

HCJ 2144/20

HCJ 2145/20

HCJ 2169/20

HCJ 2171/20

HCJ 2175/20

 

Petitioner in HCJ 2144/20:                 Movement for Quality Government in Israel

 

Petitioner in HCJ 2145/20:                 “Hozeh Hadash” R.A.

 

Petitioner in HCJ 2169/20:                 Association for Progressive Democracy

 

Petitioners in HCJ 2171/20:                1.  Blue and White Faction

                                                            2.  MK Avraham Nissenkorn

                                                            3.  Labor-Meretz Faction

 

Petitioners in HCJ 2175/20:                1.  Yisrael Beiteinu

                                                            2.  MK Oded Forer

 

                                                                        v.

 

Respondents in HCJ 2144/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Knesset Legal Advisor

                                                            4.  Likud Knesset Faction

 

Respondents in HCJ 2145/20:            1.  Speaker of the Knesset

                                                            2.  Knesset Legal Advisor

                                                            3.  Attorney General

                                                            4.  The 34^th Government of Israel

                                                            5.  Likud Faction

 

Respondents in HCJ 2169/20:            1.  Speaker of the Knesset

                                                            2.  Likud Faction

 

Respondents in HCJ 2171/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Likud Faction

 

Respondents in HCJ 2175/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Knesset Legal Advisor

                                                            4.  Likud Faction

 

 

Attorneys for the Petitioners

in HCJ 2144/20:                                  Eliad Shraga, Adv., Tomer Naor, Adv., Hiday Negev, Adv.

 

Attorney for the Petitioners

in HCJ 2145/20:                                  Yuval Yoaz, Adv.

 

Attorney for the Petitioner

in HCJ 2169/20:                                  Yifat Solel, Adv.

 

Attorneys for Petitioners 1-2

in HCJ 2171/20:                                  Shimon Baron, Adv., Eran Marienberg, Adv., Oded Gazit, Adv.

 

Attorney for Petitioner 3

in HCJ 2171/20:                                  Omri Segev, Adv.

 

Attorney for the Petitioner

in HCJ 2175/20:                                  Eitan Haberman, Adv.

 

Attorneys for Respondents 1-3

in HCJ 2144/20; Respondents

1-2 in HCJ 2145/20; Respondent 1

in HCJ 2169/20; Respondents 1-2

in HCJ 2171/20; Respondents 1-3

in HCJ 2175/20:                                  Eyal Yinon, Adv., Avital Sompolinsky, Adv.

 

Attorney for the Respondent

In HCJ 2145/20:                                  Nahi Benor, Adv.

 

 

Attorneys for Respondent 4 in

HCJ 2144/20; Respondent 5 in

HCJ 2145/20; Respondent 2 in

HCJ 2169/20; Respondent 3 in

HCJ 2171/20; Respondent 4 in

HCJ 2175/20:                                      Avi Halevi, Adv., Michael Rabello, Adv.

 

 

 

Israeli Supreme Court cases cited:

[1]        HCJ 4044/95 Porat v. Speaker of the Knesset, IsrSC 49(4) 177 (1995)

[2]        HCJ 652/81 M.K. Yossi Sarid v. Chairman of the Knesset, Menachem Savidor, IsrSC 36(2) 197 (1982) [https://versa.cardozo.yu.edu/opinions/mk-sarid-v-chairman-knesset]

[3]        HCJ 8815/05 Landstein v. Spiegler, (Dec. 26, 2005)

[4]        HCJ 7510/19 Or-Cohen v. Prime Minister, (Jan. 9, 2020)

[5]        HCJ 4374/15 Movement for Quality Government v. Prime Minister, (March 27, 2016) [summary: https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[6]        HCJ 706/19 Freij v. Speaker of the Knesset, (March 28, 2019)

[7]        HCJ 3747/19 Aviram v. Knesset of Israel, (June 18, 2019)

[8]        HCJ 1843/93 Raphael Pinchasi, Deputy Minister and Member of Knesset v. Knesset of Israel, IsrSC 49(1) 661 (1995)

[9]        HCJ 2704/07 Movement for Governmental Fairness v. Knesset Committee, (Jan. 28, 2008)

[10]      HCJ 1179/90 Ratz Faction – The Movement for Civil Rights and Peace v. MK Ovadia Ali, Deputy Speaker of the Knesset, IsrSC 44(2) 31 (1990)

[11]      HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister of Israel, (April 13, 2016) [https://versa.cardozo.yu.edu/opinions/yesh-atid-party-v-prime-minister]

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

[13]      HCJ 4805/07 The Center for Jewish Pluralism – The Movement for Progressive Judaism in Israel v. Ministry of Education, IsrSC 62(4) 571 (2008) [https://versa.cardozo.yu.edu/opinions/center-jewish-pluralism-v-ministry-education]

[14]      HCJ 4742/97 Meretz Faction in the Jerusalem Municipality v. Minister for Religious Affairs, (Dec. 15, 1998)

 

Supreme Court of the United Kingdom cases cited:

[15]      R. v. The Prime Minister; Cherry v. Advocate General for Scotland, UKSC 41 (2109)

 

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit

 

Petitions for order nisi

 

 

Partial Judgment

(March 23, 2020)

 

President E. Hayut:

1.         The five petitions before the Court are directed against Respondent 1, the acting Speaker of the Knesset (hereinafter: the Speaker), not to include the election of a permanent Speaker for the 23^rd Knesset on the Knesset plenary agenda, although a request in this matter was presented to him by Knesset factions representing 61 Members of Knesset.

            At the outset, I would note that some of the petitions requested additional remedies concerning the appointment of an Arrangements Committee, and in regard to the application of the provisions of the Public Health (New Coronavirus) (Home Isolation and Other Directives) (Temporary Provision) Order, 5790-2020 (hereinafter: the Public Health Regulations) to the activity of the Knesset, due to the outbreak of the coronavirus in Israel. However, as we noted in our decision from yesterday (March 22, 2020), it would appear that those remedies became superfluous when it became clear from the responses of the relevant respondents and the explanations of the Knesset Legal Advisor in the hearing that the appointment of the Arrangements Committee is on the agenda of today’s plenary session, and the Public Health Regulations will not prevent convening the Knesset plenum and committees. Therefore, we ordered an updated notice in regard to these two issues, and the hearing before the Court focused upon the question of convening a plenary session for the purpose of electing a permanent Speaker.

            This partial judgment will, therefore, address this question alone.

 

Factual and historical background

2.         Elections for the 23^rd Knesset were held on March 2, 2020, and it was set to be sworn in on March 16, 2020. In anticipation of the swearing in of the Knesset, several factions, comprising 61 Members of Knesset, requested that the Speaker of the Knesset include on the agenda of that session, inter alia, a motion for the election of a permanent Speaker for the 23^rd Knesset. The Speaker refused to do so, giving as his reason that “the immediate need of the State of Israel is a broad unity government […]”, and added that “hasty political moves, like electing a permanent Speaker of the Knesset and the enactment of controversial legislation, are intended to put an end to the possibility of the unity that the nation desires”.

            On March 15, 2020, the attorneys of the Blue and White faction requested that the Knesset Legal Advisor express his opinion as to the Speaker’s refusal to accede to their request to include the matter of electing the Speaker on the Knesset’s agenda. The following day, the attorneys of the Blue and White faction renewed their request to the Speaker of the Knesset and the Knesset Legal Advisor, and insisted that, in their opinion, the Speaker did not have the authority to prevent a debate on this matter. In a letter sent by the Knesset Legal Advisor to the Speaker of the Knesset on March 18, 2020, the Knesset Legal Advisor addressed the importance of convening the Arrangements Committee, but refrained from addressing the issue of appointing a permanent Speaker.

3.         That led to the submission of the petitions before the Court, which were submitted by The Movement for Quality Government, the “Hozeh Hadash” Association, The Association for Progressive Democracy, the Blue and White faction and the Labor-Meretz faction, and the Yisrael Beiteinu faction (hereinafter, collectively: the Petitioners). All of the petitions are directed against the acting Knesset Speaker, MK Yoel (Yuli) Edelstein, and part against the Knesset and the Knesset Legal Advisor, Advocate Eyal Yinon. One petition (HCJ 2145/20) was also directed against the Attorney General and the Government. At its request, the Likud faction (hereinafter: the Likud) was joined as a respondent to the petitions.

 

Arguments of the parties

4.         The Petitioners argue that the acting Speaker has a personal conflict of interests, is acting unreasonably, and that his decision not to include the election of a permanent Speaker of the Knesset on the Knesset agenda is tainted by extraneous considerations. The Petitioners note that sec. 2(b) of the Knesset Rules of Procedure, which establishes that the Speaker of the Knesset be elected no later than the date on which the Knesset convenes for the purpose of establishing the Government, defines the final date for the election of the permanent Speaker, and emphasize that the current Speaker, who acts by virtue of the Knesset continuity rule, is frustrating the will of the majority of the Members of Knesset, and is thereby undermining public trust in the organs of government and the principle of separation of powers.

5.         As opposed to this, Respondents 1-3 – the acting Speaker, the Knesset, and the Knesset Legal Advisor – argue that this Court should not intervene in the Speaker’s decision, and that in accordance with sec. 2(b) of the Knesset Rules of Procedure, the Speaker can be elected at any stage between the convening of the Knesset and the establishing of the Government. However, the positions of the Speaker and of the Legal Advisor diverged on this point. According to the Speaker, he enjoys discretion in deciding upon the agenda of the plenum, and he therefore acted within the bounds of his authority, reasonably, and in accordance with custom when he took account of considerations related to the coalition negotiations, particularly in light of the outbreak of the coronavirus and the national state of emergency. As opposed to that, the Knesset Legal Advisor is of the opinion that while the Speaker is, indeed, granted discretion in regard to setting the agenda of the plenum, and that the Knesset Rules of Procedure require the election of a permanent Speaker prior to the establishment of the Government, but he adds that the current Speaker holds office by virtue of the continuity doctrine, and “as a temporary trust” until the election of a permanent Speaker. Therefore, inasmuch as a majority of the Members of Knesset requests that the Knesset elect a permanent Speaker immediately, the margins of the Speaker’s discretion in regard to postponing the date contract with the passage of time.

            The Likud is of the opinion that the Speaker acted in accordance with the law and the Knesset Rules of Procedure, and that the Court should not intervene in the exercise of his discretion.

6.         In the hearing held on March 22, 2020, the Knesset Legal Advisor though it appropriate to point out that electing a permanent Speaker of the Knesset before clarifying the balance of political power and the future composition of the Government could lead to a “governance problem” that could severely impact the functioning of the Government if it ultimately transpires that the permanent Speaker of the Knesset is a member of the opposition. However, the Knesset Legal Advisor explained in the course of his arguments that at present, and in order to prevent “serious mishaps”, we should wait for “an additional, short period”, and no more. In the hearing, the Attorney General, who did not address the issue of appointing a permanent Speaker in his written response, also pointed out that, in his view, once 61 Members of Knesset asked that the subject be placed on the agenda, the Speaker must accede to the request “as soon as possible”.

 

Discussion and decision

7.         The rule is that the authority to establish the Knesset’s agenda and the date of its deliberations is granted to the Speaker (see sec. 25(b) of the Knesset Rules of Procedure). These are clearly “internal parliamentary” matters, and as a rule, this Court refrains from intervening in them (see: HCJ 4044/95 Porat v. Speaker of the Knesset [1] 179), except in special cases that threaten harm to “the fabric of democratic life” (ibid.) or to the fundamental structure of our parliamentary regime (HCJ 652/81 Sarid v. Chairman of the Knesset [2]).

            Does the Speaker’s refusal to put the election of the permanent Speaker of the 23^rd Knesset on the plenum’s agenda constitute one of those special cases in which there is a fear of harm to “the fabric of democratic life” or to the fundamental structure of our parliamentary regime?

            That is the central question presented for decision in the petitions before the Court.

8.         These are the primary legal provisions relevant to the matter:

            Section 20(a) of Basic Law: The Knesset provides that:

The Knesset shall elect from among its members a Speaker and Deputy Speakers. Until the election of the Knesset Speaker, the Speaker of the outgoing Knesset shall continue to serve, should he have been reelected as a Member of the Knesset, and if he has not been reelected the most veteran Knesset Member, who is not the Prime Minister, a Minister or Deputy Minister, shall serve as acting Speaker. In this article, "most veteran" – whoever has served in the Knesset for the longest period, consecutively or intermittently, and from among those with equal seniority – the eldest among them.

            The language of this provision was established in an amendment to the Basic Law in 2016. Prior to that amendment, the most veteran Knesset Member served as acting Speaker even if the Speaker of the outgoing Knesset was reelected as a Member of Knesset. The Explanatory Notes to the Bill noted that the amendment was intended to apply the continuity principle to the office of Speaker of the Knesset, in a manner similar to that set out in sec. 30 of Basic Law: The Government in regard to the continuity of the Government.

            Section 2(b) of the Knesset Rules of Procedure, mentioned above, further establishes in regard to the election of the Speaker of the Knesset:

The Speaker shall be elected no later than the date on which the Knesset convened for the purpose of establishing the Government, as stated in article 13 of Basic Law: The Government. Should the election of the Knesset Speaker be scheduled for the same date set for the sitting for the purpose of establishing the Government, the Speaker shall be elected first.

            Section 2(b) sets a timeframe according to which the latest date for the election of the Speaker of the Knesset after its convening is the date of establishing the Government. This provision leaves it to the discretion of the acting Speaker to decide upon the date within this timeframe for putting the election of the permanent Speaker on the agenda of the plenum.

            As opposed to the position of Respondent 1, we are of the opinion that, given the fact that we are concerned with an acting Speaker serving by virtue of the continuity rule, and given that the matter directly concerns him, the discretion afforded him in this regard is not broad, but rather very limited and defined. This is particularly true given that over the course of the last year, there were three elections, and Respondent 1 has, in practice, served as acting Speaker since the convening of the 22^nd Knesset.

9.         Indeed, since the dissolution of the Knesset on Dec. 26, 2018, we are locked in an exceptional governance situation that is the result of the failure of the public’s representatives to constitute a permanent Government in Israel even after three rounds of elections that took place on April 9, 2019, on Sept. 17, 2019, and on March 2, 2020. On April 30, 2019, following the elections for the 21^st Knesset, at the time of swearing in of the Knesset, Respondent 1 was elected to serve as Speaker by a majority of 101 Members of Knesset and without opposition. He now serves as acting Speaker by virtue of the continuity principle under sec. 20(a) of Basic law: The Knesset, after the 21^st Knesset and the 22^nd Knesset ended their short terms and dissolved. As the Knesset Legal Advisor stated in his response to the petitions, the Speaker holds his office “as a temporary trust” until the election of a permanent Speaker. This exceptional situation necessarily affects the scope of the Speaker’s authority and his discretion. Just as an interim Government acting by virtue of the continuity principle is required to act cautiously and with restraint (see: HCJ 8815/05 Landstein v. Spiegler [3], para. 9 of the opinion of Justice A. Procaccia; HCJ 7510/19 Or-Cohen v. Prime Minister [4], para. 8 of my opinion), so, too, the acting Speaker. The importance of caution and restraint on his part becomes particularly clear in view of the character of the role of the Speaker, which obligates him to impartiality and stateliness[1] (Amnon Rubinstein & Barak Medina, The Constitutional Law of the State of Israel: Institutions, 716 (2005) (hereinafter: Rubinstein & Medina) (Hebrew); Amnon Rubinstein & Raanan Har-Zahav, Commentary on Basic Law: The Knesset, 80 (1993) (hereinafter: Rubinstein & Har-Zahav) (Hebrew)). In the present case, there is no avoiding the conclusion that the Speaker’s decision not to bring the matter of electing a permanent Speaker for a plenary vote is incompatible with the scope of his authority as acting Speaker, and it deviates from the margin of discretion granted to him.

10.       The defect in this conduct primarily inheres in the fear that it frustrates the will of the electorate. As we know, “the elections for the Knesset constitute the implementation of the basic principle of decision-making in a democratic system of government – decision by the majority” (Rubinstein & Medina, p. 557). The essence of the democratic process is the possibility of translating the votes received by the members of the Knesset, as the elected representatives of the people, into political influence. In the present matter, the house factions, comprising 61 Members of Knesset, seek to exercise their political power in order to try to elect a permanent Speaker for the 23^rd Knesset, a role whose importance and centrality to the administration of the affairs of the Knesset requires no elaboration (see sec. 6 of the Knesset Rules of Procedure). Therefore, intervention in this effort of the majority of the Members of Knesset constitutes a form of harm to the decision of the electorate. In this regard, as the legal advisors of the Knesset and the Government noted, the passage of time after the date of the convening of the Knesset is of significance given the timetables for the establishing of a Government as set out in Basic Law: The Government. Indeed, “foot dragging” in putting the matter on the agenda might lead to the actual frustration of the election of a permanent Speaker of the 23^rd Knesset.

11.       Moreover, the Speaker’s position that the election of a permanent Speaker is contingent upon the efforts to form a Government puts the cart before the horse. The Knesset is the sovereign. The Knesset is not “the Government’s cheerleading squad” in the vivid language of Deputy President E. Rubinstein in HCJ 4374/15 Movement for Quality Government v. Prime Minister [5], para. 142). Indeed, in the Israeli system of government, the Government enjoys a majority in the Knesset, and it has significant ability to influence the Knesset’s functioning thereby and by virtue of the practice of coalition discipline. But that absolutely does not mean that it can, thereby, take steps that would constitute a substantive erosion of the independence of the Knesset. Respondent 1 explained his refusal by pointing out, inter alia, that Israel’s citizens are hoping that, finally, a Government will be established after three rounds of elections. Certainly, those words correctly express the public sentiment that it would be proper that the leaders wake up and save the “ship of governance” from the dead end in which it is trapped, and this is, indeed, the immediate need, and all the more so in these corona times that have lately befallen us. But that hope – that we all share – cannot serve as a reason for the Speaker’s refusal to bring the election of a permanent Speaker to a vote, inasmuch as by doing so, he places a political consideration regarding the forming of a Government at the heart of his refusal – however it may be constituted. Such a political consideration has no place in the margin of discretion granted to him on the question of whether or not to include motions for the agenda of the Knesset plenum, and all the more so when the matter is the election of the Speaker himself.

            The fact that we are currently in a governmental transition period in which a Government that enjoys the confidence of the Knesset has not yet been formed, also reinforces this conclusion. It may be presumed that the Members of Knesset who seek to place the matter of the election of a permanent Speaker before the plenum are aware of the significance and implications of taking this step. Nevertheless, they ask, and ask again to bring the matter before the plenum. The refusal to place the election of a permanent Speaker on the agenda of the Knesset plenum leads to the result that the members of the Knesset are prevented from exercising their discretion on this matter, without regard for the results of the vote.

12.       The customary, accepted tradition of the Knesset’s work also carries weight in the present matter (HCJ 706/19 Freij v. Speaker of the Knesset [6], para. 9 of my opinion). The Knesset Legal Advisor noted that, in practice, most Knessets elected a Speaker on the day that the Knesset convened (para. 36 of the response of Respondents 1-3; and see: Rubinstein & Har-Zahav, p. 30). In this regard, it would not be superfluous to point out that one of the rationales grounding the bill for amending Basic Law: The Knesset, which applied the continuity rule to the Speaker, was that the permanent Speaker was customarily elected in close proximity to the convening of the new Knesset, and generally at the first plenary session. It was therefore decided that it did not make sense to appoint “the most veteran Knesset Member” as acting Speaker for such a short period, and it would be better to apply the continuity rule to this office, as well.

13.       The Knesset Legal Advisor further raised the fear of a “governance problem” that might ensue if a Speaker were elected at present, and it would later transpire that he was a member of the opposition. At present, the possibility of the realization of that fear is unclear. In any case, it may be presumed that whoever may be elected to serve as the permanent Speaker of the Knesset will carry out his office in a stately manner, in accordance with the law, custom and procedures established by the Knesset. That will also be the case even if the members of the party he represented will sit in the opposition. That is how Respondent 1 acted over the years, and that, in general, is how his predecessors acted in the past. Indeed, it was not without reason that Basic Law: The President of the State establishes that if the position of President of the State is vacated, and as long as a new President has not assumed office, the Speaker of the Knesset shall serve as acting President of the State (sec. 23(a) of Basic Law: The President of the State), which teaches us that the stately character of the office of Speaker of the Knesset is second only to that of the President of the State.

14.       Pursuant to the hearing held yesterday, March 22, 2020, and given the position of the Knesset Legal Advisor that we should only wait an additional, short period before bringing the matter of the election of a permanent speaker to a vote, and given the position of the Attorney General that it should be done as soon as possible, we asked for the Speaker’s position in regard to his willingness to put the matter on the agenda of the Knesset as soon as possible, and no later that Wednesday, March 25, 2020 (see our decision of March 23, 2020). The Speaker responded this evening that he is of the opinion that the intervention of this Court in the discretion of the Speaker of the Knesset to set the agenda of the plenum and bring the matter of his election to a vote is a precedent-setting intervention in the political agenda and in his discretion that is improper at this time. He noted that due to the special circumstances, he is hard pressed to state a precise date, but that he intends to place the matter on the Knesset’s agenda when the political situation becomes clear.

15.       In summary – the Speaker’s continued refusal to allow the Knesset plenum to vote on the election of a permanent Speaker undermines the foundations of the democratic process. It clearly harms the status of the Knesset as an independent branch of government and the process of governmental transition, and this all the more so as the days pass since the swearing in of the 23^rd Knesset. Therefore, in these circumstances, there is no recourse but to conclude that we are concerned with one of those exceptional cases in which the intervention of this Court is required in order to prevent harm to our parliamentary system of government.

            I would therefore recommend to my colleagues that we issue an order absolute instructing the Speaker of the Knesset to convene the Knesset plenum as soon as possible for the purpose of electing a permanent Speaker for the 23^rd Knesset, and no later than Wednesday, March 23, 2020.

 

Justice Neal Hendel:

            I concur.

 

Justice I. Amit:

            I concur in the decisive opinion of my colleague the President, Justice E. Hayut.

1.         The timeframe is short, and I will, therefore, only add a few words on the issue before us, which will, no doubt, give academic scholars a broad basis for discussion.

Truth be told, we are treading constitutional paths that our feet, and those of our predecessors, have not yet trodden since the establishment of the State to the present day. The new reality, perhaps anomalous, that is suddenly upon us gives rise, by its very nature, to constitutional issues that have not yet been elucidated (my opinion in HCJ 3747/19 Aviram v. Knesset [7].

            The above was stated in regard to the 21^st Knesset, for which elections were held on April 9, 2019. A year has passed at a stroke and seems but a few days, and we now stand at the outset the 23^rd Knesset. In the year that passed, we witnessed two other rounds of elections, but the political instability remains as it was, and has even increased. The various rifts in society have broadened, and the legal and constitutional fog has thickened. And if that were not enough, we are in the midst of the rising storm of the coronavirus, whose consequences are still too early to foresee.

            We say this as a reminder that in difficult times we must attend to the rims and spokes of the carriage so they not fall apart. Particularly in this sensitive, difficult period, we must not undermine the very existence of the system, nor deviate from the written and customary rules of the game.

2.         Israel is a parliamentary democracy that employs a proportional, national system of elections that leads to a multi-party system. After the elections, the Knesset is sworn in, and normally it immediately activates its “operating system”. The parliamentary activity is primarily regulated by the Knesset Rules of Procedure. However, in the normative fabric of the Knesset’s activity, the Rules of Procedure constitute secondary legislation (see, e.g., HCJ 1843/93 Pinchasi v. Knesset [8], 712. For more on the status of the Knesset Rules of Procedure, see: Ariel Bendor, The Constitutional Status of the Knesset Rules of Procedure, 22 Mishpatim 571, 574 (5754) (Hebrew)). Thus, the Rules of Procedure are of a lower normative status than the Knesset Law, 5754-1994 (hereinafter: the Knesset Law), which, in turn, is lower that Basic Law: The Knesset. The strength and overarching status of sec. 20(a) of Basic Law: The Knesset stand above sec. 2(b) of the Knesset Rules of Procedure, which also suffices in establishing the latest date for electing the Speaker of the Knesset (“no later than the date on which the Knesset convened for the purpose of establishing the Government”). The drafter of the Rules of Procedure allowed for postponing the election of the Speaker to this late date, but certainly did not intend to frustrate the election of the Speaker earlier than that date,

3.         In its plain meaning, democracy is “majority rule”. However, majority rule is not omnipotent. In the area of legislation, majority rule is subject to limitations deriving from the need to preserve the fundamental rights of people and citizens. In parliamentary activity, majority rule cannot trample the rights of the parliamentary minority (see, in detail, Yigal Marzel, The Constitutional Status of the Parliamentary Opposition, 38 Mishpatim 217 (2008) (Hebrew)). This is the source of the Court willingness to review even “internal” decisions of the legislature in order to protect the right of the minority, despite the judicial restraint that it exercises in regard to intervention in Knesset decisions.

            In various legal fields, the legislature protects the majority against tyranny of the minority (see, e.g., the Land Law, 5729-1969, sec. 30(b), which allows the majority owners of common property to make any decision in regard to the administration and normal use of the property, and sec. 159(a) that permits two-thirds of the apartment owners to decide upon the installation of an elevator on the common property). The present petitions entangle this Court in a situation that was not previously imagined. The political “market forces” did not do their job, and the Petitioners ask the Court to extend relief to the Parliamentary majority and protect the institutional, “core” right of the majority to realize its rights. The harm to the parliamentary majority that seeks to elect a Speaker of the Knesset who “in the fulfilment of his duties represents all the factions of the Knesset and stands at the head of the Knesset” (HCJ 2704/07 Movement for Governmental Fairness v. Knesset Committee, [9]) hereinafter: the Movement for Fairness case) constitutes harm to the fabric of democratic life and to the fundamental structure of our parliamentary regime (HCJ 652/81 Sarid v. Speaker of the Knesset [2], 204).

4.         My colleague the President quoted the Speaker in his own words, in para. 11 of her opinion, the explanation the Speaker offered for his refusal to put the election of a Speaker of the 23^rd Knesset on the agenda, and in greater detail, his position that the matter would frustrate the establishment of a unity Government. Sometimes, political coalition considerations in the election, appointment or removal of some Member of Knesset or another are legitimate, internal parliamentary considerations in which this Court will not intervene (the Movement for Fairness case, para. 7). That is not so in regard to the political consideration that moved the Speaker in this case – which is contingent upon the hope for the establishment of a unity Government. This consideration is not relevant (and speaking for myself, I had difficulty understanding the causal connection between the election of a Speaker and frustrating the possibility of establishing a unity Government). The Government is one thing, and the Knesset is another. One touches upon the other, but they remain separate branches. We shall return to fundamental principles – the Government draws its vitality from the Knesset, and not the reverse. All the more so, a Government that has not yet formed cannot control the Knesset and order it to “cool its engines” until it is formed, if at all.

5.         At this point, we arrive at the fear expressed by the Knesset Legal Advisor of electing a “contrarian” Speaker, if it should transpire that his faction will be part of the opposition. But we have already learned that between certain and perhaps, certain is preferred.[2] Opposite the fear that perhaps there may be a situation in the future of a “contrarian” Speaker, stands the certainty that the present situation, in which the majority is improperly prevented from exercising its parliamentary power.

6.         The Speaker’s argument, supported by the Likud faction, is that the authority to decide upon the Knesset’s agenda and the dates of its sessions stands at the core of the Speaker’s discretion, as a clearly internal parliamentary matter that this Court should not address (and compare HCJ 4064/95 Porat v. Speaker of the Knesset [1], 179).

            I am not of that opinion. The present petitions do not concern some “regular” decision that a party wishes to bring to put on the Knesset’s agenda (on the Court’s refraining from ordering the Knesset to put certain legislative bills on its agenda, or refrain from doing so, see, for example: HCJ 1179/90 Ratz Faction v. MK Ovadia Ali [10]; and see the many examples in Rubinstein & Medina, 238 fn. 275 (6^th ed. 2005)).

            The present decision is of an entirely different type. We are concerned with a “royal” decision that concerns the election of the mover and shaker of the Knesset’s activity, who conducts the parliamentary orchestra with stateliness. This Court’s intervention is required in order to allow the parliamentary majority to realize its right to elect the Speaker. From here on, the Knesset institutions will act according to their wisdom, in accordance with the rules established in the normative fabric mentioned above (Basic Law: The Knesset, The Knesset Law, and the Knesset Rules of Procedure). Our judgment is not a form of intervention, and is not, Heaven forfend, a “takeover” of the Knesset’s agenda, but merely a buttressing of the status of the Knesset as an independent branch of government, separate from the Government, and a fortiori from an interim government over the course of three rounds of elections.

 

Justice U. Vogelman:

            Section 20(a) of Basic Law: The Knesset establishes that the Knesset shall elect a Speaker from among its members. A majority of the Members of Knesset request that the Knesset be convened to elect a Speaker. Section 2(b) of the Knesset Rules of Procedure establishes the latest date for the election of a Speaker – no later than the day on which the Knesset convenes for the purpose of establishing the Government. Is the Speaker of the Knesset permitted to exercise his authority to set the agenda of the of the Knesset, by virtue of sec. 25 of the Rules of Procedure, in a manner that would prevent proceedings for the election of the Speaker, due to his view that putting the matter on the agenda before the conclusion of attempts to form a unity Government would harm the efforts to achieve that goal? Do these circumstances constitute a cause for the intervention of this Court in the exercise of the Speaker’s authority to set the agenda of the Knesset plenum? These are the questions presented for our decision.

            I concur in the detailed opinion of my colleague President E. Hayut and her conclusions.

            The criterion for judicial review of decisions of the Speaker of the Knesset are well known. As has been held: “The authority to set the agenda of the Knesset and the dates of its sessions is given to the Speaker of the Knesset. This is clearly an ‘internal parliamentary’ matter. This Court does not exercise its authority in a matter such as this except in special cases in which there is a fear of harm to the fabric of democratic life” (HCJ 4044/95 Porat v. Speaker of the Knesset [1], 179).

            The authority to set the Knesset’s agenda allows for arranging “internal parliamentary” life, while addressing the quantity and substance of the subjects before the Knesset. This authority to arrange is not authority to ignore a request by a majority of the Members of Knesset to carry out a statutory procedure required by a Basic Law due to a conceptual or political view held by the acting Speaker. In a situation in which a majority of Knesset Members request to hold an election for the office of Speaker in the framework of sec. 20(a) of Basic Law: The Knesset, the election process should be permitted to proceed without delay, and it should not be frustrated by reason of the acting Speaker’s view that electing a Speaker will harm the attempt to form a unity Government. This all the more so in circumstances of an acting Speaker who holds office by virtue of a continuity provision (and who was also not elected by the 22^nd Knesset). The authority entrusted to the acting Speaker does not permit him to refrain from placing the matter of the election on the Knesset agenda, and the manner of exercising it in the said circumstances inflicts real harm to the fabric of democratic life by not permitting the majority of Knesset Members to carry out a procedure anchored in Basic Law: The Knesset, and that is required by the election of a new Knesset.

            In my opinion, as well, the intensity of this harm grounds a cause for an order absolute, as recommended by my colleague the President.

 

Deputy President H. Melcer:

1.         I concur in the opinion of my colleague the President, which – due to time constraints – constitutes “a little than can hold a lot” [Midrash Rabba 5]. Nevertheless, I would like to add a few comments, inasmuch as the petitions before us raise important, unique issues that have not been addressed previously in Israeli constitutional law.

            I will, therefore, focus, with the necessary brevity, upon the relevant principles of constitutional law and in comparative law, and by reference to a prior case that has implications for the matter before us.

            The Knesset, which is one of the three, classic branches (the legislature, the executive, and the judiciary), has properly had its status anchored in Basic Law: The Knesset, which was the first among the Basic Laws constituted by the Knesset (see: Amnon Rubinstein & Raanan Har-Zahav, Commentary on Basic Law: The Knesset (in the series Commentary on the Basic Laws, (Itzhak Zamir, ed., 1993), pp. 25-28 (hereinafter: Rubinstein & Har-Zahav) (Hebrew)).

            This is not the place for a survey of all of the functions of the Knesset and its powers, but it can be said, in general, that three primary roles were reserved to the Knesset:

1. Primary legislation.
2. Oversight of the functioning of the Government.
3. Its role as constituent assembly.

(see: Rubinstein & Har-Zahav, pp. 29-30).

3.         Since the dissolution of the 20^th Knesset and up to now, following the elections for the 23^rd Knesset – the Knesset has barely exercised its legislative authority (not to mention its role as constituent assembly), and in practice, what it was supposed to do was to oversee the functioning of the Government, which, since the dissolution of the 20^th Knesset, has become what is termed an “interim government”.

4.         The events that led to the petitions before us (and the petitions that preceded them and remain pending in HCJ 2109/20, 2135/20, and 2141/20) demonstrate the possibility of the Knesset being paralyzed, in practice, and unable to properly exercise even the said oversight authority.

            Such a state of affairs is unacceptable, inasmuch as when an “interim government” is serving, which suffers form a “democratic deficit” (inter alia, because a no-confidence motion cannot be brought against it), the oversight functions of the Knesset should intensify, if only by virtue of the general duty of confidence that the Government owes the Knesset by virtue of sec. 3 of Basic Law: The Government (see: Rivka Weill, Twilight Time: On the Authority of Caretaker Governments, 13 Mishpat UMemshal 167 (2010) (Hebrew) (hereinafter: Rivka Weill); Yigal Marzel, The Government’s Duty of Confidence to the Knesset, in Fiduciary Duties in Israeli Law (Ruth Plato Shinar & Joshua Segev, eds.) 135, 200-205 (2016) (Hebrew) (hereinafter: Yigal Marzel)).

5.         If every “interim government” suffers from “democratic deficit”, an “interim government” after elections suffers from the most severe deficit, inasmuch as the voters have had their say (see: Rivka Weill, p. 176). In such a case, the Knesset, which under sec.1 of Basic Law: The Knesset is the house of representatives of the state, should oversee the “interim government” more closely, and act in accordance with the will of the majority of its members, while respecting the rights of the minority.

6.         Therefore, the question before us is whether the acting Speaker, who holds his office only by virtue of the continuity principle under sec. 20 of Basic Law: The Knesset, is permitted – after the elections – not to put on the agenda a motion by 61 Members of Knesset to elect a new Speaker.

7.         The Speaker is of the opinion that the matter falls within the scope of his discretion to set the agenda for Knesset sessions, and he is allowed to refuse such requests of him by virtue of sec. 2(b) of the Knesset Rules of Procedure until such time as the Knesset convenes to establish a Government, as stated in sec. 13 of Basic Law: The Government (in the 22^nd Knesset, this period continued though the entire term). In this regard, he argues, as a reason for the delay, that the need to form a unity government might be harmed, in his view, if a Speaker were elected now.

8.         As opposed to this, the Petitioners are of the opinion that such conduct is undemocratic, hampers the Knesset’s activity that the Speaker is supposed to direct, particularly at this special time when urgent legislative and oversight actions are required in regard to the corona problem that has befallen us, and conjecture that the current Speaker is acting on the basis of personal considerations (the fear that he might not be reelected).

9.         It would seem to me that the attempt to frustrate the will of the majority of Knesset Members to bring about the election of the Speaker immediately does not meet the legal tests.

            This is correct in principle, as explained by my colleague the President in her opinion, and my other colleagues, and is particularly correct at present, when the Knesset is required to act energetically in its legislative and oversight roles, and the Speaker is the one who must navigate its activity. It also violates the tradition of a proper transfer of governance, when necessary.

            A comparative law examination also leads to this result, as I will immediately address.

10.       In Great Britain, on the eve of Brexit, the Prime Minister sought to prorogue Parliament (from Sept. 9, 2019 to Oct. 14, 2019) so that it would not prevent him from completing the separation process from the European Union that he wished to advance (which was meant to end on Oct. 31, 2019). He therefore turned to the Queen (who holds the authority to order such a suspension), and she agreed, on the basis of the representations of the Prime Minister.

            Various opponents of that suspension, among them Members of Parliament, filed petitions against the suspension to the Supreme Court of the United Kingdom. An expanded bench of the Supreme Court held, per President Lady Hale and Deputy President Lord Reed, that there was no authority to prorogue Parliament (beyond the recess periods, which do not halt all Parliamentary business) (see: R. v. The Prime Minister; Cherry v. Advocate General for Scotland [15] (hereinafter: R. v. Prime Minister). This affair is similar to our own (although not identical, inasmuch an Arrangements Committee was appointed, and other temporary committees are meant to be established), and the reasons given there are appropriate here, as well.

11.       In the United States, impeachment proceedings are held before the Senate, and by virtue of the American Constitution, the Chief Justice presides, rather than the Vice President who usually presides over the Senate. The main reason for this is the inherent conflict of interests of the Vice President in this regard, as he has a personal interest in the outcome of the proceedings (see: Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By, 5-13 (2012); and further see my opinion in HCJ 3132/15 Yesh Atid v. Prime Minister [11]).

12.       The Knesset Legal Advisor was of the opinion that the immediate election of a Speaker might lead to a “governance problem”. Past experience would seem to demonstrate otherwise, and the example that will be presented below actually encourages the independence of the Knesset and the required checks and balances.

            Once upon a time (and as we know, in constitutional law, past events – even if they were not presented for a decision by the Court—constitute persuasive precedents):

After the death of Speaker of the Knesset Yosef Sprinzak, in January 1959 (who served as Speaker since the establishment of the Knesset), the then ruling party (Mapai) sought to elect a member of that faction, Knesset Member Beryl Locker, to replace him. The leader of the opposition at the time, Member of Knesset Menachem Begin, together with his colleague Dr. Yohanan Bader, recommended that Member of Knesset Dr. Nahum Nir-Rafalkes of the Ahdut Ha’avoda party, who was an experienced and respected parliamentary jurist (and a member of the Mapai coalition) submit his candidacy for the office for the duration of the third Knesset, and he agreed. There was a contest, and in the end, the “Nir Coalition” won with the 53 votes of Herut, The General Zionists, Ahdut Ha’avoda, Mapam, The National Religious Party, and The Israeli Communist Party, while the Mapai candidate, MK Beryl Locker, received only 41 votes (The Progressive Party, which held seven seats, abstained).

Since then, the term “Nir Coalition” has become an idiom that describes a positive phenomenon in Israeli constitutional law, because that coalition proved that it was possible to nominate a candidate who was not acceptable to the ruling party, bring about his election, and advance the independence of the Knesset (see: Danny Koren & Boaz Shapira, Coalitions: Israeli Politics: 50 Years – 100 Events, pp. 37. 257-258 (1997) (Hebrew); Uri Yizhar, Between Vision and Power: The History of the Ahdut Ha’avoda-Poalei Zion Party, pp. 270-271 (2005) (Hebrew)).

13.       Moreover, on a different note, the reason expressed by the Speaker to justify his position is given (if at all) to the person assigned to form the Government (whose faction is among the Petitioners), and not to the Speaker in his role as Speaker.

14.       In view of all the above, intervention is required here, as it was in Great Britain in R. v. Prime Minister, for without it “the fabric of democratic life” and “the fundamental structure of our parliamentary regime” will be undermined, in the sense of the exceptions set forth in HCJ 652/81 Sarid v. Speaker [2].

15.       I can but conclude with the hope that the lessons will be learned, and that we will not have to address petitions of this sort in the future.

 

            It is therefore decided as stated in the opinion of the President to make an order absolute instructing that the Speaker of the Knesset must convene the Knesset plenum as soon as possible, for the purpose of electing a permanent Speaker of the 23^rd Knesset, and no later than Wednesday, March 25, 2020.

            Given this day, 27 Adar 5780 (March 23, 2020).

 

 

Supplementary Judgment

(March 24, 2020)

 

President E. Hayut:

Pursuant to our decision of March 22, 2020, we were today presented with an updated notice by Respondents 1-2.

As explained there, on March 23, 2020, the Knesset plenum decided upon the establishment of an Arrangements Committee. That committee convened and decided upon the establishment of a temporary Foreign Relations and Security Committee, as well as the establishment of a temporary Finance Committee, and a recommendation for establishing four additional, special committees was put before the Knesset plenum.

It was further explained that the Arrangements Committee held its first full session, using a communications and television system, and maintaining appropriate seating distance, and an opinion by the Knesset Legal Advisor on the subject of conducting debates and voting in the Knesset committees and the Knesset plenum during the period when the coronavirus restrictions are in place was appended.

            In view of the details in the updated notice, the hearing on the said subjects is no longer required, and the petitions in that regard are dismissed without an order for costs.

            Given this day, 28 Adar 5780 (March 24, 2020).

 

 

Judgment and Decision

(March 25, 2020)

 

President E. Hayut:

1.         In the partial judgment we issued on March 23, 2020, in five of the petitions in the heading, we decided to grant an order absolute instructing Respondent 1, the acting Speaker of the Knesset, to “convene the Knesset plenum as soon as possible, for the purpose of electing a permanent Speaker of the 23^rd Knesset, and no later than Wednesday, March 25, 2020”.

2.         Today – March 25, 2020 – at 11:00, at the beginning of the Knesset’s plenary session, Respondent 1 gave notice that he is resigning his position and adjourned the session. Pursuant to that move, the Knesset Legal Advisor notified us that he had informed Respondent 1 that under sec. 5(a)(2) of the Knesset Rules of Procedure, his tenure will end 48 hours after his letter of resignation was placed before the Knesset or submitted to the Knesset Secretary. The Knesset Legal Advisor further pointed out in his notice to the Speaker of the Knesset that “his resignation at this time does not affect his obligation to carry out the Court’s order …”, and that “the Speaker of the Knesset informed the Knesset Legal Advisor that he does not intend to put the matter of electing a permanent Speaker of the Knesset on the agenda of the Knesset plenum today”.

            By this conduct, the Speaker of the Knesset violated the order absolute as stated in the judgment.

3.         The Petitioner in HCJ 2145/20 filed a request under the Contempt of Court Ordinance, petitioning the enforcement of the partial judgment, and to grant every remedy as the Court shall see fit (hereinafter: the contempt request). The Petitioners in HCJ 2171/20 and HCJ 2169/20 joined that request, while the Petitioner in HCJ 2144/20 filed a new petition (HCJ 2252/20 – hereinafter: the new petition) for  declaratory relief establishing that in view of the conduct of the Speaker of the Knesset and his violation of the order, his tenure ended immediately, and that under the circumstances created, sec. 5(a)(2) of the Knesset Rules of Procedure doed not apply. The Court was further asked to declare that the veteran Member of Knesset be appointed as Speaker of the Knesset until the election of a permanent Speaker, and that the Knesset plenum convene today for the purpose of deliberating the election of a permanent Speaker. In the decisions given after the submission of the contempt request and the new petition, the parties to all the petitions were asked to submit their responses to these proceedings, and after collecting all the responses received (with the exception of the Likud faction, Respondent 4 in HCJ 2144/20, which chose no to respond), we called an urgent hearing of the contempt request and the new petition, which was held this evening at 8:00. All the Respondents presented themselves, with the exception of Respondent 1, who informed the Court by means of the Knesset Legal Advisor that he wishes to suffice with the written response he submitted, and with the exception of the Likud faction, whose attorney, Advocate Halevy, informed the Court that he received notice of the hearing in a telephone call at about 6:30, and in view of the timetable set, and in view of his location when he received the notice, he would be unable to attend the hearing. The Respondents in the new petition agreed to conduct the hearing as if an order nisi had been granted.

4.         Respect for the rule of law is the cornerstone of every democratic regime, and it is proven, inter alia, by obeying judicial decisions and orders. This duty to comply is imposed upon the entire population, and the organs of government are not exempt. On the contrary, those authorities have a far greater duty to obey judicial decisions and orders, and Israeli law, in the entirety or its arrangements in this regard, adopted the accepted approach of the Common Law that grants a presumption of regularity to the organs of government. The assumption grounding that presumption is that a judgment issued against the state will be carried out appropriately (Uri Aharonson, Non-Compliance with Decisions of the High Court of Justice as an Institutional Failure: A Proposal for Judicial Enforcement, 19 Mishpat UMemshal 1271, 1285 (2016) (Hebrew)). This Court addressed the dangers inherent to the non-compliance of governmental agencies with judicial orders, stating:

A state in which the state authority takes the law into its own hands – complying with a judicial order against it if it wishes to, and ignoring it if it does not – is one in which the seeds of anarchy and mayhem are being sown, and which is developing a dangerous culture of the rule of force and arbitrariness.  A state authority is a fiduciary of the public, and “has nothing of its own” (HCJ 142/70 Shapira v. Bar Association District Committee [12], at p. 331).  As such, it should serve as a beacon for respect of the law and the rule of law.  The eyes of the public are raised to the state authorities and public office holders.  Respect for the values of law, and development of a tradition of protection of the value of the rule of law are influenced by their conduct.  Disobedience of the law and non-compliance with judgments by a state authority involve a deep moral violation not only of the formal infrastructure of the foundations of the law and the regime, but also of the core of the tradition and the culture of proper government, that serve as an example of appropriate conduct of the individual in society (HCJ 4805/07 Center for Jewish Pluralism v. Ministry of Education [13], 602-603 [para.35]).

            While we have, indeed, known instances in which governmental authorities “dragged their feet” in carrying out court orders, as well as instances in which they did not comply with such orders due to claims of difficulty in their implementation or enforcement, or due to the need to make preparations. But until today, never in the history of the State has any governmental office openly and defiantly refused to carry out a judicial order while declaring that his conscience does not allow him to comply with the judgment. That is what Respondent 1, who is one of the symbols of government (even though he currently holds his office by virtue of the continuity rule, without being elected) chose to do, and the harm of his conduct to the public interest in preserving the rule of law and compliance with judgments and judicial orders is immeasurably severe. If that is how a person of authority behaves, why should a common citizen act differently? (see and compare: HCJ 4742/97 Meretz v. Minister of Religious Affairs [14], para. 6). This question resounds in its fullest force particularly in these difficult times in which we are contending with the coronavirus outbreak, when citizens are required to comply with the unprecedented orders and restrictions imposed upon them, inter alia, by virtue of emergency regulations.

5.         We cannot be reconciled to such a situation, and an unprecedented violation of the rule of law requires unprecedented remedies. In the course of today’s hearing, the Knesset Legal Advisor noted that the legislature and the drafters of the Knesset Rules of Procedure did not foresee a situation like the one created by the resignation of Respondent 1, especially in the absence of a deputy to act in his stead. He presented a possible path according to which the lacuna in this regard in sec. 20A(c) of Basic Law: The Knesset and in the Knesset Rules of Procedure could be filled by this Court’s exercising its authority under sec. 15 of Basic Law: The Judiciary, and ordering that in order to ensure compliance with the judgment of March 23, 2020, the most veteran Member of Knesset be granted limited, defined authority as follows:

(1)        To apply to the Arrangements Committee, by virtue of sec. 19 of the Knesset Rules of Procedure, for the purpose of convening the Knesset plenum tomorrow, Thursday, March 26, 2020, even though it is not a day that the plenum convenes under the Rules of Procedure;

(2)        To set the agenda for that session, by virtue of sec. 25 of the Knesset Rules of Procedure, and include the motion for the election of a permanent Speaker of the Knesset;

(3)       To preside over that session.

            All the parties to the hearing expressed their consent to the recommended path.

6.         The Knesset Legal Advisor further noted that in preparation for the hearing, he had spoken to Member of Knesset Amir Peretz, who is the most veteran Member of Knesset, who agreed to act in accordance with the said path as may be decided, and this was also confirmed by Advocate Segev, who represents the Labor-Meretz faction in HCJ 2171/20.

7.         Therefore, we hereby grant an order as stated in para. 5, above. To avoid any doubt, we would emphasize that this order shall remain in force even if Respondent 1 decides to withdraw his resignation.

            Given this day, 29 Adar 5780 (March 25, 2020).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

when the latter was compelled to leave the country and go to Damascus because of Government displeasure.

It was later ruled that in non-judicial matters where it was necessary "to safeguard religious matters when people are urging a departure from sctj.ptural behest and it is essential to set up a fence...all acknowledge that the power lies in a majority  as such to make such  amendments as they deem the situation to require for good public ordering" (Responsa of Maharik, Root 180). And I dare to think that from the point of view of the litigants before  us this formulation  attaches  to  the  question of the election of the Rabbinical Council of present day Israel. It is a religious affair and this generation urges departure from the scriptures, and if the majority as such does not act nothing will be done.

In addition, it is decided law that where a regulation exists that the majority view is to be followed-as it exists in the Election Regulations in respect of the Electoral Committee-"let what the majority decide even without the participation of all be valid and subsisting" (Responsa of Rashdam, Yoreh Deah, 151). In another Responsum  authority is  to be found for the view that if after agreement has been reached on a matter "some die and some move away, the agreement persists" and whatever is done thereafter is valid and subsisting,  although  some are absent (Responsa of Mabit, op. cit.) and in fact there is no alternative, since otherwise a community will never agree upon anything if the power remains in the individual to nullify the agreement  (Responsa of Rosh, Rule 6, Article 5).

In my opinion the orders nisi should be discharged.

 

Orders nisi discharged. Judgment  given on August  29, 1960.

 

 

 

 

 

 

 

 

 

 

 

 

 

139

 

In the Supreme Court

 

EA 1/65

 

Before:                                    President Agranat

                                    Justice Sussman

                                    Justice Cohn

           

 

Yaakov Yeredor

 

                        v.

 

 

Chairman of the Central Elections Committee for the Sixth Knesset

 

 

 

 

 

Judgment

 

Justice Cohn:

1. This appeal comes before us pursuant to section 24 of the Knesset Elections Law, 5719-1959 [13 L.S.I. 121], which states as follows:

(a)  Where the Central Elections Committee has refused to confirm a candidate’ list…it shall, not later than the 29^th day before election day, notify the same to the representative of the list and his deputy, and they may, not later than the 25^th day before election day, appeal to the Supreme Court against such refusal.

(b)              The Supreme Court shall hear an appeal under this section by three Judges, and its judgment shall be final. The judgment shall be served on the Central Committee not later than the 20^th day before election day.

According to section 66A of the Law [13 L.S.I. 157], “In a year in which the elections to the Knesset take place on the first Tuesday in the month of Cheshvan” then in section 24(a)  the 35th day should be read instead of the 29th day, the 28th day should be read instead of the 25th day, and in section 24(b) the 21st should be read instead of the 20th day.

2. On the 3rd of Tishrei 5726 (September 29, 1965), the Chair of the Central Elections Committee wrote to the representative of the “Socialists’ List” as follows:

I hereby notify you that in its meeting today, the Central Elections Committee for the Sixth Knesset refused to confirm the Socialists’ List because this list of candidates is an unlawful association inasmuch as its initiators deny the integrity of the State of Israel and its very existence.

According to section 24(a) and 66A of the Knesset Elections Law, 5719-1959, you may appeal this refusal no later than the 28th day before election day, that is not later than October 5, 1965, to the Supreme Court.

3. In the sixth meeting of the Elections Committee, on September 16, 1965, the Committee Chair said the following about the “Socialists’ List” (hereinafter: the List) (among other things that are  not relevant to this appeal):

This list has ten candidates. As it turns out, five were members of an organization that was declared an unlawful association by the Minister of Defense. These candidates are: Salah Baransa and Habib Quagi, who are the first two candidates on the list; Ali Raffa, who is the fifth candidate on the list, and the last two are Muhammad Abd Al Hamid Muari and Mansur Kardosh. I think that the third one on the list, Sabri Elias Jerias, is also among them. These are people who were previously in the El Ard group. That group attempted to register as an association under the Ottoman Associations Law and the application was denied by the District Commissioner. They turned to the Supreme Court, and it, too, rejected their request and held that they were a group whose purposes harm the existence of the state and its territorial integrity. Thus, their request was denied by the Supreme Court as well (the decision was published in IsrSC 18 (4) 673). Additionally, a declaration by the Minister of Defense was published in the Official Gazette pursuant to Regulation 84(1)(b) of the Defense (Emergency) Regulations 1945, in which the Minister of Defense declared: “The association known as the El Ard Group or the El Ard Movement, and whatever its name may be from time to time, as well as an association incorporated as El Ard Ltd., including an association created by a common action of shareholders in the above company or any part thereof, are an unlawful organization.” Here I must add that prior to the request to associate under the Ottoman Association Law, there was another request to the Companies Registrar to register a stock corporation under the name of the El Ard Company Ltd., and the Companies Registrar refused to register it. They then turned to the Supreme Court, which ordered the registration of the company. The declaration by the Minister of Defense applies to this organization as  a limited liability corporation, as well.

These are the facts I wish to provide to you at this point. And as I understand it, the question will ultimately be whether this list must be confirmed or not. The purpose of today’s discussion, as far as I understand, is for you to consider these facts that I have presented today, and should it be decided that this list is expected to be rejected, I understand that it is the duty of plenum to invite this list’s representatives to appear before it so that they can voice their arguments against the rejection…” (p. 5-6).

In the course of discussing this notice, one of the committee’s members said that: “The group received encouragement from the broadcasts of Cairo radio. If it is possible, I would ask that we be supplied with copies of those broadcasts. One of the pieces of advice they received from Cairo radio was to secure diplomatic immunity so that they will not be harassed” (p. 14.) The Chair responded to this by saying he was willing to distribute the material among the committee members. He added as follows:

I believe that this committee has judicial authority. Basic Law: The Knesset has been mentioned. Basic Law: The Knesset includes section 6, which says that every Israeli citizen who, on the day of submitting a list of candidates which includes his name, is aged 21 years or older, shall have the right to be elected to the Knesset unless a court has deprived him of that right by virtue of law. I bring the matter to your attention and each of you may use it to the best of your understanding (ibid.)

At the end of the meeting it was decided to invite the list’s representatives to explain to the committee why the list should not be rejected (inter alia) by reason of the fact that “the list and the group of candidates should be deemed an unlawful organization and thus should not be confirmed” (p. 16).

4. On September 24, 1965, at the seventh meeting of the Elections Committee, the Petitioner appeared before the Election Committee as the list’s representative. The Committee Chair addressed him as follows:

…I would like to explain to you, sir… in general terms, what the issue is. The Committee believes that it has material that prima facie shows that the initiators of this list are members of El Ard, and an examination of the names reveals that six of the candidates were incorporators of the El Ard Company (reads the names.) We are aware of the declaration by the Minister of Defense, published in the Official Gazette 1134. In addition, the Committee was presented with the Supreme Court’s decision in the matter of El Ard v. District Commissioner in HCJ 253/64. I refer you, sir, to that section in the Ottoman Associations Law discussed in the decision, section 3, along with the definition of ‘Association’ in section 1 of the Law. This was the material that prompted the Committee to invite you, sir, to present your arguments (p. 27).

The Petitioner referred the Committee to section 6 of Basic Law: The Knesset, and claimed that “no law grants the Elections Committee the power to deny any citizen his right to be elected to the Knesset due to the list being an unlawful association… No court decision under section 6 of Basic Law: The Knesset has ever denied the right of any of the candidates on this list to be elected…” (p. 28.) The Petitioner went on to address the list’s purpose, stating:

This list wishes to eliminate the phenomenon of “goy shel shabbat”[1] in the Jewish parties, which support equality for the Arab people and granting full opportunity to the Arab people, and to express solidarity and partnership – including within the territory of the State of Israel – with the waves of national liberation in the Middle East to the same extent that the Jewish people in this land demanded and achieved this right, and all this to the benefit of the State. From a public perspective, rejecting the list means denying the Arab people who live in Israel the ability to voice its position on the matters most sensitive to it in the only forum that would permit it to express itself freely. Logic requires that Arabs be permitted to reach the Knesset through an independent Arab list, which would prevent irresponsible elements from improperly discussing such things as various kinds of undergrounds. I summarize and repeat that there is no significance, in terms of the laws that govern the activity of this esteemed Committee, to anything prior, to the character of any association. We are concerned here with the right to be elected, the right to nominate candidates, and this right was not revoked anywhere, by any declaration, by any judicial decision, and – with all due respect –  this Committee does not have the power to revoke any of these rights (ibid.).

5. In its eighth meeting, on September 9, 1965, the Elections Committee held a full, comprehensive discussion of this matter. After the committee members expressed their opinions, the Chair of the Committee expressed his opinion at length, and since the learned Attorney General adopted this position of the Committee Chair for the purposes of his arguments before us, I will present the excerpts of his speech that address the legal question in dispute, as they were recorded in the minutes, as follows:

Of course we consider this question within our judicial authority. The matter before us is by its nature a legal question… (p. 24).

We do not sit here as a court, and therefore we do not require evidence as a court would require according to the standards of evidence law. We may be satisfied with less that that which would meet the criteria of legal proceedings in court. And the Supreme Court, I believe, would put itself in the shoes of this Committee when it comes to consider the factual questions related to the legal decision. Indeed, the matter is very serious, because, as was rightly stated here – if we reject this list, we might ask, where does this end? However, our role is to set the boundary according to legal considerations, and determine where it ends. In my opinion this limit can and must be set… (ibid.).

… An association is not only a registered association or one that which wishes to register, but it is defined in the most broad terms in section 1 of that law (the Ottoman Associations Law) as a body composed of several people who join… their knowledge or activity in order to achieve a purpose that is not the division of profits. This is a very broad definition, and it applies to those people who wished to register the El Ard Association. And I say that in the absence of any evidence before us to the contrary, it applies to these people today as well… In my opinion, the association that we must view here is not the 750 signatories to the list, but they are the 10 candidates. After all, according to the law, each of the candidates must give written consent to being a candidate. It must be assumed that they consent to being a candidate after looking into whom they join on the list. Well, there is here that consent by these ten people, which is addressed in the first section of the Ottoman Associations Law. I myself am satisfied, according to the material before us, that the initiators of this list of candidates are the same El Ard Group that made previous attempts to organize… and later the Minister of Defense, in his declaration… turned the group of the incorporators of the stock corporation into an unlawful association under the Defense (Emergency) Regulations of 1945, along with any part of this group. However, the declaration is only an accessory tool in my conclusion. The foundation, in my view, is section 3 of the Associations Law. And here I have no  difficulty in setting the boundary between this list, whose purposes were defined in its memorandum, of which parts were cited by the Supreme Court in its opinion, and other groups who wish to change the internal constitutional regime in the country (p. 25).

I see a great difference, as the distance between east and west, between a group of people that seeks to undermine the very existence of the state, or in any event its territorial integrity, and a party that recognizes the political entity of the State but only wishes to change its internal regime. The question asked here was, what will tomorrow bring were we to apply this section against other parties. I do not know of another party in the state against which I could apply that section…. (p. 26).

… I would like to say that Basic Law: The Knesset does not at all address the issue with which we are concerned here. It addressed the individual ineligibility of a candidate, while we are talking about the barring of a list as an association. When we consider our legal regime as a whole, we are permitted to read both Basic Law: The Knesset, and certainly the Knesset Elections Law together with the Associations Law, and we may read into the Knesset Elections Law a general rule that an illegal association may not be approved as a list… (ibid.).

… I say that we must add to the conditions detailed in the Law an implied condition according to the same rule of contract law that asks what a bystander would say were he asked this question as to whether a condition should be read into a contract entered into by the parties although not detailed in the agreement, and  if his response would be that it is obvious, then it is permitted to read an implied condition into that contract. In the same way we must analogize here the interpretation of the Law. I now wish to remind you of a different idea, again from contract law: the idea that ex turpi causa non oritur actio – no cause of action can arise from unlawful or immoral conduct. This is also not written in any statute, but we read this into every contract, although we have statutory contract laws. I believe this Committee, in its judicial approach, must follow that same path and find that a list that is unlawful in the sense that it denies the very existence of the state must not be confirmed, for the same reasons explained in the Supreme Court’s decision, because a body that objects to the very existence of the State must not participate in the Knesset, which is the sovereign institution in the State – the institution that gives expression to the people’s will. As was said in the decision, democratic ideas must not be used in order to undermine that same democratic regime. These are fundamental ideas of our constitutional regime, which we are permitted to read into the provisions of the Knesset Election Law (p. 27).

6. I agree with the honorable Chair of the Elections Committee that the question before the Committee, and that is now before us, is an extremely serious, constitutional question, and the fact that the Law mandates that we hand down our decision within four days, including the Sabbath and a holiday, does not make our difficult task easier. I have been greatly assisted by the members of the Committee, whose statements in the course of the debate held by the Elections Committee shed light and clarify the problem in its many aspects, each one according to his approach and view – and particularly by the comprehensive, clear opinion by the honorable Chair, some of which I have presented above, and following which I will discuss all the questions arising here, according to the order that he set for himself. I will first say that from a factual standpoint, we will not examine the Committee’s finding that the candidates on this list are indeed the members of the El Ard group, which is an unlawful association, whether according to section 3 of the Ottoman Associations Law, or Regulation 84 of the Defense (Emergency) Regulations  1945, or the two statutes taken  together. And in this context it is irrelevant that not all the candidates on the list were active or known members of this group before, because – as the Committee Chair has said – once they decided to join one list and to cast their lot with the people of El Ard, they are presumed to have first examined with whom they were joining and for what purposes. Similarly, we shall not examine the finding of the Committee Chair that such illegality is, partially or fully, the result of the fact that the members of this group “undermine the very existence of the State, or in any event undermine its territorial integrity.”
7. The legal question before us is but this – does the Central Elections Committee have express or implicit legal authority to reject a list of candidates for the Knesset because it constitutes an “unlawful association”? But before I examine the law, I must say several things to clarify the question.

The Committee’s decision said, as we recall, that the list was rejected as an “unlawful association, because its initiators reject the integrity of the State of Israel and its very existence.” This means that merely being an unlawful association is insufficient. The “line” that the Committee Chair believes must be drawn is, it seems, the line that distinguishes between an unlawful association whose illegality is rooted in the undermining of the State or the integrity of its territory and an association that is illegal for other reasons. If indeed the provisions of section 3 of the Ottoman Associations Law must be read into the Knesset Elections Law, then we shall find that a list of candidates who object to “law and morality”, including a particular statue, or whose purpose is to “change the composition of the current government” or “influence the separation between the different races in the state” – are unlawful. And if indeed a list of candidates is an unlawful association in terms of the Ottoman Associations Law, I cannot see how the Elections Committee – assuming it is authorized to reject such a list for being an unlawful association – could approve such a list. But generally there is no dispute, and the honorable chair explained this to the Committee in no uncertain terms, that  lists of candidates who object to a particular statute and wish to repeal or amend it, or those who object to the composition of the current government and wish to change it, and the like – are fully eligible lists and rejecting them would be inconceivable.

Such is the case in regard to Regulation 84 of the Defense (Emergency) Regulations 1945. Under subsection 1(a), an association may be unlawful when it incites to violence against the government, for example. And under subsection 1(b) – the subsection according to which the members of this group were declared an unlawful association – the Minister of Defense is granted free discretion to declare a group of people as an unlawful association for any reason he sees fit.

As a result, the mere fact that a certain list of candidates is an unlawful association – be it under the Ottoman Associations Law or under the Defense (Emergency) Regulations 1945, is not deemed cause for rejection by the Elections Committee. The cause is that the unlawfulness is rooted in undermining the existence of the state or its integrity. However the cause that is at the basis of the Committee’s decision cannot in itself point to the authority of the Committee and the scope of such authority. It is possible that the Committee is authorized to reject a list for being an unlawful association, whatever the root of that unlawfulness may be, but that it does not choose to exercise this authority except in the case of a particular unlawfulness. Or it is possible that the Committee is not authorized to reject a list merely by reason of its being an unlawful association, but is authorized to reject the list when the relevant unlawfulness is undermining the existence of the state and its integrity. The honorable Chair of the Committee seems to have hinted at the first possibility when he proposed to read section 3 of the Ottoman Associations Law into the Knesset Elections Law. He seems to have hinted at the second option when he proposed that the Committee establish the mentioned distinction between lists whose candidates undermine the existence of the state and lists whose candidates only wish to change its internal regime.

I shall examine both options.

8. The authorities of the Elections Committee as to the approval or rejection of lists of candidates are set out in section 22 and 23 of the Knesset Elections Law. Section 22 establishes as follows:

Where a candidates’ list has been submitted otherwise than in accordance with the preceding sections, the Central Committee shall notify the representative of the list and his deputy of the defect not later than the 40^th day before election day, and such representative and deputy may correct the defect not later than the 34^th day before election day; where the signatories of a candidates list include a person who was not entitled to vote, this shall be considered a defect, but insufficiency of the number of signatories invalidates the list.

The “preceding sections” mentioned in this section are sections 18 through 21. Section 18 mandates that a list of candidates must be signed and submitted by 750 people who have the right to vote, or be submitted by an elected party of the departing Knesset. A list shall include the names, addresses and occupations of no more than 120 candidates who are “entitled to be elected” and whose consent to be elected was annexed to the list. A date for submitting the list to the Central Committee was also set. Section 19 establishes that any person may appear as a candidate on one list only. Section 20 requires those submitting the list to specify two people, one as the list’s representative and the other as the representative’s deputy. Section 20A requires depositing a sum of 5,000 Israeli Pounds, without which the Committee may not approve the list. And section 21 mandates that every list of candidates “bear a title and a letter, or two letters, of the Hebrew alphabet” in order to distinguish it from other lists.

      Should a list be submitted without complying with all of these instructions, then section 22 above applies. But what if a list has been submitted following all of these instructions correctly and in a timely manner? Then section 23 instructs as follows:

A candidates’ list duly submitted, or that was corrected in accordance with the previous section, shall be confirmed by the Central Committee, which shall notify the confirmation to the representative of the list and his deputy…

The arguments of the parties before us focused extensively on the interpretation of section 23 above. As one party’s argument goes “a list duly submitted,” means a list that was submitted “in accordance with the preceding sections”, as required by the legislative language of the previous section; whereas the other claims that “a list duly submitted” means a list that is not defective or ineligible under the rules, be it according to the preceding sections of the Knesset Elections Law or according to any other law. One party says “shall be confirmed” is the language of a categorical command, whereby the Elections Committee has no discretion as to the confirmation, and the other maintains that “shall be confirmed” means may confirm, and that this is not necessarily the imperative language.

I believe the Petitioner is in the right. Section 22 establishes what the Committee should do when a particular list was submitted improperly, that is, as it should have been submitted under the preceding sections, and section 23 establishes what the Committee should do with a particular list that was duly submitted, that is, as it should have been submitted according to the preceding sections. The emphasis is on the “submission”, both in section 22 and in section 23. The term “submission” points to the manner of making the list and submitting it, that is, to all the details in the said preceding sections. Should a list be found to be properly drafted and in accordance with all the provisions of the preceding sections as written, then the Law does not grant the Committee discretion to confirm or reject a list as it wishes. Rather, the Committee has only one path, and that is to confirm the list.

The learned Attorney General further argues that should section 23 not avail, there are additional, alternative sections in the Knesset Elections Law on which one may rely. Section 9(a) establishes that the Central Elections Committee is convened for the purposes of “conducting the elections” and conducting elections is like executing^[2] the law – it is a broad term that comprises all that concerns elections and includes all that is necessary and useful in preparing elections and executing them.  In support of this view, section 70 grants the Committee exclusive jurisdiction over “any complaints as to an act or omission under this Law”, and section 71 authorizes the Committee to issue directives “as to any matter relating to the preparation and conduct of the elections and the determination of their results”.

In my view, whatever the scope of these provisions – and I do not find it necessary to interpret them on this occasion – they cannot stand against the special provisions that treat of the submission and approval of candidates’ lists. They were drafted in plain language, and we must  interpret them as written.

This was, it seems, the opinion of the Committee Chair as well. He told the Committee as follows:

What is a list of candidates that was submitted properly? When I read this along with section 22, I believe that the answer I find within the framework of the Knesset Elections Law is: a list that meets the conditions detailed in the preceding sections. It does not say here, in the language of the Law, that the committee still has discretion. Rather, it says: will confirm it, after these conditions are met. Thus, here I see the seriousness of the legal problem… (Minutes from September 29, 1965, p. 26).

The emphasis, in Committee Chair’s statement is on the words “within the framework of the Knesset Elections Law”, and the question is whether there is some statute outside of the framework of the Knesset Election Law that authorizes the Elections Committee to reject a list of candidates.

9. If I correctly understand the position of the honorable Chair, he sees the Central Elections Committee as an authority with quasi-judicial authority (and certainly no one would dispute him on this), and just as a court, by the inherent authority vested in it by its very existence, would refuse to grant relief under an unlawful cause of action or for an unlawful purpose, so too, a competent quasi-judicial authority, by virtue of the inherent natural authority vested in it as well, may refuse to grant relief for such a cause  or purpose.

With all due respect, I fear that this is an over-generalization. Many administrative authorities hold quasi-judicial authority, and it is inconceivable that they may refuse to fulfill their lawful duties merely because they believe that a citizen’s request is tainted by illegality. The learned Attorney General presented us with precedents where the High Court of Justice declined to grant relief when the competent authority refused to issue a certain business license to those who conducted a business in violation of the law. Clearly, no support can be drawn from those cases. First, the High Court of Justice will not lend a hand to perpetrators of offenses; second, the authority of a particular agency to refuse to issue a license for an unlawful purpose does not prove the authority of another agency to refuse to fulfil its legal duty, even in similar circumstances, much less in different circumstances. 

The learned Attorney General adds that even if this rule does not apply to all the various agencies, it does in any event apply to the Central Elections Committee, which is not just any agency, but somewhat of a “mini-Knesset” in which all the parties in the outgoing Knesset are represented, and it is headed by a Supreme Court Justice. The unique composition of this Committee and its high stature call for the assumption that the legislature did not intend to grant it only ministerial authority, and if it was granted discretion and general freedom of action, then the said discretion  is primary.

I would be more sympathetic to this argument by the learned Attorney General were the Chair of the Committee granted any authority to determine, following his own discretion, matters such as these as they arise before the Elections Committee. But the Law does not grant the Chair any discretion or any privilege, and in the Committee’s decision making he is as any of the Committee members. And the Committee members, as I have already noted, all represent political parties, each with its own clear interests, both in preparing the elections and in conducting them. These interests are political interests, as legitimate as they may be, but when the decisions of a certain authority are, by its nature, a result of political considerations and motivations, it is reasonable to assume that the legislature would not rely upon its discretion when it comes to granting or revoking rights to participate in elections for the Knesset. Even in the absence of the explicit provision in Basic Law: The Knesset, the legislature must be presumed not to have intended to deny the right to vote for or be elected to the Knesset, except by an explicit law or a judicial decision by a competent court.

I believe that even if, as a general rule, an administrative agency holds inherent authority to refuse to act when the request or the requester is tainted by illegality, I would deny this power to the Knesset Elections Committee as long as the legislature did not explicitly grant it. Consider what dangerous outcomes might result from granting such discretion: a party or another political group that desires a change in the regime or the repeal of certain statutes would be considered an unlawful association as defined by the Ottoman Associations Law, as noted, and the parties in power, which of course hold a majority in the Central Elections Committee, might bar such party or group from submitting a list of candidates for election, inasmuch as it is an unlawful association and the Elections Committee is granted the authority to refuse such a list for being illegal! The same is true in regard to the declaration by the Minister of Defense under Regulation 84(1)(b) of the Defense (Emergency) Regulations 1945: a party or political group which the Minister or the coalition parties may not like would be declared an unlawful association and would thus be rejected by the Elections Committee for illegality, and all will be right with the coalition. As I said, these are dangerous consequences, and I could have said absurd consequences, and are intolerable.

10. However, I do not believe that the provisions of section 3 of the Ottoman Associations Law can be read into the Knesset Elections Law and be applied to lists of candidates. It is true that the definition of association in that law is broad enough as to include the initiators of a list of candidates to the Knesset or the candidates on one list as well. But the Knesset Elections Law is, in my view, a special piece of legislation in this regard, and its provisions as to the lists of candidates stand on their own, independent of and unrelated to other statutes concerning associations of people. Although under the broad, comprehensive definition of section 1 of the Ottoman Associations Law, neither the initiators of the candidates’ list nor the candidates themselves constitute an association under that law – not because the definition does not encompass them, but because their coming together is for the purpose stated in the Knesset Election Law and for that purpose alone, and in the manner and form established for such purpose by the Knesset Elections Law. They need not notify the District Commissioner of their association; they need no board or register; and they cannot sue or be sued in a court of law. But were the definition of section 1 to apply to them, then all the other provisions of the Law – and not just section 3 – would also apply to them.

Both the initiators of a list of candidates and the candidates composing a list are a sui generis association. They are unique, and no illegality may compromise or taint them other than an illegality that derives from an explicit provision in the Knesset Elections Law itself.

Therefore the illegality of the association of the initiators of the list at hand, or of its candidates, does not authorize the Committee to reject the list.

11. We are left with the second possibility, which is that the Committee is authorized to reject a list of candidates when such candidates undermine the existence of the state or its integrity. We are concerned with elections to the Knesset which in its sovereignty embodies the sovereignty of the State, and denying the sovereignty of the state while sitting in the Knesset are self-contradictory and irreconcilable. Therefore, it is appropriate – and perhaps necessary – that the Central Elections Committee have the authority to prevent the entry of those who deny the fundamentals of sovereignty.

I will immediately say that I wholeheartedly agree that it is necessary that some body – be it the Central Elections Committee, the Knesset itself or the Court – should have the authority to remove from the Knesset such dissidents who betray the state and assist its enemies. But this is not to say that such authority is indeed granted to any body, including the Central Elections Committee, under the existing law. In a state under the rule of law, one cannot be denied rights, even if he be the most dangerous criminal or the most despicable traitor, but by law alone. Neither the Central Elections Committee nor this Court legislate in this state. The Knesset is the legislative authority and it empowers its authorities, should it wish to do so, to do to one as his ways and deeds warrant. In the absence of such authorization from the legislature, not logic, necessity, love of country, nor any other consideration  whatsoever  can justify taking the law into one’s own hands and denying another’s rights.

12. The learned Attorney General argues that if the Law comprises no explicit authorization for the Central Elections Committee, there is implied or alluded authority. That allusion is sufficient for the Committee, especially in view of the fact that such allusion reveals the intent and wishes of the legislature. This argument relies on the provisions of sections 1 and 2 of the Law and Administration Ordinance, 5708-1948, and it impressed me when I first heard it. However, after careful study I found that this provision has no trace of allusion as to the legislature’s intent or its position in regard to the matter before us. This is the provision:

Representatives of Arabs being residents of the State who recognize the State of Israel will be co-opted on the Provisional Council of State (in sec. 2: the Provisional Government), as may be decided by the Council.

As the argument goes – and for the purposes of interpreting the provision itself, it is a correct argument – expressio unius est exclusio alterius.  Arab residents of the State who recognize the State of Israel would be included as participants in the Council of State. Arabs, even if residents of Israel, who do not recognize the State of Israel will not be granted a place in the Council of State. This provision is consistent with the language of the Declaration of Independence of the State of Israel, which called upon the Arab inhabitants of the State of Israel to participate in building the state “on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions”. Should they wish to take part in building the state, then they are assured appropriate representation in the institutions of the state. This does not apply when they not do not take part in state building, but even intend to destroy it completely.

It is true that in the Knesset now takes the place of the Provisional Council of State, and thus the Attorney General argues that what was true for the Council of State is now true for the Knesset, and since the Socialists’ List is a list of Arabs, and while they are residents of Israel, they do not recognize the state and they do not wish to take part in building it, but to the contrary, they wish to destroy and abolish it – therefore the law is that they cannot find their place in the Knesset.

This argument ignores the political and legal background of the Declaration of Independence of the State of Israel and the adoption of the Law and Administration Ordinance. The vast majority of Arabs who were residents of the state at the time were suspected of being enemies of the State, if not actually, then potentially. As it soon became clear, many of them not only refused to acknowledge the state, but even fought against it and collaborated with its external enemies to annihilate it. On the other hand, there were Arabs who initially, or over time, recognized the existence of the State and decided to remain and prosper in it. Simply put, in the state of war at that time, it was necessary and lawful to distinguish and identify these and those, friend and foe, as well as enemies and  neutrals, not only in order to bar enemies from state institutions, but also in order to ensure that the supporters not be discriminated against on the basis of religion or nationality.

In the meantime, times have changed and laws have been enacted. The vast majority of enemies among the Arab residents of the country have since left the country, and the Arab residents who, from the day the state was founded to the day the Nationality Law, 5712-1952 took effect, did not leave the country, or who lawfully returned to it, became citizens of the State of Israel under section 3 of that law. This is also the case for Arabs who were born in Israel after the founding of the State, and we must assume that an additional number of Arab citizens acquired citizenship under section 5 of that law. There is no difference between all of these and the Jewish or other citizens of this state in terms of their right to vote for the Knesset, or their right to be elected to the Knesset or in any other legal matter. They are all equal before the law, the Knesset Elections Law is included, unless a specific law (such as the Law of Return or the Days of Rest Ordinance) explicitly provides otherwise.

Basic Law: The Knesset includes no provision, explicit or implicit, that permits any discrimination for any reason between Jewish citizens and citizens who are not Jewish. In any event there is no reason to distinguish or discriminate between Jewish citizens who are not loyal to the State or do not recognize it, and Arab citizens who are not loyal to the state or who do not recognize it. To our dismay, we also have a group of Jews who declare day and night, in speech and in action, that they do not recognize the state. But the learned Attorney General admitted, in response to my question, that no one would conceive of preventing them from submitting a list of candidates for election to the Knesset, should they wish to do so. The argument is that they are not comparable, as one group has links to our surrounding enemies while the other group is contained within their secured (in both senses of the term) walls. But we have already seen citizens of Israel, not Arabs, who served the enemy and paid the price for it – and no one has thought of revoking their rights as citizens – not because they were not potentially deserving of such, but because the prevailing law does not make this possible.

The statements of some of the Committee members who participated in the debate imply that there might be some basis for the concern that the members of El Ard – the people on the list at hand – are attempting to enter the Knesset under the instructions of the enemy with which they are in contact, and their success in this scheme would be somewhat of a victory for the enemy and somewhat of a defeat and disgrace for the state. I am willing to assume that on an informative level, this assumption is correct, and that on a political level, the consideration that relies upon it is certainly reasonable and legitimate. But legally, it would seem to me that this assumption and this concern are immaterial. It is certainly possible that the governments who wage war against Israel are very well aware of the details of Israel’s constitutional regime and have decided to exploit it for their contemptible goals. But in the absence of legislation, that is insufficient as justification or as a reason for our own denial of our constitutional regime as it is. On the contrary, we take pride in our freedom of conscience and freedom of association, and in the absence of discrimination in the State of Israel, and we have only contempt and disdain for regimes, such as those of our enemies, where only one party – the governing party – is permitted, or where all the power of government is concentrated in the hands a tyrant or a military junta. When the exigencies of war – which our enemies might compel upon us – may require, the Israeli legislature – including the subsidiary authorities authorized to promulgate emergency regulations – will know how to authorize anyone requiring such powers to take all measures of defense necessary, and not only on the battlefield. But the State of Israel is distinguished from its enemies because in its view, even the ends of war do not justify wrongful means, and any means that violate the law or that are employed without lawful authorization and that may deny the rights of citizens are wrong and a judge in Israel will not approve them.

Moreover, even where there was explicit statutory authorization to deny a citizen a certain right, and the right was a fundamental civil right, such as  freedom of conscience and freedom of speech, this Court did not allow the exercise of that legal authority unless the infringement was intended to prevent a real, clear and present danger (HCJ 73/53; 83/53 Kol Ha’am v. Minister of the Interior IsrSC 7, p. 871 [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior]). But I cannot see the real, clear or present danger to the state or any of its institutions or  rights posed by the participation of this list of candidates in the Knesset elections. Were one to say that this danger may be unknown to the courts but known to government’s security services, I would respond that the material that was before the Central Elections Committee, and that was submitted to us as well, was insufficient to justify – let alone require – a finding that there is such danger, and no such real, purportedly impending danger was brought to the attention of the Committee members.

In the absence of decisive evidence of such danger, revoking such civil rights from a citizen may be perceived as a sanction for past behavior and opinions. The Central Elections Committee is certainly not empowered to impose such a sanction.

Therefore, the fact that the candidates on this list are Arabs who do not recognize the State of Israel and who sympathize with its enemies does not authorize the Central Elections Committee to withhold confirmation of their list.

13. There are countries in which state security, or the sanctity of religion, or the achievements of the revolution and the dangers of counterrevolution, and other such values  shroud any crime and cure any deed committed without authority and in violation of the law. Some have invented a “natural law” that  stands above any legislation and overrides it when need be. These are not the ways of the State of Israel. Its ways  are the ways of law, and the law is given by the Knesset or by virtue of its explicit authorization.

The right to vote and to be elected to the Knesset is one of the fundamental rights of the citizen, not just in the State of Israel (section 6 of Basic Law: The Knesset,) but in every enlightened state (see: section 21 of the United Nations’ Universal Declaration of Human Rights). Simply put, this right cannot be revoked or infringed by the government except by virtue of law. And so stipulates article 29(2) of the Universal Declaration of Human Rights:

 In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Although this Declaration is not binding international law, it in any event sets minimal standards for the legislative conduct of democratic states. We must not fall from these standards.

14.  Indeed, the problem that concerns us has been addressed in many states by explicit legislation.

In England, even before the rules of the Common Law, those who were  convicted of treason or felonies were barred from election to Parliament. In the words of Blackstone, those ineligible for election are “aliens born, or minors…any of the twelve judges, because they sit in the lords’ house; nor of the clergy, for they sit in the convocation; nor persons attainted of treason or felony, for they are unfit to sit anywhere.” (Vol. I, p. 175.) In the days of Queen Victoria, a statute was passed whereby anyone convicted of treason or a felony and was condemned to death or sentenced to hard labor or over a year’s incarceration was incapable of being elected or sitting as a member of either  House of Parliament until they had served their sentence or received a pardon (33+34 Vict. c. 23, sect. 2).

This statute applied in Ireland as well (see: Rogers on Elections, 20^th ed. p. 26). In Ireland, there was a case of a candidate for election to Parliament who was accused of treason and bound over for trial, and the supervisors of the elections barred his candidacy. The court there held that as long as he had not been convicted lawfully, he was as eligible as any other candidate (New Ross Case (1853), 2 Pow. R. & D. 188, see: 36 English and Empire Digest, p. 274 note c).

This is so a fortiori:   A statute bars traitors from being elected, it does not bar one accused of treason, even when the accused is already on trial. Therefore, a fortiori, when no statute bars traitors, as aforesaid, then all the more so when the candidate has yet to be accused of treason.

It should be further noted that in England (as well as in most states in the United States of America) it is the privilege of Parliament to remove a duly elected member when Parliament believes he is unworthy of sitting there (see: Rogers, ibid., p. 27).

The authority the Knesset Elections Law grants to the Elections Committee to prepare and oversee the elections are in England granted to the returning officer. It has been known to happen that such an officer purported to determine whether a particular candidate was eligible or not under the law, and the courts reversed such decisions for exceeding authority (Prichard v. Mayor of Bangor (1888); Harford v. Linskey (1899)). Although that English office is not similar to our Central Elections Committee, we must infer from these precedents not only that it is best to separate between the technical supervision over managing the elections and between establishing the eligibility or ineligibility of a particular candidate or a particular list of candidates, but also how much care must be taken specifically in matters of election law that the competent authorities empowered to run the election do not exceed their powers as established by law.

15. The second example I wish to give is from the United States of America.

Under article 3 of the Fourteenth Amendment of the United States Constitution, anyone who has ever taken an oath to support the Constitution of the United States and later participated in an insurrection or rebellion against it, or given aid to its enemies is ineligible for election to the House of Representatives or the Senate.

Because this is the only statutory ineligibility rule, it is impossible in the United States to add other or alternative eligibility rules except by further amendments to the Constitution (Willoughby, Constitution of the United States, 2 ed. Vol. 1, p. 602.) However, in effect, there has been no need to do so because under Article I 4.1 [sic][3] of the Constitution, each House of Congress is the exclusive judge of the elections of its members and the outcomes of such elections. And under Article I 5.2  of the Constitution, each house, may by a two-thirds majority expel a member who was lawfully elected. The two houses of Congress have employed these supplemental powers to determine the eligibility of an elected member and expel a member who had already served as such many times in order to prevent unworthy or disloyal people from serving in them.

16. Finally I shall mention the constitution (Grundgestz) of the Federal Republic of Germany which states in Article 21 as follows:

(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds..

(2) Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality..

(3) Details shall be regulated by federal laws.

Some have expressed the view that this provision is inconsistent with freedom of political opinion. However, the German Constitutional Court ruled that it reflects an expression of militant democracy whose goal is to prevent the undermining of a free democratic regime by undemocratic elements operating under the guise of legitimate parliamentary activity. This  is a preventative, defensive measure, rather than a sanction for acts already committed (Verf G E 5/142, cited   in Hamann, Grundgestz, 2 ed., p. 219.)

This is, in my view, a legislative path that may serve as an example for our legislature as well.

17. Section 6 of Basic Law: The Knesset, which ensures each citizen over the age of 21 the right to be elected to the Knesset, allows but one exception to this right: “unless a court has deprived him of that right by virtue of law.” The law that authorizes the court to revoke this right has yet to be legislated. There is no such authority even in regard to those lacking legal competence under the Capacity and Guardianship Law, 5722-1962, nor anywhere else.

If this matter that was before the Central Elections Committee and that is now before this Court, and the outcome that I am compelled to reach by law – or more precisely by the law’s silence and absence – motivate the legislature to act and pass legislation that may guard the state from internal subversives and destructors, then this discussion has not been for naught, and the serious problem before us will be resolved in the appropriate manner.

I would grant the appeal and reverse the decision by the Central Elections Committee not to confirm the Socialist’s List.

 

President Agranat:

I have carefully read the enlightening – and if I may add, courageous – opinion of my esteemed colleague Justice Cohn, but I cannot concur with his ultimate conclusion, inasmuch as, in my opinion, the appeal must be denied. Given the limited time at our disposal, I can only delineate the reasons that led me to disagree with my colleague’s conclusion in general terms.

The factual finding that must instruct the discussion of this appeal, and which cannot be disputed, is the finding that led the Central Elections Committee’s to refuse to confirm the Appellant list (“the Socialists’ List”), which is referred to in the Respondent’s letter to the list’s representative of September 29, 1965. The letter stated that the reason for this refusal was: “this list of candidates is unlawful because its initiators deny the territorial integrity of the State of Israel and its very existence”. And in greater detail: the material that was before the Committee clearly reveals that most of the candidates in the relevant list are people who are members of the “El Ard Group” whose purposes were defined in our judgment in HCJ 253/64 Sabri Jerias v. District Commissioner of Haifa, IsrSC 18 (4) 673, 677, as purposes that “completely and absolutely deny the existence of the State of Israel in general, and its existence within its borders in particular”. Moreover, I completely agree with my colleague in finding that it is immaterial that the rest of the candidates on the list were inactive or were not known as members of the above movement because, once they have decided to run with the people of El Ard in the same list, they are held to have first examined who they are joining and for what purposes. The relevant factual finding means, therefore, that before us is a list of candidates whose goal is to bring about the destruction of the State of Israel.

The  the common thread running throughout my respected colleague’s opinion is the idea that the Central Elections Committee’s refusal to confirm the Appellant list violates the principle of the rule of law inasmuch as section 23 of the Knesset Elections Law, 5719-1959 explicitly states: “A candidates’ list duly submitted, or that was corrected in accordance with the previous section, shall be confirmed”. In other words, if the submitted list fulfils the requirements detailed in the previous sections, including the requirements that the list’s signatories are citizens of Israel and aged 18 and over and thus hold the right to vote, and that the candidates are Israeli citizens aged 21 and over and thus entitled to be elected to the Knesset, then the Committee possesses only the ministerial function to approve the list, which does not include exercising any discretion. Therefore, the Committee is prohibited from basing its decision on any consideration for the political views of the list’s candidates, however contemptible, because the Committee is subject to the rule of law, and the law – that is section 23 above – obliges it to confirm the list.

Indeed, I do agree that the above generally reflects the scope of the Central Committee’s authority in deciding upon the confirmation of any list of candidates. However, my colleague, too, implicitly indicated that the problem at issue is not so simple. Moreover, he even emphasized that it was “a serious constitutional question”. If that is the case, then it is clear that in order to understand the scope of the Committee‘s said authority, we must first address the constitutional “factors” that pertain to this question. There can be no doubt -- as clearly attested by what was declared upon the proclamation of the founding of the state -- that not only is Israel a sovereign, independent, freedom-loving state that is characterized by a regime of rule by the people, but also that it was founded as “a Jewish state in the Land of Israel,” that the act of its founding was made, first and foremost, by virtue of “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State”, which also constituted an expression of the realization of the age-old aspiration “for the redemption of Israel”.

It should be superfluous to note at this stage in the  life of the state that  the above expresses the nation’s vision and its credo, and that we must, therefore, bear these in mind “when we come to interpret and give meaning to the laws of the State” (HCJ 73/53, Kol Ha’Am v. Minister of Interior, IsrSC 7 871, 884). That “credo” means that the continuation – or if you prefer, “the eternity of the State of Israel is a fundamental constitutional fact”, which no authority of the State – whether administrative, judicial or  quasi-judicial – may deny in the exercise of any of its powers,  for to do otherwise would constitute a complete disregard for the two wars fought by the State of Israel since its founding in order to prevent its annihilation by hostile Arab states. It would constitute a complete denial of the history of the Jewish people and its yearnings, as well as a  repudiation of the fact of the Holocaust  of the People of Israel in the period before the state was founded, that same Holocaust in which millions of Jews were slaughtered in Europe, and that “was another clear demonstration” – in the language of the Declaration – “of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Israel the Jewish State”.

In order to prevent misunderstanding, I must recall – and the Attorney General addressed this matter in his arguments – that the declaration of the founding of the state called upon “the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions”. The words “participate in the upbuilding of the State” speak for themselves. This invitation was given real legal expression in section 1(a) of the Law and Administration Ordinance, 5708-1948: “Representatives of Arabs being residents of the State who recognize the State of Israel will be co-opted on the Provisional Council of State…”,  and in section 2(a): “Representatives of Arabs being residents of the State who recognize the State of Israel will be co-opted on the Provisional Government …”. Upon the enactment of the Nationality Law, 5712-1952, whereby Arab residents were permitted to acquire, under certain circumstances, Israeli citizenship, the two provisions above became redundant. However, it is clear that the status of Israeli citizenship comprises the duty of allegiance to the State of Israel (section 5(c) of the above law).

This should also be borne in mind: when the legislature enacted the offenses of treason in sections 7(a) and (b) of the Penal Law Revision (State Security) Law, 5717-1957 – the offenses of impairing the sovereignty of the state and its territorial integrity – its goal was to give practical emphasis to the principle that requires ensuring the existence of the State of Israel, its sovereignty and its continuation.

Therefore, if the constitutional factor that we must consider in interpreting the laws of the state – and in particular, laws of a constitutional nature – is the factor that the State of Israel is a permanent state whose continued existence and eternity must not be questioned, then clearly this rule extends to the interpretation that should be given to that provision that establishes the governing institution for which the relevant elections are held, i.e., the provision of section 1 of Basic Law: The Knesset that states: “The Knesset is the parliament of the State”. What does this phrase refer to other than to the institution that is composed of the representatives elected by the whole of the citizenry and whose function is to ensure, through the government that is answerable to it, the existence of the State of Israel and its integrity? In any event, the question whether or not to act towards the destruction of the state and the end of its sovereignty cannot be on its agenda at all, inasmuch as the very presenting of this question contradicts the will of the people residing in Zion, its vision and its credo.

The result is that a list of candidates who deny the said fundamentals cannot qua a list hold any right to participate in elections for the parliament. It should be emphasized that my words should not be taken to mean that I reject the right of the signatories of the Appellant list to vote for the Knesset, or that I deny the right of the candidates on this list, as individuals, to be elected to the Knesset, and therefore I also do not deny their right to have their names included in a particular list of candidates. But voting in the elections for the Knesset is not voting for individual candidates but rather for a list of candidates (section 4(a) of the Knesset Elections Law, 5719-1959). The implication of this is that voting in elections for the Knesset means voting for a group of people who support a particular political goal, such that the assumption must be that should that group be elected to the Knesset, its members will then operate there to formulate a popular will toward advancing that goal (see: Van den Bergh, Unity in Diversity, pp. 18, 38). Clearly, a group of people whose declared political goal is not merely, as the Chair of the Central Elections Committee stressed, to “change the internal constitutional regime of the State” but rather to “undermine its very existence” cannot, a priori, hold the right to participate in the process of formulating the will of the people and therefore cannot stand for election for the Knesset.

As noted, I agree that ordinarily the Central Elections Committee must not investigate the candidates or consider their political views. However this rule does not apply to our matter once the Committee’s attention has been directed to the fact that the Appellant list is identical to a group of people that the High Court of Justice found to be an unlawful association, since its purpose is to completely and absolutely deny the existence of the State of Israel in general, and it’s existence within its borders in particular, as well as the fact that pursuant to this finding that group was declared an unlawful association. In light of these facts, no discretion remained in the hands of the Central Committee and it had no choice but to decide not to confirm the Appellant list.

Lastly, I am not unaware that political science theory teaches that in a democracy the sovereign is the people themselves – that a democracy is, first and foremost, a regime of agreement under which the democratic process is thus a process of selecting the people’s common goals and the manner for realizing them through debate and the free exchange of ideas, and that this debate takes place, inter alia, through general elections and deliberations in the parliament. This would seem to require the view that it is not permissible to prevent a group of people – for the sole reason that its goal is to deny the existence of the state – from putting itself up for election to the Knesset in order to promote and realize its cause. However, this approach was decisively rebuffed by Justice Witkon in HCJ 253/64, at 679, when he wrote:

Freedom of association is one of the principles of a democracy and one of the fundamental rights of the citizen. We must not deny this right and prohibit an association merely because its goal or one of its purposes is the aspiration to change the current state of the law in the state. The current state of the law may warrant change in some way or another, and a movement that wishes to organize the people of the state to correct the situation may do so as a lawfully registered association. But no free regime would lend its hand and recognition to a movement that undermines that same regime.

And he added:

It has happened more than once in the history of states with a functioning democracy that various fascist and totalitarian movements arose against them and exploited all those rights of freedom of speech, of the press, and  of association that the state grants, in order to conduct their destructive activity under their aegis. Those who saw this happen in the days of the Weimar Republic shall never forget this lesson.

This is also the position expressed in 1942 by one of the great experts of political science (Ernest Barker, Reflections on Government, p. 405):

…the democratic State would seem false to itself if it adopted such a policy towards any body of men who could claim to represent some section of popular opinion. Yet a party owing a foreign allegiance, and only acting in the democratic system in order to overthrow the system, can hardly in justice claim the benefit of the system.

Indeed, the constitutional problem that concerned us in this appeal already arose – mutatis mutandis – in the United States in the middle of the last century. As may be recalled,  at that time the southern states declared their secession from the federal state. Following this event, President Abraham Lincoln sent his famous letter to Congress on July 4, 1861 in which he defined the question in terms that yield only one possible answer:

It forces us to ask: “Is there, in all republics, this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” (State Papers by Abraham Lincoln (1907), p. 9).

The response that great president gave in practice to this question is known to all.

My opinion, therefore, is that the Central Elections Committee acted properly, and that the appeal must thus be denied.

 

Justice Sussman:

1. All agree that this appeal raises a constitutional question of the utmost importance. No wonder, therefore, we did not render our decision immediately after hearing the arguments of the parties, but rather needed time to consider our judgment. That time, as determined by the legislature, is so short that I did not have adequate time to state my reasons in writing when, on October 12 of this year, we handed down our decision to deny the appeal. At the time, I also had not yet had the opportunity to review the reasons of the President.

                  In the interim, I have heard and read the opinions of my esteemed colleagues, and I can only add to the words of the President, with which I concur.

2. There is no doubt in my mind that the Knesset Elections Law did not authorize the Central Elections Committee to confirm or deny a list of candidates at its discretion. The contrary is implied by the provisions of section 23 of the above Law, and granting discretion is also inconsistent with the composition of the Committee, which is a body composed on purely political principles in accordance with the composition of the outgoing Knesset, with the exception of the Committee’s Chair, who is a justice of the Supreme Court. But this was not the question before us. Rather the question, as defined by the Committee’s Chair in its meeting from September 29, 1965 (on p. 27 of the Committee’s notes), was whether the Committee may examine the list’s eligibility according to a principle that is not written in the statute books. During the said meeting, the Chair of the Committee pointed out that despite the absence of any written provision in the statutes of contract law, the court does not enforce a contract that has an illegal purpose. In light of the President’s reasons, there is no need for me to reiterate that an “illegal purpose” for our purposes does not mean a purpose that seeks to alter the arrangements for the administration of government. These arrangements are not sacred and changes are not a punishable crime. Rather an “illegal purpose” in our case is a purpose that seeks to destroy the state, to bring catastrophe upon most of the citizens for whom it was founded, and to join forces with its enemies.
3. In our opinion in HCJ 253/64 Sabri Jerias v. District Commissioner of Haifa, IsrSC 18(4) 673, my esteemed colleague Justice Witkon noted the need to learn the lesson of the experience of the Weimar Republic. Perhaps it is no coincidence that the Supreme Court of the German Federal Republic that was founded after the end of the Second World War is, as far as I am aware, the first court to establish the principle that a judge must also decide based on legal principles that are not written in the statute books, and that stand above not only ordinary statutes but even above the constitution itself, as even the constitution yields to them when it is inconsistent with them. The opinion handed down by the German Supreme Court on September 6, 1953 (VRG 11/53 (Gutachten) 347 L (BGH Z 11, at 34, 40) cites with approval (on p. 40, ibid.) the following from the opinion of the Constitutional Court of the State of Bavaria:

The invalidity of a constitutional provision cannot be rejected merely because the provision itself is part of the Constitution. There are fundamental constitutional principles that are of so elementary a nature, and so much the expression of law that precedes the Constitution, that the maker of the Constitution himself is bound by them. Other constitutional norms, which do not occupy this rank and contradict these rules can be void because they conflict with them.

4. If this is so in a country with a written constitution, how much more so in a country that has no written constitution. Just as one need not consent to be killed, so a state need not agree to be annihilated and wiped off the map. Its judges may not sit idly by and despair of the absence of positive law when a party calls upon them for assistance to bring about the country’s end. Similarly, no other authority of the state may serve as a tool in the hands of those whose purpose is to destroy the state and that may have no other purpose but this.
5. I will allow myself to repeat the example I presented at the hearing of the appeal. A person wishes to throw a bomb in the Knesset in order to murder Knesset members, but this is cannot be accomplished from the guest gallery. He therefore he submits a list of candidates for election to the Knesset with the declared intent that as a Knesset member who enjoys immunity he may enter the chamber and carry out his scheme. This person submits a flawless list of candidates. Is the Central Elections Committee obligated, under section 23 above, to confirm the list and thereby assist him the commission of a crime? Or may the Committee find that this is not the purpose of a parliament in a democracy, and that the use this person wishes to make of the regime’s arrangements of governance is an abuse to which the Committee need not be reconciled? And if the Committee is permitted to deny confirmation to a list of candidates submitted to it in order to advance the crime of murder, is it not permitted to refuse to confirm a list submitted to advance treason against the state?
6. The above fundamental, supra-constitutional rules are, in the matter before us, nothing other than the right of the state’s organized society to defend itself. Whether we term these rules “natural law” to indicate that they are law by the nature of the existence of the state (see: Friedman, Legal Theory, 4th ed., pp. 44-45), or whether we term them differently, I share the opinion that life experience compels us not to repeat the same mistake we all witnessed. As my esteemed colleague Justice Cohn said, when considering the issue of a party’s legality, the German Constitutional Court spoke of a “militant democracy” that does not open its gates to acts of sabotage in the guise of legitimate parliamentary activity. As for myself, in regard to Israel, I am willing to suffice with a “defensive democracy” and tools to defend the existence of the state are at our disposal even if we did not find them explicitly stated in the Elections Law.

Therefore I concur in denying the appeal.

 

Decided by majority to deny the appeal.

                                                                 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

considered democratic, is pointless. We refer to the definition of democracy which is accepted today and in accordance with our own view, according to which, for example, not allowing women to vote would be considered a distinctly anti- democratic act, which no one would even think of doing. The same applies to the idea of collectively depriving citizens belonging to a certain group of their rights, which is also an absolutely anti-democratic act that one should not come to terms with.

The Appellant’s objectives and conduct are also clearly racist: systematically fanning the flames of ethnic and national hate, which causes divisiveness and animosity; calling for the forceful deprivation of rights; systematic and intentional degradation directed towards a specific part of the population selected because of their national origin and ethnicity; [calling] for their humiliation in ways very similar to the terrible experiences of the Jewish nation. All these reasons suffice, in light of the evidence presented, to come to this conclusion regarding incitement to racism. The extent of the actions taken by the Appellant in all its forms; the extremism through which it presents the action accompanying it; and the terrible distortion of the nature of the State and its regime that flow from it point to the severity of its objectives and conduct that requires that we affirm the decision of the Central Election Committee.

We have decided to dismiss the appeal.

 

 

Decided today, 7 Cheshvan 5749 (October 18, 1988)

 

In the Supreme Court sitting as the High Court of Justice

 

HCJ 4921/13

HCJ 5126/13

HCJ 5597/13

HCJ 5598/13

 

Before:                                    The Honorable President A. Grunis

                                    The Honorable Deputy President M. Naor

                                    The Honorable Justice E. Arbel

                                    The Honorable Justice E. Rubinstein

                                    The Honorable Justice E. Hayut

                                    The Honorable Justice N. Hendel

                                    The Honorable Justice T. Zilbertal

           

 

The Petitioners in HCJ 4921/13:

 

1.Ometz, Non-profit Organization – Citizens for Proper Administration and Social Justice in Israel

2.Liran Zilberman

3.Tzvika Tzemach

 

The Petitioners in HCJ 5126/13:

 

1.The Movement for Quality Government in Israel

2.Ze’ev Hartman, Nazareth Illit Council Member

 

The Petitioner in HCJ 5597/13:

 

                                    Eilia Rozenfeld

 

The Petitioner in HCJ 5598/13:

 

                                    Aharon Almog Asulin

 

 

                                    versus

 

The Respondents in HCJ 4921/13:

 

                                    1.         The Mayor of Ramat HaSharon, Yitzhak Rochberger

                                    2.         Ramat HaSharon City Council

 

The Respondents in HCJ 5126/13:

                                    1.         Nazareth Illit City Council

2.         Minister of the Interior and Ministry of Interior’s Northern District Supervisor

3.         Shimon Gapso, Mayor of Nazareth Illit

                                   

The Respondents in HCJ 5597/13:

1.         Shimon Gapso, Mayor of Nazareth Illit

                                    2.         “Uri Ir” Faction for City Council, Nazareth Illit

                                    3.         Minister of the Interior and Ministry of Interior’s

Northern District Supervisor  

                                    4.         The Attorney General

 

The Respondents in HCJ 5598/13:

1.         Yitzhak Rochberger, Mayor of Ramat HaSharon

                                    2.         “Our Ramat HaSharon” Faction for City Council,

Ramat HaSharon

                                    3.         Minister of the Interior and Ministry of Interior’s

Tel-Aviv District Supervisor  

                                    4.         The Attorney General

 

Applicants for Joinder in HCJ 4921/13

1.Idan Lamdan, Advocate

2.Meretz Faction

 

                                    Petitions for Order Nisi

 

Date of session:           6th Tishre, 5774; September 10, 2013

 

Adv. Dr. Haim Misgav

                                    on behalf of the Petitioners in HCJ 4921/13

 

                        Adv. Eliad Shraga, Adv. Tzruya Midad-Luzon,

Adv. Daphna Kiro-Cohen, Adv. Nidal Haik

                                    on behalf of the Petitioners in HCJ 5126/13

 

Adv. Ofer Lerinman

                                    on behalf of the Petitioner in HCJ 5597/13 and the Petitioner in

                                    HCJ 5598/13

 

 

                                    Adv. Lior Epstein; Adv. Anat Cohen

                                    on behalf of the First Respondent in HCJ 4921/13

                                    and the First Respondent in HCJ 5598/13

 

                                    Adv. Ilan Bombach; Adv. Yariv Ronen

                                    on behalf of the Second Respondent in HCJ 4921/13

 

Adv. Adam Fisch

                                    on behalf of the First Rerspondent in HCJ 5126/13

 

Adv. Hani Ofek, Adv. Arin Safdi Atila,

Adv. Michal Michlin-Freidlander

                                    on behalf of the Second Respondent in HCJ 5126/13

                                    and the Third and Fourth Respondents in HCJ 5597/13

                                    and in HCJ 5598/13

 

Adv. Pninat Yanai

                                    on behalf of the Third Respondent in HCJ 5126/13

                                    and the First and Second Respondents in HCJ 5597/13

 

Adv. Michal Rosenbaum, Adv. Avi Man

                                    on behalf of the Second Respondent in HCJ 5598/13

 

Adv. Idan Lamdan

                                    on behalf of the Petitioners to Join in HCJ 4921/13

 

 

 

Judgment (Reasons)

 

Deputy President M. Naor

1.On September 17, 2013, this Court (Justices Naor, Arbel, Rubinstein, Hayut, Hendel, Zilbertal) handed down a judgment without reasons, where we held:

1. The Petitions at hand address current mayors of two municipalities – the Mayor of Nazareth Illit Mr. Shimon Gapso and the Mayor of Ramat HaSharon Mr. Yitzhak Rochberger, against whom indictments were recently filed.

2. The indictment against Mr. Gapso was filed on June 17, 2013. It accuses Mr. Gapso of accepting bribes (conditioning a bribe) under sections 290, 294(a) and 29 of the Penal Law 5737- 1977 (“the Penal Law”). According to the details of the indictment, during the negotiations for establishing a coalition, which took place after the 2008 election for local municipalities, Mr. Simion Baron, who was the “Kadima” faction representative elected to City Council, was approached with suggestions from various sources to join the coalition or to resign from his membership in City Council, lest his former wife, who was employed by the municipality’s financial corporation, may be terminated from her position.

Later, the indictment alleged, Mr. Gapso, along with another defendant – a member of his faction and the chairman of the board of the Nazareth Illit municipality’s financial corporation – instructed the CEO of the financial corporation to compile a list of employees at risk of termination and instigated the inclusion of Baron’s former wife on that list. When Baron learned of the intent to terminate his former wife, he approached the defendants and told them he accepted their offer to join the coalition. However, he was told that the option of joining the coalition was off the table, but should he resign from City Council, his former wife would not be terminated. Allegedly, since Mr. Baron did not resign by the deadline set by the defendants, his former wife was terminated. After her termination, Baron again approached the defendants with a proposition that he join the coalition in exchange for his former wife’s re-hiring, but the defendants rejected his proposition.

3. On May 12, 2013, an indictment was filed against Mr. Rochberger, alleging offenses of falsifying corporate documents and of fraud and breach of fiduciary trust in a corporation, under sections 423 and 425 of the Penal Law, which he had allegedly committed between 2003 and 2007. During that period, Mr. Rochberger served as CEO and chairman of the board of the “Fund to further education of local municipalities’ employees” (“The Fund”), along with holding office as the Mayor of Ramat HaSharon. In 2004, the Fund’s board decided to approve a monthly reimbursement of expenses account for Mr. Rochberger for up to NIS 500 per month.

According to the indictment, Rochberger and one of the Fund’s seniors decided that this amount will increase for NIS 6000 per month against the presentation of receipts. This decision, as alleged, was intended to bypass the prohibition specified in section 15b of Local Authorities Law (Election and Tenure of Head and Deputy Heads) 5735-1975 (“the Election and Tenure of Head and Deputy Heads Law”) concerning the prohibition of an authority head to engage in any business or occupation in consideration.    

According to the indictment, Rochberger would submit to the Fund receipts and invoices that had no connection to his activities with the Fund, including purchase of household items, expenses from his daughter’s trip abroad and her English lessons, while falsifying some of the details on such receipts and invoices in order to make them appear as expenses for which the Fund was permitted to reimburse him. The reimbursements Mr. Rochberger received from the Fund for these expenses amount to NIS 118,000. Once this fraudulent activity was discovered, Mr. Rochberger repaid the entire amount to the Fund.

4. Still, the Nazareth Illit City Council convened on August 13, 2013, under section 22 of the Election and Tenure of Head and Deputy Heads Law, and decided in a majority vote not to remove Mr. Gapso from his office.

The Ramat HaSharon City Council never decided whether to remover Mr. Rochberger from his office, as it decided simply to remove the issue from the Council’s agenda.

5. The Petitions before us request, among other things, that we intervene in the Nazareth Illit City Council decision and order the immediate removal or Mr. Gapso from office. We are additionally asked to consider Ramat HaSharon City Council’s decision to take the issue of removing Mr. Rochberger from office from its agenda as a refusal to remove him from office, and, therefore, we should intervene. We were asked to rule that the two mayors should be barred from running in the coming election, or to declare – in the event we find there is no place to bar running and that one or both are re-elected – that the municipality be required to hold a special meeting after the election under section 22 of the Election and Tenure of Head and Deputy Heads Law. This section states:

22. (a) Should the Council find that the Head of the Authority is engaging in conduct unbecoming the status of Head of Authority and thus believes the Head of the Authority is unworthy of the office, it may, after providing an opportunity to be heard, remove him from office.

(b) A decision to remove the Head of the Authority from office will be reasoned and will be made in a special, closed meeting of council members. The decision will be made by a majority of three fourths of council members. The decision shall require approval by the Minister.

(c) Should the Head of the Authority fail to convene a special meeting within 14 days from the day a majority of City Council members called upon him to do so, the majority of City Council members may convene such a meeting and they shall select a chairperson to lead the meeting.

6. From the information before us, the deadline for submitting a list of candidates for election is today. The election for local municipalities is to be held on October 22, 2013. The hearing in this matter was held on September 10, 2013, and it was agreed that the hearing would go on as if temporary injunctions had been granted. Because of the timetable described, we saw no option but to hand down our judgment without reasons. We shall provide reasons in the future.

7. The majority justices (Deputy President Justice Naor, Justices Arbel, Rubinstein, Hayut, Hendel and Zilbertal) find as follows:

(1) In light of the indictments filed against the two Mayors, the City Councils were obligated to convene and discuss removing the Mayors from office, according to section 22 of the Election and Tenure of Head and Deputy Heads Law.

(2) The Nazareth Illit City Council decision not to remove Mr. Gapso from office is inconsistent with the principles of maintaining clean governance and of the rule of law. His behavior, as alleged in the indictment, constitutes weighty administrative evidence, and is conduct unbecoming according to section 22 of the law. This decision is also so extremely unreasonable given that the local election is fast approaching and Gapso has expressed intent to run for mayor again. Therefore, we hereby grant a decisive order that Gapso be immediately removed from his office as Mayor of Nazareth Illit.

(3) Under these same circumstances, Ramat HaSharon’s City Council’s failure to convene is effectively a decision not to remove Mr. Rochberger from office. This decision is inconsistent with the principles of maintaining clean governance and of the rule of law. His behavior, as alleged in the indictment, constitutes weighty administrative evidence, is conduct unbecoming according to section 22 of the law. This decision is so extremely unreasonable also given that the local election is fast approaching and Mr. Rochberger has expressed intent to run for mayor again. Therefore, we hereby grant a decisive order that Mr. Rochberger be immediately removed from his office as Mayor of Ramat HaSharon.

8. We are uncomfortable, in the public sense, with these two persons running for mayors in the coming election because of the indictments against them (See HCJ 5141/11, Lilian v. The Mayor of Ramat Gan (14.7.2013)). However, we see no way, in the legal sense, to prevent them from running.

9. We expressly state that should one or both of them be elected as mayor, the City Council would be obligated to convene soon after the election, to discuss and decide whether the mayor ought to be removed from office, according to section 22 of the Election and Tenure of Head and Deputy Heads Law. Of course, the decision made shall also be subject to judicial review.

Our colleague, President Grunis had a different opinion than ours, and thus it was decided, by majority, according to section 7 of the Judgment without reasons.

2.We now present our reasons, with consideration to the timing of the election on October 22, 2013, and in order to allow the parties and others to plan future steps.

3.The Petitions invite our ruling on three main issues that fall under three different situations: the issue of removing a head of local authority from office due to an indictment filed against them during their term (the first situation;) the issue of barring one to run for local office due to an indictment filed against the head of local authority or against a candidate who is not the head of local authority (the second situation;) and the issue of removing a head of local authority from office after the election due to an indictment filed against him even before the election in which they were elected (the third situation.)

4.Usually, the three situations detailed above (the issue of removing from office because of an indictment filed during term, the issue of barring candidacy due to an indictment, and the issue of removing from office after the election when an indictment was filed before the election) are closely linked. The primary question is then whether one who’s been subject to indictments such as those here may serve as head of local authority. Still, it seems, the legal questions arising in the different situations we presented are not identical and they require separate discussion.

5.An additional question has been raised, and it is whether the Petitioners may obtain any alternative remedies in Administrative Matters Court. However, this Court has concurrent jurisdiction with that of the Administrative Matters Court, so we saw it fit to decide these petitions now and leave the matter of alternative remedies for a different, more appropriate proceeding.

The Zvi Bar Affair

6.The cases before us are not the first instances where courts have addressed the issue of removing from office or barring the candidacy for an election of a head of local authority who has been indicted. About two months before the hearing in these Petitions, an affair concerning the Mayor of Ramat Gan and Chairman of the Local Committee for Planning and Construction Zvi Bar (“Zvi Bar”) was adjudicated. As early as 2010, a petition against Zvi Bar was filed with this Court, asking that he suspend himself from his positions as Chairman of the Ramat Gan Local Committee for Planning and Construction and Chairman the Tel Aviv District Committee for Planning and Construction, due to a criminal investigation being conducted against him. During that Petition’s proceeding, Zvi Bar announced that he had resigned from his position as chairman of the Local Committee and chairman of its sub-committee. He further announced that should an indictment be filed against him, and a hearing held – and even if the decision would not be final – he would resign from the District Committee. In light of these announcements, this Court decided that at that time – before an indictment was filed – there was no place to grant the requested remedy (HCJ 4888/10, Lilian v. The Mayor of Ramat Gan and Chairman of the Local Committee for Planning and Construction (December 27, 2010) (“the first Zvi Bar matter”)).

Later, the petitioner filed a second petition in which he requested to remove Zvi Bar from his office as mayor. The State notified that it had filed an indictment against Zvi Bar (HCJ 5141/11 Lilian v. The Mayor of Ramat Gan and Chairman of the Ramat Gan Financial Corporation (July 14, 2013) (“the second Zvi Bar matter”)). A copy of the Attorney General’s notice in that petition, dated May 26, 2013, was attached to the Petitions here (“The Attorney General’s position regarding Zvi Bar matter”). As the notice details, an indictment was filed against Zvi Bar alleging that Bar committed offenses such as bribery, fraud and breach of trust, money laundering, and disruption of legal proceedings, all while he served as Mayor of Ramat Gan and as chairman of the Local Committee for Planning and Construction, as member of the Tel Aviv District Committee for Planning and Construction, and as member of the District’s Sub-Committee for Objections. The indictment further alleges that between 1989-2008 Zvi Bar held, vis-à-vis his positions, influence – whether directly or indirectly – on promoting and protecting the economic interests of businesspeople and real estate entrepreneurs in Tel Aviv and Ramat Gan. In the relevant period, he allegedly received bribes from interested parties amounting to NIS 1,924,014. The indictment further alleges that Zvi Bar omitted these incomes in reports he submitted to the tax authorities. In a special city council meeting held on March 19, 2013, the issue of removing Bar from his office according to the city council’s authority under section 22(a) of the Election and Tenure of Head and Deputy Heads Law was raised and a majority decision (16 to 6, 1 absentee, and 1 not in attendance) was reached not to remove him from his office.

The Attorney General found the City Council’s decision regarding the Zvi Bar matter extremely unreasonable and could not stand. In the notice, the Attorney General argued that the statutory cause for removal of the head of local authority materializes when a head of local authority is convicted of an offense of moral turpitude. However, if this is not found to be sufficient justification for automatic disqualification for office, there is still ample authority conferred upon a city council to exercise discretion in examining the mayor’s conduct. Therefore, the Attorney General argued, in the case of serious offenses committed in connection with public office, allowing the continuance of the elected official’s tenure of service threatens to cause grave harm to the public’s trust and its perception of good moral character and clean governance. Thus, in these circumstances, the right to elect and be elected gives way to the interest of preventing harm to the public’s trust and clean governance. As it relates to Zvi Bar’s indictment, the Attorney General believed his behavior to be highly egregious, because (a) the alleged offenses were committed over several years (2000-2006) pointing to a consistent pattern of behavior; (b) the offenses were committed in the course of public office, when that office served as a tool in committing them; (c) the alleged benefits given for the bribes concerned the local authority’s land, which is an important and limited resource; (d) the great monetary value of the bribes Zvi Bar received (NIS 1,924,014); and (e) because of Zvi Bar’s prominent position as mayor of the local municipality, a position with executive-governance authorities.

The last hearing in the second Zvi Bar matter was held on July 14, 2013 before an extended panel, which included President Grunis, Deputy President Naor, and Justices Arbel, Rubinstein, Joubran, Hayut and Vogelman. The decision based on the Panel’s proposal to the parties was as follows:

“At the end of the hearing, and before a legal decision was rendered, we expressed in the courtroom our position that from a public perspective, there is huge difficulty in that the First Respondent (Zvi Bar) continues to serve as Mayor of Ramat Gan, after an indictment alleging offenses he committed related to his office was filed against him. Considering the elections for local authorities are to be held in about three months, we proposed that the First Respondent commit not to run for Mayor of Ramat Gan or for City Council. The First Respondent’s attorney committed on his behalf that he would indeed refrain from submitting his candidacy. Under these circumstances, we believe that the Petition has been exhausted, particularly in light of the public message emanating from our words here. The First Respondent’s commitment is hereby given the status of a Judgment.”

The parties before us made many comparisons between the Zvi Bar indictment and the indictments relevant to this Petition, which we have detailed in the Judgment without reasons. We must emphasize early that the Zvi Bar indictment is not to be regarded as a floor for severity, and that, with its existence, the mayor must not continue his term. Below I will clarify why the proposal we have made to Zvi Bar is consistent with our position in the current petitions.

The Ramat HaSharon Matter

7.The Respondent in HCJ 4921/13 and in HCJ 5598/13, Mr. Yitzhak Rochberger (“Rochberger”), has served as Mayor of Ramat HaSharon since 2003. On May 12, 2013 an indictment was filed against Rochberger, which we have detailed in the Judgment handed down without reasons, quoted above.

8.On July 14, 2013, the city council held a regular meeting where it discussed a proposal to remove Rochberger from office in light of the pending indictment against him, according to section 22 of the Election and Tenure of Head and Deputy Heads Law. During that meeting, a letter by the Council’s legal advisor, dated May 30, 2013, was read aloud. The letter addressed a query by two council members, Mr. Lamdan and Mr. Gruber, who initiated the proposal to remove the Mayor from office. In the letter, the legal advisor argued that there was no legal basis to remove Rochberger from office, and, either way, removal cannot be done without a special meeting, which must be convened by a majority of city council members. Rochberger requested to remove the proposal from the agenda, and the proposal was indeed removed.

The Petitioners’ Arguments

9.The Petitioners in HCJ 4921/13, OMETZ, Non-profit Organization - Citizens for Proper Administration and Social Justice, and Mr. Liran Zilberman and Mr. Zvika Tzemach, residents of Ramat HaSharon expected to run for city council in the next election, requested that this Court order Rochberger to resign from office as Mayor of Ramat HaSharon, as well as order the city council to remove him from office through the process of a special meeting held according to section 22 of the Election and Tenure of Head and Deputy Heads Law. The Petitioners argue, in light of the pending indictment against Rochberger and its surrounding circumstances, that failing to convene the City Council essentially prevented the removal of Rochberger from office, constituting an infringement on the rule of law and public trust. They claim the Attorney General’s position regarding Zvi Bar should be applied to Rochberger’s matter.

10.The Petitioner in HCJ 5598/13, Mr. Aharon Assoulin (“Assoulin”), is a resident of Ramat HaSharon who requests that this Court bar Rochberger from running as a candidate in the elections or to not allow him to run for candidacy should it be presented. Alternatively, Assoulin requests that we order the “Our Ramat HaSharon” faction not to nominate Rochberger as its primary candidate under section 4(b) of the Election and Tenure of Head and Deputy Heads Law, or to remove him from the top of the party’s candidates list. As another alternative, Assoulin requests that the Court order the Minister of Interior, the Tel Aviv District Supervisor at the Ministry of Interior and the Attorney General to declare Rochberger as unfit to serve as Mayor and to cause him to be removed as candidate, based on the authority prescribed in section 143 to the Municipalities Ordinance [New Version] (“The Municipalities Ordinance”). According to the Ordinance, the Minister of Interior is entitled to order their election of a new mayor or to even appoint one, when the current mayor has not properly fulfilled his statutory duties.

11.Assoulin relies on the Attorney General’s position regarding Zvi Bar as well, maintaining that it is analogous here. He argues that when an offense of moral turpitude has been attached to an elected official, who is subject to administrative norms, that official must resign. Moreover, the elected official must refrain from running for office. Should the official disregard these relevant considerations, and fail to reach that conclusion on his own, the Court is then authorized to order the official not to run for office.

The Respondent’s Arguments

12.In his response to the petitions, Rochberger argues that the statutory grounds of unfitness should not be expanded to establish an indictment as a bar for serving as head of local authority or running for office. He wishes to distinguish his case from the Zvi Bar case, as the offenses Rochberger is accused of committing were not committed in the course of his service as mayor. Furthermore, they are less severe than those of Zvi Bar, and a long period of time has elapsed since the offenses were allegedly committed. Rochberger also noted that even before the commencement of the criminal investigation against him, he had returned the entire amount he had received allegedly through illegal means. He further argues that the Minister of Interior is not entitled to exercise his authority under section 143 of the Municipalities Ordinance to remove a mayor from office during the year prior to his election. Finally, Rochberger argues that he is confident in his innocence and does not believe that a pending criminal case against him would compromise his service as mayor.

13.The State Attorney’s response, submitted on behalf of the Minister of Interior, of the Tel Aviv District Supervisor at the Ministry of Interior and of the Attorney General, argues that even if one’s eligibility to serve as mayor was not negated by the statutory unfitness rules, this does not eliminate the city council’s authority, and at times its duty, to examine the mayor’s continued service in light of conduct unbecoming under section 22 of the Election and Tenure of Head and Deputy Heads Law. The State further argues that in light of additional considerations, such as public trust and good moral character and clean governance, when administrative evidence – such as an indictment – exists to support the commitment of serious offenses, it is only right that the mayor should not remain in office. Therefore, the State argues, once Rochberger was indicted for serious offenses against clean governance and good moral character, the Ramat HaSharon city council should have convened to discuss whether he was fit to continue in office. Still, the State argues, in light of the proximity in time to the election, the Ramat HaSharon City Council is permitted to take into account practical considerations, and avoid convening a special meeting before the elections. The State emphasizes that its position is that, should Rochberger be re-elected as mayor in the coming elections, the City Council would then be obligated to convene and discuss the matter of his continued service. In terms of Rochberger’s candidacy in the coming elections, the State expressed several difficulties in permitting him to continue to run. It is clear that should Rochberger be re-elected, the City Council would be required to discuss his remaining in office under section 22 of the Election and Tenure of Head and Deputy Heads Law. The State further claims that these difficulties may become overly difficult and impractical; for example, this decision to allow him to run allows any serving mayor to run in elections despite being found unfit to serve under section 22. In light of these difficulties, the State argues that a question may arise as to what the considerations the city council must take into account when considering removal of a mayor from office also apply to candidates themselves insofar that they must refrain from running. The State believes this question cuts both ways. However, under the circumstances, it need not be decided because the Ramat HaSharon city council has yet to convene to discuss the matter of Rochberger’s continued service, and as discussed, it would have to do so after the elections should Rochberger be re-elected. The State further claimed in its response that, in regards to Rochberger, the exception set in section 143(b) of the Municipalities Ordinance applies. This exception prohibits the Minister of Interior from exercising its authority during an election year, and it is impossible to require the Minister of Interior at this early stage to commit to exercising this authority after the elections.

14.The Ramat HaSharon City Council argued, for its part, that the Petition to order it to remove Rochberger from office should be rejected in limine and on its merits. The Ramat HaSharon City Council maintains that its decision not to convene a special meeting and not to remove Rochberger from office constitutes a “decision” by a local municipality, and that it has such authority to decide this through its Court of Administrative Affairs. For this reason and others, the Ramat HaSharon City Council argued that the Petition should be dismissed in limine. Furthermore, in terms of the merits, the City Council claimed that removal from office according to section 22 of the Election and Tenure of Head and Deputy Heads Law cannot prevent Rochberger from running in the coming elections. Therefore, as the City Council’s argument goes, in light of the proximity to the date of the elections, requiring the Ramat HaSharon City Council to hold a special meeting is unjustified. The Ramat HaSharon City Council also relied on the decision in HCJ 7367/97, The Movement for Quality of Governance in Israel v. The Attorney General, IsrSC 54(2) 547 (1998) to argue that existing law does not include any relevant limitation of qualification, thus whoever is fit to be elected could also continue to serve. To bolster this claim, the Ramat HaSharon City Council pointed out that the local elections are direct elections and thus the will of the people must prevail. Further, bills that would change the current state of the law by conferring an authority to suspend an indicted head of local authority were never passed. Therefore, section 22 of the Election and Tenure of Head and Deputy Heads Law cannot be used to remove a sitting mayor who was not convicted. Additionally, the Ramat HaSharon City Council believes that the offenses Rochberger has allegedly committed are not as serious as those of which Zvi Bar was accused of and, in any event, the scope of the Court’s intervention in a city council’s decisions, which involve political and coalition-related considerations, is limited.

15.Rochberger’s faction, “Our Ramat HaSharon” (“the faction”), argues that the legislature’s silence regarding removing an indicted candidate is a “negative arrangement” that does not allow the faction or the Court to require that a candidate remove their candidacy or refrain from running. The faction emphasized that the desired remedy of barring Rochberger from running and barring the faction from appointing him as its primary candidate and leader is different than the remedy requested in the Zvi Bar matter. Thus it claims the Court is not authorized to grant it. The faction reiterated the significance of the right to elect and be elected and claimed that the decision regarding Rochberger’s continued service in office should be left to the voters. The faction further argued that the offenses Rochberger allegedly committed are not as serious as those of which Zvi Bar was accused, and for this reason as well there is no place to bar the party from appointing Rochberger as its leader.

16.Advocate Idan Lamdan, City Council member, and the Meretz faction requested to join as respondents, submitted their positions and attended the hearing according to the Panel’s decision. Advocates for the Lamdan and Meretz factions pointed out that Rochberger refused to put on the agenda their proposals requesting that he suspend himself from office. Therefore they called upon the District Supervisor, addressing copies to the Minister of Interior and the Attorney General, to order Mr. Rochberger to hold such a discussion. Rochberger’s continued refusal was based upon the city council’s legal advisor’s opinion that the discussion of section 22 (that is, removal from office) could not be held within the framework of a special meeting. He held this even though this Court had already decided to order the City Council to submit its response to the Petition. As argued, the Ramat HaSharon City Council decision to accede Mr. Rochberger’s request to remove the issue from the Council’s agenda was outside the range of reasonableness.

Advocates of the Lamdan and Meretz factions further argued that the City Council’s response to the Petition was submitted without the consent of the factions of which the Council is comprised and without having discussed the response. To them, the claim regarding the proximity to the elections raised by the City Council in its response should not be heard, as Rochberger himself attempted to prevent discussion of the proposal several times.

The Nazareth Illit Matter (HCJ 5126/13 and HCJ 5597/13):

17.The Respondent in HCJ 5126/13 and HCJ 5597/13, Mr. Shimon Gapso (“Gapso”) has served as the Mayor of Nazareth Illit since 2008.

18.An indictment was filed against Gapso on June 17, 2013. We have discussed the details of that indictment above.

19.It should be noted that the State suspects that Gapso has committed additional offenses; however indicting him for those offenses is subject to a hearing. These offenses include those of bribery, fraud, breach of trust in relation to receiving a bribe from the manager of the “Ramle Lod” Market in the city, as well as elections bribes in the form of promising employment in the municipality to supporters. After the Judgment was handed down without reasons, we were notified of a notice submitted by the State Attorney on the same day that, in light of Gapso’s conduct, the opportunity to hold a hearing in his matter had been exhausted and therefore the prosecution intended to indict him in the near future. This fact was not before us when we handed down the Judgment without reasons, and we saw no reason to address it.

20.On August 13, 2013, the Nazareth Illit City Council convened to discuss whether Gapso should remain in office as mayor, and decided not to remove him from office. The decision was made by a majority of the seven council members, while Gapso himself abstained. It should be noted, that this meeting was convened after Advocate Fisch, who is representing the City Council in these proceedings, advised the Council to do so, rather than at the City Council members’ own initiative.

The Petitioners’ Arguments

21.The Petitioners in HCJ 5126/13 are the Movement for Quality Government in Israel and Mr. Zeev Hartman, city council member and member of the Nazareth Illit Audit Committee. They requested that we order the Nazareth Illit City Council to convene immediately and to remove Gapso from office according to section 22 of the Election and Tenure of Head and Deputy Heads Law. The Petitioners further request that we order the Minister of Interior and the Northern District Supervisor at the Ministry of Interior to exercise their authority under section 141 of the Municipalities Ordinance, which empowers the Supervisor to decree that the City Council fulfill its duty and remove Gapso from his service. We were also requested to order Gapso to resign from office, and to bar him from running for mayor in the coming elections.

The Petitioners maintain that the indictment against Gapso constitutes evidence of conduct unbecoming the position of mayor in terms of section 22 of the Election and Tenure of Head and Deputy Heads Law. They claim that the conduct he is alleged to have committed is egregious and directly linked to his public office and is further inconsistent with the mission of elected public service. They argue that the severity of the conduct and its link to the public office warrant removing Gapso from his office, and, really even, warrant Gapso himself – as an elected official bound by the norms of administrative law – to resign. They further argue that the reasons that justify removing Gapso from office also justify preventing him from running in the coming elections, lest he be re-elected and a need for holding elections again will arise, with all the institutional and financial damages that will entail as a result.

The Petitioner in HCJ 5597/13 is Ilya Rosenfeld, a Nazareth Illit resident and City Council member (“Rosenfeld”). He requests that we order Gapso to refrain from running for mayor or to remove his candidacy in the event it has already been submitted. Alternatively, Rosenfeld requests that we order the “Uri Ir” faction to refrain from placing Gapso at the top of its candidates’ list, or to remove him from the top of the list. Alternatively, Rosenfeld request that the Court order the Minister of Interior, the Northern District Supervisor at the Ministry of Interior and the Attorney General to declare that Gapso is unfit to serve as mayor and cause his candidacy to be removed, as authorized in section 143 of the Municipalities Ordinance. Rosenfeld argues that elected officials are subject to a higher standard of integrity. Yet the conduct associated with Gapso infringes public trust and clean public governance, and he should therefore be prohibited from running for mayor. He maintains that administrative evidence, such as an indictment, is sufficient to disqualify Gapso from serving as mayor, and a conviction is unnecessary.

The Respondents’ Arguments

22.In its response, the Nazareth Illit City Council relied on HCJ 6749/12, Hayat v. Mory, (November 22, 2012) (“the Hayat matter”) for the proposition that the challenges to Gapso’s continued service should be aired out in the Court of Administrative Affairs. However, because of the matter’s importance, the City Council stipulated that it did not object to this Court’s jurisdiction to address the case at hand.

23.The Nazareth Illit City Council conceded that once the Mayor had been indicted, it was obligated to evaluate the consequences of that indictment and to consider whether the Mayor should be removed from office. However, the City Council argued it did not have a duty to remove the Mayor from office. It maintained that the City Council’s discretion in the matter is wide and the scope of intervention in its decisions – as a political-collegial body – is limited. Additionally, the City Council argued that an indictment alone must lead to removal from office nullifies the statutory rules of fitness for service and infringes the will of voters. Further, since it is impossible to prevent the Mayor from running in the coming elections, there is no justification to require the City Council to remove him from office now, so soon before the elections. The City Council also argued that there was no procedural flaw to the City Council’s conduct, as it did convene and consider all relevant factors. However, the City Council did not rule out the possibility that the Mayor himself could be ordered to resign or that the Minister of Interior may be required to remove the Mayor from office.

24.In his response to the Petitions (one of which was filed jointly with Gapso’s faction “Uri Ir”), Gapso maintained that his matter is distinct from the Zvi Bar case. He claimed that the Attorney General’s opinion in Zvi Bar was submitted with awareness of the existence of additional indictments against serving mayors, and thus the Attorney General emphasized the severity of the particular case that his opinion addressed. In Gapso’s view, the offenses attributed to him are not as serious as the offenses of which Zvi Bar was accused, as they carry no moral turpitude, and given the considerations expressed in the Attorney General’s opinion – such as, the scope of the offense, the number and severity of offenses in the indictment, and each offense’s impact on the fabric of life at the local municipality. Gapso added that he should enjoy the presumption of innocence. Therefore exercising administrative discretion regarding his removal from office should include a deep review of the administrative evidence and its weight. He claimed that the weight of the administrative evidence in his case, that is the indictment, indicates that removing him from office is unwarranted. He further argued that with the election fast approaching, exercising authority under the mentioned section 22 is unjustified at this time.

25.As for Gapso running for elections, he and his party “Uri Ir” maintained that there is no justification to bar him from running, as there is no statute that deprives him of that right.

26.The State’s normative position in these Petitions regarding the scope of section 22 of the Election and Tenure of Head and Deputy Heads Law’s application matches its position in response to the Petition regarding Ramat HaSharon. The State believes that for now, Nazareth Illit City Council’s decision not to remove Gapso from office is within the range of reasonableness, because the alleged offense is not overly egregious. They support this by explaining that since it was only a single act and the compensation, seemingly, was “not to the extent that the seriousness of the offense became overly egregious.” Therefore, the State argues that the City Council was permitted to remove Gapso from office but it did not act outside the range of reasonableness when it failed to do so. This is distinguishable from the second Zvi Bar matter, which under the concrete circumstances there, the City Council’s decision not to remove the mayor from office was unreasonable in light of the nature and extent of the alleged offenses and their link to public office.

However, the State also argued that the scope of section 22 of the Election and Tenure of Head and Deputy Heads Law’s application should be ruled upon now, as it is a significant and widely-applicable matter that is highly likely to become relevant after the elections.

27.As for Gapso’s running in the coming elections, the State argued that the Elections Supervisor was not authorized to exclude anyone from candidacy beyond the statutory causes for disqualification. However, an absurd situation where a mayor has been removed from office but is not barred from running again may arise. Therefore, it argues, it is possible to consider placing that duty on the candidate himself, but such construction presents challenges, because no actual decision was made by the City Council regarding removing Gapso from office, it is inappropriate to rule on his specific case. The State even reiterated that, in the year leading up to elections, it is impossible to order the Minister of Interior to exercise the authority under section 143 of the Municipalities Ordinance.

On September 10, 2013 we held a hearing in the Petitions. With the Petitioners’ consent, we discussed the Petitions as if orders nisi had been granted. On September 17, 2013 we handed down the Judgment without reasons.

Reasons for decision

28.At the center of the Petitions before us is, as mentioned above, the issue of the status of a head of local authority who has been indicted in connection with their public activity. At the heart of the first discussion (removing a head of local authority from office after an indictment) and at the heart of the third discussion (removing a head of local authority from office after elected when an indictment is pending) is the issue of the interpretation and scope of application of section 22 of the Election and Tenure of Head and Deputy Heads Law (a different, but similar, statute applies to regional council). At the heart of the second discussion (barring a candidate from running for office) is the issue of whether it is legally possible to require a candidate, against whom a serious indictment was filed, to refrain from running or to require those authorized to nominate a candidate not to do so because of an indictment against the candidate.

The First Situation: Removing a Head of Local Authority Because of an Indictment Filed While in Office

29.Primary legislation establishes conditions for ending or suspending a head of local authority’s service. In terms of city councils and local municipalities, these rules are set in the Election and Tenure of Head and Deputy Heads Act (see definitions for “local municipality” and “head of authority” in section 1 of the Act). Section 20 of this Act details the circumstances for ending or suspending a head of authority’s service due to a criminal conviction.

“Ending and Suspending Service for Moral Turpitude:

20. (a) Once a court sentences a head of authority for a criminal offense, whether the offense or conviction occurred while in office or before the head of authority began serving in office, the court will determine in its sentence whether the offense is one of moral turpitude. The court’s decision regarding moral turpitude is subject to appeal as if it were a part of the sentence.

(b) In the event that the court did not determine as established by sub-section (a), or the head of authority began serving between the date of sentencing and the date the decision becomes final, the Attorney General or its representative may, as long as the decision has yet to become final, approach the court and request a determination regarding moral turpitude. The request will be submitted to the sentencing court or if an appeal was filed – the appellate court. […]

(d) Once the court determines according to this section that the offense of which the head of authority was convicted is one of moral turpitude, the head of authority will be suspended from office until a final judgment is given in the matter.

(e) The head of authority’s service will end on the day that the judgment establishing the offense as one of moral turpitude becomes final.

(f) (1) When a head of authority is sentenced to imprisonment in terms of section 7 of the Elections Law [The Local Authorities Law (Elections), 5725-1965 – Naor] and has failed to declare truthfully or has failed to submit notice or request under section 7a of the above statute, his term will end and he will cease serving as head of authority.”

30.Under this section, a head of authority’s service ends upon conviction and a determination included in a final judgment that the offense is one of moral turpitude (section 20(e) of the Election and Tenure of Head and Deputy Heads Law), or if the head of authority was sentence to imprisonment in terms of section 7(b) of the Local Authorities Law (Elections), 5725-1965 (“Local Authorities Elections Law”).

Similar conditions for disqualification of service due to a conviction for an offense of moral turpitude exist in regards to head of regional council (section 6b of the Regional Councils Law (Electing Head of Council) 5748-1988 (“Electing Head of Regional Council Law”)) and in regards to local authorities’ council members (section 120(8) to the Municipalities Ordinance; section 101(7) to the Local Councils Order (a) 5711-1950 (“Local Councils Order (a)); section 7b of the Local Councils Order (b) 5713-1953 (“Local Councils Order (b)); section 19(b) of the Local Councils Order (Regional Councils) 5718-1958 (“Regional Councils Order”)).

The provisions detailed above thereby establish when the service of a head of local authority implicated in a criminal proceeding automatically expires. The two indicted mayors’ service did not expire under these provisions. However, this is not the end of the story. A city council is authorized to discuss and decide whether under certain circumstances, including – in my view – an indictment, the head of authority could be removed from office. This authority is grounded in section 22 of the Election and Tenure of Head and Deputy Heads Law. We quote it once more:

“Removing from Office Owing to Conduct:

22. (a) Should the Council find that the head of authority is engaging in conduct unbecoming the status of head of authority  and thus believes the head of authority is unworthy of the office, it may, after providing an opportunity to be heard, remove the head of authority from office.

(b) A decision to remove the head of authority from office will be reasoned and will be made in a special, closed meeting of council members. The decision will be made by a majority of three fourths of council members. The decision shall require approval by the Minister.

(c) Should the head of authority fail to convene a special meeting as within 14 days from the day a majority of council members called upon him to do so, the majority of  council members may convene such a meeting and they shall select a chairperson to lead the meeting.”

Under section 24A of the Election and Tenure of Head and Deputy Heads Law, should a city council remove a head of authority from office according to section 22 over a year before elections, a special election for head of authority will be held. Should a city council remove a head of authority from office a year or less before elections, the council will elect one of its members to serve as acting head of authority.

Recall, that in our case, the Nazareth Illit City Council convened under the advice of Advocate Fisch and decided not to remove the Mayor from office, while the Ramat HaSharon City Council removed the issue from its agenda. In my opinion, there is a dutiful consideration regarding whether to remove an indicted head of authority from office. I will come back to this regarding Ramat HaSharon, but first we come back to the interpretation of the mentioned section 22.

31.Section 22 of the Election and Tenure of Head and Deputy Heads Law authorizes a local authority council to remove the head of authority from office, if it is convinced the head of authority has committed conduct unbecoming a head of authority and it believes that the head of authority is therefore unfit to serve in office (for more on the legislative history behind section 22, see HCJ 689/81, Ben Abraham v. Arbili, IsrSC 36(2) 389 (1982)).

My view is that even if a head of local authority’s term has not automatically disqualified by force of statute, the city council is obligated to consider other factors in its decision concerning whether to remove someone from office, including – and this factor alone requires ruling in this matter – an indictment against the mayor. This is within the discretion afforded to an authoritative council under section 22. My conclusion is based on the distinction, which is settled in our jurisprudence, between unfitness to serve and statutes that establish discretion in removing from office.

32.The distinction between statutory disqualification and discretion over removal from office is an old one. It was applied in cases as early as the Deri and Pinhasi matters. The question in Deri (HCJ 3094/93, Movement for Quality Government in Israel v. The Government of Israel, IsrSC 47(5) 404 (1993) (“the Deri case”)) was whether Rabbi Deri should continue serving as a member of the government and Minister of Interior. Deri was indicted for offenses of bribery, breaching a public servant’s fiduciary duties, and receiving benefits through fraud, among others. The issue was whether the Prime Minister was statutorily obligated to exercise the authority under Basic Law: The Government and remove Minister Deri from office, in light of the indictment against him. This Court ruled that an indictment – in which Minister Deri was alleged to have taken hundreds of thousands of shekels in bribes and misuse, in other manners, governmental positions – requires removing the Minister from office. This was despite the absence of any express statutory requirement that the Prime Minister remove the Minister from office due to an indictment.

In HJC 4267/93, Amitai – Citizens for Proper and Clean Governance v. The Prime Minister of Israel, IsrSC 47(5) 441 (1993) (“the first Pinhasi case”), the issue at hand was whether following an indictment that alleged Deputy Minister Pinhasi had committed offenses of false registration in corporate documents, making false statements, and attempts to receive benefits through fraud, Pinhasi could continue serving as deputy minister. The Court discussed the meaning of fitness laws and refined the distinction between the laws of eligibility applicable to a minister or deputy minister and the discretion afforded to a competent authority to remove a minister or deputy minister from office:

25. Indeed, the laws of fitness were designed to create ‘threshold bars’ for serving in office. The legislature itself balanced the different factors and considerations and found that under certain circumstances, a person is unfit to take position or office or continue serving in this position or office. At times, objective existence of certain conditions is sufficient to achieve the effect the legislature desired (‘Whoever was convicted of an offense of moral turpitude, and ten years had not yet passed since that person completed serving their sentence: section 16(b) of the new Basic Law: The Government, which takes affect starting the election for the fourteenth Knesset (section 63(a), shall not be nominated as minister). From time to time exercising discretion by a competent authority is necessary to achieve the desired effect (‘The Knesset is authorized, in a decision, to remove a Knesset member from office if it has found that member to be unfit for service due to a conviction of a criminal offense in a final judgment and a verdict of one or more years’ imprisonment: section 42A(a) of Basic Law: The Knesset). When such discretion in this context is required, it addresses whether the conditions for fitness (or unfitness) exist. It does not address whether it is appropriate to appoint one for service or end their service under these conditions, and it is not designed to balance the different considerations in the matter. The Legislature itself did the balancing and found that, under certain conditions, there is no place for appointment for service or for continuing service. In this matter no governmental authority has discretion, aside from that which the legislature has granted under certain circumstances. This is not so in the matter of discretion in appointment, election for office, or ending one’s service. In the absence of fitness laws there is no ‘threshold bar’ to an appointment or its expiry. The competent authority should exercise discretion. It should balance the different considerations that should be taken into account. A criminal indictment or a conviction are among the important considerations. They are not the only considerations.”

In light of this distinction, the Court made clear that though an indictment is lesser to a conviction, and though the elected official enjoys the presumption of innocence, when the indictment is serious, the Prime Minister is obliged to remove a minister or deputy minister from office. At the base of this conclusion was, among others, the Court’s finding that the presumption of innocence does not prevent ending the service of a public official, when the authority deciding to end the service is in possession of administrative evidence – that is, evidence that “any reasonable person would see as having evidentiary value and would trust” – that would justify ending a term of service (p. 468). I come back to this issue below. Due to the serious allegations against Deputy Minister Pinhasi, the Court ruled it was unreasonable not to end his term, and the Court ordered as such.

It should be noted that the distinction between statutory fitness rules and exercising discretion was applied in other contexts even prior to the Deri case and the first Pinhasi case. For instance, in the Eizenberg case, in regards to the appointment of Yosef Genosar to General Director of the Ministry of Construction and Housing despite his involvement in the “route 300” and the Napso affairs, the Court ruled that the appointing authority must weigh a candidate’s criminal history, even if there is no explicit statutory regulation that bars a candidate with a criminal history to be appointed. This ruling relied on the distinction between the issue of fitness for office and discretions in appointments:

We must separate questions of fitness (or authority) from questions of discretion. The absence of explicit statutory instruction regarding the disqualification of a person with a criminal history allows for the candidate’s fitness, but does not prohibit consideration of that history within the scope of administrative discretion granted to an appointing authority. Indeed, a candidate’s criminal history is a relevant consideration, which the appointing authority is permitted and required to take into account before the appointment.” (HCJ 6163/92, Eizenberg v. the Minister of Construction and Housing, IsrSC 47(2) 229, 256-257 (1993) (“Eizenberg case”).

See also HCJ 4668/01, Sarid v. Prime Minister, IsrSC 56(2) 265 (2001) (“Sarid case”); HCJ 5853/07, Emunah – National Religious Woman’s Organization v. Prime Minister, IsrSC 62(3) 445 (2007) (“Emunah case”).

33.In the years following the Deri case and the first Pinhasi case, different parties have repeatedly requested that the Court follow the precedent of­ those cases and remove public officials from office. The Court has not always done so. For example, the Court held that the Prime Minister’s decision not to remove Minister Tzahi Hanegbi from office was reasonable. Minister Hanegbi’s conduct in the appointment of Advocate Roni Bar-On as Attorney General was inappropriate, but was not criminal. (HCJ 2533/97, Movement for Quality Government in Israel v. The Prime Minister, IsrSC 51(3) 46 (1997) (“The first Hanegbi case”); see also HCJ 1993/03, Movement for Quality Government in Israel v. The Prime Minister, IsrSC 57(6) 817 (2003), where a petition against Hanegbi’s appointment and for his removal from office in light of his involvement in the affair mentioned above, as well as others, was rejected (“the second Hanegbi case”). Additionally, where a criminal investigation against a public official was conducted but before an indictment was filed, the Court preferred to wait and see whether an indictment indeed would be filed. Such were the circumstances, for instance, in the first Zvi Bar case, discussed above. This was also the case in HCJ 1400/06, Movement for Quality Government in Israel v. The Acting Prime Minister (March 6, 2006), where it was held that there was no room to intervene in a decision not to remove Minister Hanegbi from office due to the political appointments affair, because – among others – the Attorney General’s decision whether to indict him was not final (“the third Hanegbi case”).

There are additional examples, but I shall not belabor the point. All that matters is that even when this Court did not intervene in a decision to remove or not to remove a public official from office in the cases mentioned above, it avoided straying from the distinction between statutory fitness rules and exercise of discretion by a competent authority. In other words, these decisions flow from the premise that statutory fitness rules do not constitute an exhaustive list, and, under the proper circumstances, even cases that are outside the scope of the statutory conditions for disqualification will require ending the term of a public official. Therefore, the opinions mentioned above may be relevant as to whether intervention in an exercise of discretion in a specific case is appropriate, but not to whether such discretion or authority to remove a public official from office despite statutory fitness themselves exist.

To conclude this part, it seems Justice Procaccia best described the existing jurisprudence regarding the distinction between statutory disqualification rules and discretion regarding removal from office in her opinion (panel of one) in CrimApp 5816/09, The State of Israel v. Zaguri (September 9, 2009) (“the Zaguri case”). She held:

The view that a list of disqualifications to serving as a public official, detailed in a statute, should be seen as an exhaustive, all inclusive list was rejected in our case law. A string of decisions applying to different contexts held that the causes for disqualification of service for public officials as detailed in different statutes are not exhaustive and that there may be conditions and circumstances additional to the statutory causes for disqualification that render the ongoing service of a public official inconsistent with principles of public law, thus requiring ending the term of service. Disqualifying one from office due to general causes based in public law may rely on principles such as reasonableness, decency, and the duty to preserve the public’s trust in its elected officials. These principles may also justify, in specific cases, ending the term of a public official that has been indicted for criminal offenses, even if the official has yet to be convicted and the offense has yet to be declared as one of moral turpitude.

Thus, for instance, in the context of exercising the authority to appoint to public office, this Court ruled that in the absence of an explicit statutory cause for disqualification, a person is eligible for office. However, fitness for office does not negate the possibility or the need to consider different factors within the scope of administrative discretion afforded to the appointing authority that may disqualify the appointment (HCJ 6163/92, Eizenberg v. The Minister of Construction and Housing, IsrSC 47(2) 229, 258 (1993) (“Eizenberg case”)). When a statute does not stipulate the causes for disqualification of appointing a candidate with a criminal history to serve as the member of a religious council, it was held that despite his conviction for an offense involving moral turpitude he was not disqualified as fit to be appointed as a member of a religious council, then fitness should be separated from discretion regarding the appointment. However, not disqualifying a candidate in terms of fitness does not inherently give rise to the appointment as proper, when the appointment is contingent upon the appointing authority exercising its discretion. A conviction for an offense of moral turpitude is a relevant consideration that any appointing authority must take into account. However, this consideration is neither exclusive nor determinative, and there may be additional considerations to take into account under the circumstances (HCJ 727/88, Awad v. The Minister of Religious Affairs, IsrSC 42(4) 487, 491 (1989); HCJ 58/68, Shalit v. the Minister of Interior, IsrSC 23(2) 477, 513 (1967)).

This approach, that the statutory disqualification conditions are not an exhaustive list, was applied regarding both to public office appointments and to elected services (HCJ 5853/07, Emunah – National Religious Woman’s Organization v. The Prime Minister, para. 24 (unreported, December 6, 2007)). Even in the absence of any statutory bar, an authorized appointing body should exercise discretion where the candidate’s criminal history and the nature of that history are important and relevant considerations. However, the statutory fitness rules do reflect to some extent the standards aimed at one’s normative threshold for taking or remaining in office (HCJ 1993/03, Movement for Quality Government in Israel v. The Prime Minister, IsrSC 57(6) 817, 851 (2003)).

And she continues:

30. The above principles generally apply to procedures of appointment or removal from office of state employees or public officials who have been criminally convicted, or when there is administrative evidence that they have committed a serious criminal offense. These considerations may exist to the same extent even when an elected official has been indicted of serious offenses (the Pinhasi case, p. 467-68) (emphasis added – Naor). As said in Pinhasi: “We are concerned with a governmental action of ending a term of office. A criminal offense is not necessary in order to provide a foundation for such action. The presumption of innocence, which all defendants enjoy, does not prevent ending the term of a government public official, so long as the deciding governmental authority is in possession of evidence which under the circumstances ‘a reasonable person would see as holding evidentiary value and would trust . . .”

The existence of administrative evidence about one’s involvement in criminal offenses goes directly to the public office and the public’s trust in the official, and may carry significant weight in terms of the continued realization of their right to serve in public position as an elected official.

These principles apply not only to elected officials in central government, but also to elected officials in local government. In some such circumstances an indictment against a council member may lead to ending their term, even while they enjoy the presumption of innocence, see APA 3911/05 Tzion Hava v. Azur Local Council (unreported, October 23, 2006) (Justice Joubran). Indeed, “the public administration cannot stand if norms of public hygiene do not prevail, and the public’s trust in elected officials will be lost unless these are honest and clean people” (then Deputy President Cheshin, EA 3/01, In re Section 6 of Basic Law: The Knesset and In re Former Knesset Member Mr. Samuel Plato Sharon – His Right to be Elected to the Knesset, IsrSC 56(5) 14 (2002)).

The present issue to be decided on a normative level is whether section 22 is an appropriate source for considering an indictment leading to the removal from office. We have ruled, as mentioned in the Judgment without reasons, in the affirmative.

34.The language of section 22, which considers “conduct unbecoming”, is broad; many different cases may fall within it. In this spectrum of possibilities we must opt for the meaning that would realize the statute’s objective (FH 40/80, Koenig v. Cohen, IsrSC 36(3) 701, 715 (1982)). “The test is not whether to interpret a statute broadly or narrowly, but to interpret it to fit the legislation’s objective and goal” (HCJ 636/87, Assaff v. The Minister of Interior, IsrSC 43(1) 177, 181 (1988) (“the Assaff case”). The basis for section 22 of the Election and Tenure of Head and Deputy Heads Law is, on the one hand, the interest in guaranteeing “public hygiene”, public trust, the rule of law and clean governance, and, on the other hand, protecting the status of a head of authority elected to office in personal elections, protecting the right to elect and to be elected, and ensuring the proper operation of local government. Given these competing interests, the case law has found that cause for removing a head of authority from office should be unusual and extraordinary conduct by the head of authority (the Assaff case, above).

Indeed, removing a head of authority from office for a light transgression ignores the importance of the right to elect and to be elected and the need to prevent a prevalence of removals or threats of removals of heads of authorities, since such looming threats significantly hampers the function of a local government system (see HCJ 299/88, Abu Hijley v. The Head of Local Council of Jaljulia, IsrSC 43(2) 862 (1988)). However, the authority to consider removal from office in the context of an indictment against a serving head of authority, though outside of the statutory disqualification criteria detailed above, still exists. According to the case law, the authority and the matter of how the discretion is exercised, are distinct questions (see and compare the second Hanegbi case, where Justice Rivlin distinguished fitness rules from discretion regarding removing a minister from office, though the new Basic Law: The Government included a statutory disqualification provision under which a minister’s term would end (pp. 833-34).)

The jurisprudence established by the case law to distinguish the fitness criteria was limited to cases surrounding the removal of a public official or an elected official that was appointed by virtue of an administrative decision rather than through elections. However, in our case, we are dealing with the removal of a public official who has been elected directly and personally to serve as a head of local authority. Still, in my view, this fact does not lead to a conclusion that the statutory fitness rules define the scope of section 22. The limits of this authority are set by the goal that underlies the authority. The goals that underlie a city council’s authority to remove a head of authority from office are, as mentioned, interests of the rule of law, public trust, and clean governance. It is undeniable that in the context of an elected public official who was appointed through elections, the significance of the right to elect and to be elected is reinforced. However, I believe, that the right to be elected cannot stand as an obstacle to removing a head of authority from office. Indeed “[a]n elected official is not like a public servant. The former is elected by the people and is subject to their judgment. The latter is chosen by elected officials and is subject to the elected officials’ judgment. But this difference does not mean that the elected public official stands to be judged by the people alone . . . The voter’s judgment does not substitute the judgment of the law and may not replace it.” (The first Pihnasi case, p. 470; see also the Zaguri case, para 29) The importance of the right to elect and to be elected could be reflected in the way the discretion is exercised and in weighing the competing rights and interests. This approach has been expressed in the opinions of this Court (the first and second Zvi Bar cases, CrimApp 2841/13, Hadija v. The State of Israel, para 28 of Justice Barak-Erez’s judgment (May 6, 2013); the Zaguri case, above; HCJ 6749/12, Hayat v. Mori, para 14 of Justice Joubran’s judgment (November 22, 2012); Justice Joubran’s position in APA 3911/05, Hava v. Azur Local Council (October 23, 2006) (“The Hava case”).

35.It was argued before us that mayors, who are public elected officials, should be treated as similarly situated to Knesset Members. We were referred to the second Pinhasi case here (HCJ 7367/97 The Movement for Quality Government in Israel v. The Attorney General, IsrSC 52(4) 547 (1998) (“the second Pinhasi case”)). There, the Court held, though it was not even in dispute there, that even a criminal conviction for offenses of moral turpitude for which one had only received a suspended sentence of imprisonment, does not compromise the fitness of a Knesset Member from continuing to serve. It was held there that in the absence of explicit legislation there should be no distinction between one’s fundamental fitness to serve as a Knesset Member under Basic Law: The Knesset, and fitness to fulfill duties of a Knesset Member position. This includes fitness to serve as chairperson of a Knesset committee. The Court distinguished there between the issue at hand in the first Pinhasi case, where it was decided that the Prime Minister must remove Pinhasi from his position as deputy minister, from the matter of removing a Knesset Member from serving as chairperson of a committee, which is part of the duties of the Knesset Member position.

In my opinion, we must distinguish the ruling on the issue of Knesset Members’ service in the Knesset and their service as chairpersons of committees, from the issue of heads of local authorities. Heads of local authorities indeed are public officials elected through direct elections, but they are not the same as Knesset Members. There are similarities between heads of local authorities and the Prime Minister, specifically, at times when the Prime Minister was elected in direct elections. The authority’s council, headed by the mayor, functions – for the purposes of secondary legislation – like a mini-legislative authority, but the primary function of a local authority council is to serve as an executive authority. The mayors lead public municipal service. They make individual decisions, often decisions that heavily impact the pockets of voters and others. The decisions that mayors face put them in a sensitive spot, one that causes their clean governance to be vulnerable to damage. Moreover, the authority to remove mayors from office for conduct unbecoming is one of discretion (as granted by section 22, mentioned above), which is subject to judicial review.  Recall, that this authority is not unlimited, but in light of its language and purpose, it may be used as a source for removing head of authority from office due to a serious pending indictment against them. There is no parallel legislation that would apply to Knesset Members or chairpersons of Knesset committees. I will note that, even in terms of a local authority council’s function as a “mini” legislative authority, there are fundamental differences between it and the Knesset. The emphasis in regards to the local authority as a legislative authority is on the word “mini”, because under Israeli law the local government is not based on an independent model, and the local authority is subordinate to the central government in a host of matters. The central government may dissolve the local authority’s council – its “parliament” – and even appoint a committee to govern it. Indeed, even the local authority’s legislative activity – passing secondary legislation – is subject to approval by the central government’s executive authority (the Minister of Interior). Another illustration of the difference between the status of the Knesset and the status of a local council as legislative authorities is the immunity granted to a Knesset Member in light of their sensitive role of representation in the national parliament; such immunity does not apply to members of local authorities’ councils. The fundamental difference between the Knesset and a council of a local authority is also reflected in the scope of judicial review: while the Court exercises great restraint in intervening in decisions by the Knesset, this restraint stems from the unique status the Knesset holds among the three authorities of government. This self-restraint is special and does not apply to other governmental bodies, such as municipal councils (HCJ 953/87, Poraz v. the Mayor of Tel-Aviv-Yaffo, IsrSC 42(2) 309, 321 (1998) (the Poraz case)). At the end of the day, the fact that a head of a local authority is a public elected official is insufficient to prevent the Court from intervening in a decision not to remove the head of a local authority from office.

In the Deri and the first Pinhasi cases, which I discussed above, the Court addressed removing from office public officials that had served in an executive public capacity as a result of an administrative decision. In our matter we are concerned with public service as a result of direct elections. Under these circumstances, the weight of the right to elect and to be elected, against other relevant considerations and primarily public trust in government authorities, may be even greater. However, sadly, the phenomenon of indictments against heads of authorities has very much so been proliferated. At the end of the day, accounting for considerations of rule of law, clean governance, public trust in its elected officials, and that the differentiation in treatment of the mayors and Knesset Members, it seems we should apply standards similarly to those in the Deri-Pinhasi cases, even to elected public officials in local authorities.

36.Again, fitness is a separate consideration from discretion. However, similar to the decision in the second Hanegbi case, there is a link between the limits of fitness and the exercise of discretion:

. . .  The limits of fitness as defined by the constituting authority are not irrelevant to examining the Prime Minister’s discretion. The farther away we move from the statutory limits, the more difficult it may become to find a reason and justification to intervene in the Prime-Minister’s discretion under his authority. Indeed, if the legislature determined that convicting a minister of an offense of moral turpitude requires a removal from office, the Court would not easily hold that, where a minister was acquitted, or was not even prosecuted, removal from office is similarly required.

Our case does not concern ministers of government but heads of local authorities. The fitness rules were not established in Basic Laws, but in “regular” legislation. Still, I accept that these statutes are also relevant to the way administrative authority applied its discretion in terms of removing a head of authority from office. It is of course possible to remove a mayor from office for behavior that is not criminal, if it is extreme and uncommon behavior. However, where a less serious indictment is concerned, usually the head of authority would not be removed from office. Serious offenses or offenses of corruption are different.

Therefore, there is a discretionary power for the local authority’s council to remove from office a head of authority involved in criminal proceedings, even where the statutory rules of disqualification do not apply. We turn to examine the way this discretion should be exercised. I will review the spectrum of considerations that ought to be accounted for, without the intention to exhaust such considerations.

37.I have discussed that in a number of decisions we held that, under the appropriate circumstances, a criminally indicted public official should not continue to serve in public office or position, should the administrative evidence gathered warrant as such. As I said, when the city council considers whether to remove a criminally indicted mayor from office a variety of considerations should be weighed. The above distinction between fitness and removal from office should be considered, as should the relationship between discretion in removal from office and the scope and limits of statutory fitness. The severity of the offenses of which a head of authority is accused should also be accounted for. In this context, the value the offense is designed to protect should be considered with special severity associated with offenses that have protected values regarding clean governance, public trust in government authorities, and ensuring the integrity of public servants at their core. The duration and scope of the offenses, the number of counts in the indictment, and the time that has elapsed since the offenses were allegedly committed should all be considered as well. Another important consideration is the link between the offenses of which the head of authority was accused, and the authorities accorded to him and his status as head of authority. In other words, the council must address two questions: was the public office used in facilitating the offense, and was there moral turpitude caused by the link between the office of the head of authority and the offense? In the matter of Sarid, this Court explained that when there is a direct and clear link between the offense and the office of the elected official, it might be possible to conclude that a criminal history would disqualify the official from serving in certain public offices:

And so, for instance, when a direct and clear connection exists between the offenses the candidate committed and the office he is expected to take, the conclusion that his criminal past excludes him entirely from taking that particular office is possible. Under such circumstances, considerations that may have been taken into account as supporting the appointment had he been a candidate for a different position (such as the time elapsed since the commitment of the offenses, contrition, the quality of service during the time since the commitment of the offense and professional skills) would not avail, and the candidate would be disqualified. In establishing such connections, not only the type of offenses and the circumstances for their commitment, not only should the office in which the candidate committed the offenses and the office he is now intended for be considered, but also the level of moral turpitude associated with the candidate in light of the offenses must be addressed. That is, the existence of a link that may amount to disqualifying the candidate is not merely an outcome of how his criminal past may impact his professional ability to perform in his new office, but also his moral fitness to perform. When such a link exists between a candidate’s criminal history and the office for which he is intended, it is legally appropriate to disqualify his candidacy, unless there is a real and urgent emergency that requires his appointment as he is the single qualified candidate.

In our case, there is no conviction, but there is an indictment. Additionally, we are not concerned with appointment but with removal from office – still the considerations are similar. There may be serious offenses, such as murder or rape, God forbid, where, even in the absence of a connection to the office, continued service must not be permissible. Therefore, there is no mandatory connection between the office and the decision to remove from office.

38.Another consideration is that regarding the presumption of innocence. Each person enjoys the presumption of innocence so long as they have not been found guilty. A person enjoying the presumption of innocence cannot be subject to criminal sanctions. I have no doubt that removal from office harms a serving head of a local authority or a re-elected head of a local authority both of whom maintain their innocence. However, as a general rule, balancing other concerns for clean governance, rule of law, and the duty to protect the public’s trust, the presumption of innocence is outweighed in the context of appointment to or removal from office. As ruled by Justice Barak as early as the first Pinhasi case:

Indeed, the weight of the consideration regarding the public’s trust of public authorities where a public official was convicted of or pled guilty to the offense is not the same as the weight of this consideration in terms of a mere indictment and when the defendant maintains innocence. However, this is not a determinative consideration. We are concerned with governmental action of removal from office. To justify such action, a criminal conviction is unnecessary. The presumption of innocence – enjoyed by each and every defendant – does not bar the termination of a public official’s service as long as the deciding government authority is in possession of evidence, which, in light of its circumstances, is such that “any reasonable person would see as holding evidentiary value and would trust . . .” (President Agranat in HCJ 442/71, Lansky v. the Minister of Internal Affairs, [25] page 357). President Shamgar discussed this, while noting that administrative findings may be founded on “ . . . material whose evidentiary value is such that reasonable people would see sufficient foundation for the conclusion regarding the character and conduct of those in question . . .” (EA 2/84,3 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset; Avneri v. Chairman of the Central Elections Committee for the 11^th Knesset [26], on page 249). And, in this similar vein, Justice Zusman noted: “ . . . the mentioned rule that places one as innocent in the absence of evidence to the contrary, does not establish – and I am not aware of any other legal rule that does – that an administrative authority required to consider one’s past is not authorized to find that person to have had a criminal history unless the person was convicted by a court . . . Shall we rule against the Commissioner’s refusal to appoint a candidate as a state employee when the refusal is based on evidence that reasonably proves a criminal history, because this evidence does not include a conviction? Let us assume that the moving party here wishes to be admitted into the public service and the Commissioner refused for such a reason, would we compel the Commissioner to hire that person and rule against refusal for lack of a conviction? . . . Had the authority to decide on one’s history been granted to an administrative body that has no power to swear in witnesses or take evidence in the way gathered by a court of law, it must suffice that the administrative body’s decision is based on evidence that may persuade a reasonable person of the moving party’s history, even had the evidence been inadmissible in court and even had their weight been lacking in a judicial proceeding.” (HCJ 94/62, Gold v. Minister of Interior [27], pp 1856-1857.)

I too addressed this in the Genosar case [1], on page 268: “ . . . for the purposes of the reasonableness of a decision by the appointing government authority, the determinative factor is the candidate’s alleged commitment of the criminal acts. A criminal conviction is, of course, appropriate “proof”, but there may be other means of proof… The rule that applies here is the ‘administrative evidence rule.’

In the latter case, the matter of appointing one for governmental office was at issue. In the case at hand, we are concerned with terminating one’s office. The two are significantly different. However, the weight of this difference is light. (pages 467-469.)

These words apply equally to our case, too. We see that it has long been under the jurisprudence of this Court that there is no conflict between the presumption of innocence in criminal proceedings and the administrative finding, on the basis of administrative evidence, that one was involved in criminal activity. This administrative evidence does not constitute a conviction. It does not turn an innocent person into a convicted one. However, such evidence may lead, in the right circumstances, to an administrative conclusion against the continued service of an elected public official.

An indictment constitutes administrative evidence for the criminal activity of which the mayor is accused. This has also already been determined in the first Pinhasi case (pp. 467-469, see also the second Hanegbi case, para 22 of Justice Rivlin’s judgment, as well as para 31 of Justice Cheshin’s dissention opinion in that case in terms of an indictment being a “vessel revealing its content”; Zaguri, paras 30-31.) As explained, an indictment does not automatically lead to the disqualification of office. There may be instances where an indictment does not necessitate removal of a minister from office, which always depends on the entirety of relevant circumstance (third Hanegbi case, para 12.)

An additional consideration that relates to our matter, upon which I wish to elaborate somewhat, is the closeness in timing between the election date and the date of the decision whether to remove a head of authority from office. In the third Hanegbi case, the Court stated that when the question whether to remove an elected public official from office is being considered, the fact that the elections are fast approaching must also be considered, insofar that the current term of that elected official would shortly be coming to a close. We quoted the words of Justice Rivlin, who found there that “we believe, that precisely at this time, coming up to elections, the Court too should exercise restraint. This is a politically sensitive time and the Court must examine the possible ramifications of its rulings on the public opinion and mood” (para 17.) It should be noted that, in the third Hanegbi case, the consideration of closeness to elections was not the central consideration, as in that matter Minister Hanegbi had not yet been indicted. In any event, in my opinion, the consideration of closeness to the elections is relevant, but its weight depends on the circumstances of the case at hand. Under circumstances where there is indeed reason to remove an elected public official from office in light of an indictment at the beginning of or during service – when there is still a substantial amount of time until the next elections – the considerations that warrant removal from office require the termination of office because they may not be compromised for a long period of time. Should the issue of removal from office come up soon before an elections period, I believe there should be more weight given to whether the elected public official intends on running as candidate in the coming elections. If there is no intention of running, and a binding declaration to that effect is given, the practical implication of terminating service only shortly before the elections, in which that official shall not participate is reduced, as, in any event, the elections are near, so that the close timeline may tip the scale toward not exercising the authority to remove from office. In contrast, if the elected official does intend to participate in the elections, or, at the very least, does not declare not to do so, similarly to the case of an indictment filed early in a term or during it, the closeness to elections becomes less significant. Among others, the length of the potential term must be considered, as it is not necessarily the same as the time left until the elections. This is how the Cohen Commission for the Sabra and Shatila Incidents operated when it decided not to recommend the termination of then Chief of General Staff Refael Eitan, despite finding him responsible, because he was about to conclude his position anyway. And this is what we did in the second Tzvi Bar case. In that matter, the Mayor of Ramat-Gan, Tzvi Bar, declared, according to the panel’s recommendation, as a binding declaration that he would abstain from running in the coming elections. Additionally, the remainder of his time in office was short. In those circumstances, the practical implication of immediate termination was insignificant and it was possible to avoid requiring immediate removal from office. The considerations we presented here, including the length of the expected term, therefore comport with our recommendation that Tzvi Bar agrees not to run once more. In our Judgment without Reasons, we explicitly note that the decisions made were extremely unreasonable, especially in light of the fact that the elections for local authorities were near, because of these mayors’ declared intentions to run again.

39.I have listed a set of considerations which, weighed against each other in the particular circumstances of each case, would result in a determination as to whether a head of local authority ought to be removed from office. As I have said before, this is not an exhaustive list of factors. The issue of removing a head of local authority from office is still developing. We must examine the entirety of the circumstances of each and every case. This examination, in future cases, may result in a conclusion that there are additional factors that tip the scale in one direction or another. It is precisely because, as it is discretionary, the entirety of the circumstances of the situation at hand must always be considered. However, and this must be said clearly, alleged corruption is significantly weighty in my view, and its weight may surpass all other factors.

The Range of Intervention in A Local Authority Council’s Discretion

40.Recall that the Law explicitly stipulates when a sitting mayor is automatically removed from office. Additionally, the law grants a local council discretion as to whether conduct unbecoming of a head of authority, prior to a criminal conviction of moral turpitude, is sufficiently egregious to warrant removal from office. The local authority council’s discretion to remove from office is subject to the standards of administrative law and to judicial review. This is undisputed.

41.However, the question of the scope of this judicial review over a local authority council’s decision in the matter still remains. As a rule, the scope of judicial review derives from the characteristics of the administrative authority subject to review and of the decision being reviewed (see, the second Hanegbi case, pp. 839-840 and the sources cited therein; see also HCJ 3975/95, Kaniel v. The Government of Israel, IsrSC 53(5) 459,493 (1999)).

A local authority’s council is an elected body, which holds executive-governmental powers. Moreover, the decisions made by an authority’s council are, at times, decisions of a political nature. Yet these characteristics do not make decisions by a local authority’s council non-justiciable, nor do they require in each and every case unique restraint from a court reviewing them. I shall explain.

Judicial review over decisions made by a local authority’s council, including a decision to remove (or not to remove) a mayor from office, is not like review of decisions by other government authorities (for more on the scope of review of government authorities see the second Hanegbi case, pp. 834-839.) As it was decided in the Poraz case, while the Court exercises great restraint in intervening in the Knesset’s decisions, a restraint that stems from the Knesset’s unique position among the three authorities of government, such restraint is particular to the Knesset and must not be exercised in regards to other governmental bodies such as a city council. Second, it was ruled before that political decisions of a municipality’s council are not immune to judicial review:

The political background of a governmental decision does not make it immune to judicial review. Any governmental decision, taken according to the law, is subject to judicial review as to its legality. The Court examines the legality of each decision – political or otherwise – under the legal tests and standards… Politics, too, is subject to the rule of law, as are politicians. It is true that the Court exercises great restraint insofar that decisions by the Knesset are concerned. This restraint stems from the Knesset’s unique position among the three authorities of government (HCJ 652/81). Such restraint is particular to the Knesset and must not be exercised in regards to other governmental bodies such as a city council. Indeed, a decision by a municipality’s council is justiciable, both on the norm level (i.e. there is a legal rule in terms of which the decision’s legality would be examined) and on the institutional level (i.e. this Court would examine the decision’s legality,) and an argument of non-justiciability is doomed to be rejected (There, para 13 of Justice Barak’s opinion).

(See also, HCJ 11298/03, Movement for Quality Government in Israel v. The Knesset Committee, IsrSC 59(5) 865 (2005); HCJ 4733/94, Naot v. The City Council of Haifa, IsrSC 49(5) 111 (1996)).

42.Finally, a local authority’s council is a collegial-political body. Generally, the local authority’s council is authorized to account for political and coalition-based factors in its decisions (APA 584/11, The City Council of Nazareth Illit v. Sposnik (August 5, 2012), para 11 of my colleague Justice Zilbertal’s judgment). When the nature of the decision being reviewed is primarily political, the Court will take extra precaution, while weighing the fact that the council is a collegial-political body (there, paras 11-12; see also the Emunah case para 6 of my colleague Justice Grunis’ judgment). However, in my view, a decision regarding the removal of a head of authority from office under section 22 is not a primarily political decision, indeed because of such a decision political or coalition-based considerations should not account for much. Recall, that the authority’s council holds the power to remove a head of authority from office only when his behavior is unbecoming. In this framework, the dominant factors that the council must consider are clean governance, rule of law and public trust, as we have detailed above. In these circumstances, applying judicial review for a decision by a local municipality’s council does not constitute intervention in the “games of politics,” but intervention in a decision that has clear moral and legal aspects. It cannot be said, in my opinion, that in applying judicial review over such a decision the Court must exercise any particular restraint (compare Sposnik).

In conclusion, it must be emphasized: politicians, too, must consider substantive factors. A politician must ask himself whether, in the absence of any political interest in either direction, as a civilian fulfilling a public duty, he would have accepted that a person who conducted themselves as described in an indictment of a candidate from his faction would remain in office. When the answer is in the negative, he must support removal from office. Morality and clean governance cannot be taken apart because of political considerations. We must aspire to votes, even by politicians, being “clean” votes that do not disgrace the voter.

We have discussed the principles that apply in the first situation – a decision by a local authority’s council as to whether to remove a head of local authority from office due to an indictment filed during term in office. As to the application of these principles in the two concrete cases at hand, I elaborate further below.

The Second Situation: The Issue of Preventing a Candidate from Running in Elections

43.So far, as mentioned, we have discussed the principles that apply to a decision of a local authority’s council as to whether to remove a head of local authority from office. Now we turn to the second situation, which examines whether a person who has been indicted for serious offenses can be barred from running in elections for head of local authority. This issue may arise when considering a candidate who is the current head of authority at the time or when considering a candidate who is not serving as head of authority, but wishes to run for such office, despite a serious pending indictment against them. I will say now: from a public perspective the primary factors for removing a sitting head of authority from office should apply also to this office’s candidacy phase. In our judgment-without-reasons we noted unanimously, that, from a public perspective it is inappropriate for the two mayors to run in the coming elections. However, we clarified in that decision that, although we do not believe their candidacies to be appropriate, it is impossible from a legal standpoint to prevent them from running. I shall now explain.

44.The law regulates the conditions for fitness when running for head of local authority in local elections. Section 4 of the Election and Tenure of Head and Deputy Heads Law sets the fitness rules that make one eligible to become a candidate for head of authority. The section stipulates:

The Right to Elect and to Be Elected:

4. (a)        Whomever is eligible to vote in elections for council (hereinafter: “voter”) is eligible to vote in elections for head of authority.

(b)            Subject to sub-sections (c) and (d), a citizen of Israel who may be elected as council member and is at the top of the list of candidates for the council may be elected head of authority.

(c)                        An officer in the Israeli Defense Forces who is ranked as Major General and above as well as a police officer ranked as Superintendent and above may not be elected as head of authority unless their service as such officers had ended at least a hundred days before the elections.

(d)            Whoever served as head of local authority and their term ended under section 20(e) [a conviction for an offense of moral turpitude], for an offense committed during their term as head of authority or related to their election as head of authority, shall not be eligible to be elected as head of authority in the first elections held at that same local authority after their term has ended.

45.An additional condition is that the candidate is eligible to be elected as council member. Section 7(a) of the Local Authorities Elections Law details several, primarily technical, conditions for a candidate’s eligibility for elections as a city council member. Section 7(b), which we quoted above, adds that a person who has been sentenced in a final verdict for a period of over three months actual imprisonment, and that on the day of submitting the candidates’ list seven years have yet to elapse from the day the imprisonment ended, is also ineligible to be elected as council member unless the Chairman of the Central Elections Committee found that the circumstances surrounding the offense for which the candidate was convicted do not include those of moral turpitude.

46.Under these conditions, Gapso and Rochenberger are eligible to participate in the elections as candidates. We discussed above in depth that the fitness rules for service are not the end all be all, and that, occasionally, there is no choice but to remove a candidate from office. However, it should be examined whether anyone is authorized by law not to approve a legally eligible candidate’s candidacy, when the candidate has been criminally indicted. Should examining all the relevant regulations reveal that this authority does not exist then no authority has the power to prevent a candidate from running.

Discretion of Legally Authorized Bodies in terms of Elections

47.The Knesset Elections Law [Combined Version] 1969 (hereinafter: “Knesset Elections Law”) and the Local Authorities Elections Law authorize certain bodies to act in terms of managing elections in municipalities and local councils (in regards to elections for heads of these local authorities , see section 7(b) of the Election and Tenure of Head and Deputy Heads Law which subjects them, with the necessary changes, to the provisions of the Local Authorities Elections Law; in regards of regional councils see the Regional Councils Order and the Heads of Regional Councils Law.) These bodies include the Chairman of the Central Elections Committee (who is elected under section 17 of the Knesset Elections Law; section 1 of the Local Authorities Elections Law), the elections director (the elections director is appointed by the Minister of Interior to serve as director of elections in a local authority; section 29 of the Local Authorities Elections Law) and the Minister of Interior.

48.These statutes do not establish a discretional power to any of the mentioned bodies to bar an eligible candidate from running in elections. The elections director examines fitness of a candidate and is limited to this purpose; however, he is not the proper body to determine whether any candidate’s candidacy is lawful or not (compare, the Hayat case, para 17 of Justice Joubran’s judgment). Still, that the bodies responsible for elections were not granted a discretionary power is not the bottom line. The arguments in the petitions before us raise other possibilities – such as, preventing a candidate from running, and ordering the bodies authorized with nominating a candidate not to nominate them. We shall explore these options.

May A Person Be Barred from Running for Elections as Mayor?

49.Several of the Petitioners in the Petitions before us have argued as mentioned that we must bar the mayors themselves from running in the election or require them to resign from their candidacies (see section 6(a) of the Election and Tenure of Head and Deputy Heads Law, which regulates the issue of a head of authority’s resignation). I will say explicitly: the idea was appealing to me, and I indeed mentioned it – in obiter dicta – as a possibility to be considered. Ultimately, I concluded that, legally, one cannot be barred from running for mayor where there is not an automatic disqualification rule.

According to some of the Petitioners, when a mayor is removed from office there is little point in him running in the next elections. They assert this because, should the mayor be elected, the local authority’s council would be required to remove the mayor once again (this argument applies to the third situation, which will be discussed below). I will not deny that this argument makes a lot of sense. Removing a head of authority from office immediately after elections, in circumstances where this outcome is almost known from the start in light of the head of authority’s previous removal, does not comply with interests of efficiency and conserving public resource, and might even be seen as inconsistent.

50.The fact that a head of authority that had been removed from office would be entitled to participate in the next elections after termination is not satisfactory from a value standpoint, either. We discussed a similar difficulty in HCJ 2658/06, Hazima v. Mishlav (April 3, 2006) (hereinafter: “Hazima case”.) There, we heard the matter of the head of the local council of Abu-Snan, Mr. Eli Hazima. His term ended due to his conviction of an offense of moral turpitude (under section 20(e) of the Election and Tenure of Head and Deputy Heads Law). Still, Hazima registered as a candidate in the special elections scheduled because his term had ended. The Court of Administrative Affairs disqualified Hazima’s candidacy. Hazima appealed to this Court, but during the proceedings agreed to remove his candidacy. Justice Rivlin considered whether the High Court of Justice had discretion to intervene in a decision by the Court of Administrative Affairs and held that, in that case, such intervention was unwarranted. The rationales for this were discomfort with Hazima’s wishes to present himself as a candidate for public vote after his service ended due to a criminal conviction and the fact that Hazima declared his intention to remove his candidacy:

We considered whether such considerations [that justify the HCJ’s intervention in a judicial decision which was lawfully determined to be final] indeed do not exist here because of the difficult outcome that stems from the Court of Administrative Affairs’ decision, mainly because this outcome infringes the right to elect and to be elected. However, in this case, the conclusion we reached is based not only on the discomfort with finding in favor of Mr. Hazima’s Petition, as he wishes to participate in the special elections held, but because of his conviction of an offense of moral turpitude. This is an important consideration in itself and it does not comport with our duty to be strict with those who fail to uphold clean governance. This consideration does not stand alone in this case: our conclusion is additionally supported by the fact that Mr. Hazima himself expressed to us during the hearing his willingness to accept the proposal for him to remove his candidacy for head of the council in the coming special elections, and that the elections would be delayed for a period that would allow nominating a different candidate in his stead.

51.I joined in Justice Rivlin’s judgment and added:

Hazima’s consent to remove his candidacy makes redundant the need to determine whether there was no other way to prevent the difficult outcome of him running again in the special elections scheduled due to his conviction. It is possible – though this possibility was not raised in the case before us – occasionally, under the appropriate circumstances, to require a candidate to remove his own candidacy (compare HCJ 1262/06, Movement for Quality Government in Israel v. Shas Faction and others, para. 33 to Justice Barak’s judgment).

52.In the judgment to which I referred at the end of the quoted part above, and which I cite below as the Avidan case, President Barak discussed public authorities’ duties in the Knesset in terms of removing the deputy chairman of the Central Elections Committee, Mr. Yehuda Avidan, from office due to his conviction of breach of trust. The President further held that:

The various duties we detailed – and the need to balance between them in our decision – apply also to his [Mr. Yehuda Avidan – Naor] own considerations as to whether to go on in his service . . . or not. He should have resigned from his membership in the Elections Committee when he was convicted . . . (para. 33.)

53.As mentioned above, though the idea of ordering – under appropriate circumstances – a candidate no to run or to remove his candidacy is appealing to me, I have concluded that it is not possible to do so in the case before us.

Recall that the case at hand does not concern, as the Avidan case did, a deputy chairman of the Knesset’s Central Elections Committee who is, as generally agreed, a person fulfilling a statutory public role, but candidates for heads of local authorities. When a head of local authority acts as a candidate for elections, he is not acting – for the purposes of the elections – within the capacity of an “elected public official” but within the capacity of a “candidate.” An “external” candidate, who is not a sitting head of authority, has not the capacity of a sitting head of authority, but only the capacity of a candidate in elections. Within the capacity of a candidate, can one be barred from running in the elections? I have contemplated this quite a bit. Though I would be glad to reach a different outcome, I have concluded, as mentioned, that there is no other choice, legally, than to answer this in the negative.

I believe a candidate, within such capacity, does not constitute a public authority and is not subject, for the purposes of candidacy, to this Court’s review or that of the Court of Administrative Affairs. This candidate is not considered “other persons occupying public office under any statute” (see the definition of “authority” in section 2 of the Courts of Administrative Affairs Law, 5770-2000; section 15(d)(2) of Basic Law: The Judiciary; as for the phrase: “other persons occupying public office under any statute” as a general definition for an administrative authority, see Yitzhak Zamir The Administrative Authority, Vol. 1, 361, FN 1 (2^nd ed., 2010)). Indeed, candidacy for a local authority is a statutorily regulated “status,” and which can apply to a person only when the statutory conditions exist (see and compare the issue of candidacy being a “status” for the purpose of the criminal offense of bribery: CA 3575/99, Deri v. the State of Israel, IsrSC 54(2) 721, 771-772 (2000)). Though the candidate acts within the context of elections, which is clearly a public context, however – in my opinion – it is difficult to determine that the “players” acting within this public context hold a statutory public office. The role of a candidate is not a role generally encompassed within the purview of government authorities or local authorities (see and compare HCJ 160/72, Sherbat Brothers, Construction Company Ltd. v. The Society for the Elderly in the Valley Regions of Israel, IsrSC 27(1) 620 (1973)), and they are not even considered to be providing a service to the public. Moreover, a candidate has no statutory authority to carry out any acts (see and compare HCJ 4363/00, Representatives of Poriyah Illit v. Minister of Education, IsrSC 56(4) 203 (2002)). Indeed, one becomes a candidate if they meet the conditions detailed in statute. However, these conditions do not confer upon them duties and powers. All they do is permit participation in the elections. The candidate, in this capacity, does not exercise any authority. Therefore, there is difficulty in holding that a “candidate” in elections holds a statutorily proscribed public office. As a result, the candidate is not, for the purposes of candidacy, considered a public authority and a court, even if the High Court of Justice (or the Court of Administrative Affairs), has no power to apply judicial review over a decision made by a person in his capacity as a candidate for elections, even when this decision is not appropriate.

Can Political Factions Be Required Not to Nominate An Indicted Candidate?

54.Recall that the parties in some of the proceedings before us request that we bar candidacy in another way – restraining orders directed at the political factions who have nominated the two mayors as candidates. Nominating candidates for mayor is regulated in section 5(a) of the Election and Tenure of Head and Deputy Heads Law. The section stipulates:

Nominating a candidate:

5.   (a)        Any group of 750 voters or of 3 percent of the registered voters on the relevant date, under section 16(a) of the Local Authorities Elections Law, according to the fewer thereof, any one faction or more of the Knesset, any party as defined in the Local Authorities Elections Law, or another faction or more of the incumbent council approved under section 25(a) of the Local Authorities Elections Law, may nominate a candidate for head of authority a person entitled to be elected for head of authority  under section 4(b) . . .”

I will remind here that, though a candidate may resign under section 6(a) of the above Law, there is no parallel provision authorizing a nominator to remove the candidate. However, it should be noted, that at the time that our judgment-without-reasons was handed down, the issue of whether the authorized nominator may also be barred from nominating a candidate who has been indicted was a relevant question.

55.Section 5(a) details the various bodies and persons who may nominate a candidate. Are these persons or political factions considered a public entity or people serving a statutory role? Just as I found it difficult to answer this in the affirmative in terms of the candidate itself, I find it similarly difficult to reply in the affirmative in terms of the nominators. The role of nominating candidates is to present candidates (and at times, when the position is available due to a resignation or death of a candidate, to propose an alternative candidate). I am hard pressed to view a group of 750 people who are tied to each other only vis-à-vis their combined nomination of a candidate as “persons occupying a role under any statute.” The status of political factions in the context of nominating candidates is precisely as that of the 750 people who have together presented a candidate. The nominators, like the nominees, do not occupy a public office under any statute.

56.At the end of the day, my conclusion is that it is legally impossible to intervene in the matter of a candidate’s decision to run, or the nominators’ decision to present any candidate. It seems that, in terms of nominating a candidate for local authorities, the Legislature privileged the basic principle regarding the right to vote and to be elected. As held by Justice Or:

It is precedent . . . that the right to elect and to be elected, both to the Legislative authority and to local authorities, is a basic right. As observed by (then) Justice Barak in HCJ 753/87, Burstein and Others v. the Minister of Interior and Others . . . , on page 474:

“The right to vote and to be elected to local government is one of the unwritten basic rights, according to which all statutes must be interpreted.”

The disqualification of a council head or an elected city council member is an extreme step that severely infringes the fundamental right. This infringement must be interpreted, when possible, to comply with protecting the basic right. (HCJ 3090/97, Cohen v. Southern District Director, Ministry of Interior, IsrSC 52(2) 721, 735-736, (1998)).

Similarly, this Court held in Hayat, albeit beyond the necessary scope, that in addition to the existing statutory disqualification rules of service, there is no provision that explicitly denies one’s right to be elected as head of regional council. In this context, too, the Court reiterated the importance of the right to elect and to be elected (there, in para 17).

Still, even the right to elect and to be elected, as significant as it is, must at times yield to other considerations, and it is not an absolute right (see and compare HCJ 5663/13, Paz v. Ministry of Interior (September 9, 2013); HCJ 6057/07, Hajj Yihye v. Minister of Interior, Para. 10 of my colleague Justice Hayut’s judgment (December 23, 2007)).

As mentioned above, the outcome where a candidacy in elections that may ultimately become “redundant” cannot be barred is a difficult one. This outcome is not desirable, both on a practical level and on a value level. However, in my opinion, the alternative where the Court will be satisfied with merely lecturing a candidate without having any impact on the candidate is even worse. Therefore the Court must work to bridge the gap between the given and the desirable, within the boundaries of the law. The issue of whether a candidacy must be prevented in such a case must, to me, be resolved by appropriate legislation. In this regard, I will remind, that after our decision in Hazima was given, the Legislature added section 4(d) to the Election and Tenure of Head and Deputy Heads Law, as quoted above, which mandates that a person who served as head of local authority and but was convicted for an offense of moral turpitude (under section 20(e) of the Law), and had to terminate his service as a result, shall not be entitled to be elected as head of authority in the first elections in that local authority after the term has ended. Without setting anything in stone, it is possible that such solution is in order here as well, in terms of a mayor who has been removed from office under section 22 of the Law (while considering, of course, the option of an acquittal during the elections period) (compare the Municipalities bill, 5777-2007, Government Bills, 360.)

The Third Situation: The Issue of Removing a Head of Authority Indicted Before the Elections

57.We have so far discussed the two first situations. In light of the fact that we cannot prevent, through a judicial order, one from running for elections (the second situation), the issue of the third situation arises: the service of a head of local authority or elected “external” candidate while an indictment against them is already pending. The question in terms of the third situation is this: is there room, despite the voter’s will as reflected in the elections, while an indictment was pending, to consider whether to remove from office whomever the public chose, under section 22 of the Election and Tenure of Head and Deputy Heads Law? As I already mentioned, in our case, the question of the third situation is premature. Still, in light of the close timing of the elections, the Court should pronounce, even generally, on this matter. According to the language of the statute, nothing prevents applying section 22 even after the elections. The question this situation presents is the issue of honoring the voter’s wishes. Once the voter has spoken, is this the end-all-be-all, and the voter’s decision must be accepted without second-guessing or further consideration? My answer is in the negative.

I have discussed above the importance of the right to elect and to be elected. In my view, the will of the voter is one of the considerations that must be accounted for in the third situation, but the will of the voter cannot be a super-consideration which trumps all other considerations. The will of the voter can be one of several relevant factors.

58.In support of the position that the will of the voter must be preferred, we were referred to the decision given in CSA 4123/95, Or v. the State of Israel, Civil Service Commissioner, IsrSC 49(5) 184 (1996) (“Or case”). This is a decision given by one Justice – where Justice Zamir rejected an appeal of a conviction of an appointed (as opposed to elected) state employee of the disciplinary offense due to a conviction of a criminal offense of moral turpitude. The criminal offense upon which the disciplinary offense was based was an offense of fraud and breach of trust. While discussing the factors that may inform a determination as to whether a particular offense committed under certain circumstances is one of moral turpitude, and in terms of considering the context of the offense, Justice Zamir presented this example, as follows:

Indeed, there should be a distinction between, for instance, the question of whether a person who has been elected for public office in a local authority should be disqualified due to a criminal conviction and the question of whether a state employee should be penalized through a disciplinary proceeding due to a criminal conviction. In the case of electing a person for public office, it cannot be ignored that that person had been elected by the public to represent it, even with awareness of the offense for which that person was convicted. Disqualification, after elections, is an infringement of the right to vote, in addition to the severe infringement of the right to be elected. This is a harsh and serious outcome. It, therefore, requires extreme caution. The court must consider, among other things, the reality of life, which may at time lead the public to wish to be represented by a person who is not a role model of proper behavior. Therefore the moral turpitude that brings upon the disqualification of an elected public official must be clear and obvious. For more on this see the split between the justices in HCJ 436/66 . . .” (There, pages 190-191.)

These words by Justice Zamir are not a case law according to which it is not possible to remove an elected official from office who had already been accused or convicted of a criminal offense while running for office; rather, Justice Zamir’s words were, as mentioned above, written as a single Justice decision, in a case that did not at all deal with an elected official, and they must be understood within their context. His words on the necessary caution in light of the right to elect and to be elected and the need for “clear and obvious” moral turpitude must be understood against the background of the split in opinions from the justices that Justice Zamir referred to – HCJ 436/66, Ben Aharon v. the Head of the Local Authority, Pardessiya, IsrSC 21(1) 561 (1967) (“Pardessiya case”). The split in the justices’ opinions there revolved around the question of whether there was or was not room to intervene in the decision to remove a local council’s members from office in light of their convictions under section 6 of the Defamation (Prohibition) Law 5725-1965, for expressions made in a council meeting about the councils’ deputy chairman in regards to a transaction he signed. In other words, the conclusion that moral turpitude must be “clear and obvious” was based on a conviction that relatively is not highly egregious and also involves considerations of free political expression in the context of council discussions. In both the Pardessiya and the Or matters, the requirement for “clear and obvious” moral turpitude was not mentioned in relation to offenses that indicated severe corruption or a serious flaw in clean governance.

In support of the mayors’ position, the Hava case was also mentioned. The Court of Administrative Affairs ruled there that there was no place to intervene in the head of local council’s decision to remove a council member from office. This Court, sitting as a court of administrative appeals, rejected the local council’s member’s appeal. In his opinion, Justice Joubran held that the removal from office was justified both because the local council’s member did not reside in the council’s jurisdiction, and because he was indicted for serious construction offenses. My colleague Justice Grunis believed that the appeal should be upheld. In Justice Grunis’ view, the reason given in the head of the council’s letter was the lack of residence within the jurisdiction of the council rather than the indictment. Still, Justice Grunis addressed the indictment as well, holding that:

. . . this is not a case of a person appointed to the position by a political body or entity, but rather elected by the public. In terms of the elected, words said in a similar context are apt: “Not everything our eyes see is pleasing. However – this we should keep firmly in mind – the eyes of the public are also open” (HCJ 1993/03, Movement for Quality Government v. the Prime Minister, IsrSC 57(6) 817, 857).

It is needless to say, and this is an understatement, and that the conduct and behavior of the Appellant is questionable, precisely because this is an elected public official. Still, this alone does not qualify the notice the head of the council sent to the Appellant in which he ended the Appellant’s service as council member” (there, para. 9).

My colleague, Justice Arbel agreed with Justice Joubran that the appeal must be rejected, as the Appellant did not reside in the council’s jurisdictional area. However, she agreed with Justice Grunis that the reason for the indictment was not mentioned in the notice the head of council sent to the Appellant. Justice Arbel left the issue of disqualifying a council member against whom an indictment is pending for future decision. However, in her opinion she observed:

When I come to examine the circumstances of the case before us, I cannot overlook the image before us and leave the task only to the open eyes of the public; the public at times seems to have one eye covered and would accept phenomena and behavior that a court presented by the matter could not allow (there, para 8 of her judgment).

As we can see from the analysis of the justices’ positions, the Hava judgment did not set a precedent that an elected official could not be removed from office if elected while a serious indictment against him was pending. First, as detailed above, the decision did not at all consider the issue of an elected official elected precisely when indicted, and comments on the “eyes of the public” were made in relation to the question of whether the public would prevent another term in the future. Second, we have seen that, even in the majority’s opinion, the appeal was rejected because of the lack of residence in the council area, when my colleagues Justices Grunis and Arbel believed that the matter of the indictment was not a reason for the removal from office in that case. Therefore the discussion on that issue was obiter dicta. I will add that the comments about “the open eyes of the public” to which Justice Grunis referred were written in the context of a case where it was decided not to indict a minister (the second Hanegbi case).

And now, the future opportunity Justice Arbel mentioned has arrived.

For myself, I agree with my colleague Justice Arbel’s approach, that at times it seems that the public has one eye covered when it accepts conduct and phenomena that the court cannot accept. I write these things not knowing the “decision of the public”. In an ideal world, if the candidate cannot himself recognize that he or she must step down from running, their party would remove them for fear of the voter’s decision. In an ideal world, should a candidate and their nominators fail to act as they should, the public would make its conclusion known through the ballot box. In an ideal world, it may have been appropriate to find that the Court must not intervene. From the perspective of the basic right to elect and to be elected, we should leave the decision to the voter. However, in light of the great harm to clean governance and the fundamentals of democracy and the rule of law, we cannot establish a rule that an elected official is “immune” to removal from office because a serious indictment against them was filed before the elections, and the public still elected them. Such a rule might result in corruption that the State of Israel cannot afford to allow. Again, in our case deciding the third situation in terms of removal when a serious indictment was filed before the elections and the candidate was still elected is premature. However, these comments are meant to allow future candidates for heads of local authorities to plan ahead. They should know that, should they be indicted before the elections, they would not be “immune” from removal from that office. In conclusion: in my opinion it is possible to remove a head of authority from office under section 22 even after the elections, including when the indictment was filed before the elections. In my view the “voter’s decision” is a factor that may be considered, among other factors, but it cannot be determinative (see and compare, Zaguri, para. 29; the first Pinhasi case, page 470).

In light of the above, we shall turn to examine the circumstances of the concrete cases at hand.

The Matter of Nazareth Illit

Is there Room to Intervene in the City Council’s Decision Not to Remove Gapso from Office?

59.As mentioned, the petitions in HCJ 5126/13 and HCJ 5597/13 revolve around the service of the Mayor of Nazareth Illit, Gapso. As described above, on June 17, 2013 Gapso was indicted for allegedly accepting a conditional bribe, under sections 290, 294(a) and 29 of the Penal Law 5737-1977.

60.I shall not repeat the facts detailed in the indictment against Gapso. We detailed those in our judgment-without-reasons. Gapso was accused of taking a bribe (under section 294 of the Penal Law, requesting a bribe or making such bribe contingent, even without it coming to fruition, amounts to taking a bribe.)

61.The State argues that the seriousness of the conduct attributed to Gapso in the indictment is aggravated by his connection to public office. However, as the State maintains, since it is a single act and in light of the consideration he received, his conduct is not extremely serious in a manner that results in a legal requirement to remove Gapso from his office as the Mayor of Nazareth Illit.

In our opinion, the State’s position should not be accepted.

62.The offense of which Gapso is accused of is taking a bribe (by conditioning a bribe). This is an offense categorized as a felony, punishable by up to ten years imprisonment. The victim of the offense of bribery is not an individual, but the public as a whole. In regards to the severity of this offense, the words of Justice Dorner in CA 2083/96, Katav v. the State of Israel, IsrSC 52(3) 337, 342-343 (1997) are fitting:

The bribery offense is among the offenses where the victim is not an individual but the public and one of the goals of penalizing this offense is marking the committer of the offenses with disgrace and expressing society’s disdain from bribery offenses in a way that deters the many . . . Hence the rule that, generally, the penalty appropriate for a committer of bribery is imprisonment, even in relatively minor cases where the defendant was solicited and the benefit they derived from the bribe was insignificant . . . Exceptions to this rule are those extreme cases where the entirety of the circumstances related to the defendant and the offense committed justifies not marking the defendant with that disgrace attached to criminal actions.

Therefore, the offense of bribery is egregious. It is an offense that goes to clean governance and whose severity warrants, usually, actual imprisonment. Additionally, the bribery of which Gapso is accused, under its unique circumstances, allegedly points to his conduct involving moral flaws that potentially carry turpitude (see and compare the first Pinhasi case, page 467). The offense was allegedly committed in the course of Gapso’s office and was connected to his position as Mayor of Nazareth Illit. As reflected in the indictment, Gapso allegedly took advantage of his status and clout in the halls of the Economic Corporation (which is a corporation owned by the Municipality of Nazareth Illit) in order to allegedly terrorize another city council member. Had his request of a bribe been accepted, the city council member would have resigned from serving in the city council. This would have brought Gapso political influence in such a way that was impossible to achieve through elections themselves, which is a change to the list of nominees by another faction in city council. The conduct of which Gapso is accused directly harms the principles of democracy, and, specifically, the right to vote and be elected – the very right upon which Gapso relies before us. In light of the fact that Gapso holds the highest office in the local authority, the harm such conduct causes to the public’s trust in the institutions of local government is even greater.

Indeed, that Gapso is accused of a single act of bribery may work to his advantage. Additionally, it remains unclear whether the interest that motivated the conduct detailed in the indictment was a personal interest or the desire to advance his faction. In any event, the weight of such consideration is not high enough, to me, as whether Gapso allegedly acted for the benefit of his faction or for his own, is insufficient evidence to reduce the alleged harm to clean governance and the rule of law (see and compare the first Pinhasi case, page 469).

Gapso explicitly declared his intention to run for office as mayor of Nazareth Illit in the coming elections. Therefore, it is a real possibility that his service will go on. In my view, in these circumstances, it is important to clarify the Court’s position about continuing in office even at this stage, which is before the elections.

In light of the considerations detailed above, my position is that we must intervene in the Nazareth Illit’s City Council’s decision and determine that Gapso must be immediately removed from office as mayor, and so we had ordered in our decision without reasons. The continuation of service of a head of authority indicted for bribery, particularly factoring in the extreme circumstances of the conduct, would desperately harm the public’s trust in the institutions of local government, as well as the general principles of democracy. Indeed, should Gapso’s service be permitted to continue, “the example and model of leadership would be dimmed” (the first Pinhasi case, page 469). The circumstances surrounding the offense and its potential infringement on basic rights aggravate the severity of Gapso’s alleged conduct, which the members of Nazareth Illit’s City Council were not permitted to overlook in their decision not to remove him from office. And, as we held in our judgment-without-reasons, the decision of Nazareth Illit’s City Council not to remove Gapso from office is inconsistent with the principle of ensuring clean governance and preserving the rule of law, and is extremely unreasonable. Therefore, our decision includes an absolute order, which removes Gapso immediately from his office as the Mayor of Nazareth Illit.

The Matter of Ramat HaSharon

Should the Removal of the Issue from the Agenda Be Viewed as a Decision Not to Remove the Mayor from Office?

63.In the matter of Rocherberger, as opposed to that of Gapso, the Authority’s Council did not decide whether to remove Rocherberger from office or not. Under section 22(b) and 22(c) of the Election and Tenure of Head and Deputy Heads Law as cited above, the decision to remove or not to remove the head of the authority from office shall be taken in a special meeting (“the special meeting”). Should the head of the authority him or herself fail to call for the special meeting, a majority of city council members may call for such a meeting, and they will determine who shall chair it. In our case, the head of council did not call for a special meeting, and there was even no majority as required to call for it. The Council additionally chose, actively, not to discuss the removal of the head of the authority from office for conduct unbecoming under section 22. In a regular meeting held on July 14, 2013, the proposal for such discussion was removed, at Rocherberger’s request, from the agenda.

An indictment against a mayor is a dramatic event in a municipality’s term. Such an event requires in itself assembly and discussion of the question of continuing a head of the authority’s term. As mentioned in the Deri case, and as us appropriate here, conferring an authority goes along with the “. . . duty to consider whether it [the authority – Naor] should be exercised, and the appropriate avenues to take in this context” (page 419). Moreover, in Hayat, this Court discussed the importance of assembling the city council and having a discussion regarding the continued term of a criminally indicted head of the authority. The Ramat HaSharon City Council did not act according to this Court’s ruling in Hayat – it did not explore the need for exercising its authority to remove the head of the authority from office, and avoided discussing this.

Under the circumstances, removing from the agenda the matter of Rocherberger’s removal from office because of a lack of a majority to hold a discussion, amounts to a decision by a majority of council members not to remove Rocherberger from office. It appears the decision not to discuss the matter of Rocherberger’s removal from office was an attempt to “buy” time until the elections date.

Should We Intervene in the Ramat HaSharon City Council’s Refusal to Remove Rocherberger from Office?

64.We answer the question whether to intervene in the Ramat HaSharon City Council’s refusal to remove Rocherberger from office in the affirmative, as this holds great similarity to what we have decided regarding Gapso.

We opened by detailing the specifics of the indictment against Rocherberger, and we shall not repeat. Rocherberger is accused of many offenses ranging from false registration of corporate documents to many more offenses of fraud and breach of trust in a corporation between the years 2003-2007. It maintains that during his term, and despite the statutory prohibition on receiving compensation for work performed in terms of the fund, Rocherberger fraudulently and systematically submitted documentation on personal expenses or others’ expenses where details were falsified. In addition to the indictment, which serves as alleged administrative evidence is the fact that Rocherberger paid back his gains per his attorney’s advice.

Rocherberger’s alleged conduct was motivated by a desire to circumvent the statutory prohibition imposed upon him and to be compensated in addition to the salary he received as head of authority. The actions happened over a long period of time and were done through forgery. Rocherberger was in the habit of submitting to the fund receipts and invoices that had nothing to do with his activity for the fund, including purchasing groceries and household items, his daughter’s travel expenses abroad, and her English lessons. Falsifying the details resulted in the receipts being considered expenses for which he was able to receive reimbursement from the fund. These are acts of corruption. Indeed, a long time has passed since the offenses were committed, and we received no explanation on the course of the events that caused the indictment to only recently be filed. Indeed, Rocherberger returned the money some time ago. However, these cannot sufficiently counter the weight of the seriousness of the offenses described and them constituting conduct unbecoming the status of a head of a local authority. This behavior is inconsistent with the principle of ensuring clean governance and preserving the rule of law. The Ramat HaSharon City Council’s decision not to discuss, which amounts to a decision not to remove Rocherberger from office, is extremely unreasonable. Therefore, we held in our judgment-without-reasons to remove Rocherberger immediately from his office as Mayor of Ramat HaSharon.

The Venue for Adjudication: High Court of Justice or the Court of Administrative Affairs

65.It is common knowledge that the jurisdiction of the High Court of Justice is parallel to the jurisdiction of the Court of Administrative Affairs (see, for instance: HCJ 2208/02, Salame v. the Minister of Interior, IsrSC 56(5) 950, 953 (2002)). Generally, where there exists an alternative remedy through the Court of Administrative Affairs, the High Court of Justice will not adjudicate a petition. Still, this is discretionary. Under the circumstances, we did not see it necessary, at the time of adjudication, to look into whether alternative relief is available, and we have chosen, at the request of some of the parties, to consider the matter on its merits, in light of the urgent need to establish rules on the issue of removing a head of local authority against whom an indictment in pending, under section 22 of the Election and Tenure of Head and Deputy Heads Law. We therefore leave deciding the issue of the alternative relief to future cases.

Conclusion

66.As we decided in our judgment-without-reasons, under the circumstances of the cases at hand, there is no escape from terminating the offices of the mayors Gapso and Rocherberger. In my reasons, I discussed the principles at the basis of the decision. I also discussed the severity of the cases at hand and their circumstances, which tipped the scale in favor of removing the mayors Gapso and Rocherberger from office. I did not overlook the presumption of innocence. Undoubtedly, removing from office harms a sitting mayor or a re-elected mayor, who maintain innocence. I am hopeful that at the end of the day, it will come to light that the mayors Gapso and Rocherberger are as clean as a whistle and that their actions were flawless. I am aware that mayors have enemies and competitors and that they are vulnerable to false accusations. Still, for the time being, as long as the detailed indictments hang as shadows over them, their continued terms in office cannot be accepted. This conclusion, which was correct in the Deri case and the first Pihnasi case, is warranted on an administrative level in our case as well. To emphasize: I am aware of the public sensitivity around the issues at hand, particularly because of the closeness in time to the date to the elections. Generally, the state attorney must make every effort to conclude the investigation and file – when appropriate – indictments at a time as distant as possible from the date of  elections. The uncertainty during the period building up to elections harms, first and foremost, the public. It is also undesirable for the Court to find itself involved, against its best interest, in the political hotbed of the days before the elections. Still, I do not believe there is an alternative to a judicial decision. The Court’s role is to “ensure that the other branches of government conduct themselves according to the law, this is the law of the rule of law in governance…” (the first Pinhasi case, page 474). Our duty is to rule also in difficult situations, on the basis of the principles of the law. The outcome is, therefore, as decided in the decision without reasons.

Post Script

67.I have read the opinion of my colleague the President. Because I believed the need to urgently give reasons for the decision should take precedence in light of the nearing date of the elections I will not respond to the holdings one by one. To do so would be to repeat, just in other words and added emphasis to words both my colleagues and I wrote, that our position is different than that of the President. I wish to respond to my colleague the President briefly, and only to the issue of the Minister’s approval (para 9 of the opinion).

In my opinion, it is unthinkable for the Court to first hand overturn a decision that is the same as the one the local authority should have made; that is that, in an appropriate case, the Court would intervene after which the Minister would consider, as my colleague the President proposes, whether to “approve” the Court’s decision. After all, the Minister and his decisions are also subject to judicial review by the High Court of Justice and there is no point in useless and futile proceedings. Where and in what order would the Minister’s voice therefore be heard? The Petitions before us were filed with the High Court of Justice, while joining the Minister of Interior– who is subject to the High Court of Justice’s judicial review – as a respondent in three of the petitions, that is in regards to each of the councils. Therefore, his position to the matter of whether the mayors should be removed from office is conveyed to the Court through the State’s Attorney, which represents the Minister before us, as early as in the stage of the petition against the local council’s decision. The position reflected in my colleague the President’s opinion, that after the Court hands down a decision, the Minister’s decision is then to be given, when that decision is also subject to Court’s authority, was not raised by the State’s attorney representing the Minister, for good reason, since the State’s Attorney urged us to resolve the matters on their merits.

                             

                                                                                          Deputy President

Justice N. Hendel

1.I join the opinion of Deputy President Naor, which is firmly built, stone by stone, and constructs a comprehensive and solid legal structure. Due to the general aspects that the issues at hand raise, I see it fit to add four additional comments.

A.  The Timing of the Indictment

      At the heart of the Petitions before us sits a complex and sloppy factual and legal reality. Two mayors were indicted for serious offenses. The indictments were filed during their terms, in the build up to the local authorities’ elections. Is it within the authority of the Court to exercise administrative judicial review regarding city council’s decisions and to remove from office according to section 22 of the Election and Tenure of Head and Deputy Heads Law? And if so, is there authority to bar them from running for mayor in the elections’ processes that have already begun? The majority opinion, which I join, answered the first question in the affirmative and the second in the negative. The difficulty posed by this outcome is that a mayor who has been removed from office due to an indictment against him may be re-elected. What should be his fate? This issue may arise in our cases very soon. My colleague the Deputy President held that in such a case, the city council would be obligated to convene after his election in order to discuss the mayor’s term under section 22. This holding is acceptable to me. It is possible that the city council or the court exercising administrative judicial review over the council’s decision will find that the mayor must be removed from office after having been elected. This possible outcome certainly is not desirable. But notably, it is not a product of the court’s decision, but of the current state of the law. I will clarify.

      The Election and Tenure of Head and Deputy Heads Law authorizes the city council to remove the head of authority from office for conduct unbecoming. Should the council make such a decision while the elections are fast approaching, the candidate is not barred from participating in the elections. This would have been the case should the Nazareth Illit City Council had decided of its own accord to remove Mr. Gapso from office. The statute does not authorize any and every entity to prevent a candidate who has been removed from office from running in previously scheduled elections due to an indictment against them. This teaches us that the Legislature established a way to end a term for conduct unbecoming the office of head of authority, but did not blaze a trail to prevent their candidacy in the next elections. The difficulty that comes from joining the authority to remove a mayor from office and the lack of authority to prevent running in the elections is in full force when the city council’s decision (or the court’s decision in exercising judicial review over the council’s decision) is made shortly before the elections.

      Indeed, this problematic outcome should be resolved by the Legislature. In addition, there is another factor that in many cases may mitigate the clash at the intersection between removal from office and running in the elections. That factor is the State Attorney, which is charged with indicting a head of authority for the serious offenses with which we are dealing. In regards to the two mayors in the Petitions before us, the indictments were recently filed, only several months before the local elections that are to be held on October 22, 2013. The indictment against Mr. Gapso, the Mayor of Nazareth Illit, addresses events that took place in 2008 after the prior elections, but was not filed until June 17, 2013 – only four months before the elections. The investigation into the case of Mr. Rocherberger, the Mayor of Ramat HaSharom, commenced in 2009 for offenses allegedly committed between the years 2003-2007. The indictment against him was filed on May 12, 2013. Even the Zvi Bar case, which stands at the background of these petitions, pertains to offenses committed in the period of time between 1989-2008. The investigation began as early as 2010, but the serious indictment was filed less than a year before the next elections.

      We assume that the State Attorney operates in good faith and with great investment in order to handle the heavy workload placed on its shoulders. Yet, setting priorities among the piles of cases on its desk is a necessity of reality. Cases must be prioritized according to public interests. When we are dealing with criminal investigations against mayors, the State Attorney must constantly be aware of the timing of the next elections, which is known well in advance. It must make efforts to reach a decision regarding the filing of indictments at the earliest opportunity before the elections. Surely it is undesirable to indict soon before the elections. Clearly, when the offense was committed or investigated only close to the elections, the State Attorney does not control time. But, as mentioned, this was not the case in the two cases here. The information was available long in advance. In such cases, the State Attorney must take measures to avoid unnecessary delays such as delays in the date of a hearing, even if the delay is at the request of the defense. As an entity that represents the public interest, the role of the State Attorney is also to facilitate decisions in terms of indictments against candidates in elections, which hold great importance for voters and the rule of law more broadly. This way it would have been possible to prevent the additional legal complication we are facing in these petitions.

B.              Conduct Unbecoming and the Will of the Voter

            The Deputy President addressed the third situation where a head of local authority is elected while an indictment is already pending. The question posed is whether, despite the will of the voter, section 22 should be triggered and the mayor should be removed from office? My colleague explained that in her opinion, the will of the voter is not a super-consideration, but one factor that may be considered among all other relevant factors. I, too, shall not establish rules on this issue, which does not require any determination under the facts of the petitions before us. I will add that I am uncertain as to the amount, if any, of weight that should be attributed to the fact that the public elected in regularly scheduled local authorities’ elections, a candidate whose term ended due to a serious indictment. The conclusion that a head of authority should be removed from office according to section 22 under the circumstances described, is a clearly normative holding. Once a serious indictment is filed against a mayor in connection to this office, the language of section 22 “conduct unbecoming the status of a head of authority” becomes normative in nature. Once this happens, it is the duty of the city council – despite being a political body – to examine whether the mayor is worthy of such service in light of the principles of clean administrative governance and the rule of law. The judicial review the court exercises over the decision of the city council focuses on whether there was conduct unbecoming. The Court takes no position as to which candidate should be elected. It is charged with interpreting the Election and Tenure of Head and Deputy Heads Law. In this role, it must come to normative conclusions as to whether a person, under serious offenses indictment, is worthy of continuing in their office as mayor.

C.              An Indictment as Administrative Evidence

            Considering the high level of power and autonomy a mayor holds, there is no wonder the city council is authorized to remove a mayor from office if the mayor conducted themselves inappropriately. This standard does not depend only if there was an alleged commitment of a criminal offense or an indictment. The authority to remove a mayor from office under section 22 is based on administrative evidence.

            In the two affairs addressed in our decision, this authority was applied based on indictments. In the case of Ramat HaSharon, the City Council avoided any discussion of the matter under section 22, and in the Nazareth Illit case, once it had discussed the matter, the City Council decided against removing the Mayor from office. This background resulted in the Petitions before this Court. It is a rule in our system that the Court may exercise administrative judicial review over administrative decisions. Judicial review exercised in light of the possibility of a criminal offense committed by a mayor is a delicate task. The Court is called upon to achieve a careful balance, which I believe has been correctly accomplished in the cases before us. Only once the investigation into the matters of the mayors had ended and ripened into the serious indictments related to their public service, did the city council’s authority under section 22 of the Election and Tenure of Head and Deputy Heads Law trigger – albeit by means of a judicial decision. Let us not forget that an indictment marks the beginning of a trial and is a constitutive fact even when it clearly cannot determine the outcome of the trial. The condition for filing an indictment is a sufficient evidentiary foundation that creates a reasonable possibility of conviction (HCJ 5699/07, Jane Doe (A) v. the Attorney General, para. 15 of Justice Procaccia’s judgment (February 26, 2008)). An indictment reflects the determination of a professional entity after the defendant was granted the right to a hearing. In terms of the offenses here, the indictments serve as exceedingly strong administrative evidence.

D.              Removal from Office and the Presumption of Innocence

            My colleague emphasized there is no conflict between the presumption of innocence enjoyed by a mayor criminally indicted and an administrative determination that the mayor must be removed from office on the basis of administrative evidence, such as an indictment. The presumption of innocence is a right in the context of a criminal law that derives from the basic rule regarding reasonable doubt. Each defendant is entitled to be considered innocent until his guilt is proven beyond a reasonable doubt. There is great distance between an indictment and a conviction. The goal of criminal law is to examine that distance.

            I would add that even within the criminal procedure itself, the presumption of innocence does not prevent interim proceedings on the basis of initial evidentiary foundation that is diminished compared to that necessary for a conviction. For instance, the presumption of innocence is not harmed due to holding a defendant under arrest for the duration of the proceedings once an indictment was filed (CrimApp 8087/95, Zada v. the State of Israel, IsrSC 50(2) 133,144). This point is highly important because imposing the sanction of arresting a defendant in effect resembles the severe penalty a conviction may bring. That being said, a defendant’s arrest is not inconsistent with the presumption of innocence. Before a defendant is marred by a criminal conviction and is penalized for it, the State is burdened with proving his guilt beyond any reasonable doubt. However, it is common knowledge that sanctions that restrict that liberty of the individual may be imposed prior to a conviction – such as posting bail, travel restrictions, detention and even limits on different occupations, including taking public office. Therefore, whereas removal from office due to an indictment involves harm to the sitting head of authority, their reputation and their livelihood, this harm does not infringe upon the presumption of their innocence.

2.It is interesting to note, however briefly, that similar issues of public law presented by the Petitions before us were discussed in Jewish law as well. We refer to the Rambam, who emphasized that in order to take public office, a person must be of clean conduct and worthy, and it is insufficient that they have formal permission (akin to the statutory fitness rules) to fill the post: “When a person is not fit to act as a judge, … because he lacks proper character, and an exiliarch  transgressed and granted him authority or the court erred and granted him authority – the authority granted to him is of no consequence unless he is fit” (Yad HaHezka, Sanhedrin D, 15.) The Halacha did not distinguish the requirements for the “Public Benefactors” (a local council of sorts, charged with the interests of the community) and the strict requirements of clean conduct that applied to judges (Shulhan Aruch, Choshen Mishpat 37, section 22 of the Rema commentary). In some communities, the public benefactors or the city benefactors were elected by the public (see, for example, Pinkas Va’ad Arba Aratzot). The Jewish sources reveal that we were strict about them even when committing the wrongful behavior based on a suspicion alone and not the determination of judges according to a lawful testimony (Teshuvot HaGe’onim (Shaarei Tshuvah) 178; She’elot U’Teshuvot Aharon, Yud, 30.)

Sadly, this optimal standard does not always fit the behavior on the ground. “It is proper to appoint as public official only one who is known to be modest, humble and patient, because he must deal with different people in different and ever-changing ways. He must love each of them according to their characters” (HaMeiri (of the first who lived in France in the 13^th century,) Yoma 22, B). Still, the reality may at times be different. For instance, when elections were held for the position of a rabbi and teacher of a European community during the 19^th century, the winner was disqualified for bribery and his voters were denied the right to vote in the repeat elections (She’elot U’Teshuvot Hatam Sofer, Choshen Mishpat, 160). The described gap between reality and the aspirational does not warrant leniency in standard, but instead requires effort to bridge that gap.

3.I reviewed the opinion of my colleague President Grunis. My colleague presents the disagreement between him and the majority justices’ opinion as a reluctance on his part to impose the aspirational law on the current law and to use the Court’s power heavy-handedly. Even such presentation reveals our disagreement. The point of departure in our position is, as discussed, that section 22 grants the administrative authority – the authority’s council – the authority to remove a mayor from office. This, in turn, gives rise to the Court’s authority of administrative review. The legal standard the Legislature established in section 22 is “conduct unbecoming the status of a head of authority.” According to the section, if it is found that the standard was met in a particular case, the city council has the power to remove the mayor from office.

A legal standard dictates a defined legal situation (HCJ 6280/07, Legal Forum for the Land of Israel v. the President of Israel, para. 14 of the decision (December 14, 2009)), its literal meaning is “a set standard” in the field of law (“norm” – Even Shushan Dictionary, Updated for the 2000s, 623 (Moshe Azar, ed., 2004)). Clearly, the general norm in section 22 needs to be given content, for which purpose “the Court is granted significant interpretive range insofar as legislation is concerned . . . ” in the words of my colleague the President. In my approach, the finding that in the circumstances of the petitions before us – where indictments allege that the mayors committed serious offenses of corruption in the context of their public duties – amount to “conduct unbecoming the status of a head of authority”, is a desirable normative finding on both the existing law level and the desirable one. Such interpretation of the norm stipulated in section 22 fits the language of the law and strengthens the established purposes of clean governance and rule of law. By its very nature, the legal norm that relies on written statutes is not subject to the will of the voter in local councils’ elections. It appears the President’s primary contention stems from the practical challenges arising from the proximity in time of our adjudication under section 22 to the elections date. Though this is unfortunate, and see above my first comment regarding the timing of the State Attorney’s indictment, the obligatory legal norm does not yield. In this context, I will note that I do agree with the President that the factor of the public’s trust – certainly as an empirical factor – is irrelevant to the decision.

Finally, it should be emphasized that there is agreement among all members of the panel that the Legislature should contemplate this sensitive matter, particularly insofar as the lack of legislation regarding the intersection of removal of a sitting mayor from office by the authority’s council or by court and their right to run in pre-determined and pre-scheduled elections. I will note that precisely because the majority justices are sensitive to the limits of this Court, we refrained from deciding on the matter of the Nazareth Illit and Ramat HaSharon mayors’ running in the coming elections. We focused on our authority to rule on the matter of their removal from office, which is sourced in section 22 of the Election and Tenure of Head and Deputy Heads Law – the current statute.

4.Finally, I join the opinion of my colleague the Deputy President. My comments above are additions to the main.

 

                                                                                                                        Justice

Justice E. Rubinstein:

A.The reasoning by my colleague, the Deputy President, for our decision dated September 19, 2013 in her comprehensive opinion, which covered all that is legally necessary is acceptable to me. But I will add for the sake of background and clarification. The British are familiar with the expression: it is not done. Some things are inappropriate and shall not be done in a civilized society and a proper government. This is probably what she was getting at referring to “an ideal world” in paragraph 58. Only that the governmental and public culture in Israel has not developed in that direction, and what is seen in some point to any decent person does not necessarily fit the current Israeli reality. This is not to only stress the negative, but also to explain how, inevitably, we reached the outcome of this judgment, as the political system – by its own failures – compelled us to.

Of the Questions Arising

B.Indeed, it is possible to argue that had the Legislature desired, it could have mandated that a head of local authority indicted for a certain serious offense must resign. The Legislature did not do so and did not include such provision in the statutory disqualification rules. And indeed, it may well be that, under the outcome of this case, the post-conviction statutory disqualification rule will never be exhausted, though this is not necessarily so, in a variety of cases and with the relevant discretion. Second, it is possible to question in this context what about the presumption of innocence – has it been forgotten and eroded to put the defendant and the convicted in the same boat? Indeed, these are not simple questions. No less complex is the question my colleague addressed in paragraph 58 when referring to the words of Justice Zamir in CSA 4123/95, Or v. the State of Israel – civil Service Commissioner, IsrSC 49(5) 184, 190-191 and distinguishing it from the case at hand: what of the ousted mayors, who have been indicted for serious offense, who are re-elected resulting in the new city council’s duty to assemble and discuss their removal from office, would this also be a process subject to judicial review (para. 9 of her opinion)? After all, the public is already aware of the indictments and, in re-electing them, it has once more expressed faith in the heads of authorities or any of them. All these questions are far from easy. How do we measure them in light also of our colleague Justice Arbel’s comment in Hava (APA 3911/05, Zion Hava v. Azur Local council (2006), para. 8; see para. 58 of the Deputy President’s opinion) regarding the public’s “open eyes” that in reality may actually have one eye “covered”? The Talmud Bavli (Bava Kama 52, 1) writes that “when the shepherd is angry at the flock, he blinds the leading goat.” And Rashi has said, and I quote without any intent for offense to anyone, “her eyes shall be gouged out, and she shall fail and fall into the pits and the herd follows, such that God redeemed the haters of Israel (refined language for the people of Israel – Rubinstein) by appointing them dishonest leaders.” The questions after the elections will become what the Court’s position might be when the public continues to elect a head of authority, as if the world keeps on turning, and what the weight of the outcome of those elections ought to be. However, we have yet to reach that point.

On the Reasoning for the Solution

C.Indeed, the solution we have come to is not elegant, and it has pitfalls. But the reader must ask herself beyond the legal analysis, what is the alternative? How can it be that a head of authority placed under the cold shadow of a serious indictment, be it for offenses related to the office – such as bribery, or be it for other extremely serious offenses, go on as usual? Justice Potter Stewart, of the United States Supreme Court, once said he could not define pornography, but he would know it when he sees it. Reprimanding the public is insufficient. We have made such comments in the egregious case of Zvi Bar, the Mayor of Ramat Gan (HCJ 5141/11, Lilian v. The Mayor of Ramat Gan (2013)). “At the end of the discussion and even before a legal decision is rendered, we expressed in the courtroom our opinion that, from a public standpoint, it is extremely difficult that the First Respondent go on serving as the Mayor of Ramat Gan after being indictment for serious offenses…” And even in the case at hand, we have commented (para. 8) that “we are uncomfortable, in the public sense, with the two running for mayors in the coming elections despite the indictments against them . . . However, we see no way, in the legal sense, to prevent them from running.” Even President Grunis, in his opinion here, has noted:

Indeed, those who have been indicted for offenses along the lines of those for which the mayors of Nazareth Illit and Ramat HaSharon have been indicted, are unworthy on a public level to serve as a head of local authority. I believe that, from the public aspect, the two heads of authorities should have resigned from office immediately after they were each indicted. Similarly, on a public level it is inappropriate for either of them to run in the coming elections, and my position on this matter is as that of my colleagues.

On the Public Level

D.However, it seems these words of public reprimand are of no use. During my service as Attorney General, when deciding to close high-profile investigations against public figures for lack of sufficient evidence, I would often write a reasoned decision so that it would be widely understood why it was closed – after the noise of the investigation followed a quiet hush. I saw this as my duty to the public, rather than closing with a simple “there is insufficient evidence.” I also assumed that a decision that was lacking in explanation would invite a petition to the High Court of Justice, and better that what would inevitably be written as a response in the HCJ would be written to begin with as a service to the public. Ultimately, I may have hoped that such comments would facilitate correction of the improprieties. The decisions have been criticized for chastising public figures without indicting them. I will comment, that, on a formal level, this may be true, but substantively, these public figures had the opportunity to respond in depth to everything that was alleged against them during the police investigation, which was conducted by highly ranked investigators who closely studied the materials, and – in some cases – had a hearing before the State Attorney. In any event, my replacement in that position has also produced such decisions, simply because there is no other way. Yet the purpose of correction through them was not achieved, or certainly was not achieved satisfactorily. I have concluded that the Israeli reality requires teeth. Similarly to the State Comptrollers who for years lamented the lack of sufficient “teeth” (this was slightly fixed), the sad conclusion is that what cannot be achieved through admonishment, must be corrected through judicial decisions. This is very much the case here. On the public level, we expressed our opinion two months prior, in the Zvi Bar case,  yet we went unheard – as if the guard dogs bark yet the convoy moves on – followed by empty promises for the future, one in the mouth and another in the heart, as said by Rabbi Yehuda Halevi (Kuzari, 2, 24). We therefore must ensure that the convoy does not move on. “Where people do not exist, try to be a person,” as Hatna Hillel said (Avot 2, 5). This is nothing new. As my colleague demonstrated, this opinion directly continues a string of decisions such as in the cases of Deri and Pinhasi (HCJ 3094/93, The Movement for Quality Government in Israel v. The Government of Israel, IsrSC 47(5) 404 (1993); HCJ 4267/93, Amitai – Citizens for Proper and Clean Governance v. The Prime Minister of Israel, IsrSC 47(5) 441 (1993)) from two decades ago. Section 22 of the Election and Tenure of Head and Deputy Heads Law, which we have applied, is a statutory tool that enables examining issues as the one before us, even though the Legislature did not explicitly and fully consider the “interim period” between the indictment of a head of a local authority and the conclusion of the trial. Ideally, it would have said that there is a cloud above the head of a head of authority who has been indicted for serious offenses. But not all clouds are the same, some are dark and some are as light as a feather. Not every offense triggers the sanction of removal. The Attorney General presented in its notice in the Zvi Bar case several parameters for examining this. It said there that the balance involves, among others, the nature of the offenses and, particularly, how closely tied they are to the public office. Other factors are the level of harm to the public’s trust and clean governance, the level of infringement on the right to elect and to be elected, the scope of the offense, the seriousness of the allegations, the offense’s impact on the fabric of life, and so on. These parameters are essentially acceptable to me (I will address the public’s trust further bellow), but here the Attorney General did not support intervention and the outcome we have reached is different. This is not like the Rabbi who told his student, as my late father’s story goes, that rumor has it the student read secular literature. Said the student: “This is not true.” The Rabbi’s response: “You wish it to be true? It is bad enough it is rumored.” Not so is the case at hand.

E.Indeed, we are not dealing with media reports against the relevant heads of authorities, but an issue that was investigated by the police and produced an indictment by the State Attorney, after which a hearing was held – in other words, all the possible screening processes short of a court. It is of course regrettable that the indictments were only recently filed, a significant amount of time after the incidents. I wholeheartedly and emphatically join my colleague Justice Hendel’s comments in this regard. The indictments constitute what is called in legal terminology “administrative evidence.” This term, which means that this evidence is serious material that has been rigorously studied, may serve as the foundation of an administrative decision, even though it was not screened by the court. Thus, for instance, decisions by ministers and different administrative authorities are made on the basis of the material before them, that has not always passed (though it may in principle do so) judicial muster. Granting citizenship or residency, entrance into the country, a driver’s license or a gun permit, business license and the like are all a product to administrative decisions. In the cases before us, the level of screening was high, performed by the Attorney General, because of the public sensitivity involved. It must be considered with the appropriate weight, and in this regard, too, I join the comments by Justice Hendel.

On Section 22 and the Difficulty It Raises

F.Section 22 is a tool that the legislature granted to the municipal government to protect its integrity, through decisions made by the city council. Employing this tool is seemingly contingent upon the political will of those who were publicly elected. Its application depends (section 22(a)) upon “the City Council’s realization that the head of authority is engaging in conduct unbecoming the status of head of authority . . .” The term “conduct unbecoming” is vague and open to interpretation. It is impossible that the term only targets drunkenness in the streets. But beyond this it is clear that “realized,” means in this case “political realization,” which is tenuous, because the head of authority generally holds strong political standing in and around the authority council, and thus there will often be a “good” chance, however unfortunate, that even conduct outrageously unbecoming would not lead to the head of authority’s removal, in light of their political capital and power.

G.This was the case here, whether because the authority council purposefully did not convene (Ramat HaSharon), or did convene pursuant legal advices (Nazareth Illit) – but made a decision that did not properly account for the serious indictments.

H.We cannot disaggregate here the ethical-moral aspect and remove it from our consideration. Administrative law, as a whole, very much revolves around rules of ethics and morality. This becomes clearer when a head of local authority is concerned, who in many ways holds extreme power in matters of finances, appointments, construction, planning and so on. The oversight by the Ministry of Interior, despite its best efforts, cannot address all that is necessary. The head of authority must be exceedingly wary of hubris and “power intoxication,” as those lead to transgressions and can get to the point of criminal behavior. The law cannot facilitate this, hence our position.

On the Presumption of Innocence and the Public’s Trust

I.Theoretically, the argument that the presumption of innocence is threatened when an indictment is sufficient for removal is appealing. However, what would proponents of this argument say if a head of authority is accused of murder, rape, killing someone in the course of a road accident, beating his wife or children, or stabbing a neighbor? Why does the offense of bribery – one of the most maligned of all corruption offenses – not warrant the same treatment?

J.Moreover, following Justice Arbel’s metaphor regarding the “open eye and the covered eye,” is the public capable of forming an opinion with complete information regarding the meaning of the indictment, or is the public subject to certain biases? Indeed, a city council’s members are fully informed. But is it reasonable to accept their indifference regarding a serious indictment? I will admit, I am not a fan of the expression “public’s trust.” After all, it was said that the public includes the good, the mediocre, and the evil - so who is this public whose trust we seek? This expression has come up frequently regarding the judicial authority, and Justice Haim Cohen has warned us from becoming slave to it in his article “Thought of Disbelief in Public Confidence” in Safer Shamgar, 365 (A. Barak et al. (eds), 5763-2003), as well as in a collection of his selected essays (A. Barak and R. Gavizon eds.), 5761-2001, p. 367. I shall not go into the discussion regarding the expression “the enlightened public” that was coined with the best of intentions and has since become controversial (see Id., 375-378), but we are dealing with the Israeli society (p. 379), who is split and divided into secular and religious groups, Jews and Arabs, those who hold political views to the right and those to the left, native Israelis and new immigrants, and, therefore, as Justice Cohen wrote, “the existence of the public’s trust cannot be proven” (p. 387). He even went as far as writing “chasing after the public’s trust is like chasing after honor and respect . . .” (Id.) But even without this definition, it is very difficult to quantify this concept, not just in terms of the judicial authority, which is seemingly regarded quite differently by various sectors of the population. I remember that as Attorney General, when we held discussions in my office about the public’s trust, I would say: Who exactly is the public? The Arabs of Salach-A-Din Street, where the Ministry of Justice sits? The Hassidic people of the Beit-Israel neighborhood beyond Highway No. 1? The residents of French Hill, a kilometer or two further to the north? I would have been overjoyed were we able to come together around “an agreed public trust” (on this term see also HCJ 5853/07, Emunah – National Religious Woman’s Organization v. The Prime Minister, IsrSC 62(3) 445, 469-470 (Justice Procaccia) and 494-495 (Justice Arbel)) as an “objective public trust” of sorts, but ultimately this goal simply falls under the trust of the Court who is setting the standard – and what if the public should re-elect the person in question, can we then continue to speak of the “public’s trust?” I, myself, would, therefore, avoid using the expression regarding public trust in our case, but for under the common legal parameters of administrative law, which emphasize the public administrative action rather than an external angle. Indeed, there have been critics (expressing a principally appealing critique) of the expressions “unreasonableness” and “extreme unreasonableness” employed by our administrative jurisprudence for difficulties in quantifying and measuring them, and for the concern about a lack of clear standards by the “measure of the Court’s foot”, similarly to the opposition to the laws of equity in England, as if they were defined by the foot of the Lord Chancellor. Still, this is not the case. We are not concerned with righteous “purity” but with layers of law that have been developed over decades, since the cases of Deri and Pinhasi, and were only to the benefit of public service. Though the outcome of section 22 is aggressive, it is inevitable.

On the Gap between Applying Section 22 to End a Term and to Prevent Running in Elections

K.My colleague, the Deputy President, explained why, under the circumstances, we cannot bar the mere running in the elections, and that creates the “entanglement” of our ”in between situation”:  the duty of the council to examine the indictment before the elections and the new council’s duty to reexamine it after the elections. The answer is not only important in light of the right to be elected, which ought not to be taken lightly, but ultimately and simply, because of the lack of a section similar to section 22 in terms of nominations. In my opinion, the legislature would do well to consider the entire issue before us in this case, and all of its aspects.

Conclusion

L.To conclude, our Jewish law sages said (Bavli, Yoma 22, 2), by Rabbi Yohanan as representing Rabbi Shimon Ben-Yehotzedek, “A public representative shall not be appointed without a box of snakes hanging behind, for, if he becomes arrogant, he shall be told to turn back.” Rabbi Menahem Hameiri (13^th Century, Provence) said: “It is proper to appoint as public official only one who is known to be modest, humble and patient, because he must deal with different people in different and changing ways. He must love each of them according to their characters”. And what was said regarding the box of snakes – “should he become smug and conceited over the people for unholy reasons, he should be instructed to self-reflect and look behind him.” Jewish administrative law, as I have occasionally termed it, requires clean public administrative (“And you shall be clean of God and of Israel”, Deuteronomy 32, 22); see my opinion in APA 7357/03, The Port Authority v. Tzomet Engineers, IsrSC 59(2) 145, 173-175. The municipal political system in the authorities with which we are concerned, by virtue of insisting on closing its eyes in terms of section 22 to the indictments at the core of the head of authority’s conduct, imposed upon us what we would have liked to avoid. The drastic step taken is necessary under the circumstances, as the Rambam said in (his introduction to Masechet Avot), chapter 4, that “like the body out of balance, we shall see to which side it leans and we shall stand against the opposite until it gains equilibrium, and, when it is balanced, we remove our hands from the opposite and do to it what would put it to balance, so will be done to character.” In other words, in order to achieve balance in the conducts field, it may be necessary at times to take drastic measures that overly swing the pendulum until it returns to its center.

M.Finally, I join my colleague the Deputy President.

 

                                                                                                      Justice

Justice Z. Zilbertal:

1.I agree with the comprehensive and instructive opinion by my colleague the Deputy President M. Naor, which includes discussion of all the necessary questions, and join her reasoning and conclusions. I have found it appropriate to briefly address several matters that are, to me, worth emphasis.

2.Like my colleague the Deputy President, I, too, was troubled by the fact that a head of authority, removed from office due to conduct unbecoming that precludes him from continuing to serve, would be entitled to run as a nominee in elections held soon after his removal. This outcome creates moral, logical and practical difficulties. Still, it should be noted, as my colleague also noted in paragraph 57 of her opinion, that the will of the voter should be considered as one of the factors when a head of authority was elected while an indictment against that head of authority is pending and the voting public was aware of this fact.

3.Still, as was also mentioned by some of my colleagues, we should keep in mind that “the judgment of the voter does not replace the law and it may not substitute for it” (Then Justice Barak in the first Pinhasi case, HCJ 4267/93, Amitai – Citizens for Proper and Clean Governance v. The Prime Minister of Israel, IsrSC 47(5) 441, 470 (1993)).

Therefore, among its other roles, the Court must serve, at times, as a last line of defense in protecting and preserving fundamental values, including the rule of law (in its substantive sense) and clean governance by a public authority. This is not a reflection of distrust toward the voters, but that, naturally, and particularly in municipal elections, the attention of part of the public is given mainly to the work and achievements of the head of authority facing re-election insofar as the ongoing running of municipal services is concerned, and less to their moral behavior. Thus, when a head of authority has been indicted, the authority council is obligated to discuss the issue of their removal from office, and must consider the ethical and moral considerations that would reflect fundamental principles “expressing the spirit of the state” (Yitzhak Zamir, The Administrative Authority, Vol 1, 29 (2^nd ed. 2010)), as these principles constitute “relevant factors that any administrative authority must take into account when fulfilling any role” (Id., p. 30). These include considerations stemming “from the general purposes of the legal system” (Id. p. 31). Should the authorized authority fail in its decision in an unreasonable manner, for example by not attributing sufficient weight to those value-based considerations that reflect general purposes, the Court then must speak out.

Justice Cheshin also addressed this in his dissenting opinion in the second Hanegbi case (HCJ 1993/03, The Movement for Quality Government in Israel v. The Prime Minister, IsrSC 57(6) 817, 903-904), as follows:

And so, when raising a certain incident before the Court, and when a heavy suspicion arises, a serious suspicion, that, due to a certain act or failure to act the public trust in its leaders will be lost or gravely harmed, the Court may not sit idly by, and maintain its hands that did not shed blood and its eyes did not see. To a certain extent, the Court’s intervention in these matters is an intervention of self-defense, self preservation by a governmental system in its entirety, including even the judicial authority. For what would the Court reply when it is argued against it that it saw transgression with its own eyes and did nothing?

4.A head of local authority indicted for serious offenses, especially offenses that go to the core of public office, is one who displays “conduct unbecoming the status of head of authority” in terms of section 22 of the Election and Tenure of Head and Deputy Heads Law. It seems this cannot be disputed. The expression “conduct unbecoming” is a general term that is designed to “reflect the fundamental views at the basis of public service” and it reflects “the values and principles that exist in public service” (these words were said in a slightly different context by then Deputy President Barak in HCJ 7074/93, Swisa v. the Attorney General, IsrSC 48(2) 750, 779 (1994), but they are apt in our case, too). The conclusion regarding the unbecoming “conduct” of a head of authority is based on administrative evidence that hold special force – an indictment that followed significant reflection by decision makers in all levels of the state attorney. For the purposes of section 22, it is unnecessary to prove “conduct unbecoming” to the same extent required in a criminal procedure itself, and, in any event, a decision in the matter does not compromise the presumption of innocence that remains fully intact as long as the head of authority has not been convicted. In my view, it is unreasonable to decide that a person indicted for offenses similar to those here could continue serving as head of local authority, when it is primarily a highly powerful executive office, which includes many authorities such that integrity is a prerequisite for service:

Indeed, precisely because one is an elected official, he is bound to higher standards of conduct and higher ethics than a “regular” public servant. Anyone elected by the public must serve as a role model for the people, must be loyal to the public, and worthy of the trust given to him. Therefore, when a government authority is conferred with the authority to end a term it must use it when the official harms the public’s trust in governance, whether the official was elected (…) or is a public servant (…) (HCJ 4267/93, Id., p. 470).

I therefore join the opinion of the Deputy President.

 

                                                                                                      Justice

 

Justice E. Hayut:

I join the opinion of the Deputy President, Justice M. Naor, and all of its reasons, as well as her conclusions regarding the extreme unreasonableness of the Nazareth Illit City Council's decision and the Ramat HaSharon City Council's conduct, as well as the obligations that would be imposed upon both city councils should Shimon Gapso and Yitzhak Rocherberger be re-elected for another term as mayors. I also accept her conclusion that under the current state of the law we cannot bar these candidates from running in the coming municipal elections.

The Deputy President clarified at great extent and depth the considerations leading to these conclusions, and I shall therefore comment only briefly.

1.The argument that the voting public must be allowed to decide whether it wishes to elect mayors who have been indicted, particularly because of the close timing between the indictments and the elections, is weaved throughout the positions of Rocherberger, Gapso and the City Councils. This argument was also presented as a central reason by the majority of the Nazareth Illit City Council members who opposed Gapso’s removal (see for instance words by city council member, Mr. Alexander Gdalkin who justified his support by saying “Who are we to decide today the fate of a person? The public, 40,000 voters, will go and determine on October 22 what is best for Nazareth Illit”, p. 21 of the Nazareth Illit City Council's meeting minutes, dated August 13, 2013). This approach means that, as long as the public is aware of the corrupt conduct attributed to its elected officials in a pending indictment, the public’s will must be respected and intervening in it must be avoided, both before and after the elections. This approach, though it has its reasons, is inappropriate because it does not correctly balance the right to elect and to be elected with other important rights and interest, which are no less legally significant. In the Pinhasi case, the Court reasoned in this context that “the judgment of the voters does not replace the law and cannot substitute for it . . . therefore, when a governmental authority holds the power to end a term, it must employ it when the public official in question harms the public’s trust in government, whether the official has been elected or is a civil servant” (HCJ 4267/93, Amitai – Citizens for Proper and Clean Governance, IsrSC 47(5) 441, 470 (1993)). Thus the right to vote and to be elected in local elections, as important and constitutional as it is, should not eclipse other important principles that are fundamental to our legal system, including the rule of law and clean governance by both the central and local governments. Therefore by exercising its authority under section 22(a) of the Election and Tenure of Head and Deputy Heads Law, and by considering whether to remove the head of the authority from office according to this provision, the local city council cannot rely on the right to vote and to be elected as an exclusive consideration. I will add and note that according to the quote above, and, in contrast to the Respondents’ claims, in order to balance the “judgment of the people” and the “judgment of the law,” the Court has not created a dichotomy between an elected official and a civil servant. In any event, we must remember that the head of the local authority, though elected in direct elections, also holds significant executive powers. Among others, the head of the local authority serves as the head of the local committee for planning and construction and is authorized to approve any and all of a municipality's expenses (for a detailed list of the various executive powers granted to the head of local authority, see para. 41 of HCJ 5126/13).

2.On the need to balance the conflicting rights and interest in the specific context of the local government, then Justice Beinisch noted in HCJ 10769/05, Almakays v. the Minister of Interior , paragraph 10:

Despite the primacy of the democratic right to representation, we must remember that this right is not absolute, but of relative weight. In determining its scope and weight in general, and when it comes to local government in particular, consideration must also be given to other public values and interests, whose realization is vital to the ordinary function of a society.

Support for the conclusion that the voter’s decision in the ballot is not meant to be the central or exclusive factor for evaluating a head of local authority’s conduct in terms of a city council’s decision under section 22 can be found in the limitations the Legislature saw fit to impose on elected officials of local government to run that locality’s affairs, as well as the supervisory powers granted to the central government. Without exhaustingly detailing these restrictions and supervisory powers, I will note that a bylaw enacted by a city council may be voided by the Minister of Interior (section 258 of the Municipalities Ordinance), that the Minister of Interior may push back the date of local elections in a particular local authority (section 5 of the Local Authorities Elections Law) and that the Minister is authorized to remove a head of authority or city council from office and appoint other office holders in their stead (section 143 of the Municipalities Ordinance). Therefore, the right of local voters to vote and the right of their representatives to be elected is significantly limited for public interests that involve all citizens of Israel. It appears that the main rationale for the extensive supervisory powers granted to the central government is that a significant portion of Israeli local authorities’ budgets is funded by the central government (Ishai Blank, The Location of the Local: Local Government Law, Decentralization and Spatial Inequality in Israel, Mishaptim 34, 197, 226-230 (2004); Yitzhak Zamir, Administrative Authority 1, 452 (second ed., 2010)), and thus, the way a local authority’s conduct already impacts each and every one of the citizens of Israel who may shoulder, even if indirectly, the burden of financing its activity (see and compare HCJ 9882/06, Shavit v. The Minister of Interior, para. 6 of then Justice Grunis’ judgment (August 15, 2007)). To the extent that a recent illustration of this issue is necessary, it may be found in section 6-15 of the Changes in National Priorities Law (Legislative Amendments to Achieve Budgetary Goals for Years 2013-2014), 5773-2013, which require 57 local authorities (detailed there) to pay NIS 450 million to the Ministry of Interior, which will then in turn be paid to by Ministry to other local authorities in need of grants.

3.Therefore, the appearance of the local governance in Israel is not the private matter of the residents of Nazareth Illit, Ramat HaSharon, or any other local authority which may be entitled to vote and be elected in that authority. The election of a mayor indicted for offenses against public clean governance, regardless of the mayor’s election by voters in that authority, may cause real harm to the status of all governmental authorities in Israel. The status of all these authorities is based on the public’s trust in their integrity and clean governance, and we must guard against the dangerous destabilization and chipping away at their status in the eyes of the public because people whose public conduct and integrity is put on criminal trial hold high public office and are charged vis-à-vis that office with public funds and public resources and interests.

4.Finally, I wish to add several words on the rules regarding fitness to run in local elections. Section 120 of the Municipalities Ordinance, section 4(c) and 4(d) of the Election and Tenure of Head and Deputy Heads Law, section 7 of the Local Authorities Elections Law 5725-1965 and the Local Authorities Law (Limiting the Right to Be Elected) 5724-1964, establish various conditions for barring one from being nominated and running for head of local authority or member of a city council. Among these conditions are insolvency, candidates whose permanent place of residence is not within the local authority’s jurisdiction area, police men and women or prison guards, candidates who have been sentences for over three months’ actual imprisonment in a final verdict, and others. The case where an indictment against a candidate for head of authority is not among these statutory reasons for disqualification – though it is problematic, on a public level, to nominate a person who is criminally indicted for offenses related to the office for which that person is nominated – is no less problematic, in my opinion, from the difficulties that inspired some of the other conditions set by the Legislature in this context. For example, the explanatory notes of the Law Amending the Law of Local Authorities (n. 4) 5733-1972 reveals that the restriction regarding insolvent people was designed to “emphasize the integrity and honesty of public figures.” Indeed, under criminal law, a defendant who has yet to be convicted enjoys the presumption of innocence, but insofar that we are concerned with a public office, and similarly to the considerations detailed in terms of removing an incumbent head of authority by the city council according to section 22 of the Election and Tenure of Head and Deputy Heads Law, I believe that we must set a stricter standard. For these purposes, it is sufficient, to me, that there is administrative evidence in the form of an indictment filed by the Attorney General detailing offenses that are related to the office for which one is running (or other serious offenses, even in the absence of such connection) to negate the right to be nominated. In this context, I join my colleague the Deputy President’s urging that the law be amended and that such a condition be added to the relevant statutes. Additionally, I accept her conclusion that, in light of the absence of such cause from the current law books and without the authority of any administrative body to exercise discretion over the right of a criminally indicted nominee to run, we cannot revoke the right of Gapso and Rocherberger to run in the coming elections.

     

                                                                                          Justice

Justice E. Arbel:

1.On September 17, 2013 we handed down our ruling (by majority) in the petitions, where we decided that two serving mayors, who had been recently indicted, would be immediately removed from their offices. We noted that the city councils’ decisions not to remove them from office, in each of these cases, is inconsistent with the principle of ensuring clean governance and preserving the rule of law (as discussed in the opinion of my colleague, regarding  Respondent 1 in HCJ 5598/13 we are concerned with the city council’s refusal to convene). In both cases, we held that the conduct associated with each of them in the indictments against them constitutes conduct unbecoming under section 22 of the Election and Tenure of Head and Deputy Heads Law, and that the city council’s decision was extremely unreasonable also in light of the relevant mayors’ intention to run once more for the office of mayor in the upcoming local elections. We noted that, though on a public level we are uncomfortable with this state of affairs, we do not see a legal possibility to prevent them from running. Still, we held that should one of them be elected for another term, the relevant city council would be obligated to convene soon after the elections in order to examine removing the elected mayor from office, according to section 22.

Now that the time to give reasons for our decision has come, I join the well founded and comprehensive opinion by my colleague, Deputy President M. Naor, including its reasons and rationales, and add to them several of my own.

2.There are three issues that required our decision: first, the removal of a head of a local authority from office due to an indictment filed during the term in office; second, preventing the candidacy of a person – whether a serving head of local authority or a candidate that is not serving as one – for the office of head of local authority due to an indictment against that person; and third, the removal of a head of local authority from office after the local elections in light of an indictment filed against the head of local authority before the elections. Though, as mentioned by my colleague, these are three issues that warrant separate consideration, their resolution has a common value-based and legal foundation.

3.What are the impacts of criminally indicting a serving head of local authority? My colleague’s response was that once a sitting head of local authority has been indicted, and even when his term does not automatically end under section 20 of the Election and Tenure of Head and Deputy Heads Law, the city council is obligated to examine whether any weighty considerations or circumstances exist in his case to warrant removal from office according to section 22. This position, which is acceptable to me, is based on the distinction between one’s eligibility and fitness to be elected or appointed to public office or service and the discretion afforded to those voting for or electing the candidate. Indeed, as I will discuss, the mere fact that an indictment is a meaningful event, that requires the local authority's council to evaluate whether one is worthy of office and whether this event does not warrant the council’s exercise of its power under the law. It is clear that an indictment in and of itself does not mean the head of authority is not fit to serve. Thus, for example, we may imagine a situation where an indictment for certain negligence offenses would not lead to a conclusion that the head of authority is not fit to serve. Yet, the mere existence of an indictment requires the city council to convene and consider whether removal from office is justified under section 22, in light of the conduct attributed to the head of authority in the indictment.

4.The Petitions before us paint a picture that is far from satisfactory. They reveal that public officials, like the bodies that appoint them or are authorized to remove them from office, see nothing wrong with a person who has been criminally indicted for serious offenses – or at the very least not trivial offenses – holding high public office. We are witness to a desire to disaggregate the criminal proceedings from the public sphere, as if a criminal proceeding is not taking place. In my view, the Court cannot concede to such an approach, which causes grave harm to the principle of the rule of law, to the proper function of public authorities, and to the public’s trust in the system. I shall explain.

On the timeline of a criminal proceeding, an indictment is a highly meaningful event. It is a constitutive event, which means that when a prosecutor concluded reviewing the evidence, and in cases such as the one at hand – after a suspect was granted the right to a hearing, as well – the prosecutor was persuaded that the evidence it holds will likely lead to a conviction (HCJ 2534/97 MK Yahav v. The State Attorney, IsrSC 51(3) 1, 11-12 (1997)). This is true in the matter of any defendant, certainly that of anyone holding high public office. In the specific matter of head of local authorities, we must note that the decision to indict is made by the head of the general prosecution, led by the Attorney General. An indictment is therefore tantamount to a declaration by the general prosecution, as the professional body entrusted with evaluating evidence in this stage about the sufficiency of its evidence to base a criminal conviction.

5.It is well known that even once an indictment has been filed, and as long as the criminal proceeding has not ended in a conviction, the defendant may enjoy the presumption of innocence. The presumption of innocence is a fundamental principle in our legal system, which is designed to ensure that the defendant is not unduly and unnecessarily burdened with the most difficult infringements of their rights – their liberty, their property, their good reputation – that follow from a criminal conviction, as long as guilt has not been proven. It is of the central foundations of the right to a fair trial, and, as such, is tightly linked with the constitutional value of human dignity.

The status of the presumption of innocence is high and mighty. However, the petitions before us speak to the impact of an indictment against a head of local authority on the public level. In my view, the fact that the criminal proceeding has yet to be concluded does not allow for ignoring it on the public level, and does not allow treating the defendant as if clean of all wrongdoing, when candidacy for public office is at stake or when the continuation of their service is examined.

As mentioned, the grim picture has been revealed in the past several years where holders of public office who have been indicted seem not to see any problem with holding onto their office despite the proceedings against them, and their conduct is de facto endorsed by the bodies authorized to remove them from office. Worse yet, it often appears that holding onto the office serves an effect, sometimes reported by the media, of “business as usual,” as if no criminal proceeding is taking place, in an attempt to send a message that the accusations are bogus and empty, and therefore they do not, nor should they, have any impact on the public office. As if to say: there is an indictment but the world keeps on spinning. This is even more so in our case, where not only do the mayors here not see any problem with continuing to hold their office, and neither do the city councils in those local authorities, but they also seek to present themselves as candidates for public vote once again.

6.In my opinion this Court cannot accept the conduct described, which disregards the indictment and its implications, because such disregard harms the foundations on which Israeli society stands, and its values – first and foremost – the rule of law.

As mentioned, this Court reiterated once and again, in a long line of decisions, that the fact that a person may by eligible for office under the fitness rules does not absolve the authorized body – be it the voter or the appointer – to consider a person’s suitability and worthiness of office. Where fitness requirements end, discretion begins. This fact, it was held, must account for a candidate’s criminal history or that the candidate is a defendant in a criminal proceeding (see e.g. HCJ 4267/93 Amitai – Citizens for Proper and Clean Governance v. The Prime Minister of Israel, IsrSC 47(5) 441, 457-458 (1993); HCJ 1262/06 Movement for Quality Government in Israel v. Shas Faction, IsrSC 61(1) 185, 199-203 (2006); HCJ 5853/07 Emunah – National Religious Woman’s Organization v. The Prime Minister, IsrSC 62(3) 445, 492-493 (2007) (“Ramon” case) and the references therein.) This duty stems from the view that the public authority is a fiduciary of the public. The public figure is the fiduciary – “he does not act for himself, but for the interests of the public” (HCJ 669/86 Rubin v. Berger, IsrSC 41(1) 73, 78 (1987)). The fiduciary duty of the public official is important beyond the academic or theoretical. This is not lip service to be paid and we cannot accept a reality where this fiduciary duty takes up residence only in scholarship and judgments. It is a duty in practice which must be clearly reflected in the manner in which public officials and servants conduct themselves:

Indeed, the fiduciary duty requires integrity, and integrity requires practicality, honesty, equality and reasonableness. This list of principles deriving from the fiduciary duty is not an exhaustive list, and the list of values rooted in the duty of integrity is not frozen. As common for principles and values, they are both stable on the one hand and evolving on the other hand. They are planted in the soul of the people, and do not bend with the winds of time. They are living ideas that develop in order to provide fitting solutions to new problems. (Then Justice Barak, HCJ 1635/90, Jarjevski v. the Prime Minister, IsrSC 45(1) 749, 841 (1991)).

The fiduciary duty of an elected or appointed official to the public, and the values deriving from it, are fundamental to the public’s trust in the authorities. They are the basis for the public’s trust that its officials operate with only the public interest in mind, that they are guided by principles of fairness, integrity, and honesty, that they perform their duties properly, and that they hold reverence for the law. It would not be an exaggeration to say that the elected officials and public servants design with their behavior, the way the individual sees the entire public administration and its trust in the state authorities.  Their conduct affects the public’s perception of the value of respect for the law. I have addressed this before in the matter of Ramon, and what I said there is apt here as well:

Realizing the fiduciary duty is not accomplished only through decisions in matters of policy, initiative, planning and executing, but also through maintaining a proper and clean image of public service and those who lead it (Id. p. 493).

Like my colleague the Deputy President, I, too, believe that these principles apply, with the necessary adjustments, to a decision regarding ending a term or removal from office.

7.Where a public official who is accused of serious offenses – and such are the offenses in our case – remains in office despite the proceeding against him, as if the criminal proceedings is not taking place, where the body authorized to end or suspend the official from service finds that, under the circumstances, the official is still worthy of office, a problematic message is sent to the public as a whole. It is a message of disregard for the rule of law, and sometimes even ignoring it, as well as a message of disrespect for the work of state authorities – primarily law enforcement agencies. This state of affairs is a destructive message to the way the public understands the meaning of initiating criminal proceedings against a person and the weight it attributes to the prosecution’s decision to indict. After all, the public sees its elected officials disregarding these, as if they were not. This harms the public’s trust in the authorities, while sending out a harsh message to employees in the public service about the standards required of them (compare my position in Ramon, p. 505). And what is lacking here? Recognition of the value of the rule of law and a commitment to preserve the public’s trust in the authorities. There is no mutual respect between State authorities to their work here, and no taking a clear stance regarding the standards required of public servants and elected officials.

That the jurisprudence of this Court in matters of elections and appointments for public office, and regarding the duty of an appointing or authorized body to consider criminal history prior to election or appointment, or for the purposes of ending or removal from office, dates back so long. Still, since the city council of each of the relevant local authorities did not see fit to remove the head of authority from office despite the serious indictments against them, indicates more than anything that the principles leading these issues have not been understood or internalized. After all, these things are not new to us (see, e.g., HCJ 3094/93 Movement for Quality Government in Israel v. The Government of Israel, IsrSC 47(5) 404 (1993); HCJ 4267/93 above). It is a clear and unmistakable indication of an improper culture of government that does not encompass an understanding of the meaning of public office and commitment to the public. It does not leave the Court any choice but to intervene in the authority’s decision in order to protect the rule of law and the public’s trust in the authorities.

8.The response to the argument that under the presumption of innocence an indicted head of local authority continues to be worthy of public office, particularly when we are concerned with offenses against clean governance, has several components:

First, it is true that not every indictment warrants a conclusion that the head of authority must be removed from office, and each case must be closely and responsibly examined. Still, the mere indicting of a person holding such high office requires discussion among the council as the body authorized to take the step of removal from office. The more the attributed charges are of corruption, exploitation of office's power, severe harm to clean governance, or reveal any other alleged moral flaw, so too is the conclusion that the head of authority is not worthy of office solidified, at least for the duration of clarifying the facts in the trial and until the court gives its ruling.

Second, that a defendant, and a head of local authority at that, enjoys the presumption of innocence in a criminal proceeding does not mean that he is unblemished, even allegedly. The presumption of innocence does not make right an appointment nor continued public service. A head of local authority facing serious indictment – certainly for offenses of corruption or fraud – continuing to serve can be seen as ignoring the indictment pending against him. It reflects an attitude of dismissal and contempt toward law enforcement agencies in particular, and toward the public in general. It expresses concession to a reality where breaking the law is no longer cause for scorn and shunning (see also opinion by Justice Levi, HCJ 5699/07, Jane Doe (A.) v. the Attorney General, IsrSC 62(3) 550, 662 (2008)).

9.What I have said above targets the city council as the body granted discretion and authority to decide upon removal from office, but addresses to great extent those in the eye of the storm – the indicted heads of authorities – as well. At this point I wish to emphasize the second issue the Deputy President discussed in her opinion – the possibility of preventing a criminal defendant from running for elections. As we noted in our decision, the current state of the law does not allow for barring the candidacy of a criminal defendant. Like my colleague, I too believe that the cases before us, and other cases (HCJ 5141/11 Lilian v. the Mayor of Ramat Gan and the Chairperson of the Ramat Gan Economic Corporation, (July 14, 2013)), indicate how pressing the need is for legislative intervention. The current arrangement gives rise to difficulties, particularly in the third situation my colleague had discussed, which concerns an indicted person who is elected to be the head of the local authority and is soon after removed from office by the city council. This difficulty is not merely moral or budgetary. It also diminishes the efficiency of the local government and its proper operation.

Additionally, a wide examination of the fitness rules and the legislative arrangements in terms of ending a term or removing from office should be conducted, following the guiding principles laid out in the Court’s jurisprudence, particularly in light of the growing number of indictments against heads of local authorities and the need to ensure the public’s trust in government authorities.

Along with the need for intervention by the legislature to prevent candidacy from defendants standing criminal trial, I wish to reiterate that there are matters that should not be determined within the walls of a court, but through one’s own self-reflection. An elected public official, certainly one who holds such high office as head of local authority, is expected to recognize his own responsibility not only in matters over which he is charged when holding or running for public office, but also the responsibility in maintaining and advancing public trust in authorities. It is important that elected public officials understand that they must serve as role models to the public at large as well as for public servants in particular, and that in their official capacity they represent the entire public. They must acknowledge that, as long as the cloud of an indictment hovers over their head, their holding or running for office is troubling.

10.The voters’ judgment.

Another argument that was raised before us time and again was that the voters must be given the opportunity to weigh and evaluate the significance of an indictment. This issue somewhat touches on the first situation discussed by the Deputy President in her opinion, but clearly arises in the third situation the Deputy President discussed – that of removal from office of one who had just been elected for mayor while an indictment is pending against them.

I agree with the resolution the Deputy President offered in this context and with the relevant comments by my colleague Justice Hayut, the main point of which is that the judgment of the voters cannot substitute for the law. Rather, the judgment of the voter is one of the considerations that a city council must take into account when convening under section 22, and, in any event, this consideration cannot overshadow the principles of the rule of law and clean governance.

The head of the local authority is elected to this office in direct elections. Winning elections amounts to a vote of confidence by local residents in the head of the local authority. It can therefore be said that where an indictment against an elected head of authority was common knowledge even prior to their election, and that the head of the authority still won votes, a decision to remove the head of the authority from office constitutes gross intervention in the will of the voters and an infringement of their right to vote. A possible response to this could be that the right of the voter, as important as it may be, is not absolute. It must be balanced and weighed against other interests when it is necessary to ensure clean governance and the public’s trust in public service.

Moreover, the judgment of the voter – which is indisputably important – cannot substitute the law and judicial review, and the tasks resting on the shoulders of the voters and the courts are significantly different. Each and every individual holds the right to give their vote to whomever they deem fit to stand at the head of the local authority. It is a right that is also a duty. When coming to a decision, the voters are entitled to weigh a wide range of considerations and interests according to their own personal views. An election is a single event that takes place once every five years, and, as such, it is assumed that it reflects the voters’ position at the point in time of the elections. The court, however, has a different perspective. The causes a court has to intervene are more limited and the court must exercise restraint while invoking them. That said, the court also has a broader point of view. In our case, for instance, the Court is guided by jurisprudence on issues of appointing and ending a term in office, as well as by the foundational principles of our system. Indeed, a court carries the unique function of protecting a set of values enshrined in our Basic Laws and of advancing them, as they are the constitutional framework of our system and they reflect the core of Israeli society’s values (see also Aharon Barak, The Judge in a Democracy, 77-80 (2004)). The court must guard the values of Israel as a Jewish and democratic state and promote them (Id. 83). In this context the words of then Justice Barak are apt:

Indeed, ‘it is our role and our duty as judges’ (id.). We are a branch of the government. Our rule – within the principle of the separation of authorities – is to ensure that the other branches of government operate within the law. This is the rule of law over government. The branches of government are high, but the law is higher than us all (see HCJ 428/86, Barzili v. the Government of Israel, IsrSC 40(3) 507, 585). In our judicial decision we operate according to constitutional standards. We give expression to the statute and to the law. We follow the fundamental values of our constitutional regime. We reflect the manifesto of our state life. Our approach is not guided by passing fads, but by the basic state views regarding our existence as an enlightened state, whose government is built upon the public’s trust and upon the integrity of our public servants. (HCJ 4267/93 above).

The principles of the rule of law and clean governance of public service derive from Israel’s democratic character and are of the primary building blocks of our system. The duty of the Court to ensure the public’s trust in state institutions also derives from protecting the rule of law. Without public trust, public authorities would be hard-pressed to perform their duties and the entire democratic structure would be eroded.

To conclude this point, the voter’s role in the democratic process is wholly different than the role of the Court. Both are essential to the proper function of the democratic system. One does not trespass against the other. This is also what I meant in APA 3911/05 Hava v. Azur Local Council, (2006), where we were called upon to examine the decision to remove a council member:

When I come to examine the circumstances around the case before us, I cannot ignore the picture before us and leave the task only to the public’s watchful eye, when it sometimes seems one eye is covered and the public concedes to phenomena and conduct that the court, when presented with the matter, cannot accept.

These words are more appropriate today, when we are confronted with a wave of cases tying elected public officials to alleged criminal offenses, and even more fitting in terms of defendants indicted for serious offenses of corruption, or offenses that scream out with violations of clean governance.

Remarks Before Conclusion:

11.The Attorney General’s position regarding the Third Respondent in HCJ 5126/13, the Mayor of Nazareth Illit Mr. Shimon Gapso, was that, at this time, the decision of the Nazareth Illit City Council not to remove Mr. Gapso from office is within the range of reasonableness. To support this position it was noted that:

“. . . The offense for which Mr. Gapso was indicted is indeed serious due to its connection with public office. However, it does not reveal heightened severity because there allegedly was a single act (as opposed to a series of incidents taking place over time) and the benefits or compensation allegedly given in return is not of such scope that increases the level of severity to heightened.

The matter of Gapso is pending and we must take great care not to express our opinion about the merits of the charges. Still, Gapso is standing trial for bribery. Without expressing an opinion as to his guilt or innocence, rivers have being drawn in this Court’s jurisprudence discussing the seriousness of this offense. The moral aspect is inherent in the offense of bribery since its inception, by its very dependence on exploiting public office in order to receive benefits. This severity would have been sufficient, particularly when it is coupled with the fact that the conduct of which he is accused allegedly relates to the public office he holds to lead to a conclusion that under the current state of the law the city council’s decision is outside the range of reasonableness.

The reasons detailed in the Attorney General’s position, and particularly the level of compensation and the number of crimes committed, are relevant mainly for purposes of evaluating the severity of the attributed offenses on the criminal level. They generally pertain to the sentencing phase, after a conviction – insofar that there is a conviction – and are not necessarily relevant to the council’s discussion, in circumstances where the indictment against the head of the local authority accuses him of a serious offense of corruption, especially in light of the fact that the bribery charge reflects an undermining of the will of the voters and a disregard to their rights. As mentioned, when the offenses of bribery are concerned, the wrongdoing – even of a single act – is clear, obvious, and severe in and of itself. I will reiterate that these words are said as a matter of principle and they do not, even as an insinuation, express a position on Gapso’s criminal matter.

Another matter I wish to address relates to the timing of the indictments. I am aware of both the complexity that characterizes some investigations into local authorities, and the workload shouldered by the investigating authorities and by the police. I also factor in the care taken by the prosecution authorities before they decide to indict, particularly in cases such as the ones before us, where the decision holds immediate consequences for the defendant. And still, given that the timing of the local elections is known in advance, there should be special effort to reach a decision in these cases as early as possible so that adequate preparation for local elections can be made both from those wishing to run and from the voters.

12.I have read the opinion by my colleague the President and the comments by my colleagues the Deputy President and Justice Hendel on his opinion. I will only add to their thoughts that the difficulty to which the President points, regarding the existing gap between the outcome of our decision and the current interpretive scheme, as illustrated by the situation of a conviction and a finding of moral turpitude before a judgment becomes final, only emphasizes the need which my colleagues and I discussed, for amended comprehensive legislation that would achieve harmony and coherence and would prevent, one would hope, situations such as those the President presents.

13.In conclusion, the questions raised by these petitions are complex, and relate to the very fabric of democratic life, and our existence as a state and as a society. A lenient approach to an indictment against a sitting head of local authority carries consequences for the conduct of city leaders and for the public as a whole – particularly its trust in the systems of government and its commitment to the value of respecting the law. A matter joins another matter to form a long chain that binds this Court to send out a strong and clear message, and so that is what we have done.

As said above, at the end of the day I join the position of the Deputy President.

                                                                                          Justice

President A. Grunis:

1.On September 17, 2013 an extended panel of seven justices handed down a decision, by a majority, to remove the Mayor of Nazareth Illit, Shimon Gapso, and the Mayor of Ramat HaSharon, Yitzhak Rocherberger, from office. The Mayor of Nazareth Illit was indicted for bribery, while the Mayor of Ramat HaSharon was indicted for offenses of falsifying registration in corporate documents, fraud, and breach of trust in a corporation. Due to the indictment, the Nazareth Illit City Council decided, by a majority, not to remove the Mayor from office. However, the Ramat HaSharon City Council made no decision at all as to whether to remove the Mayor from office, but instead decided to take the matter off of its agenda.

The decision of the Court was reached by six of the justices on the panel, whereas my position was different. I believed that it was not the place of the court to remove the two mayors from office. The opinion was handed down without reasons and it is now time to offer the rationales for my dissenting opinion. It should be noted at the outset, that elections for local authorities are scheduled to take place on October 22, 2013, and include the two relevant cities. At the hearing, both mayors declared their intent to run in these coming elections. In the decision from September 17, 2013, I presented the essence of my position as such:

My view is that, in light of the fact that the elections for local authorities are to be held on October 22, 2013, which is in less than two months, the Court must wait for the voters’ verdict. Indeed, those who have been indicted for offenses along the lines of those for which the mayors of Nazareth Illit and Ramat HaSharon have been indicted are unworthy on a public level to serve as a head of local authority. I believe that, from the public aspect, the two heads of authorities should have resigned from office immediately after they were each indicted. Similarly, on a public level it is inappropriate for either of them to run in the coming elections, and my position on this matter is as that of my colleagues. However, I distinguish the public level from the legal level. Since the elections are coming up, and will be held shortly, there is no room for the Court to put itself in these local authorities’ voters’ place. Hence, my position is then that the Petitions must be rejected.

At the outset, I will clarify how I diverge from my colleagues. My position is that, in light of the fact that the local elections are soon approaching, there is no justification for judicial intervention. The voter must have its say. My colleagues, the majority justices, intervened in decisions by the city councils. Under the circumstances of this case, and as will be explained below, this is intervention not only in the councils’ decisions but also “decisions” by the Minister of Interior, as well as in the right of the voter to have its say. All of this is done, while attributing extreme unreasonableness to each of the mentioned decision-making parties. My colleagues, the majority justices, justify the decision to remove the heads of authorities from office with preserving public’s trust in government authorities and the need to ensure clean governance by public authorities and the rule of law. I do not see why it is impossible to wait for the results of the elections, and to discover that way whether the public is willing to vote for candidates who have served as heads of local authorities and who have indictments hovering over their heads. What better way to test the public’s trust than direct elections for the office of head of local authority, when it is widely known that the candidate is facing criminal prosecution? Additionally, my colleagues do not, in my view, give sufficient weight to the presumption of innocence. What is more, the position of the majority justices is challenged, in my opinion, by the existence of current legislative arrangements in terms of criminal proceedings against heads of local authorities.

2.The provisions relevant to ending a head of local authority’s term (except for a regional council), in light of their involvement in crimes are included in the Election and Tenure of Head and Deputy Heads Law. The pertinent provisions are section 20 and section 22. Section 20, in relevant part, reads as following:

a. Once a court sentences a head of authority for a criminal offense, whether the offense or conviction occurred while in office or before the head of authority began serving in office, the court will determine in its sentence whether the offense is one of moral turpitude. The court’s decision regarding turpitude is subject to appeal as if it were any other part of the sentence.

b…

c…

d. Once the court determined according to this section that the offense of which the head of authoritywas convicted is one of moral turpitude, the mayor will be suspended from office, until a final judgment is given in the matter.

e. The head of authority’s term will end on the day that the judgment establishing the offense is one of moral turpitude becomes final.

g…

(3) Should the head of authority be acquitted through an appeal or should the appellate court find the offense of which the head of authority was convicted is not one of moral turpitude, the head of authority will resume office.

Section 22 stipulates as follows:

a. Should the Council find that the head of authority is engaging in conduct that is unbecoming the status of head of authority and thus believes the head of authority is unworthy of the office, it may, after providing an opportunity to be heard, remove the head of authority from office.

b. A decision to remove the head of authority from office will be reasoned and will be made in a special, closed meeting of council members. The decision will be made by a majority of three fourths of council members. The decision shall require approval by the Minister. (This refers to the Minister of Interior– Grunis.)

c. Should the head of authority fail to have convened a special meeting within 14 days from the day a majority of City Council members called upon him to do so, a majority of City Council members may convene such a meeting and they shall select a chairperson to lead the meeting.

I will already point out the two obvious difficulties that arise, in my view, from the position of the majority justices. First, the legislature established a specific arrangement in regards to a criminal procedure against a serving head of authority. According to this arrangement, a head of local authority who has been convicted of an offense of moral turpitude shall be suspended from office after sentencing and until the verdict becomes final. Only once the verdict becomes final shall the head of authority’s term end. In our case, we are concerned, as mentioned, only with the stage of indictment against the two mayors. Second, the majority relies on section 22 in their decision. It should be noted that in order for the decision to remove a head of local authority to be made, a majority of city council members (a special majority) is insufficient, as approval by the Minister of Interior is required. In the two cases before us, there is no claim that the Minister of Interior ever decided on the matter.

The Eve of Elections

3.As mentioned, I attach great weight to the fact that the elections for local authorities are coming up. This fact can affect the measure of judicial restraint necessary before intervening in decisions such as those subject to our review. Of course, this means that the scope of judicial review must be narrowed (see HCJ 1400/06 Movement for Quality Government in Israel v. The Acting Prime Minister, para. 17 of Justice Rivlin’s judgment (March 6, 2006)). First, from the outcome perspective, within a short period of time, once the elections take place, the two mayors’ current terms will have ended on their own. This is relevant to the practical valued (as opposed to the moral value) of the relief we have been requested to grant, which goes to removing the mayors from office. Second, the fact that it is elections time should guide the Court to exercise restraint. Elections period is “. . . a politically sensitive time, and the Court must carefully examine the possible implications of its decision on the public’s mindset” (Id.). Third, and most importantly, the issue of continued terms in office for the mayors is expected to be tested soon by the public (see and compare, HCJ 9223/10 Movement for Quality Government in Israel v. The Prime Minister, para. 32 (November 19, 2012.)) This factor is of crucial significance to my conclusion that there is no room for judicial intervention in the councils’ decisions for reasons of extreme unreasonableness.  As I will explain below (in paras. 6-8), taking such a step may cause difficulties even when we are not on the eve of elections. However, this timing exacerbates and heightens these difficulties to an extent that justifies, in my view, dooming the Petitions to fail.

Election by the Public for office Versus Appointment

4.The extent of the range of reasonableness is determined, among others, by the nature of the reviewed decision, the cause for intervention and the identity of the deciding body. The actions that are subject to review in the case before us are the City Councils’ failure to exercise their power to remove from office elected heads of local authorities that have been indicted. An elected official is just that, elected for office by the public in democratic elections. The elected official reports on his actions to the public, and the public’s decision in the elections will impact continued service in office. Hence, removal from office in ways other than elections effectively means dismissing the will of the voter and altering an outcome that was reached through the democratic process (see APA 3911/05  Hava v. Azur Local Council, para 7 of my dissent opinion (October 23, 2006) (the “Hava case”). In light of the significance of the democratic process and out of respect for the will of the voter, the Court must take extra care when examining the reasonableness of a decision to remove from office an elected official. This is particularly true when the authority granted the power to do so opted not to take this sensitive step, and when the Court’s decision to overturn its decision will cause the elected official to be removed from office. This takes on additional force when the removal of heads of local authorities is concerned, as they are elected for office in direct elections (see sections 2 and 9 of the Law; see HCJ 636/87 Assaf v. the Minister of Interior, IsrSC 43(1) 177, 182 (1988) (“the Assaf case”)). Effectively, a head of local authority is the only one among the elected government authorities in Israel who is directly elected by the public. This distinguishes a head of local authority from, for instance, Knesset members who are elected as part of a list of candidates rather than by direct elections. Therefore, a judicial decision regarding removing a head of authority from office involves deep intervention in the explicit will of the voter. This decision compromises the principle of representation, that is the voting public’s right to elect the candidate desirable to them for office of head of the local authority (see HCJ 4646/08 Lavi v. the Prime Minister, para 18 of President Beinisch’s judgment (October 12, 2008) (“The Lavi case”); HCJ 2533/97 Movement for Quality Government in Israel v. The Government of Israel, IsrSC 51(3) 46, 63 (1997)). This may even be considered a certain infringement on the right of the elected official’s to be elected. These are matters that are at the foundation of the democratic system and there is no need to elaborate on their significance. Therefore, out of respect for the democratic principle, the Court must take extra care when intervening in decisions as those in question here, particularly when we are on the eve of elections.

5.In this context, it should be noted that one cannot analogize the issue before us to the jurisprudence on limitations due to criminal involvement in cases of appointment to public office. Those lawfully elected to office by the public are not similarly situated to those appointed to public office by an administrative authority (see, e.g. CSA 4123/95, Or v. the State of Israel – Civil Service Commissioner, IsrSC 49(5) 184, 190-191 (1996) (“the Or case”); the Lavi case, paras 12 and 18 of President Beinisch’s judgment; the Hava case, para 7 of my dissenting opinion). The distinction between the cases is significant and cannot be dismissed easily. Without exhausting this point, I will note that in the case of appointment to public office – including appointment of an elected official (for instance, appointing a Knesset member as a minister), the body authorized to appoint or remove from office is not the voting public. An appointing body, as opposed to the public, is obligated to consider a range of factors when appointing or removing from office, including the candidate’s or office holder’s involvement in crimes or criminal proceedings. While precedents have established that the Court cannot set fitness requirements through judicial opinions, but it may intervene in the discretion of the appointing body (see HCJ 727/88 Awad v. The Minister of Religious Affairs, IsrSC 42(4) 487, 491-492 (1989); HCJ 6163/92  Eizenberg v. the Minister of Construction and Housing, IsrSC 47(2) 229, 256-257 (1993) (“the Eizenberg case”); for critique of the distinction between court-made fitness rules and the Court’s intervention in an appointing authority’s discretion, see Menahem Moutner, Between Fitness and Reasonableness – After HCJ 5853/07 Emunah – National Religious Woman’s Organization v. The Prime Minister, Mr. Ehud Olmert, , 403, 405 (2001)). Additionally, there is no natural or constitutional right to be appointed for public office (Eizenberg, p. 257; Or, p. 191). As a result of these differences, the scope of judicial review over decisions regarding removing a public official from an office for which they were elected by the public should also be narrower than the scope of judicial review over decisions regarding the removal from office of those who were appointed to their office (Lavi, paras 12 and 18 of President Beinisch’s judgment). Not for nothing does the case law take a broad approach toward the nature of conduct that warrants disqualification of an appointment to public office, even prior to a conviction (see HCJ 3094/93 Movement for Quality Government in Israel v. the Government of Israel, IsrSC 47(5), 404, 424 (1993); HCJ 4267/93, Amitai – Citizens for Proper and Clean Governance v. The Prime Minister of Israel, IsrSC 47(5) 441 (1993); compare HCJ 1993/03, Movement for Quality Government in Israel v. The Prime Minister, IsrSC 57(6) 817, 851 (2003)). However, in the past, this Court has exercised significant judicial restraint when adjudicating the issue of removing elected public officials from office due to causes not set in legislation regarding implication in criminal proceedings (see HCJ 7367/97 Movement for Quality Government in Israel v. The Attorney General, IsrSC 52(4) 547, 559 (1998) (the “Pinhasi case”); HCJ 6050/94, Amitai – Citizens for Proper and Clean Governance v. Nitzan (May 22, 1995), where a petition to order a local authority’s council to invoke its authority under section 22 of the Law and remove the head of authority from office after he was convicted of fraud and breach of trust in terms of conduct related to his duties at the municipality was rejected).

The Statutory Arrangement and the Interpretive Aspect

6.The approach of the majority justices causes, in my opinion, difficulty in light of the existing arrangement in the Law, as well. I am referring to those provisions that address the expiry of a head of local authority’s term for implication in criminal proceedings. Thus, under section 20 of the Law (as quoted in para. 2, above), a term ends after the criminal process has been exhausted, the head of the local authority has been convicted, and the issue of moral turpitude has been resolved. Recall, that in the case before us, the mayors have been indicted but the criminal process is in its early stages. In other words, we are quite a whiles away from a conviction and a finding regarding the existence of moral turpitude, and certainly from a final judgment establishing this (compare HCJ 3090/97 Cohen v. The Ministry of Interior, Southern District Supervisor, IsrSC 52(2) 721 (1998), where the Court ruled against disqualifying a head of authority from office though a court found he committed criminal offenses, but avoided conviction; HCJ 6790/08 Lanciano v. the Minister of Interior, where the Court rejected a petition against the service of a city councilmember who had been convicted and sentenced to suspended sentence of imprisonment and a fine; see also the Hava case, para. 8 of my dissenting opinion). In these circumstances, the question of whether this is a negative arrangement may arise. That is, as the Law regulates the provisions in matter of criminal proceedings, is it impossible to remove a head of authority solely due to an indictment, because the Law does not consider this option? In light of my finding that in the case before us we must not intervene in the councils’ decisions as to their powers under section 22 since the elections are coming up, I do not see it necessary at this time to express a firm position regarding how to act when an indictment is filed during a term. A few comments will suffice.

7.Let us consider that, at the end of the criminal process against the two mayors, they were acquitted. The provisions of the Law clearly mean that even had they been convicted in the first instance and that the court found the offenses to be of moral turpitude, this would have resulted, at most, with suspension from office (sub-sections 20(d) and 20(e) of the Law, as quoted in para. 2, above). In other words, the approach of the majority justices leads to an indictment bringing about the end of a term, while a conviction and finding of moral turpitude before the judgment becomes final only brings about a suspension. How is it that an event less serious than a conviction and finding of moral turpitude – that is, an indictment – incurred a more severe sanction? The position of the majority justices also causes that provisions regarding the relevance of conviction and moral turpitude are never applied, because the head of authority had already been removed from office upon indictment. This is true also in the context of section 20(g)(3) of the Law (as quoted in para. 2, above). This section mandates that, should a head of authority win an appeal or the appellate court find the offense of which a head of authority was convicted is not of moral turpitude, the head of authority “shall resume the office of head of authority.” This provision, too, becomes meaningless, as the head of authority had already been removed from office upon indictment. Put differently, the outcome of my colleagues’ decision is to effectively vacate provisions 20(d), 20(e) and 20(g)(3) of the Law.

8.The majority justices find basis for the local authority council’s authority to remove a head of authority from office, despite the instruction of section 22 of the Law (quoted in para. 2, above). Section 22(a) provides that when the head of the authority “displays conduct unbecoming the status of head of authority” the council may remove the head of authority from office, should it believe the head of authority is unworthy of office. My colleagues believe that the conduct described in the indictments may constitute “conduct unbecoming.” Recall, that the Nazareth Illit City Council decided not to remove the mayor from office, despite what the indictment alleged about him. As for the Ramat HaSharon City Council, it has removed the issue from its agenda. My colleagues’ position is that, in both cases, the city councils’ decisions not to remove the mayors from their offices are extremely unreasonable. In other words, the decision not to remove the mayors from office in the concrete cases before us, although my colleagues view it as “conduct unbecoming,” is flawed and must be struck down. Therefore, my colleagues decided to remove the two mayors from their offices. In this context, too, the question is whether the arrangement in section 20 of the Law, which addresses criminal procedures against a head of authority constitutes a negative arrangement insofar that it covers the entire framework of the criminal process from start to finish. The different position may be that the arrangement in section 20 is limited in the sense that it addresses only a situation where the head of authority is convicted and it has been found that the offense is one of moral turpitude. It seems there is no room for such a narrow definition of the scope of the arrangement in section 20. In any event, I do not find it necessary to decide the matter. Following the path of section 22 of the Law is, in my opinion, fundamentally flawed for another reason that my colleagues seemed to have not contemplated. I shall discuss this flaw now.

9.Because of the importance of the issue I again quote section 22(b) of the Law:

b. A decision to remove the head of the authority from office will be reasoned and will be made in a special, closed meeting of council members. The decision will be made by a majority of three fourths of council members. The decision shall require approval by the Minister.

It is clear from this provision that the removal of a head of local authority from office depends on two decisions: one made by the authority council, and the second by the Minister of Interior. In other words, a decision by three quarters of council members is insufficient; rather, an approving decision by the Minister is also necessary. In the case of Nazareth Illit, the City Council decided to reject a proposal to remove the Mayor from office. The majority justices found that this decision is inappropriate because of extreme unreasonableness. There is no claim that, prior to filing these Petitions, the Minister of Interior was called upon to exercise the authority under section 22(b). Indeed, arguably, there is no point in approaching the Minister of Interior before the City Council decides to exercise its authority under the mentioned section. But even so, my colleagues disregard the section’s requirement for approval by the Minister of Interior. In my colleagues’ opinions there is no examination of the Minister’s discretion, probably because the Minister was not even called to consider the matter. The absence of this is especially highlighted because the Minister must exercise independent discretion, and the set of factors that the Minister may consider are different than those the council may consider (see Assaf, p. 182; Daphne Barak-Erez Administrative Law vol.1, 319-320 (2010)). In other words, even had the city council’s decision been extremely unreasonable, it does not necessarily follow that that the Minister of Interior’s decision (were such a decision made) is similarly flawed. In my opinion, the correct move – even according to my colleagues – would have been this: first, granting an absolute order in regards of the two city councils, then referring the matter to the Minister of Interior in order to decide whether to approve. Of course, the Minister’s decision would be subject to judicial review as well.

It may be argued against me that the timetable does not permit this, as the elections are scheduled for October 22, 2013. This Court is known for being “the Court that never sleeps.” Under the circumstances, there is ample time, both to call upon the Minister of Interior and to file an additional petition in the matter (insofar that such a step were necessary). Therefore, it is unclear to me how it is possible to reverse a “decision” by the Minister when such has not at all been made.

The Public’s Trust and the Coming Elections

10.As we have seen, similar questions to those we are concerned with here have come up in the past in the context of appointment (as well as elections) to public office. This Court justified its intervention in issues of appointment, even when the appointee met the statutory fitness requirements (or when no such fitness requirements were established by legislation), in the need to ensure the public’s trust in government authorities. In other words, one’s appointment to high public office, despite a serious indictment against them, may harm, it was held, the public’s trust. In our case, we are now about a week away from the elections. The hearing in the Petitions was held on September 10, 2013. This means the relevant dates are incredibly close to the date of the elections. In light of the interpretive difficulties I discussed in terms of sections 20 and 22 of the Law, I believe it is appropriate to await the voter’s verdict. Undoubtedly, the fact that an indictment was filed against each of the mayors, who face re-election, will serve as a major issue in the elections campaign. Therefore, my opinion is that we must allow the voters to have their say. The justification for the Court’s intervention for fear of compromising public trust may be weighty had the indictment been filed during a term rather than soon before the elections. The public’s trust in this regard is not founded on a tested empirical finding, but on the Court’s estimate as to what the public’s position is. This is reminiscent of the term the “reasonable person.” Clearly, it is fiction. The Court establishes for itself according to its evaluations how it must act, and it attributes the demands it set to that fictitious figure – the reasonable person. Despite its similarity with the term “the public’s trust” there is a clear difference between the two terms. The “public’s trust” can be measured empirically through elections, when it is expected that one of the major issues in the elections would be the indictment. Let us assume that, in the coming elections, Shimon Gapso and Yitzhak Rocherberger are elected for second terms as mayors while indictments hang over their heads. How can we say the public’s trust was harmed by their election, when it is the public who elected them?

11.As mentioned above, the local elections are to be held in several days. The two mayors that have been removed from office are running in the elections. There is a chance that both or one of them will win and be re-elected for mayor. All of my colleagues raise the possibility that indeed this will be the case. It is likely that should both or one of them is elected, the matter will be brought to the city council for a decision under section 22 of the Law. Some of my collages intimate that, should either of the councils fail to remove them from office, the Court would intervene if any petitions are filed in the matter (and there is no doubt that such petitions would indeed by filed). Should the Court actually intervene, it would cause the removal of those who had just been elected. As a result, special elections for mayor (under section 24A(a)(3) of the Law) would be held. According to my colleagues’ approach, either of the two could be a candidate in the special elections. And in this way, the futile step would repeat and the two would again be removed from office, special elections would be held, and over and over again. This is an extreme example, but reality proves it is not entirely hypothetical (see HCJ 2658/06 Hazima v. Mishlav (April 3, 2006) where the Court considered the candidacy of a head of authority who had been removed from office under section 20 of the Law in the special elections held because of his removal. Ultimately, the head of the authority agreed to remove his candidacy). Indeed, one understands the approach that distinguishes the removal of a head of a local authority from office and preventing running for office. This is because that, to the extent a candidacy is concerned, there is no statutory provision parallel to section 22 of the Law. However, the odd outcome itself of repeated removal from office and holding elections must, in my view, influence the interpretive approach. In other words, this outcome too reflects how problematic it is to rely on section 22 of the Law in terms of an indictment.

Let us assume that the local authority council that has just been elected in the same elections where the mayor was elected decided to remove the mayor from office because of an indictment against the mayor. Let us further assume that the voting public was aware of the indictment. How could a decision by the council to remove a head of authority from office immediately after being elected in direct elections because of an indictment be justified when the voting public voted for that head of authority? Even if external intervention in the public’s will can at times be justified, and I shall address this below, I cannot accept that the city council would act consciously and purposely against the will of the voters whom the council should be representing, particularly when the will of the voters had just been made clear. The approach of several of the majority justices effectively requires city council members to act in contrary to the express will of the voter.

Judicial Intervention in the Will of the Voter

12.I now see fit to address the rationale that warrants, according to the majority justices, intervention in the councils’ decision not to remove the two mayors from their respective office. Recall, that the rationale was extreme reasonableness. I do not see it necessary to repeat things I have written elsewhere as to the problematic nature of “unreasonableness” as a cause for the Court’s intervention in the decision of an administrative authority (see HCJ 5853/07 Emunah – National Religious Woman’s Organization v. the Prime Minister, IsrSC 62(3) 445, 521-525 (2007)). In that case, I did not rule out the possibility to invoke, when appropriate, the rationale of extreme unreasonableness. This rationale allows the Court to intervene in administrative decisions. The current case is different. Should indeed the two removed mayors be once again elected, then the voter will have had their say in the matter. Clearly, to accept the approach of several of the majority justices would mean that a future decision by the city council not to remove the mayors from office would be tainted by the same flaw of extreme unreasonableness. Since the council’s decision would come shortly after the elections, the inevitable result of this approach is that even the direct election by the public is flawed for being extremely unreasonable. It seems to me that, in light of the fundamental principles of the democratic system, such statement about the voting public goes too far.

13.This should not be understood to mean that I disagree with the fact that, in our legal system, the Court is authorized to reject, in some instances, the will of the voter or that of its elected officials’ will. When it comes to central government, the Court has the power to strike down legislation by the Knesset that is inconsistent with a Basic Law (CA 6821/93 United Bank Hamizrachi Inc. v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995)). As I pointed out elsewhere, the theoretical justification for such intervention exists, in my view, where the primary legislature infringes upon a basic right, a minority right, or the democratic rules (HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, 800-804 (2006); see also Oren Gazal-Eyal and Amnon Reichman, Public Interests as Constitutional Rights? 41, 97, 128-135 (2011) (“Gazal-Eyal and Reichman”)). A good example for judicial intervention of this kind can be seen in a decision handed down the same week as the decision (the judgment-without-reasons) in the Petitions here (HCJ 7146/12 Adam v. the Knesset (September 16, 2013)). That decision considered a statute by the Knesset that allowed placing an “infiltrator” in custody for three years. The statute violated the constitutional liberty right to an extent greater than necessary. Additionally, the group harmed there was a minority group. In my view, one cannot equate this example to the case before us.

14.My colleagues repeatedly emphasize two over-arching principles that justify their approach, which are the rule of law and clean governance. Of course, I do not dispute the great import of these two principles. However, in this case alongside these principles, two additional over-arching principles apply, in my opinion, and they are the democratic principle and the presumption of innocence (about the presumption of innocence in this context, see Rinat Kitai Sangaro, Harming A Person’s Position due to Suspicion of Committing A Criminal Offense, n mentioning the democratic principle, I am referring to the fact that, in general, and subject to exceptions which I have discussed above, it is mandatory to accept the decision of the voters that was made in a democratic manner and the decision of its representatives – members of the legislature (a clear distinction must be drawn between intervention in the will of the voter and the will of its elected representatives and intervention in decisions of administrative authorities.) Invoking over-arching principles is not meant to give a simple and clear answer for concrete situations, as very often principles conflict and must be reconciled (about the importance of distinguishing rights from public interests, see Gazal-Eyal and Reichman). Indeed, often the solution will be found in setting a hierarchy of over-arching principles. If this is done in this case, then, in my view, the prevailing principles are the will of the voter and the presumption of innocence. The following, which was said in a similar context regarding the service of a Knesset member who had been convicted of an offense of moral turpitude, is appropriate here as well:

. . . Against preserving the public’s trust in government authorities stands the interest of realizing the will of the voters, which is of the foundations of the democratic system. The law must balance these two principles. This balance, that is struck in Basic Law: The Knesset, clearly prioritizes the will of the voter. (Pinhasi, Justice Dorner, p. 555-556)

15.It seems the disagreement between my colleagues and me is rooted not in one interpretive approach over another, but in different views as to the limits of the Court’s power. I believe that we both aspire to making the desired law into the existing law. The gap between us goes to the question of how far the Court may walk down the path that leads to a convergence between the desired law and the existing one. Our system is a common law system. In this system, the Court has significant interpretive leeway as far as the letter of the law goes, alongside which it has an important creative role, also with wide range, where there is no legislation. The more the legislation does cover, the smaller the parameter in which the Court may act. In our case, there is a clear statutory arrangement. Indeed, it is not the optimal arrangement in terms of the indictment phase when a head of local authority is concerned. It is certainly desirable for explicit provisions to be set regarding this stage, as part as the general arrangement. Thus, for example, it is conceivable that the indictment for offenses that are not particularly minor would require suspension of a head of the authority. According to my approach, this is not the existing law.

At this point, I see it fit to slightly diverge from the proper order of things and address a term that appears repeatedly in the case law. This is the term “normative” (on the difficulties in using this term in case law, see Moshe Landau, On Wording Judgments, Tamir Book 187, 193-194 (1999)). This term appears at times in judicial opinions as part of a heading – “the normative framework.” In this context, it refers to, generally, a description of the provisions in the legislation that address the issue at hand. It, therefore, bears a positive-descriptive meaning. Alongside this meaning, within the discipline of philosophy, the term “normative” bears a different meaning. There it means what it ought to be. At times, not enough thought is given to the different meanings. According to the approach of my colleagues, the majority justices, the existing and the desirable converge when it comes to removing a head of authority from office, while merging the two different meanings of the term “normative.”

Conclusion

16.The local elections will take place on October 22, 2013, that is just a few days away. In a decision dated September 17, 2013 it was decided, by a majority and against my position, that the Mayors of Nazareth Illit and of Ramat HaSharon shall be removed from office, as each of them has been indicted for serious offenses. The majority reversed the decisions by each of the City Councils. Since the elections will be held in the next few days, I believe judicial intervention should be avoided and the voters must have the opportunity to have their say, as each of the mayors is running for re-election. My view, that we must not intervene when the matter arises so close to the date of the elections, is supported by the interpretive challenges that stand, as I see it, in the way of the majority justices. It is sufficient to reiterate that under section 20 of the Law, a head of authority’s term expires only once there is a final judgment that convicts and finds the offenses to be such of moral turpitude. Even after handing a conviction in the first instance along with determining moral turpitude, so long as the verdict is yet to be final, the statutory sanction is limited to suspension. How, then, can we accept that, at a point as early as an indictment, the head of authority is removed from office? According to the position of the majority justices, the basis for intervening in the councils’ decisions not to remove the mayors from office is in section 22 of the Law. This section authorizes a local authority council to remove a head of authority from office under certain conditions. Even if these conditions are met, a council’s decision is insufficient. A decision regarding removing from office materializes only at the approval of the Minister of Interior. In both cases before us, there is no hint that the matter had been brought to the contemplation of the Minister before the Petitions were filed. How, therefore, is the Court permitted to “overrule” a decision by the Minister of Interior, that was not at all made?

The coming elections will allow the voting public to express their opinion as to whether those with indictments hanging over their heads ought to be re-elected. Against this backdrop, I believe judicial intervention in these two cases cannot be justified by way of reasoning of preserving the public’s trust in governmental authorities. The elections are the ultimate test of public trust, certainly when the public is aware of the indictments and when it is safe to assume that the issue of the indictments would become a major issue in the elections campaign. Even if we rely, as we are obligated to do, on the over-arching principles of the rule of law and of clean governance, they are joined by two additional equally important over-arching principles – the democratic principle and the presumption of innocence. Indeed, in some instances, such as infringement of a basic right, of minority rights, or the harming of democratic rules, the Court is authorized to and indeed must strike down a piece of legislation that was passed by the general public’s elected representatives. This is not the case before us.

As I have written in my dissenting opinion to the decision dated September 17, 2013, we must, I believe, distinguish the public aspect from the legal one. It is not appropriate for a person indicted for offenses such as those here to serve as head of local authority. However, in light of the provisions of the legislation and the proximity to the elections date, the Court may not, in my opinion, intervene. Under the circumstances, the court must yield to the will of the voter, as it will be reflected in the coming elections. Even if that will is not to our liking, we must respect it, as long as the law has not been amended. The law should be amended, for example, to establish that an indicted head of local authority should be suspended (unless the indictment is for particularly minor offenses). It is certainly acceptable to me that the Court must aspire to making the desirable law the existing law. However, the Court must be aware of the limits to its power. In my view, in the current matter it must consider the existing statutory arrangement and the fact that the voting public is about to have its say in the coming days. Due to all this, there is no other way, in my opinion, than distinguishing the desirable law from the existing law in our case.

           

                                                                                    President

 

Given today, October 14, 2013.

 

 

President                     Deputy President                    Justice                         Justice

 

 

Justice                         Justice                                     Justice

 

HCJ 98/69

           

A. BERGMAN

v.

MINISTER OF FINANCE AND STATE COMPTROLLER

 

 

The Supreme Court Sitting as the High Court of  Justice

 

Before Agranat P., Sussman J., Landau J., Berinson J. and Manny J.

 

 

Editor's synopsis -

            Section 4 of Basic Law: The Knesset, requires that elections to the Knesset shall be "general, nationwide, direct, equal, secret and proportional". Sections 4 and 46 of this Law require that any amendment to section 4 be approved by an absolute majority of the Knesset. In 1969, the Knesset passed a Law providing public financing of the election campaign for the seventh Knesset, scheduled to be held in 1970. According to the provisions of this Law, which was not passed by an absolute majority, such funding is granted solely to party factions which are represented in the outgoing Knesset.

           

            The Petitioners contend that the funding provisions of the new Law are void for two reasons. The Law was initiated by several members of the Knesset as a private bill, whereas legislation that imposes a financial burden on the Treasury must be initiated by the government. By providing public financing only for existing party groups, the Law infringes upon the requirement in section 4 of the Basic Law that elections be "equal" and is therefore invalid since it was not passed by the absolute majority required under section 46 of the Basic Law, i.e., a majority of the members of the Knesset, at each stage of the legisation.

           

            The court issued an order nisi, calling upon the Minister of Finance and the Government Comptroller, to show reason why an order should not be issued directing the Minister to refrain from making any expenditure under the election financing Law and directing the Comptroller to refrain from performing any act which the said Law authorises or requires him to perform. The Respondents appeared in opposition to the order nisi.

               

                The court ruled that the order nisi be made absolute, holding:

           

1.      Whatever may be the law in England, there is no rule in Israeli law that forbids members of the Knesset from initiating a private bill that imposes a financial burden on the Treasury.

           

2.      All of the other terms in section 4 of the Basic Law, "general, nationwide, direct, proportional", relate both to the right to vote and to the right to be elected. There is no reason not to give the word "equal" a similarly broad meaning.

 

3.      The absolute denial of any funding to new party groups is a substantial violation of the principal of equality established in section 4 of the Basic Law, and therefore requires the support of an absolute majority of the Knesset at each stage of the legislation.

 

Note - The Knesset thereafter amended the Law to include financing for new party groups. The amendment was passed by an absolute majority of the Knesset members, although it is possible that such a majority was not required since, arguably, the new Law, as amended, satisfied the requirement of equality. At the same time, the Knesset enacted a second Law, also by absolute majority, which retroactively confirmed the validity of all legislation concerning election procedures that had been enacted previously. The effect of the Confirmation Law was to prevent judicial review of all such legislation previously enacted, even if it violated one of the entrenched provisions.

 

            For a later case dealing with the requirement of equality as it relates to public financing of elections, see the Rubinstein case, infra, p. 60. For a case dealing with the implications of the requirement that elections be "equal" with respect to public broadcasting time allowed each party, see the Agudat Derekh Eretz case, infra, p. 21. Both cases concerned legislation passed after the Confirmation Law, though the effect of the Confirmation Law was considered by the court in the Agudat Derekh Eretz case.

           

Israel case referred to:

[1]   E.A. 1/65, Yeredor v. Chairman of the Sixth Knesset EIections Committee 19 P.D.(3)365.

 

The Petitioner appeared in person.

 

M. Shamgar, Attorney-General, and Z. Terlo, Director-General of the Ministry of Justice, for the Respondents.

 

 

 

 

 

JUDGMENT

 

            LANDAU J.: On April 30, 1969 this court issued an order nisi against the Minister of Finance, to show cause why he should not refrain from any expenditure under section 6 of the Knesset and Local Authorities Elections (Financing, Limitation of Expenses and Audit) Law 1969 (hereinafter: the Financing Law); and against the State Comptroller - why he should not refrain from any act which he is directed or authorised to implement pursuant to sections 11 and 12 of the Financing Law. The order nisi was issued on the petition of Advocate Dr. A. Bergman, on two principal grounds: one related to the manner in which the Financing Law was initiated and the other to the manner in which this Law was passed in the Knesset.

           

            The first argument is that since the Financing Law imposes a monetary burden on the Treasury, it could only have been initiated by the Government. In fact the Law was initiated by six Knesset members as a private bill (see H.H. 807). The Petitioner bases this argument on the English constitutional practice that finds expression in section 87 of the Standing Orders of the House of Commons, of 1958 (Halsbury-Simonds, vol. 28, p. 442). The Petitioner argues that these directives embody an important and necessary constitutional principle that the legislative branch may not decide on a monetary expenditure on its own initiative, as it does not bear the responsibility for finding sources of revenue to balance the new expenditure.

 

          The Petitioner's second argument is that the passage of the Financing Law was invalid and in violation of the principle of the equality of elections as provided in section 4 of Basic Law: The Knesset (hereinafter: the Basic Law). According to section 46, which was added to the Basic Law in 1959:

         

The majority required under this Law to amend sections 4, 44 or 45 will be required for resolutions of a plenary meeting of the Knesset at every stage of the legislation, other than the debate upon a motion for the agenda of the Knesset. For the purpose of this section "amendment" - either express or implied.

         

          And section 4 of the Basic Law reads:

         

The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset.

         

          The first reading of the Financing Law was passed by the Knesset by a majority of 24 to 2 (D.H., Sixth Knesset, Fourth Session, p. 1377), that is, by less than a majority of the number of Knesset members (61). As for the third reading, the Knesset records (ibid., p. 1674) state merely that the Law was "adopted", without a recorded count of the votes. The Petitioner argues that this session too was not attended by a majority of the Knesset members, and the Attorney-General, who appeared for both the Respondents, did not dispute that. In any event this is immaterial, since section 46 requires a "special" majority at every stage of the legislation.

         

          This petition raises potentially weighty preliminary questions of a constitutional nature, relating to the status of the Basic Laws, and to the justiciability before this court of the issue of the Knesset's actual compliance with a self-imposed limitation in the form of an "entrenched" statutory provision, such as section 4 of the above-mentioned Basic Law. However, the Attorney-General relieved us of the need to deliberate the matter by stating on behalf of the Respondents that they "do not take a position on the question whether the legal validity of a legislative enactment is a justiciable matter before this court, since they are of the opinion that the petition must fail on the merits". He so stated in his heads of argument and repeated it in his oral argument on the return day, and when asked what position he would take if the court found the petition substantiated, he replied that in such event he would put himself at the court's disposal to make his submissions on the question of justiciability. It is therefore up to the court to decide whether it wishes to examine the question of justiciability of its own accord. We have decided not to do so because, for obvious reasons, the substantive problems raised here require urgent resolution, whereas clarification of the preliminary constitutional questions would entail separate, lengthy deliberation. We therefore leave the question of justiciability open for further consideration and, clearly, nothing in this judgment should be taken as an expression of opinion on that matter. The Respondents have also not disputed the Petitioner's standing to file the petition, so that question also does not arise before us.

 

            We now return to the Petitioner's two arguments. The first can be answered briefly. Whatever the law in England - and we find it unnecessary to delve into that question - our law has no statutory provision to prohibit members of the Knesset from initiating a private bill that imposes a monetary burden. Indeed, the Knesset Rules adopted by this body under section 19 of Basic Law: The Knesset indicates the contrary. In the seventh chapter of the Rules, entitled "Debate on Bills of Knesset Members", rule 105(a) provides: "Every member of the Knesset may propose a bill". There is no limitation as to the content of the bill. Section 5 of the Law and Administration Ordinance, 1948, provides that

           

the budget of the Provisional Government shall be fixed by an Ordinance of the Provisional Council of State

           

and again nothing is said as to the manner of initiation of such budgetary legislation on the part of the legislature. The Financing Law here considered is sui generis: it is not a budgetary law in the technical sense, since it does not authorize the government to expend money but rather obliges the Minister of Finance to put certain sums at the disposal of the Chairman of the Knesset. There are no special provisions in our positive law as regards the procedure for enacting a statute of this kind. The Minister of Finance will have to find sources of finance for the monetary expenditure involved in the implementation of this Law, and if he encounters difficulty in doing so that is a matter which, constitutionally speaking, pertains to the relations between the legislative branch and the executive branch, which does not concern this court.

 

            That leaves the principal question: does the Financing Law contradict section 4 of the Basic Law? First, however, we wish to make it clear that this court ought not involve itself in the debate conducted in the Knesset and by the general public concerning the system of state financing of the general activities of the political parties and their specific activity in the elections campaign. Much has been said and written about the deficiencies of this system from the public perspective, while respected members of the Knesset representing a large majority of the House, including the initiators of the Law, have defended this system as necessary in our political reality. They stress, on the one hand, the improvements brought about by this Law compared to the previously prevailing state of affairs, especially as regards limitations on election expenditures and their auditing - two subjects that have no necessary connection with the matter of state funding; and they endeavour, on the other hand, to appease the critics by pointing to the experimental character of the entire Law which is intended to apply only to the seventh Knesset elections.

 

            This entire public debate falls outside the range of our judicial interest - the problem before us is confined within its legal framework. What is the Petitioner's legal argument? He argued, half-heartedly, that "it is doubtful whether the allocation of funds to political parties is an allocation for purposes of state", citing an opinion of the Massachusetts Supreme Court that such is not an expenditure for a "public purpose" in the sense of that state's constitutional law (197 N.E.2d 691). We have no similar provision in our law, which suffices to dispose of this argument. For us, therefore, the question is framed within the context of section 4 of the Basic Law alone. In this respect the learned Attorney-General argued that there is no contradiction between equality in the elections as secured under section 4 of the Basic Law and the provisions of the Financing Law. He contended that the entire section 4 deals only with the elections system in its technical sense, as evidenced by the marginal heading of the section, and that the principle of equality it embodies means only that each voter has one vote of equal weight - that and no more. In support of this argument he referred us to the legislative history of this provision, which has its origins in the Mandate period, in rule 4 of the Knesset Israel Elections Regulations of March 1, 1930, and also to the constitutions of other countries in which the principle of "one man one vote" finds explicit recognition. He argued that this technical principle should not be confused with the fundamental principle of equality for all before the law, which is likewise expressed in various constitutions. But we do not have a written constitution. It is true that we too recognize the equality of citizens before the law as a fundamental principle of our constitutional regime, yet that principle has not been embodied in a written constitution or even in a provision of a basic law that requires a special majority for amendment. Hence there is nothing to prevent the legislature from deviating from this principle even in a law passed by an ordinary majority. The Financing Law should be seen as part of the Elections Law, and section 4 of the Basic Law itself says that the Knesset shall be elected "by general elections in accordance with the Knesset Elections Law". In any event, if the Financing Law deviates at all from the principle of equality, it is but a minor deviation which is to be accepted so that other important goals are achieved, such as preventing the undue fragmentation that could result from too rigid an application of the equality principle in financing.

           

            With all due respect we must dismiss this argument because it does not answer adequately the Petitioner's main complaint: that limitation of the funding to parties represented in the present, sixth Knesset exclusively, is prejudicial to equality of opportunity for those new candidates lists that seek to take part in the campaign for the seventh Knesset elections but were not represented in the sixth Knesset.

 

            We do not accept the argument that section 4 of the Basic Law merely prescribes technical directions regarding the conduct of the elections. We are prepared to assume that the draftsmen of this section envisaged primarily the principle of "one man one vote" when they prescribed that the elections should be "equal". But we do not believe that this exhausts the full meaning of the programmatic provision in the Basic Law. Each of the adjectives "general, national, direct, relative" has two facets: they address both the right to elect and the right to be elected, and there is no reason why the word "equal" should not be given the same broad meaning. This is indicated by the order of the sections: first section 4 with its general significance, and then the more specific provisions in section 5 regarding the right to vote, and in section 6 - regarding the right to be elected. Were it otherwise, and the word "equal" referred only to the right to vote, it would have been more natural to include the idea of "one man one vote" in section 5.

           

            If the principle of equality in section 4 extends to the right to be elected, it must also find expression in an equality of opportunity for the various candidates lists that contend in the Knesset elections. For in our elections system the election candidates join in candidates lists that are submitted either by a party group of the outgoing Knesset or - in the case of a new list - by 750 voters (section 4 of the Knesset Elections Law [Consolidated Version], 1969). In this way the individual candidate aspires to achieve his set goal, and by the same token the will of the individual voter is realized in voting for the list.

           

            This interpretation of the equality provision in section 4 is consistent with the fundamental principle of the equality of all persons before the law. To be more precise, it applies as an emanation thereof in the specific area of the law of elections. But it can also exist independently without resting upon a provision in a written constitution that expressly declares the principle of the equality of all persons before the law. We do not have such an express provision, neither in a written constitution nor in an "entrenched" provision of a basic law. Nevertheless this unwritten principle is the soul of our entire constitutional regime. It is therefore only right - precisely in the borderline cases, where a statutory provision can be construed in two ways - that we prefer the construction that upholds the equality of all persons before the law over one that sets it at naught. This fortifies our construction of the equality provision in section 4.

           

            After all, what is the simple meaning of the words "equal elections"? What would we say, for example, about a statutory provision that allowed only one list of candidates? Could such elections be called "equal" because each voter still has one vote? Or, assuming the Financing Law determined that only the largest party was entitled to state funding - we would certainly regard that as a glaring violation of the equality principle in section 4. In other words, this section has the potency to prevent violations of equality also beyond the narrow confines of "one man one vote".

 

            Before we examine the Financing Law in light of our above-mentioned comments, we wish to note three preliminary points. First, a Law of the Knesset is presumed to be valid as adopted. Therefore this court's primary inclination must be to uphold the law and not to strike it down, even when the argument against it is that it contradicts an "entrenched" statutory provision (and it is stressed again that everything here said presupposes that the matter is justiciable before this court). Second, we are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. There is no better example of this classic meaning than the rule of "one man one vote". This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. Thus, for example, in the Yeredor case[l] this court affirmed a decision to disqualify a list of candidates whose purpose was to undermine the existence of the State of Israel. Likewise, with regard to the matter of state funding for the elections: all agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. And all agree furthermore that the principle of equality in financing should not be applied in such a way as to encourage the submission of candidates lists that would not have formed at all were it not for the temptation that they would receive an advance against the funding. We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond, and the fact that its representatives do not participate in the election committees except as observers after publication of the list. All these restrictions inevitably derogate from absolute equality. It was not argued here that for this reason they are invalid. Third, and related to the preceding point, the issue before us - state financing of elections - is complicated and complex by its very nature and its legislative solution entails diverse practical considerations that require special expertise, which this court lacks.

           

            Without overlooking all this, we have concluded that the absolute denial of funds to new lists of party candidates substantially prejudices these lists' equality of opportunity, thus violating the equality principle in section 4 to an unjustifiable degree that goes beyond a minor deviation from that principle. We have already mentioned the provision in the Knesset Elections Law that allows any 750 voters to submit a candidates list. This opens the doors of the Knesset to new party groups. Such opportunity is one of the hallmarks of our democratic regime in general and our elections system in particular. It might be argued that the situation of a new list in the elections to the seventh Knesset is no worse than it was in the elections to the sixth Knesset, since such a list can still finance its election expenditures from private sources. We would answer that this is not the correct comparison to make; rather the current situation of such a list should be compared with the current situation of the existing party groups, and, if so, it is clear that the new list is at a real disadvantage compared to the others, because these are entitled to receive substantial sums from the state coffers to finance their expenditures whereas the new list is denied that right.

 

            In the Knesset debates on the Financing Law, the merits of a method of finance based on the balance of party power in the outgoing (sixth) Knesset was contrasted with a method based on the new party balance in the incoming (seventh) Knesset. The Knesset preferred the first method and one of its main reasons for so doing was the danger that short-lived lists would be formed because of the temptation to receive an advance on the funding allocation. This danger can be countered without causing the inequality that we have found to be unlawful, by promising a new list funding without an advance payment and only retrospectively after it has stood the test of the elections and gained at least one seat. All this on condition that the list has consented in advance to the audit by the State Comptroller in accordance with the Financing Law, and has met all the other conditions specified in the Law. It appears to us that provisions of this nature could still be added to the Financing Law without undue difficulty, without changing the existing provisions as regards the parties represented in the sixth Knesset and without overturning the entire situation, so as to avoid the apprehended inequality. It need hardly be said that in making this suggestion we in no way presume to encroach upon the sovereignty of the Knesset as the legislative authority.

           

            The Knesset accordingly has two courses from which to choose: it can reenact the financing provisions in the Financing Law, despite their inherent inequality, if the majority required under sections 4 and 46 of the Basic Law is mustered; or it can amend the Law so as to remove the inequality, and we have indicated above a possible way of doing so.

           

            We therefore make absolute the order nisi in the sense that the first Respondent, the Minister of Finance, is to act pursuant to section 6 of the Financing Law only if the financing provisions in the Law are reenacted with the required majority, or if the Law is amended so as to remove the inequality contained therein. We see no need to issue any order against the State Comptroller. Respondent no. 1 shall pay the Petitioner his costs in the petition.

           

            Judgment given on July 3, 1969