EDA 1806/19

                                                                                                                                  EA 1866/19

                                                                                                                                  EA 1867/19

                                                                                                                                  EA 1876/19

In re:                                      Central Elections Committee for the 21^st Knesset

Plaintiffs in EDA 1806/19:               1.         MK Avigdor Lieberman

                                                            2.         MK Oded Forer

                                                            3.         Yisrael Beiteinu Faction

Appellants in EA 1866/19:               1.         Issawi Frej

                                                            2.         Ofer Kornfeld

                                                            3.         Atara Litvak

                                                            4.         Debbie Ben Ami

                                                            5.         Sonia Cohen

                                                            6.         Richard Peres

                                                            7.         Eran Yarak

                                                            8.         Gil Segal

                                                            9.         Shifrit Cohen Hayou Shavit

                                                            10.       Osama Saadi

                                                            11.       Wiam Shabita

                                                            12.       Yousouf Fadila

                                                            13.       Meretz Faction

                                                            14.       MK Stav Shaffir

15.       Reform Movement for Religion and State – Israel Movement for Progressive Judaism  

16.       Tag Meir Forum

Appellants in EA 1867/19:               1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Hoshaya Harari

                                                            4.         Yochai Revivo

                                                            5.         MK David Bitan

                                                            6.         Elidor Cohen

                                                            7.         Yaakov (Kobi) Matza

                                                            8.         Yigal Harari

                                                            9.         Yaakov Dekel

                                                            10.       Shimon Boker

                                                            11.       Yossi Shalom Haim Rozenboim

Appellant in EA 1876/19:                             Ra’am List

                                                                        v.

Respondents in EDA 1806/19:         1.         Dr. Ofer Cassif

                                                            2.         Attorney General

Respondents in EA 1866/19:            1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Central Elections Committee for the 21^st Knesset

                                                            4.         Attorney General

Respondents in EA 1867/19:            1.         Hadash-Ta’al List

                                                            2.         Central Elections Committee for the 21^st Knesset

                                                            3.         Attorney General

Respondents in EA 1876/19:            1.         Central Elections Committee for the 21^st Knesset

                                                            2.         Likud Faction et al.

                                                            3.         Dr. Michael Ben Ari et al.

                                                            4.         Attorney General

                                                            5.         The Knesset

EDA 1806/19: Approval procedure under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1866/19: Appeal under sec. 63A(d) and sec. 65(A1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1867/19: Appeal under sec. 64(a1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1876/19: Appeal under sec. 64(a) of the Knesset Elections Law [Consolidated Version], 5729-1969

The Supreme Court

Before: President E. Hayut, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit, Justice N. Sohlberg, Justice M. Mazuz, Justice A. Baron, Justice G. Karra, Justice D. Mintz

Supreme Court cases cited:

1.         EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. MK Ahmad Tibi, IsrSC 57 (4) 1 (2003)

2.         EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset (Jan. 21, 2009)

3.         EDA 9255/12 Central Election Committee for the 19th Knesset v. MK Hanin Zoabi (Feb. 18, 2015)

4.         EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset, IsrSC 39(2) 225 (1985) [https://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee]

5.         EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12^th Knesset, IsrSC 42(4), 177 (1988) [https://versa.cardozo.yu.edu/opinions/kach-v-central-election-committee-twelfth-knesset]

6.         EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi, (Dec. 10, 2015)

7.         LCA 7504/95 Yassin v. Registrar of Parties, IsrSC 50(2) 45 (1996)

8.         EA 1/65 Yaakov Yeredor v. Chairman of the Central Elections Committee for the 6^th Knesset, IsrSC 19(3) 365 (1964) [https://versa.cardozo.yu.edu/opinions/yeredor-v-chairman-central-elections-committee-sixth-knesset]

9.         EA 2/88 Ben Shalom v. Central Elections Committee for the 12^th Knesset, IsrSC 43(4) 221 (1989)

10.       EA 2805/92 Kach List v. Chairman of the Central Elections Committee for the 13^th Knesset (unpublished)

11.       EA 2858/92 Movshovich v. Chairman of the Central Elections Committee for the 13^th Knesset, IsrSC 46(3) 541 (1992)

12.       HCJ 5744/16 Ben Meir v. Knesset, (May 27, 2018)

13.       HCJ 11225/03 Azmi Bishara v. Attorney General, IsrSC 60(4) 287 (2006)

14.       HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General, (Dec. 9, 2015)

15.       HCJ 392/72 Berger v. District Planning and Building Council, Haifa District, IsrSC 27(2) 764 (1973)

16.       HCJ 547/98 Federman v. Government of Israel, IsrSC 53(5) 520 (1999)

17.       AAA 8342/02 Ben Gvir v. Commissioner of Police, IsrSC 57(1) 61 (2002)

18.       LCA 6709/98 Attorney General v. Moledet Gesher-Tzomet List for the Nazereth Illit Local Council Elections, IsrSC 53(1) 351

19.       HCJ 4552/18 Zahalka v. Speaker of the Knesset, (Dec. 30, 2018)

20.       EA 2600/99 Erlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

21.       HCJ 5364/94 Wilner v. Chair of the Israel Labor Party, IsrSC 49(1) 758 (1995)

22.       HCJ 14/86 Laor v. Theater and Film Review Board, IsrSC 41(1) 421 (1987)

23.       HCJ 399/85 MK Rabbi Meir Kahane v. Broadcasting Authority Directorate, IsrSC 41(3) 255 (1987)

24.       HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner, (Dec/ 28, 2016)

25.       HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset, IsrSC 58 (6) 685 (2004)

26.       CA 4096/18 Chacham and Or-Zach Advocates v. Assessment Officer – Akko, (May 25, 2019)

27.       CrimA 7007/15 Shmil v. State of Israel, (Sept. 5, 2018)

28.       CA 8742/15 Astrolog Publishers Ltd., v. Ron, (Dec. 3, 2017)

29.       CrimA 961/16 Alharoush v. State of Israel, (Nov. 25, 2018)

30.       AAA 3326/18 A. v. Director of Firearm Licensing, Southern District – Ministry of Public Security, (Feb. 26, 2019)

31.       HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202 (2006) [https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]

32.       HCJ 7625/06 Martina Rogachova v. Ministry of Interior, (March 31, 2016) [https://versa.cardozo.yu.edu/opinions/rogachova-v-ministry-interior]

33.       EA 2600/99 Ehrlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

34.       CrimA 6833/14 Naffaa v. State of Israel, (Aug. 31, 2015)

35.       EDA 50/03 Central Elections Committee for the 16^th Knesset v. Tibi, IsrSC 57(4) 1 (2003)

Judgment (Reasoning)

(July 18, 2019)

President E. Hayut:

Introduction

1.         On March 6, 2019, the Central Elections Committee for the 21^st Knesset (hereinafter: the Elections Committee or the Committee) approved a request for the disqualification of Dr. Ofer Cassif (hereinafter: Cassif) from running as a candidate for the Knesset on the list of “Hadash – headed by Ayman Odeh, Ta’al – headed by Ahmed Tibi” (hereinafter: Hadash-Ta’al) but rejected a request to disqualify the Hadash-Ta’al list in its entirety. The Committee further accepted two requests to disqualify the Ra’am-Balad list (hereinafter: Ra’am-Balad) and to bar Advocate Itamar Ben Gvir from standing for election.

            These decisions were the focus of the appeal and approval proceedings before us.

            The three appeals – EA 1866/19, EA 1867/19 and EA 1876/19 – which will be presented below, were filed on March 12, 2019, in accordance with sec. 63A(d) of the Knesset Elections Law [Consolidated Version], 5729-1969 (hereinafter: the Elections Law) (in regard to the disqualification of a candidate) and secs. 64(a) and 64(a1) of that Law (in regard to the disqualification of lists). The approval proceeding – EDA 1806/19 – was filed on March 10, 2019 by the Elections Committee, in accordance with the provisions of sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset (hereinafter: Basic Law: The Knesset or the Basic Law).

2.         Sections 63A(e) and 64(b) of the Elections Law require that the Court issue a judgment in appeal and approval proceedings “no later than the 23^rd day prior to Election Day”. In regard to the elections for the 21^st Knesset, which took place on April 9, 2019, we were therefore required to render judgment in the appeal and approval proceedings no later than March 17, 2019. Under the time constraint from the time of the filing of the proceedings – March 10, 2019, and March 12, 2019 – to the date upon which we were required to render judgment – March 17, 2019 – we allowed the Respondents in each of the proceedings to file written pleadings, and we heard supplementary oral arguments before a nine-judge panel, as required by the Law.  The hearings took place on Wednesday, March 13, 2019, and Thursday, March 14, 2019, and the judgment was duly handed down on Sunday, March 17, 2019, without stating reasons in view of the statutory time constraints detailed above, and as has been usual in such proceedings over the years (see, for example: EDA 11280/02 Central Elections v. Tibi, [1]; EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset [2]; EDA 9255/12 Central Election Committee v. Zoabi [3]). In the judgment, a majority of eight justices, against the dissenting opinion of Justice D. Mintz, decided not to approve the decision of the Elections Committee in the matter of the disqualification of Cassif. The Court unanimously decided to reject the appeal in regard to the Elections Committee’s decision not to disqualify the Hadash-Ta’al list. The Court also decided, by a majority of eight justices, against the dissenting opinion of Justice D. Mintz, to grant the appeal in regard to the Ra’am-Balad list, and to order that the list is not barred from participating in the Knesset elections. The Court further unanimously rejected the appeal in regard to the decision not to disqualify Ben Gvir, and decided by a majority, against the dissenting opinion of Justice N. Sohlberg, to grant the appeal in the matter of Ben Ari and order his disqualification as a candidate for the 21^st Knesset. Four days later, on March 21, 2019, we published a summary of the reasoning grounding the judgment, and we now present the full reasoning.

General Background and Normative Framework

3.         The right to vote and be elected is the life breath of every democratic regime, and the conceptual foundation of this right is grounded in the fundamental principles of equality and freedom of political expression (EA 2/84 Neiman v Central Elections Committee [4], 262-264 (hereinafter: the first Neiman case); EA 1/88 Neiman v Central Elections Committee [5], 185 (hereinafter: the second Neiman case); EA 561/09 Balad v. Central Elections Committee [2], para. 2 (hereinafter: the Balad case); EDA 9255/12 Central Election Committee v. Zoabi [3], para. 7 (hereinafter: the first Zoabi case); EDA 1095/15 Central Elections Committee v. Zoabi [6], para. 5 (hereinafter: the second Zoabi case); cf. LCA 7504/95 Yassin v. Registrar of Parties [7], 58-60 & 71 (hereinafter: the Yassin case); Ruth Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, in A. Barak (ed.), Essays in Honor of Shimon Agranat, (1986), 145, 151-152 (in Hebrew) (hereinafter: Gavison)).

            Nevertheless, equality and freedom of political expression are not unrestricted rights, and it has already been held that “it is the right of a democracy to deny the participation in the democratic process of lists that reject democracy itself […] one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14 (hereinafter: the Tibi case); and further see the Yassin case, p. 62, the first Zoabi case, para. 8; the second Zoabi case, para. 6). Therefore, along with the formal capacity conditions that must be met in order to realize the right to vote and be elected, which concern, inter alia, age and citizenship (see: sec. 5 of Basic Law: The Knesset in regard to the right to vote, and secs. 6, 6A and 7 of that Law in regard to the right be elected), there is a need for material restrictions intended to prevent participation in the elections by lists and candidates that seek to use the tools of democracy in order to deny the very existence of the state or infringe its fundamental principles.

4.         As will be explained in the brief survey below, such material restrictions have been developed over the years in Israeli law, as well. At its inception, the State of Israel adopted a democratic regime characterized, inter alia, by the values of equality and freedom of political expression mentioned above. Alongside those values, and without any necessary contradiction, the sovereign State of Israel was established as a Jewish state, in recognition of the right of the Jewish people to national rebirth in its land. This important fundamental principle, which Justice M. Cheshin defined as an “axiom” when he served as chair of the Central Elections Committee for the 16^th Knesset, must also be protected. President A. Barak addressed this in the Tibi case, stating:

There are many democratic states. Only one of them is a Jewish state. Indeed, the reason for the existence of the State of Israel is its being a Jewish state. This character is central to its existence, and it is – as Justice M. Cheshin stated before the Central Elections Committee – an “axiom” of the state. It should be seen as a “fundamental principle of our law and system” (emphasis original; ibid., p. 21).

President D. Beinisch addressed the uniqueness of Israeli democracy in this regard in the Balad case, noting:             

The State of Israel’s being the only state that serves as a home for the Jewish people, and therefore preserves unique characteristics worthy of protection, is the starting point for every discussion of the character of the state (ibid., para. 3).

In this regard, it would not be superfluous to note that there are those who hold the opinion that there is a “significant moral tension that requires a process of reconciliation between opposing values (Justice I. Englard in the Tibi case, p. 64. For a detailed discussion of this subject, see:  Adi Gal & Mordechai Kremnitzer, Disqualification of Party Lists and Candidates – Does it Strengthen Democracy or Weaken It? (Israel Democracy Institute, 2019) 22-26 (Hebrew)). As opposed to this, there are those who are of the opinion that there is no contradiction between democratic values and Jewish values, but rather they derive from one another (the second Neiman case, pp. 189-190; Justice Y. Amit in the second Zoabi case, para. 3; Elyakim Rubinstein, On the Equality of Arabs in Israel, 1 Kiryat Mishpat 17, 26 (20021) (Hebrew)). Below, we will address the material restrictions established in regard to the right to vote and be elected in Israeli law. As  will be seen, these restrictions define Israel as a Jewish and democratic state without distinction between these two frameworks, in the spirit of the principles we addressed above.

5.         Since 1985, the material constitutional restrictions upon the right to vote have been grounded in sec. 7A of Basic Law: The Knesset. This section, in its current form, establishes:

7A(a).  A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following:

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

6.         As already noted, these restrictions developed in Israeli law over the course of years. Basic Law: The Knesset, which was enacted in 1958, did not originally comprise a material provision – as opposed to a formal provision in regard to competence – that restricted the right to be elected. The absence of such a provision notwithstanding, in EA 1/65 Yeredor v. Chairman of the Central Elections Committee [8] (hereinafter: the Yeredor case), the Court recognized the authority of the Elections Committee not to approve the participation of the Socialists list in the elections for the 6^th Knesset because the list, and the El Ard organization with which it identified, “deny the integrity of the State of Israel and its very existence”. Some twenty years later, the Court again addressed the disqualification of a list from standing for election. The Central Elections Committee for the elections for 11^th Knesset in 1984 disqualified the Kach list and the Progressive List for Peace from standing for election. The Kach list was disqualified by the Committee for the racist and anti-democratic principles that it espoused, its open support for terrorism, and incitement of hatred and hostility between different sectors of the Israeli populace. The Progressive List for Peace was disqualified due to the Committee’s determination that the list comprised subversive foundations and tendencies and that central members of the list acted in a manner that identified with the state’s enemies. The disqualification of the two lists was brought before the Court in the first Neiman case, which held, by majority, that in the absence of an express provision of law, the doctrine established in the Yeredor case should be limited to the causes for disqualification set out there, i.e., denial of the very existence of the state – which must be proven by clear, unequivocal, and persuasive evidence (for a critique, see Gavison, at pp. 184-195).

7.         Following the judgment in the first Neiman case, the legislature amended Basic Law: The Knesset and added sec. 7A. This section, in its original form, comprised three causes for disqualifying a list of candidates whose purposes or actions expressly or impliedly amounted to (1) negation of the existence of the state as the state of the Jewish people; (2) negation of the democratic character of the state; (3) incitement to racism.

            When the Kach list again sought to stand for election for the 12^th Knesset in 1988, the list was disqualified by the Elections Committee for the reasons set out in subsecs. (2) and (3) of sec. 7A. The appeal of the decision was denied by the Court (see: the second Neiman case), which held that the list indeed negated the democratic character of the state and that its activities constituted incitement to racism. In its decision, the Court emphasized that given the importance of the freedoms that the rights to vote and to be elected are intended to realize, affirming those rights is preferable to denying them, and the disqualification of a list must be reserved for the most extreme cases. That year, the Court also adjudicated another proceeding related to the elections for the 12^th Knesset. The Court majority denied an appeal of a decision by the Central Elections Committee not to disqualify The Progressive List for Peace from standing for election (EA 2/88 Ben Shalom v. Central Elections Committee [9]). In 1992, after the murder of the founder of the Kach movement, Rabbi Meir Kahane (hereinafter: Rabbi Kahane), in 1990, the Central Elections Committee disqualified two lists that viewed themselves as the heirs to Rabbi Kahane from participating in the elections for the 13^th Knesset. A unanimous Court denied the appeals of the disqualifications, adopting the criteria established in the second Neiman case (EA 2805/92 Kach List v. Chairman of the Central Elections Committee [10] (hereinafter: the Kach case)); EA 2858/92 Movshovich v. Chairman of the Central Elections Committee [11] (hereinafter: the Movshovich case)).       

8.         In 2002, sec. 7A of the Basic Law was amended. The amendment comprised three primary changes: (1) the separate causes for disqualification in regard to negating the existence of the State of Israel as a Jewish state and as a democratic state were unified as one cause; (2) an additional cause was added under which a list could be disqualified from participation in elections if it supported armed struggle by a hostile state or a terrorist organization against the State of Israel; (3) it was established that not only could an entire list be disqualified, but also a candidate could be disqualified from standing for election, but that as opposed to the disqualification of a list, the disqualification of a candidate required the approval of the Supreme Court.

9.         In the Tibi case, the Court addressed a number of decisions given by the Central Elections Committee for the 16^th Knesset in regard to the elections in January 2003, among them the first decisions of their kind pursuant to the aforementioned amendment to sec. 7A of the Basic Law. The Elections Committee decided to disqualify Knesset members Ahmed Tibi of the Hadash-Ta’al list (hereinafter: Tibi) and Azmi Bishara of the Balad list (hereinafter: Bishara). The Committee further decided that Baruch Marzel of the Herut list (hereinafter: Marzel) should not be disqualified. In addition, the Committee decided to disqualify the Balad list from standing for election. In the Tibi case, the Court focused upon and outlined the criteria for each of the causes in sec. 7A of the Basic Law. On that basis, the Court decided not to approve the Election Committee’s decision to disqualify Knesset members Tibi and Bishara from standing for election. The decision in regard to Tibi was unanimous, whereas the decision in regard to Bishara was by a majority. A majority further dismissed the appeal of the Committee’s decision to permit Marzel’s candidacy, and the appeal against the disqualification of the Balad list was granted by a majority, and it was held that the list could stand for election.

10.       Another amendment to sec. 7A of the Basic Law was adopted in 2008, adding sec. (a1) that established: “In connection with this article, a candidate who was illegally present in an enemy state in the seven years that preceded the deadline for submitted lists of candidates shall be considered someone whose actions constitute support for an armed conflict against the State of Israel, unless he has proven otherwise”. About a year after that amendment, prior to the elections for the 18^th Knesset, the Court addressed an appeal of the Elections Committee’s decision to disqualify the Balad and Ra’am-Ta’al list for the causes enumerated in secs. 7A(a) and (3) of the Basic Law. A majority of the Court granted the appeal, and            the participation of those lists was permitted. In 2012 and 2015, the Court was again called upon to address the disqualification of candidates. In the first Zoabi case, the Court unanimously overturned the Central Election Committee’s decision to disqualify Knesset member Hanin Zoabi (hereinafter: Zoabi) from running in the elections for the 19^th Knesset for the causes enumerated in secs. 7A(a)(1) and (3) of the Basic Law. In the second Zoabi case, two approval proceedings were addressed jointly after the Central Elections Committee disqualified Zoabi’s participation in the elections for the 20^th Knesset for the causes enumerated in sec. 7A(a)(1) and (3) of the Basic Law, and also disqualified Marzel from participating in those same elections for the causes enumerated in secs. 7A(a)(1) and (2). A majority of the Court decided not to approve the Elections Committee’s decisions in regard to both Zaobi and Marzel, and both stood as candidates in those elections.

11.       The judgment in the second Zoabi case was rendered in 2015. In 2017, section 7A of the Basic Law was amended again to add the words “including his expressions” after the words “the actions of the person”. It is important to emphasize that, as opposed to various arguments raised before us in these proceedings, this amendment – as stated in its Explanatory Notes – “was not intended to change the case law of the Court according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state”. In other words, the strict evidentiary threshold outlined in the case law over the years for proving the existence of the causes for disqualification remains as it was, given the purpose of the section and the balance between the values it is intended to protect.

            To complete the picture, we would note that in 2016, the Knesset approved an amendment to the Basic Law in regard to the termination of the tenure of a member of the Knesset for incitement to racism or support of armed struggle by an enemy state or of a terrorist organization against the State of Israel, as stated in secs. 7A(a)(2) or 7A(a)(3) of the Basic Law. We would further note for the sake of completing the picture that two petitions filed against the constitutionality of the said amendment were denied (HCJ 5744/16 Ben Meir v. Knesset [12]) (hereinafter: the Ben Meir case).

The Causes for Disqualification established in Section 7A

12.       Having surveyed the proceedings and legislative amendments relevant to the disqualification of lists and candidates seeking to stand for election to the Knesset and the development of the case law and the Basic Law in this regard, it would now be appropriate to address the interpretive principles and the criteria outlined and applied in all that regards the various causes for disqualification. I would preface by stating that the prevailing trend in this Court’s case law is that a cautious, restrained approach should be adopted in all that relates to the disqualification of lists and candidates participating in Knesset elections. Indeed, in view of the magnitude of the rights to vote and be elected, this Court has repeatedly held that the starting point is that the causes for disqualification should be interpreted narrowly and should be applied in the most extreme cases (see, for example, the second Neiman case, at p. 187; the Tibi case, at pp. 17-18). From this starting point, the case law derived the answer to the question of what must be proved in order to ground the presence of any of the causes for disqualification, as well as the criteria in regard to the required evidentiary threshold. We will first examine the case-law interpretation of what is required to prove each of the causes for disqualification, and then examine the criteria established in regard to the required evidentiary threshold.

(1) Negation of the existence of the State of Israel as a Jewish and democratic state

13.       The first cause established under sec. 7A(a)(1) of Basic Law: The Knesset concerns preventing participation of candidate lists or candidates in the elections if the purposes or actions of the list or the actions of the candidate, including his statements, constitute a negation of the existence of the State of Israel as a Jewish and democratic state. The “nuclear-minimal” characteristics of the State of Israel as a Jewish state and its “nuclear-minimal” characteristics as a democratic state were established in the Tibi case, which held that it is the infringement of these characteristics that may give rise to a cause for disqualification under sec. 7A(a)(1) of the Basic Law. In the matter of the “nuclear” characteristics that define the State of Israel as a Jewish state, it was held that these include the right of every Jew to immigrate to the State of Israel, in which there will be a Jewish majority; that Hebrew is the primary official language of the state; that the symbols and holidays of the state primarily reflect Jewish tradition, and that the Jewish heritage is a central element of the religious and cultural heritage of the state (the Tibi case, p. 22; and compare the view of Justice Y. Turkel in that case at p. 101; and see the second Zoabi case, para. 66, and the first Zoabi case, para. 20; the Balad case, para. 6; and compare the Yassin case, p. 66; the opinion of Justice S. Levin in the Ben Shalom case, p. 248; and see: Amnon Rubinstein & Raanan Har-Zahav, Basic Law: The Knesset, 64 (1993) (Hebrew)).

            As for the “nuclear” characteristics of the State of Israel as a democratic state, it was held that “these characteristics are based […] upon recognition of the sovereignty of the people, as expressed in free, equal elections; recognition of the core human rights, among them human dignity, respect and equality, maintaining the separation of powers, the rule of law and an independent judiciary” (the Tibi case, p. 23; and see the second Zoabi case, para 29; and compare the Yassin case, p. 66). It was further noted in the Tibi case that a list that negates the right to vote for the Knesset on ethnic-national grounds, or a list seeks to change the regime by violent means will not be permitted to stand for election, as it essentially negates the democratic foundations of the Israeli regime (ibid., p. 24; and see the second Neiman case, p. 190, and the second Zoabi case, para. 30).

(2) Incitement to racism

14.       The second cause for disqualification, established in sec. 7A(a)(2), is incitement to racism. We will address the grounds of this cause and its underlying rationales, particularly in a Jewish state, at greater length below. At this stage, we would note that already in the second Neiman case, in which, for the first time following the enactment of sec. 7A of the Basic Law, the Kach list was disqualified on the grounds of incitement to racism, the Court held, per President M. Shamgar,  that the “objectives and conduct [of the list] 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” (ibid., p. 197).

(3) Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

15.       The third cause for disqualification, established in sec. 7A(a)(3) of the Basic Law, concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel. This cause is premised upon the primary conceptual justification for the disqualification of candidates and lists – viz., defense against those who would seek to negate the very existence of the state or undermine the foundations of its existence and its democratic nature by means of armed struggle (the first Zoabi case, para. 29). In the Tibi case, President A. Barak noted in regard to this cause that: “Democracy is allowed to prevent the participation of candidate lists that employ violence or support violence as a tool for changing the nature of the regime” (ibid., p. 26; and also see the second Zoabi case, para. 69). Preventing participation by virtue of this cause will, of course, be possible where a candidate or a list personally takes active part in an armed struggle of a terrorist organization or an enemy state, as well as where they encourage such a struggle or provide material, political or other support (ibid., para. 69; and see the Tibi case, p. 27; the Balad case, para. 7; the first Zoabi case, para. 29). Disqualification of a list or candidate by virtue of this cause would be possible only if the support is of an armed struggle by an enemy state or a terrorist organization (the Tibi case, p. 27; and see the second Zoabi case, para. 69; for a detailed discussion of this cause, see: Gal & Kremnitzer, 16-19).

The Criteria in regard to the Required Evidentiary Threshold

16.       Alongside the narrow interpretation of the causes for disqualification established under sec. 7A of the Basic Law, over the years, the case law further added a series of strict criteria in regard to the required evidentiary threshold for the crystallizing of any of the causes. These criteria limit the possibility of disqualifying a list or candidate from standing for election to the Knesset only to clear, extreme cases due to the intense caution that the Court adopts as the starting point in this regard (the Balad case, para. 3; and see the opinion of Justice S. Levin in the Ben Shalom case, p. 248; the Kach case, p. 2). Below, we will summarize the criteria outlined in the case law in regard to the evidentiary threshold required for the existence of the disqualifying causes. These criteria were, for the most part, first applied in regard to the disqualification of lists, and after the amendment of the Basic Law in 2002, they were respectively adopted in regard to the disqualification of an individual candidate, as well (see the Tibi case, the first Zoabi case and the second Zoabi case). These are the criteria:

            (-)        First, in order to decide whether one of the elements set forth in sec. 7A is present in the objectives or actions of a list or a candidate, it must be shown that the objective is one of the dominant characteristics of the list’s or the candidate’s aspirations or activities, and that they seek to participate in the elections in order to advance them (see the second Neiman case, p. 187; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Second, it must be shown that these central, dominant purposes can be learned from express declarations and direct statements or reasonable conclusions of clear, unequivocal significance (the second Neiman case, p. 188; the Tibi case, p. 18, the Balad case, para. 4; the first Zoabi case, para 14).

            (-)        Third, it must be shown that the list or the candidate actively works for the realization of the said objectives, and that there was non-sporadic activity for their realization. It was held that objectives of a theoretical nature are insufficient, and that there must be a showing of systematic, repeated activity whose “intensity must be given severe, extreme expression” (the second Neiman case, p. 196; the Tibi case, p. 18; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Fourth, the evidence grounding the actions or objectives sufficient to prevent standing for election to the Knesset must be “clear, unambiguous and persuasive” (the second Neiman case, p. 188; the Tibi case, p. 18; the second Zoabi case, para. 34; compare: the first Neiman case, p. 250), and a “critical mass” of highly credible evidence is required to justify the disqualification (the Tibi case, p. 43; the first Zoabi case, para. 14). The burden of proof in this regard rests upon the party arguing for disqualification of the list or candidate, and a doubt arising as to the sufficiency of the evidence must weigh against the disqualification (the second Neiman case, pp. 248-249; the Kach case, p. 3).

17.       A complex question concerning the evidentiary threshold for proving the causes for disqualification under sec. 7A of the Basic Law is that of whether to apply probability tests for the realization of the dangers that the causes for disqualification are intended to prevent. There is a difference of opinion in the case law, and the matter has been left for further consideration and has yet to be decided. The spectrum of opinions expressed on this matter range from an approach that rejects the application of the probability test (see the position of Justice M. Elon in the first Neiman case, p. 297; President M. Shamgar following the enactment of sec. 7A of Basic Law: The Knesset in the second Neiman case, p. 187; Justice S. Levin in the Ben Shalom case, p. 248; and Justices S. Levin. E. Mazza, and D. Dorner in the Tibi case, pp. 81, 96-97, and 99), to the opposite approach that is of the view that this test should be applied to each and every one of the disqualification causes in sec. 1A of the Basic Law (Justice E. Rivlin in the Tibi case, p. 106, and see Barak Medina, Forty Years to the Yeredor  Decision: The Right to Political Participation, 22 Mekhkarei Mishpat 327, 376-381 (2006) (Hebrew)). As noted, the matter has been left for further consideration and has not yet been decided in the case law (see President A. Barak and Justices A. Procaccia and D. Beinisch in the Tibi case, pp. 21, 88, 90; President D. Beinisch in the Balad case; President A. Grunis in the first Zoabi case, para. 34; President M. Naor in the second Zoabi case, para. 36).

            A middle position between these two opposing views on the application of the probability test has also been expressed, according to which a distinction can be drawn between the causes under sec. 7A(a)(1) and (3) and the cause concerning incitement to racism under sec. 7A(a) (2). Thus, for example, in the Tibi case, Justice Procaccia noted that “condemnation of incitement to racism and its removal from the political election process are values unto themselves, independent and unqualified even when unaccompanied by any probability of the realization of the potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entry of inciters to racism into the political arena […] incitement to racism is condemned as a value of the universal and national heritage, and it stands beyond the test for the probability of its foreseeable danger under any particular criterion. The contradiction between racism and the fundamental values of the state is so extreme that anyone who holds it as part of one’s political doctrine should be disqualified out of hand” (ibid., p. 90; Gal & Kremnitzer, 62-63). Another opinion that distinguishes the cause related to incitement to racism and the other causes in regard to the probability test, and which proposes applying a very low-level probability test to it, was expressed by Justice D. Beinisch in that matter, in stating: “If I were of the opinion that we should adopt the approach that applies ‘probability tests’ for the disqualification of lists or candidates, then in all that regards racism, I would hold that ‘racism’ in its ‘nuclear’ sense comprises, by its very nature, a potential for danger whose probability is a real possibility. Racism, by its very nature, may spread like a disease even when it appears that the scope of the political activity surrounding it is small, and the political prospects of the list or candidate are not serious. Racism is a type of disease for which isolation and removal from the political and social arena are conditions for preventing its spread” (p. 88). We will address this subject below, and examine whether there is, indeed, a place for a different approach to the cause of incitement to racism as opposed to the other causes in relation to probability tests.

            Another question that derives to some extent from the probability test and that concerns the necessary evidentiary threshold for proving the existence of the causes for disqualification is whether and to what extent there is a connection between the causes for disqualification and the criminal offenses intended to protect those values. In this regard, it would appear that the approach adopted in the case law holds that the Penal Law can assist in identifying the presence of the elements of causes for disqualification, while emphasizing that we are concerned with different methods for the prevention of the phenomena and that the tests applicable in each of the areas are not the same (see President M. Shamgar in the second Neiman case, p. 191; President A. Grunis in the first Zoabi case, para. 32; and see Gavison, p. 166; and cf. the Ben Meir case, para. 28; and HCJ 11225/03 Bishara v. Attorney General [13]).

An Elections Appeal and Approval of an Elections Committee Decision – What is the Difference?

18.       Basic Law: The Knesset distinguishes two types of decisions by the Central Elections Committee. The first is Elections Committee decisions to prevent or not prevent a candidate list from standing for election. Such decisions can be challenged in an appeal to the Supreme Court, under secs. 64(a) and 64(a1) of the Elections Law. The second is Election Committee decisions declaring that a particular candidate is barred from participating in the elections. Such a decision requires the approval of the Supreme Court, under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Elections Law, whereas an Elections Committee decision to deny a request to bar a candidate from standing for election is of the first type of decisions in the sense that it does not require approval but can be appealed to the Supreme Court, under sec. 63A(d) of the Elections Law.

            The procedure for approving an Elections Committee decision is not one of “regular” judicial review in the sense that decision is not consummated until approval is granted. In this, it differs from appeal proceedings in regard to Election Committee decisions, which come into force when given. The scope of the Court’s authority in an approval proceeding is not identical to that granted it in an appeal proceeding. It has been held in this regard that the Court must refrain from nullifying a decision under appeal even if it would have decided differently, as long as it is lawful and does not deviate from the margin of reasonableness. As opposed to this, in an approval proceeding, the Court is granted authority to examine whether it, itself, approves the disqualification of the candidate from standing for election (the Tibi case, pp. 28-31; the first Zoabi case, para 15; the second Zoabi case, paras. 12-13).  It is interesting to note that there are different approaches in the case law in regard to the scope of the Court’s intervention in the decisions of the Elections Committee due to the fact that it is primarily a political body that weighs political considerations. Thus, there are those who take the view that this fact justifies narrowing the scope of intervention in the Committee’s decisions (Justice E. Rivlin in the Tibi case, p. 109, and Justice S. Levin in the Ben Shalom case, p. 251). As opposed to this, there are those of the opinion that “this fact of the political composition of the Committee, with the exception of its chair, requires an examination of the merits of the Committee’s decision by the this Court in order to prevent political considerations from outweighing an objective legal examination” (Deputy President M. Elon in the Ben Shalom case, p. 279; for a similar view, see Justice D. Beinisch in the Tibi case, p. 86 and the Balad case, para. 16).

            This feature of the Central Elections Committee as a primarily political body that makes decisions influenced by political considerations, with no obligation to explain those decisions, indeed justifies examination and consideration by the legislature (see the comment of President Naor in the second Zoabi case, para. 78, and Gal & Kremnitzer, 61-62). At present, the Court is responsible for both types of proceedings brought before it in accordance with the provisions of Basic Law; The Knesset and the Elections Law, and the distinctions between them as presented above. In this regard, it would not be superfluous to further note what we held in this regard in another context – that of the Ben Meir case – in which it was argued that there is constitutional significance to the distinction between the two proceedings. In rejecting that argument, we held: “There is, indeed, a difference in the scope of authority granted to the Court in the framework of an elections appeal as opposed to an approval of a decision […] however, at the end of the day, this Court has the authority [even in an appeals proceeding – E.H.] to review the decision on the merits, and to oversee its lawfulness and reasonableness, including all that relates to the factual foundation” (ibid., para. 34).

19.       Having presented the general normative framework for the proceedings before us, I will now turn to an examination of each of the four proceedings and decide upon them.

EA 1866/19 Freij v. Ben Ari

20.       Three requests for the disqualification of Ben Ari and Ben Gvir were submitted to the Central Elections Committee. Two of the requests – that submitted by the Israel Religious Action Center - Israel Movement for Progressive Judaism and the Tag Meir Forum, and that submitted by MK Stav Shaffir – relied upon two causes for disqualification: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and incitement to racism under sec. 7A(a)(2) of the Basic Law. The third request – submitted by members of the Meretz faction – relied upon the single cause of incitement to racism. After considering those requests, the Elections Committee decided, as noted, to reject all three requests, and thus the appeal before us, which was filed jointly by all the parties requesting disqualification.

Arguments of the parties

21.       The Appellants argue that Ben Ari and Ben Gvir have consistently acted for years to realize the racist doctrine of Rabbi Meir Kahane and the Kach list, which was disqualified from running for election, and act in an extreme manner to humiliate Israeli Arabs, including by calling for their expulsion from the country. According to the Appellants, Ben Ari and Ben Gvir support a racist ideology that seeks to undermine the principles of equality and human dignity in regard to anyone who is not Jewish. It was argued that the judgments that addressed the Kach list clearly established that its ideology is racist and infringes the fundamental principles of the democratic regime. The Appellants are of the opinion that the primary characteristic of the conduct of Ben Ari and Ben Gvir is ongoing incitement to racism, and that this is also expressed in the platform of the Otzma Yehudit party, which opposes democratic values. It was argued that the declarations of the two were consistently and continuously translated into severe actions that were, in part, also carried out by other elements of the Otzma Yehudit party.

22.       Ben Ari and Ben Gvir relied upon the Election Committee’s decision and argued that the appeal should be denied. According to them, the evidence presented by the Appellants does not justify their disqualification. Their primary argument was that the platform and their public activity over the years apply to those who are “an enemy of Israel”, who are not loyal to the state, and does not apply generally to all “the Arabs” as such, and supports and encourages the emigration of anyone who is not loyal “and who is an enemy of the state”. According to them, the fact that this Court did not disqualify Marzel from participating in the elections shows that they, too, should not be disqualified.

23.       The Attorney General was of the opinion that Ben Ari should be barred from participating in the elections on the grounds of incitement to racism. He argues that the Appellants presented persuasive, clear, unequivocal, recent evidence, particularly since May 2018, in which Ben Ari is heard speaking in various films, some of which were uploaded to his Facebook page. According to the Attorney General, we are concerned with ongoing, consistent expressions over a significant period of time that are at the hard core of incitement to racism. It was argued that these statements show that Ben Ari refers to the Arab population in its entirety while calling for a violent denial of the rights of the Arab population of the State of Israel and for their systematic, targeted humiliation on the basis of their ethno-national identity.

            As for Ben Gvir, the Attorney General was of the opinion that despite the fact that the collection of evidence in his regard is very troubling, and that some of his statements come “dangerously close to the line that would bar a person from standing for election to the Knesset”, he should not be disqualified. According to the Attorney General, as opposed to the evidence presented against Ben Ari, the evidence in regard to Ben Gvir is insufficient to constitute the persuasive, clear, unequivocal evidentiary foundation required for disqualification. This, because most of the evidence is not from the recent past, and in view of Ben Gvir’s declarations and explanations in the current disqualification hearings.

24.       As stated in the judgment we issued without the reasoning on March 17, 2019, we decided by majority, against the dissenting view of Justice N. Sohlberg, to adopt the position of the Attorney General and grant the appeal in EA 1866/19 in all that regards Ben Ari, and to order his disqualification form standing as a candidate in the elections for the 21^st Knesset, while we unanimously decided to deny the appeal in the matter of Ben Gvir.

Disqualification of a Candidate on the grounds of Incitement to Racism

25.       Racism is a well-known societal disease from which the human race has suffered since time immemorial. Racism shows its ugly face in hatred and incitement to hatred of the other, simply by reason of inborn traits or communal, religious, ethnic, or national affiliation. It strips people of their humanity on the basis of those affiliations and violates the basic right to human dignity and equality granted to all who are created in God’s image (HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General [14], para. 26 of the opinion of Justice S. Joubran) (hereinafter: the Torat Hamelech case)). The democratic State of Israel was established as the state of the Jewish people, which has experienced unparalleled racial persecution and suffering throughout the ages. Racism stands in absolute contradiction to the fundamental values upon which the state was established, and we, as Jews, have a special obligation to fight it uncompromisingly. Justice Z. Berenson addressed this in 1973 in HCJ 392/72 Berger v. District Planning and Building Council [15], 771, stating:

When we were exiled from our land and removed far from our country, we became victims of the nations amongst whom we lived, and in every generation, we tasted the bitterness of persecution, malice and discrimination only for being Jews “whose laws are different from those of any other people” [Esther 3:8]. With this bitter, miserable experience that seeped deep into our national and human consciousness, it might be expected that we would not walk in the corrupt path of the nations, and that with the renaissance of our independence in the State of Israel, we would be cautious and be wary of any hint of discrimination and unequal treatment against any law-abiding non-Jewish person [..] Hatred of foreigners is a double curse: it corrupts the image of God of the hater and inflicts evil upon the blameless hated. We must show humanity and tolerance to everyone created in God’s image (HCJ 392/72 Berger v. District Planning and Building Council, IsrSC 27(2) 764, 771 (1973); and see and compare: the Tibi case, p. 89; the opinion of Deputy President E. Rubinstein in the Torat Hamelech case, para. 38 and in the second Zoabi case (dissenting in regard to the result), para. 116).

26.       The Israeli legislature took up this mission following the elections for the 11^th Knesset, which took place in 1984, and in the course of which, as noted, the disqualification of the Kach party was requested due to incitement to racism (the first Neiman case). Thus, Amendment no. 9 to Basic Law: The Knesset added sec. 7A, which sets out the causes permitting the disqualification of a list from standing for election, among them that of incitement to racism. The Explanatory Notes the bill explain in this regard that this cause is premised upon the recognition of the severity and danger of the phenomenon of racism” (Basic Law: The Knesset (Amendment no, 9) Bill), and in the plenary session for the second and third readings of the bill, the chair of the Constitution, Law and Justice Committee, MK Eliezer Kulas stated:

Democracy is the “credo” of the people and their way of life. One must be educated to democracy and democracy must be defended. In a democracy, there is no place for incitement to racism, no place for racism, no place for harming any person on the basis of race, religion, nationality, or sex. Racism and discrimination are contrary to the character of a democratic regime and the character of the Jewish people, which experienced what racism is on its own flesh (Transcript of the 118^th session of the 11^th Knesset, p. 3898 (July 31, 1985) (hereinafter: Transcript of Session 118 of the Knesset)).

            In regard to our special, historical duty as Jews to fight against racism, Prof. Gavison noted in her 1986 article (cited above):

The Israeli legislature added this cause for disqualification for various historical reasons. I view incitement to racism as a particular (severe) instance of value inconsistency. Incitement to racism is an extreme rejection of the obligation to the equal value of the person. On the basis of the lessons of history of the last century, in which Jews were innocent victims of such incitement, there is complete justification for designating incitement to racism as an express form of incompatibility with the fundamental values of the state (ibid., p. 161).

27.       In parallel to Amendment no. 9 of Basic Law: The Knesset, the Penal Law, 5737-1977 (hereinafter: the Penal Law) was also amended to add the offense of incitement to racism. “Racism” was defined in sec. 144A of the Law as “persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin”. Then Minister of Justice Moshe Nissim addressed the relationship between these two amendments in stating: “We must view both of these bills as of a piece, […] for the fundamental, proper, considered, and balanced treatment […] of phenomena with which the State of Israel cannot be reconciled” (Transcript of Session 118 of the Knesset, p. 3361), while it was noted in the Explanatory Notes of the amendment to the Penal Law that “the Hebrew heritage deems the dignity and value of the person, created in God’s image, and making peace among people as exalted values. […] Jewish heritage views the demeaning of human dignity as a serious offense” (Explanatory Notes to the Penal Law (Amendment no. 24) Bill, 5745-1985, p. 195).

            In the second Neiman case, President M. Shamgar addressed, inter alia, the definition of the term “racism” in the Penal Law and held that for the purpose of interpreting sec. 7A of the Law, there is no need to achieve a definitive definition of the term “incitement to racism”. President Shamgar also rejected the argument of counsel for the Kach list according to which “racism” refers only to biological distinctions, holding: “Different forms of persecution based on nationality are widely accepted today as a form of racism” (the second Neiman case, p. 192; for a discussion of the relationship between the offense of incitement to racism under sec. 144B of the Penal Law and sec. 7A, see: the first Zoabi case, para. 32; and compare Gavison, pp. 170-171).  Denunciation of incitement to racism, and the struggle against it in the legal field also found expression in other legislative acts (see, for example, sec. 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951; sec. 5 of the Political Parties Law, 5752-1992; sec. 42A of Basic Law: The Knesset; and sec. 39A(3) of the Municipal Authorities (Elections) Law, 5725-1965).

28.       Combatting incitement to racism and provisions banning political activity of various groups on that basis can also be found abroad. Thus, for example, the President of France is authorized to order the disbanding of political parties for various reasons, among them incitement to racism or other group discrimination. The President’s decision can be appealed to the French Supreme Administrative Court (Conseil d’Etat) (Gal & Kreminitzer, 43-45; Gregory H. Fox & George Nolte, Intolerant Democracies, 36 Harv. Int. L. J. 1, 27-29 (1995); European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures, 16 (1999) (hereinafter: the Venice Commission Report)). Spanish law allows for declaring a political party unlawful if it systematically infringes fundamental freedoms and rights by encouraging or justifying the assault, exclusion or persecution of people on the basis of ideology, belief, faith, nationality, race, sex or sexual orientation (Knesset Research and Information Center, International Parallels to sec. 7A of Basic Law: The Knesset and their Possible Consequences for the Termination of the Tenure of Members of Parliament, pp. 8-9 (2006) (hereinafter: the RIC Report); Erik Bleich, The Freedom to be Racist?: How the United States and Europe Struggle to Preserve and Combat Racism, p. 103 (2011); Gur Bligh, Defending Democracy: A New Understanding of the Party-Banning Phenomenon, 46 VNTJL 1321, 1338 (2013); Venice Commission Report, p. 16). The Czech Republic’s Political Party Law of 1991 prohibits the registration of parties whose activities endanger the rights and freedoms of citizens, and in 2010, the Czech Workers’ Party was banned, inter alia, because of incitement to racism (Miroslav Mareš, Czech Militant Democracy in Action: Dissolution of the Workers’ Party and the Wider Context of this Act, 26(1) East European Politics & Societies 33, 43-44 (2010); Mapping “Militant Democracy”: Variation in Party Ban Practices in European Democracies (1945–2015), 13(2) Euconst. 221, 238-239 (2017) (hereinafter: Mapping Militant Democracy); RIC Report, p. 17; Venice Commission Report, p. 16). There are similar restrictions in Poland, Portugal, Belarus, Ukraine, Bulgaria, and Romania (Venice Commission Report, pp. 16-17; RIC Report, pp. 10-12). The Penal Code of the Netherlands allows for the disbanding of organizations that endanger public safety, and by virtue of this law, it was held that the Centre Party ’86 encouraged discriminatory propaganda against foreigners and was a danger to the public. It was, therefore, disbanded in 1998 (Defending Democracy, p. 1339; Paul Lucardie, Right-Wing Extremism in the Netherlands: Why it is Still a Marginal Phenomenon, presented at Symposium, Right-Wing Extremism in Europe, 4-5 (2000); Mapping Militant Democracy, p. 238; for a comprehensive survey of the existing arrangements in various countries in regard to the disqualification of political parties and candidates in general, see, e.g., the Tibi case, pp. 14-15; the first Zoabi case, paras. 10-11; Talia Einhorn, Proscription of Parties that have a Racist Platform under Art. 7A of the Basic Law: The Knesset (1993)).

29.       The ban upon organizations that incite to racism is also grounded in international human rights law, which includes provisions treating of the prohibition of organized racist propaganda activities. For example, sec. 4(b) of the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by Israel in 1979) establishes, inter alia, that the signatory states “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination […]”. Based, in part, on that convention, in 2018, the European Parliament passed a resolution in regard to the growing violence by European political groups and parties with a neo-fascist, neo-Nazi, racist or xenophobic agenda, and called upon the EU member states to adopt a number of concrete measures for effectively combatting the activities of those groups (see: European Parliament Resolution of 25 October 2018 on the rise of neo-fascist violence in Europe (2018/2869(RSP)).

30.       In Israel, in 2016, the State Comptroller, Judge (emer.) Yosef Haim Shapira, published a report that examined the activities of the Ministry of Education to promote education for living in common and for preventing racism, and found that not enough had been done in this area over the last years, given the differences among sections of the Israeli population that lead to discord and strife. The report further noted that “in this complex reality, we have experienced serious phenomena of hatred, racism, violence, divisiveness, sectarianism, and intolerance over the last few years” and “racist and violent statements, discrimination, persecution and even shocking hate crimes have become not so infrequent occurrences […] while the social networks serve as a fertile ground for disseminating hatred of the other” (State Comptroller, Education to Common Life and for the Prevention of Racism – Special Comptroller’s Report, p. 8 (2016)).

31.       Indeed, the fundamental values of the State of Israel as a Jewish and democratic state instruct us to act decisively and uncompromisingly to eradicate racism in our midst. This message also sheds light on the danger that must be determined in this regard for the purpose of the probability test, if it be found that it should be applied to the causes for disqualification under sec. 7A of the Basic Law. In my view, the inherent danger of racist discourse derives from the fact that such discourse feeds and sets the stage for actions intended to realize the racist ideology, which in turn motivate and reinforce continued racist discourse. As Justice D. Beinisch stated in the Tibi case: “‘Racism’ in its ‘nuclear’ sense, comprises, by its very nature, a potential for danger whose probability is a real possibility” (ibid., p. 88). Indeed, racist discourse, particularly if it is systematic, significant, and prolonged, causes this societal disease to infiltrate, take root and spread. Therefore, it is necessary to send a clear, unambiguous message that inciteful racist discourse is illegitimate, particularly when expressed by a candidate for public office who shouts it from the rooftops. Such discourse must be left “outside the camp” in every civilized state, and all the more so in the Jewish state.

32.       The French-Jewish author and intellectual Albert Memmi, who was born in the Tunis ghetto in 1920, writes in the introduction to the Hebrew edition of his book Racism:

The Jewish people is always a minority, and therefore, like most of the world’s minorities, historically and socially exposed, and is therefore a very convenient target. (This is, incidentally, one of the justifications for Zionism: The need for Jews to cease to be a minority, at least in one place).

Perhaps today, things have already begun to change somewhat. The declarations of some statesmen and religious leaders […] have aroused the political conscience of the nations. All of these may cause us to believe that the hell that was the lot of the Jews in almost every place in the world will come to an end […] thanks to the existence of the State of Israel. However, we should not yet rejoice. Already at the end of the last World War, it was claimed that the horrors of the war made people allergic to racism; racist philosophies would completely perish. But our hope was too rash. Nowadays, there are people who once again dare to be racist, and yet again we see the writings on the wall that call for the expulsion of the Jews, whose citizenship again is put in question, and the stage is once more set for their humiliation. We must tirelessly return to the struggle and not stop, perhaps forever (Albert Memmi, Racism, 8 (1988) (hereinafter: Memmi).

            If, as Memmi states, we Jews are obligated to spearhead the ongoing, uncompromising struggle against racism – of which antisemitism is one of the oldest and most severe examples – we must be worthy of leading that fight, and we must expunge the dangerous disease of racism from our midst in the sovereign State of Israel.  This is a long fight that requires perseverance, and as Memmi warns: “We are all fertile ground for absorbing and germinating the seeds of racism if we let down our guard even for a moment” (ibid., p. 41).

            And now from the general to the specific.

The background for addressing the matters of Ben Ari and Ben Gvir

33.       The main claim against Ben Ari and Ben Gvir is, as noted, that they view themselves as the successors of Rabbi Meir Khane and of the ideology of the Kach list that he headed. As may be recalled, that list was disqualified from standing for election to the Knesset (see the second Neiman case), and other lists that presented themselves as its successors have also been barred from running for the Knesset in the past (see: the Kach case; the Movshovich case). It should also be noted that already in 1984, prior to the constitutional grounding of the causes for disqualification in sec. 7A of the Basic Law, the Court noted in the first Neiman case that the Kach list “propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel”. It should also be noted that in 1994, the Israeli Government decided to declare the Kach movement, the Kahana Chai movement, and associates and derivatives of those movements, as terrorist organizations under the Prevention of Terror Ordinance, and proceedings instituted in that regard were dismissed (see: HCJ 547/98 Federman v. Government of Israel [16]; and see: AAA 8342/02 Ben Gvir v. Commissioner of Police [17]).

34.       The Tibi case examined, inter alia, the question of barring Marzel from standing for election on the Herut list after the Committee decided to reject a request for his disqualification. It was argued that he supported the ideology of the Kach movement, and the Court was willing to assume that the evidentiary foundation presented did, indeed, ground Marzel’s involvement in the activities of that movement prior to the elections. However, in dismissing the appeal, the Court majority saw fit to grant significant weight to the fact that Marzel had declared that he had changed his views, and in the words of the judgment: “Mr. Marzel himself declares that he has recanted his prior views, and that he now seeks to act only in accordance with the law. He accepts the principals of democracy. He disavows the path expressed in the broad statements of Kach. He does not support violent actions” (the Tibi case, p. 60). Against that background, the Court dismissed the appeal in the Tibi case in regard to the disqualification of Marzel, although it had reservations as to the sincerity of his declarations.

35.       Ben Ari served in the 18^th Knesset as a member of the Ihud Leumi faction, and Ben Ari and Ben Gvir ran on the Otzma LeYisrael list in the elections for the 19^th Knesset in 2013. A request to bar the list from the elections was denied by the Central Elections Committee, but the list did not meet the electoral threshold. In the list’s election campaign for the 19^th Knesset, posters were used that displayed the word “loyalty” in Arabic, and beneath it the phrase: “There are no rights without obligations”. The campaign was barred by the chair of the Elections Committee Justice E. Rubinstein, who ruled that it bore a racist message that was intended to portray the Arab community as disloyal to Israel. Prior to the elections for the 20^th Knesset in 2015, the list changed its name from to Otzma Yehudit, and ran as part of the Yahad list, led by MK Eli Yishai. Leading up to the elections, the question of Marzel’s participation in that list arose again, after the Elections Committee decided to disqualify him. In a majority decision, the Court ruled that the disqualification decision should not be approved. It was noted that while Marzel came very close to the point of disqualification from participation in the elections, nevertheless, the claims by those who requested his disqualification were largely based upon newspaper reports and information obtained from the internet of low probative value, which were met by Marzel’s denial. The Court noted that Marzel “explained a significant part of the evidence submitted in his regard, and special weight should be given to his declarations in this matter […] These explanations cast doubt upon incitement to racism being a primary objective of Marzel’s activity” (emphasis original; ibid., para. 34). Marzel, Ben Ari and Ben Gvir did not serve in the 20^th Knesset, as the Yahad list did not pass the electoral threshold.

36.       Did the Appellants succeed in presenting evidence in the matter of Ben Ari and Ben Gvir that establishes a cause for disqualification against either of them from running as candidates for the 20^th Knesset by reason of incitement to racism? Given our approach that particular care should be taken, and that ordering that a list or candidate be barred from participating in the elections should be reserved only for extreme cases, we found that the evidence presented in the matter of Ben Gvir is insufficient for establishing a cause for disqualification, as noted, even under sec. 7A(a)(1) as argued by the Appellants. As opposed to this, the majority of the Court was of the opinion that the evidence presented justifies the disqualification of Ben Ari on the grounds of incitement to racism under sec. 7A(a)(2) of Basic Law: The Knesset.

Ben Ari

37.       In his arguments, the Attorney General referred to a very long list of evidence, focusing upon evidence from the period since the beginning of 2017, and emphasizing statements and actions by Ben Ari over the course of the year preceding the elections. This evidence includes statements by Ben Ari, in his own voice, in various film clips, that, as the Attorney General argues, present an unambiguous, clear and persuasive picture of incitement to racism against the Arab population in its entirety. We are concerned with a very detailed evidentiary foundation that comprises some 40 items in regard to statements and actions by Ben Ari. After reviewing that evidence and examining Ben Ari’s affidavit and statements before the Elections Committee, as well as his response to the appeal, his oral arguments before us, and the supplementary pleadings that he submitted, we are of the opinion that the arguments presented on Ben Ari’s behalf do not provide an explanation that would remove his actions and statements from the scope of incitement to racism that raises a cause of disqualification under sec. 7A(A)(2) of the Basic Law.

38.       Below, we will address the main elements of the evidentiary foundation presented:

            In November 2017, Ben Ari spoke at the annual memorial ceremony for Rabbi Kahane, while wearing a sticker on his jacket lapel that read: “Rabbi Kahane was right”. In the course of his speech, Ben Ari was heard saying the following:

There are enemies, there is a Jew, there is a knife, so they slaughter. Because they are given an opportunity, they slaughter […] We’ll give them another hundred thousand dunams, and affirmative action, perhaps they will love us. In the end, yes, they love us, slaughtered […] Rabbi Kahane taught us – there is no coexistence with them. There is no coexistence with them! (emphasis added).

            Further on, Ben Ari was heard referring to Bedouin citizens, stating:

We of Otzma Yehudit came out with a plan called Immigration and Building, Emigration and Peace […] After immigration and building, we will fulfil what God said […] Cast out that slave-woman, because whoever wants money will get money, whoever wants a bus will get a bus […] We will say and initiate here what has to be done so that we will wake up in the morning to a Jewish state […] The Bedouins have to be dealt with, but in the countries of origin. Return the land of the Negev to the Jewish people (emphasis added).

            Another piece of evidence presented by the Appellants is a video that Ben Ari posted on the Facebook page “Otzma Yehudit with Michael Ben Ari” (hereinafter: the Facebook page) on May 20, 2018. In the film, Ben Ari is seen giving a speech and saying the following:

The Arabs in Haifa are in no way different from the Arabs in Gaza […] In what are they different? In that here they are enemies from within […] here they carry out a war against us within the state […] it’s called a “fifth column” […] this dog should be called by its name, they are our enemies, they want to destroy us, there are, of course, loyal Arabs, but they can be counted as something like a percent or less than a percent, to our great despair, the overwhelming majority are full partners with their brothers in Gaza […] The Arab enemy has to be told that it’s one or the other, either you are loyal to the state or you should go to Syria […] There is no coexistence with them, they want to destroy us, that is their objective, that is their goal […] This is the fifth column here (emphasis added).

            According to Ben Ari, this was said following demonstrations in Haifa in support of the residents of Gaza “against the background of the balloon terror in the south of the country”. An examination of the Facebook page on April 17, 2019, shows that the video garnered 21,000 views, hundreds of “likes”, and additional hundreds of comments and shares.

39.       In July 2018, Ben Ari posted another video on his Facebook page, in which he is heard saying the following:

Do you know that the Bedouin marry Arab women from Gaza, from Hebron, who all come here. They get national insurance, they give birth in hospitals at our expense, their children later get every benefit at our expense […] they even serve in the army! These enemies the Bedouin serve in the army, let me repeat what I am saying – the enemy Bedouin serve in the army! They are seduced by money. I know from firsthand sources, from those who serve with them – they don’t trust them for a minute. There is an agenda that if they serve in the army, they will be loyal to us. No, they are not loyal to us! (emphasis added).

            This video received some 4,800 views and many comments.

            About a month later, Ben Ari posted another video on the Facebook page “Otzma Yehudit with Michael Ben Ari”, in which he appears saying, among other things:

First, we have to change the equation that anyone who dares to speak against a Jew doesn’t live. He doesn’t live! We don’t expel him, don’t take away his citizenship. He doesn’t live! A firing squad kills him, he is done away with, the way Arabs understand. That’s their language […] Tell me racism, racist? Whoever says that they are loyal underestimates them. “What? An Arab just wants to eat, just wants to make a living” – that’s not true, […] An Arab has nationalistic ambitions, he screams them, he shouts about them, he is ready to die for them (emphasis added).

            Ben Ari explained that this was said “against the background of the conduct in regard to Gaza and the solution that should be implemented against it”. This clip also received 9,300 views and hundreds of “likes”, comments and shares.

            In another video from the same month, Ben Ari is heard saying, among other things:

Over the last hours, in Tel Aviv, in the center of Tel Aviv […] our staunchest enemy has been arriving, and that is the internal enemy, the internal enemy, the enemy that we want to ignore, the enemy we want to hide our heads in the sand and not see, the enemy of Israeli Arabs (emphasis added).

            Ben Ari explained that this was said against the background of a demonstration by Arabs and Jews against what is called the “Nation-State Law” (Basic Law: Israel – the Nation State of the Jewish People) (hereinafter: The Nation-State Law)) in which PLO flags were waved and in which there were calls for the liberation of Palestine. He further explained that he was referring to Arabs who are not loyal to the State of Israel and who want to eradicate its Jewish character.

40.       After about a month, on Sept. 16, 2018, immediately following the stabbing attack at the Gush Etzion junction in which the late Ari Fuld was murdered, Ben Ari uploaded another video clip to his Facebook page, in which he states, among other things, the following:

[…] They murder because they have work. They murder because they want to inherit this land […] If there are infiltrators, it is the Arab enemy […] You need Shlomo Neeman [head of the Gush Etzion regional council] to ask all the business owners to fire today the terrorist of tomorrow. It is your responsibility, stop employing the murderers! Don’t employ these murderers! They get money from us and also come to murder us […] They murder us whenever they have the chance. The conclusion is that there is no coexistence. Look at the Arabs! Do they coexist amongst themselves? Every day in the news, murder in Rahat, murder in Reineh, murder in Umm al Fahm, attempted murder in Lod, murder in Jaffa. First of all, when speaking of coexistence, Rabbi Kahane would always say, let’s see the Arabs coexist amongst themselves (emphasis added).

            The clip received some 7,300 views, and hundreds of “likes”, comments and shares.

            At the end of November 2018, Ben Ari referred to the Arabs of the city of Lod in another video, this time on his Twitter account, accompanied by the caption: “The Arab conqueror of Lod continues to rage even today: The State of Israel is being conquered from within, Israel needs Otzma Yehudit!” In another video clip published on his Facebook page shortly after, Ben Ari referred to the members of the Lod municipal council as the “Arab enemy”. At the end of December 2018, Ben Ari published a clip on his Facebook page titled “Now in Afula Illit, a meeting with Otzma Yehudit loyalists”. In the clip, Ben Ari is seen conversing with a group of residents and stating as follows:

They wanted to bring you a clan of enemies into your neighborhood […] The State of Israel is being conquered from within, they are determined to conquer us from within […] By means of the word equality, the enemy will destroy us […] What is happening here is happening in Dimona, is happening in Lod. Lod is already a completely conquered city. But Afula? This criminal who opened the center for the enemy in the name of equal rights […] If, with the help of God, we enter the coalition, the first thing that we will do is the complete revocation of this thing called affirmative action. Do you understand that you are second class citizens because you are not Arabs? […] Most of them are willing to give up everything as long as they slaughter us. And what I am saying is not racism because, to my regret, it is the reality (emphasis added).

            Further on in the clip, Ben Ari is heard referring to the murder of the late Sheli Dadon, which occurred in 2014, saying as follows:

Did anyone ever hold a discussion of their character? On their treasonous character? […] The moment you give here, you give him affirmative action, you give him more work, he will raise a family here. His children will also be here, his children, fewer of my children will be here, and so […] I need a work plan. I need a work plan now a work a plan. […] This is not racism, it is fact, Arabs are the most migrant people in the world, they aren’t tied to any land […] That’s why they came here. Because there is work. […] One of the first things, our first condition for any discussions about a coalition, with the help of God, that they will discuss with us, is – revoking affirmative action (emphasis added).

41.       Some two months prior to the elections for the 21^st Knesset, on Feb. 8, 2019, shortly after the murder of the late Ori Ansbacher by a Palestinian terrorist, Ben Ari uploaded another video clip to his Facebook page in which he stated, among other things, the following:

There is a murderous people here, a murderous nation. We owe the revenge, and the revenge is Otzma Yehudit […] Only the revenge of Otzma Yehudit in the Knesset […] They want to destroy us, they are looking for our neck. […] They want to slaughter us […] The revenge will come when Otzma Yehudit will be in the Knesset with twenty mandates. When we will be there, they will see that we are not playing with them like Lieberman. They will find themselves in their countries of origin, and the village they came from will become an airport. To fly them to their countries of origin (emphasis added).

            An examination of the Facebook page shows that the clip received some 20,000 views. In another video clip that Ben Ari posted the same day, he is heard saying, among other things,: “They are looking for our neck, looking for our daughters […] anyone who talks to you about coexistence is inviting the next murder […] we have to send our enemies back to where they came from […] our enemies, these murderers, we will send them to murder in Syria, in Lebanon, in Iran in Turkey” (emphasis added). This clip, which was, as noted, published close to the elections, received some 32,000 views, and hundreds of “likes”, comments and shares.

42.       The evidence presented, the main part of which we described above, indeed paints a clear, unambiguous, persuasive picture in which Ben Ari systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public. We are concerned with significant evidence that comprises disparaging expressions of extreme severity that continued over a period of some two years until very close to the elections for the 21^st Knesset, and Ben Ari is heard saying these things in his own voice. This fact is of high probative value (the second Zoabi case). Ben Ari attributes negative characteristics to practically all of the Israeli Arab public, and calls them “murderers”, a “fifth column”, “enemies”, and of “treasonous character”. We are not concerned with a “slip of the tongue” in a moment of anger, but rather with a continuous, consistent series of statements that express hatred and scorn for the Arab population in its entirety as one that appears to understand only violence, with which one cannot coexist, and which must, therefore, be expelled, and as one that receives various social benefits “at our expense”. As noted in the Appellants’ response to Ben Ari’s supplementary pleadings, these publications were not removed. Ben Ari surpassed himself in comparing the Israeli Arab citizens of Haifa to dogs, stating that “the dog should be called by its name”. The use of dehumanization and attributing animalistic traits to people is known to be one of the most degrading propaganda mechanisms employed by racist regimes in order to mark a population as “inferior” and “sub-human”, and it endangers and seriously harms the dignity of the individuals who are members of that group as human beings.

            Ben Ari’s statements, and the not insignificant exposure they receive on social media, reflect the racist political program he espouses and which he intends to realize as a member of the Knesset. Certain statements that expressly call for violence are of particular severity (see, in this regard, his statements in the video clip published in August 2018, according to which “anyone who dares to speak against a Jew doesn’t live. He doesn’t live […] A firing squad kills him, he is done away with, the way Arabs understand. That’s their language”). It is important to note that publications on the social media platforms that Ben Ari chose to use by uploading recordings in which he is heard speaking in his own voice have great influential potential, as the social networks provide candidates for the Knesset quick channels of communication  to many communities without any journalistic mediation. In this manner, the social networks have, to a significant extent, replaced the historic “town square”, and serve as a platform for exchanging views, disseminating ideas, and garnering support among broad, diverse communities. The great accessibility of social networks, as well as the quick and effective dissemination of opinions and ideas by means of the digital platforms, can serve as a very effective means for spreading racist ideas and expedite the dissemination of those ideas (see, in this regard, in general: Yotam Rosner, The Role of Social Media in the Radicalization of Young People in the West, National Security in a “Liquid” World, 131, 135-137 (Institute for National Security Studies, 2019) (Hebrew)).

43.       In addition to the specific explanations that Ben Ari gave for the above publications, he further explained that he is not a racist, and that what he said was directed only at that defined segment of the population that is “enemy”, which includes anyone who is not loyal to the state, and in his own words: “The definition of the enemy is not made on a purely ethno-national basis, but on a political one. Anyone who identifies with the political objectives of the Arab national movement identifies himself as an enemy”. According to him, he does not refer to the Arab public as a whole, and any Arab who is “loyal to Israel” has a right to be a citizen. As opposed to that, whoever “is not loyal to the State of Israel as the nation state of the Jewish people […] should find his place outside of the state”. Ben Ari further clarified that the distinguishing characteristic, according to his approach, is “the relationship to the Zionist enterprise and to the State of Israel as the state of the Jewish people”. He further argued that the quotes attributed to him were fragmented and tendentious and explained that in saying that the Arab population of Israel is not loyal, he meant that he has not met “many loyal Arabs” (emphasis added). In the hearing before us, Ben Ari’s attorney noted: “In my estimation, there is an absolute majority that is not loyal” (Transcript of the hearing, p. 22, line 14), and in this regard, Ben Ari clarified in his supplementary pleadings that his statement that there is an absolute identity between ethno-national origin and loyalty was made in opposition to a statement that he attributed to former minister Naftali Bennet according to which 99% of Israeli Arabs are loyal to the state.

            Ben Ari apologized for his statements in regard to Bedouin soldiers. He pointed out that he “apologizes for them before those loyal soldiers who may have been hurt” and explained that his intention was “unequivocally only to those sons of women who came from the areas of the Palestinian Authority and Gaza”, and that he does not think that “all of the Bedouin population is disloyal” (paras. 32-33 of his affidavit). In the hearing before us, Ben Ari even emphasized that “if it sounds as if I am against the Bedouin, God forbid. If there is loyalty, there is loyalty, and I respect and honor that (hearing transcript, p. 29, lines 16-17). Ben Ari asked to clarify that his statement of Sept. 16, 2018, following the murder of Ori Fuld, in which he called to “stop employing the murderers” as referring only to terrorists, the words do not, of course, refer to all Arabs […] [only] to the security measures that should be adopted in regard to employing Arabs from the Palestinian Authority”. In his response to the appeal, Ben Ari explained that his statements in the Afula meeting were made “against the background of the murder of a resident of my community Dadon”, and in his supplemental pleadings, Ben Ari added that even if what was said in that meeting “grate upon the ear, they do not rise to the level of a ‘critical mass’”. In his affidavit, Ben Ari emphasized that “I am not saying that all Arabs are like that [of a murderous, treasonous character], or that this character derives from ethno-national origins. But this murderous violence is characteristic of the national struggle of the Arab national movement since the beginning of the 20^th century” (para. 47 of his affidavit). In the hearing before us, Ben Ari added another reason for his statements, noting that his words in regard to the sale of apartments to Arabs in Afula should not be understood as racial discrimination, and he referred in this regard to Amendment no. 8 of 2011 to the Cooperative Societies Ordinance in the matter of the considerations that may be taken into account by an admissions committee of a residential community (hereinafter: the Admissions Committee Law). Ben Ari explained what he said after the murder of Ori Ansbacher in a supplementary notice in which he explained that he “referred to the murder, and that was its only context”. In his affidavit, he added that his words might sound inclusive in regard to people on the basis of ethno-national origin, but that his intention was “to those who, from an Arab national position, seek to murder Jews against a nationalistic background, and as part of what they see as a national struggle, and who support and identify with those acts (para. 50 of the affidavit). In the hearing before us, Ben Ari’s attorney added that “there is never any justification for harming individuals on the basis of the nationality” (Transcript, p. 15, line 6), and that Ben Ari’s statements about the Arab public were always made in the context of a specific event” (ibid., line 12).

            Lastly, Ben Ari sought to emphasize that presenting broad positions is not exclusive to him but is rather a common practice of candidates for the Knesset, and even of serving members of the Knesset.

44.       I examined Ben Ari’s arguments and explanations and I do not see them as sufficient to change my conclusion. While Ben Ari repeatedly states that he is not a racist, unfortunately, his actions and statements, which I have summarized above, are diametrically opposed to that declaration. The question I pondered was what positive weight should be afforded to the fact that Ben Ari already served as a member of the Knesset (in 2009 - 2013). This fact does, indeed, constitute a consideration in his favor, but it is of limited weight inasmuch as Ben Ari worked toward the advancement of his racist ideology even in that period, and tearing the New Testament to shreds and throwing it in the waste basket in the Knesset was just one example of that (for other actions and expressions, see paras. 79-91 of the notice of appeal). In any case, as the Attorney General emphasized in presenting his position, the evidentiary foundation from the recent past, and primarily from the year preceding the elections, shows that a “critical mass” of evidence has amassed that unambiguously, clearly, and persuasively testifies to systematic incitement to racism by Ben Ari. The summary of the case law presented above shows that the Court has attributed significance and weight to explanations and clarifications presented by the candidate, to which the decisions in the matter of Marzel testify (the opinion of President A. Barak in the Tibi case, p. 60, and that of Justice I. Englard at p. 66; the second Zoabi case, para. 34, and as opposed to that, see the dissenting opinion of Deputy President E. Rubinstein at para. 103). However, in the instant case, the explanations provided by Ben Ari are not persuasive and pale before the enormity of the racist statements that he repeated again and again in his own voice, and which he preached in public at rallies in which he participated and on social networks. Other than an apology, that was only partial, in the matter of Bedouin soldiers, Ben Ari did not apologize for his statements and did not retract them. He tried to give his words a post facto interpretation, but that, as stated, was not persuasive because it is not consistent with the meaning and natural context of what was said. Thus, for example, Ben Ari tried to explain that he does not speak about the Israeli Arab public in general but only of those who are “enemies”, but the recordings repeatedly show that the reference is to the entire Arab public, or at the very least, to its overwhelming majority – 99% of that public – as disloyal to the state. Ben Ari himself notes in one of those recordings that he has not met Arabs who are loyal to the state (see, for example, the video clip of Ben Ari from Nov. 7, 2017, from 6:30). Another explanation proposed by Ben Ari in regard to some of his statements was that they were made immediately after terrorist incidents and attacks against Israelis. The pain, the anger, and even the will for revenge aroused at such times is understandable. However, it is important to bear in mind that fear and a sense of threat have always been the fuel that fires racist ideologies, and one must, therefore, take care not to harness understandably harsh feelings that arise at times of distress and pain and exploit them to advance such ideologies. The explanations that Ben Ari presented in an attempt to equate the Admissions Committee Law – with all the clear limitations it establishes – and the things he said in regard to the sale of apartments to Arabs in Afula have no place here inasmuch as the two cannot be compared (and compare: LCA 6709/98 Attorney General v. Moledet [18]) (hereinafter: the Moledet case)).

45.       In summation, this chapter states that the Court’s approach that the causes for disqualification under sec. 7A of Basic Law: The Knesset are to be narrowly construed and exercised in the most extreme cases, was and remains the starting point for every discussion of these causes. However, we are persuaded that the broad, up-to-date evidentiary foundation presented in the instant case gives rise to a cause that disqualifies Ben Ari from standing as a candidate in the elections for the 21^st Knesset due to incitement to racism under sec. 7A(a)(2) of the Basic Law. Given this conclusion, there is no need to examine the additional cause for disqualification under sec. 7A(a)(1) of the Basic Law.

            Indeed, it is not always easy to draw the line separating racial incitement from the expression of an opinion – as severe and harsh as it may be – that is entitled to protection under the fundamental right to freedom of expression in general, and to freedom of political speech in particular. This is particularly the case when the former also concerns the right to vote and to be elected. Nevertheless, in the instant case, and given the evidentiary foundation we presented, it is absolutely clear that Ben Ari’s statements crossed the line, and thus the conclusion reached. It would be appropriate to conclude this chapter with another quote from Memmi’s book Racism:

One cannot be indulgent toward racism; one must not even let the monster in the house, especially not in a mask […] To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. It is to agree that the outsider will always be a possible victim (and which man is not himself an outsider relative to someone else?) […] The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animality to humanity (ibid., p. 116).

Ben Gvir

46.       In the matter of Ben Gvir, the Appellants presented a line of evidence, including evidence concerning criminal proceedings against him that, in part, concerned racist publications and support for the Kach movement that was declared a terrorist organization. However, the overwhelming majority of the evidence presented concerned acts and statements form many years ago, part from as long ago as the 1990s, and only a small part concerned the last few years. After examining the arguments raised by the Appellants and those of Ben Gvir, we concluded, as noted, that the evidence presented is not sufficient to ground a cause for disqualification from standing as a candidate in the elections for the 21^st Knesset, given the rule that we addressed above in regard to the strict evidentiary threshold required to substantiate disqualification under sec. 7A of the Basic Law.

47.       The up-to-date evidence to which the Appellants and the Attorney General referred in regard to Ben Gvir should not be taken lightly. It includes statements he made in November 2017 at a memorial service for Rabbi Kahane, whose praises he also enumerated in an interview on Feb. 21, 2019. Ben Gvir made similar statements in a television interview in Nov. 2018 that he published on his Facebook page at that time. Those statements there were certainly very harsh and troubling, and there is substance to the Attorney General’s opinion that they come dangerously close to the line that would bar him from running in the Knesset elections. In this regard, it would not be superfluous to return to the words of Justice M. Elon in the second Neiman case, in 1989, in regard to the Kach list and Rabbi Kahane’s ideology:

The content of the Kach platform and the purpose of its promoters and leaders, as reflected in the material presented to us, stand in blatant contrast to the world of Judaism – its ways and perspectives, to the past of the Jewish nation and its future aspirations. They contradict absolutely the fundamental principles of human and national morality, the Declaration of Independence of the State of Israel, and the very foundations of present-day enlightened democracies. They come to transplant in the Jewish State notions and deeds of the most decadent of nations. This phenomenon should cause grave concern among the people who dwell in Zion. This court is charged with the preservation of the law and its interpretation, and the duty of inculcating the values of Judaism and civilization, of the dignity of man and the equality of all who are created in the divine image, rests primarily upon those whom the legislature and the executive branch have chosen for the task. When, however, such a seriously dangerous phenomenon is brought to our attention, we may not refrain from sounding the alarm against the ruinous effects of its possible spread upon the character, image, and future of the Jewish State. The remedy lies, in the first place, in a reassessment of the ways of educators and pupils alike, in all walks of our society (ibid., p. 302).

            These trenchant remarks are applicable here, as well. However, Ben Gvir, who was admitted to the bar in 2012, took pains to emphasize and explain that while he is in favor of “fighting against the enemies and against any who seek to erase the state, harm its Jewish character, and destroy it (whether such actor is Jewish or whether Arab)”, he “opposes acting in any violent or unlawful manner” (para. 43 of Ben Gvir’s affidavit). He further noted that over the last years, he has changed his ways and he acts by legal means and initiates legal proceedings where he deems appropriate. These explanations bear weight and should be granted significance, and this, together with the current evidentiary foundation presented in his matter, which, as noted, does not rise to the level of a “critical mass” under the strict criteria established in this regard in the case law, led us to the conclusion that the appeal in the matter of Ben Gvir, on both heads, should be dismissed.

EA 1876/19 Ra’am-Balad List v. Central Elections Committee for the 21^st Knesset

48.       The Ra’am-Balad list is composed of two parties – Ra’am and Balad – and two requests for its disqualification were filed by the Likud and MK David Biton, and by Ben Ari and Ben Gvir. The disqualification requests were based upon the cause in sec. 7A(a)(1) of the Basic Law – negation of the existence of the State of Israel as a Jewish state, and sec. 7A(a)(3) of the Basic Law – support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The requesting parties focused primarily on the activities of members of Balad, and it was argued that they oppose the Jewish people’s right to self-determination in the State of Israel and act to negate the core characteristics of Israel as a Jewish state. It was further argued that members of the list support the Hezbollah and Hamas terrorist organizations and violent acts against the police and IDF soldiers. The Elections Committee decided by a majority of 17 for and 10 against to disqualify the Ra’am-Balad list from participating in the elections for the 21^st Knesset, and thus the current appeal.

Arguments of the Parties

49.       Ra’am-Balad argued that the Elections Committee’s decision should be annulled, and emphasized that most of the evidence presented in its regard was already adjudged and examined in prior proceedings against the Balad list or its members, including the evidence concerning their support for the idea of “a state of all its citizens”, and the Court held that the evidence did not substantiate a cause for disqualification. It was further argued that the Committee’s decision leads to a problematic result that also disqualifies the members of the Ra’am party on the list from standing for election even though no significant evidence was produced against them that would justify their disqualification. According to Ra’am-Balad, the Committee reached its decision without any material debate, and it ignored the decisions of this Court and the opinion of the Attorney General; the evidence against it does not relate to actions or activity that substantiate a cause for disqualification; and the evidentiary foundation rests upon articles form the internet of low probative weight and whose content was denied by the members of the list. Ra’am-Balad further argued that due to its political composition, the Elections Committee is not authorized to rule upon the causes for disqualification under sec. 7A of the Basic Law, and that the legal arrangement that grants it that authority is disproportionate and infringes the principle of equality of the elections as established in sec. 4 of the Basic Law, and the right to vote and to be elected.

50.       The Attorney General was of the opinion that the appeal of Ra’am-Balad should be granted and noted that the disqualification requests were indeed largely founded upon evidence from prior to the elections for the 20^th Knesset, and part of it had already been examined in prior proceedings before this Court. Whereas, it is argued, the new evidence submitted relies largely upon articles form the internet that were denied by the members of the list and that are of low probative value. It was further emphasized that most of the evidence pertains to persons who are no longer on the list, among them: Basel Ghattas (hereinafter: Ghattas) and Said Naffaa, or who are in a unrealistic slot on the list, like Hanin Zoabi and Jamal Zahalka (hereinafter: Zahalka), and are not relevant to the members of the list and its new candidates who are in realistic slots. In all that relates to the cause of support for armed struggle of a terrorist organization, the Attorney General was of the opinion that significant weight should be accorded to the affidavits submitted by the representatives of the list which note that they reject violence and that they never called for its use. As for the cause of negation of the existence of the State of Israel as a Jewish state, the Attorney General noted that the consistent position of the case law of this Court in regard to Balad and its members is that there is no cause for disqualifying them from participating in the election for the claims have been raised once again in this proceeding. However, the Attorney General, without deciding the issue, explained that were the Balad party running independently for the 21^st Knesset, there would be reason to carefully consider its disqualification in view of the Basic Law: A State of all its Citizens Bill submitted to the 20^th Knesset by members of Knesset from the Balad party, and due to the content of that bill. But the Attorney General added that since the requests refer to the disqualification of the Ra’am-Balad list, and because the law does not allow for disqualifying half of a list, there is some difficulty in disqualifying the entire list due to the actions of members of the Balad list, who for the most part are not, as noted, candidates in realistic slots on the list, while no significant arguments were raised in regard to the Ra’am party and its members. On the constitutional level, in regard to the matter of the Elections Committee’s authority to address the causes for disqualification under sec. 7A of the Basic Law, the Attorney General argued, inter alia, that given the time constraints established in the Elections Law for deciding upon an appeal, the issues should not be taken up in the framework of the current proceedings.

51.       Respondents 2-3, who submitted the requests for disqualification, relied upon the decision of the Elections Committee and argued for dismissal of the appeal. In their view, the fact that the Ra’am-Balad list includes new candidates does not alter the fact that the ideology of the members of the Balad list negates the character of the State of Israel as a Jewish state and the fact that members of the party support terrorist groups like Hezbollah and Hamas. The Knesset, which was joined as a Respondent to the appeal due to the constitutional arguments, was of the opinion that these arguments should be dismissed. It emphasized that the claim of lack of authority was not raised before the Elections Committee, that it is being raised long after the said authority was bestowed upon the Committee by law, and like the Attorney General, the Knesset added that the elections proceedings are not appropriate for examining this issue.

Negation of the Existence of the State of Israel as a Jewish State

52.       The starting point for examining the evidentiary foundations presented by the Plaintiffs in regard to the disqualification of Ra’am-Balad on the cause of negation of the existence of the State of Israel as a Jewish state is grounded in the criteria established in the case law, which we surveyed at length above. These criteria were addressed and even applied in the past in regard to the Balad list and its platform (see the Tibi case and the Balad case), and those cases addressed, inter alia, the question whether a party that calls for the realization of the principle of “a state of all its citizens” is disqualified from standing for election to the Knesset. In the Tibi case, the Court answered in the negative, and held that calling for the realization of that principle does not necessarily imply the negation of the State of Israel as a Jewish state. The Court held that as long as that call is intended to guarantee equality among citizens, it should not be interpreted to be a call that negates the existence of the State of Israel as a Jewish state. As opposed to that, “if the purpose of Israel being a ‘state of all its citizens’ is intended to mean more than that, and it seeks to undermine the rationale for the creation of the state and its character as the State of Israel as the state of the Jewish people, then that undercuts the nuclear, minimal characteristics that characterize the State of Israel as a Jewish State” (the Tibi case, pp. 22-23, 41).

53.       In the Tibi case, the Court concluded that, despite the fact that Balad’s platform expressly called for realizing the principle of “a state of all its citizens”, and despite the additional evidence presented in open court and in camera, taken in its entirety, what was presented did not ground a “critical mass” of persuasive, clear and unambiguous evidence that would justify the disqualification of Balad for the cause argued, nor the disqualification of Bishara – then head of the list – whose disqualification was requested in that same proceeding. It would not be superfluous to note that most of the evidence presented in that matter in regard to Balad concerned actions and statements by Bishara. It was argued in regard to Bishara that, inter alia, in various events and party conferences he expressed himself in a manner that reflected a view according to which Jews do not have a right to self-determination. It was further argued that Bishara supported the approach that recognized the right of return of Arabs to Israel and a struggle against Zionism, and that he even tabled a bill for the abolition of the status of various Zionist institutions.

54.       After examining all of that evidence, the Court concluded in the Tibi case that even though Bishara’s objectives are a dominant objective of his activity and not merely a theoretical concept but rather an objective with political potential that he had put into practice, his actions did not negate the minimal, nuclear definition of the State of Israel as a Jewish state. It was held that the Court was not presented with persuasive, clear and unambiguous evidence against Bishara in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law, and consequently, not against the Balad list. That was so inasmuch as Bishara recognized the right of every Jew to immigrate to Israel and did not argue that the Law of Return, 5710-1950 (hereinafter: The Law of Return) should be revoked, did not deny the centrality of Hebrew as the language of the state, along with Arabic as an official language, and did not oppose Israel’s holidays and symbols, as long as the cultural and religious rights of the Arab minority are recognized.

55.       As noted, the Tibi case concerned the elections for the 16^th Knesset, and some eight years later, in the Balad case, the Court addressed disqualification proceedings filed against the Balad party in anticipation of the elections for the 18^th Knesset. That matter concerned the decisions of the Elections Committee to disqualify the Balad list, as well as the Ra’am-Ta’al list that also sought to contend in those elections. The causes for which the Elections Committee decided to disqualify the Balad list were, as in the present case, the causes under secs. 7A(a)(1) and (3) of the Basic Law. At that point, Bishara no longer headed the list. He had fled the country, and it was claimed that the reason was that a criminal investigation was being conducted against him for suspected involvement in security offenses (the Balad case, para. 9). Inter alia, the evidence presented in that matter to ground the cause of negation of the existence of the State of Israel as a Jewish state included Balad’s platform, which was published on its internet site, and an article by Zahalka, who was then the party leader, which described the party’s vision as striving for a State of Israel as “a state of all its citizens”. In addition, public statements of party members made in various situations, as well as articles from which, it was argued, one could discern an expression of support of the Balad members for its founder Bishara even after his flight from Israel, were presented. The Court granted Balad’s appeal and held that there was no cause for disqualification from contending in the elections for the 18^th Knesset. The Court’s decision rested, inter alia, upon the opinion of the Attorney General at the time, who noted that the evidence presented against Balad, taken in its entirety, was inferior to the entirety of the evidence presented against that party in the Tibi case. The Court held:

After examining all of the evidence presented to us, and bearing in mind the criteria and principles outlined in the matter of Balad [the Tibi case], the entirety of the evidence presented to this Court in that matter and its concrete findings there in regard to them, we did not find that the disqualification requests that are the subject of this appeal in regard to Balad rest upon a sufficient evidentiary foundation to give rise to a cause for disqualifying the list from contending in the elections for the Israeli Knesset (ibid., para. 22).

            This conclusion reached by the Court in the Balad case concerns the two causes for disqualification advanced there. We will further address the additional cause under sec. 7A(a)(3) below.

56.       Another disqualification proceeding concerning the members of the Balad party was addressed in 2012 in the first Zoabi case, which examined the issue of the disqualification of Zoabi from standing for election for the 19^th Knesset on the Balad list. In that proceeding, the Court examined the evidence regarding Zoabi’s support for the principle of “a state of all its citizens”, and was of the opinion that the evidence presented no materially new or different grounds from what had been presented in the Tibi case and the Balad case that would justify a different conclusion. The Court arrived at a similar result some three years later in the second Zoabi case. In that matter, the Court examined, inter alia, whether statements in which Zoabi was heard saying “there was no justification for the establishing of the State of Israel from the start. Now that there are generations of Jews who were born in it, I want to live with them but not in a Jewish and racist state”. The Court also examined an article that reported on a demonstration in which Zoabi participate, entitled “Demonstration against the Crimes of the Occupation”, and a recording in which Zoabi is heard shouting insults at the police. The Court held that there were no grounds for disqualifying Zoabi’s candidacy in the elections. That was so because the desire for the establishment of a state of all its citizens and “striving for an end to the occupation does not necessarily mean a negation of the Jewish foundations of the State of Israel.”

57.       The current proceeding, in which the Ra’am-Balad list is appealing its disqualification by the Elections Committee from contending in the elections for the 21^st Knesset, is another link in the chain of similar proceedings on the same matter. In all that concerns the cause for disqualification under sec. 7A(a)(1) of the Basic Law, the evidence presented by the petitioners for disqualification includes various statement by members of Balad form the past and present, among them a quote from an interview conducted by Dr. Mtanes Shehadeh, chair of the Balad list, and number two on the Ra’am-Balad list (hereinafter: Shehadeh), in which he says, among other things, that Bishara was “an important activist in Balad’s leadership at the time, and contributed greatly to political discourse […] in Israel”, and is later quoted in that interview as saying that “the flag and national anthem do not represent us”. A report from the YNET website was also presented according to which MK Talab Abu Arar, who is a member of the list, and others met with the president of Turkey. Additional evidence presented concerns an interview with the former general secretary of Balad in which he called upon Israeli Arabs not to vote in the Knesset elections and to act for the realization of the principle of “a state of all its citizens”, as well as evidence concerning past activities of members of Balad, including statements by Zoabi from 2009 and past activities of Bishara.

            This evidence is not materially different from the evidence presented in the previous proceedings that we surveyed, which concerned proceedings for the disqualification of Balad and members of its list, as far as the cause of negation of the State of Israel as a Jewish state is concerned. Moreover, not only has most of the evidence presented in this proceeding been examined in previous proceedings and found insufficient in accordance with the criteria outlined for the said cause, but as noted, a not insignificant part of that evidence concerns persons who are no longer candidates on the Ra’am-Balad list for the elections for the 21^st Knesset, or are not candidates in realistic slots on that list. That being the case, we cannot accept the argument that the Ra’am-Balad list should be disqualified from running in the elections for the 21^st Knesset due to actions and statements attributed to Zoabi when she herself was not disqualified at the time in the first Zoabi case and the second Zoabi case for the same actions and statements, especially when she is located in the 118^th slot on the current list. The argument in regard to ongoing connections of some kind or another between members of the list and Bishara was argued in a general manner and does not suffice for changing the conclusion as to the insufficiency of the evidence presented. As for the majority of the candidates on the Ra’am-Balad list for the 21^st Knesset who hold realistic slots, with the exception of Shehadeh, no evidence at all was presented to ground the cause for disqualification, and as explained above, the evidence presented in regard to Shehadeh is based upon quotes from media interviews and reports on various internet websites whose probatory weight has already been held to be low (the second Zoabi case, para. 34), and Shehadeh has declared that his words were presented in a “distorted, misleading manner, and was accompanied by incorrect analysis” (para. 9 of the affidavit submitted by Shehadeh to the Elections Committee).

58.       The primary up-to-date evidence presented to us in this proceeding in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law is the Basic Law: A State of all its Citizens Bill, which members of Knesset from the Balad party sought to lay on the table in the 20^th Knesset. At the end of the day, that bill was not presented due to a decision by the Knesset presidium of June 4, 2018 not to approve its introduction, based upon the opinion of the Knesset’s legal advisor. A petition filed in this regard was rendered moot and dismissed in limine when it was decided to dissolve the 20^th Knesset (HCJ 4552/18 Zahalka v. Speaker of the Knesset [19]). The purpose clause of the bill established that it was intended to ground “the principle of the equal citizenship of every citizen, while recognizing the existence and the rights of the two national groups, Jewish and Arab, living within the borders of the state that are recognized by international law” in a Basic Law. The bill also redrafted the conditions for obtaining Israeli citizenship, such that obtaining citizenship by virtue of the principle of return would be annulled (see sec. 5 of the opinion of the Legal Advisor of the Knesset of June 3, 2018). In addition, new state symbols and a new anthem should be established in accordance with the principles set forth in the bill (on the significance of this provision as negating the principle according to which the “primary symbols” of the state should reflect the national rebirth of the Jewish people, see sec. 5 of the opinion of the Legal Advisor of the Knesset, and see what was stated in this regard in sec. 6 of the bill in regard to the status of the Hebrew language as the primary language of the state). If that were not enough, the petition filed by the members of Bald in the 20^th Knesset against the decision of the presidium to prevent laying the bill on the Knesset table explicitly stated that the said bill accorded with Balad’s party platform.

            It would seem undeniable that the said bill, in all its parts, expresses a negation of the most minimal, nuclear characteristics of the State of Israel as a Jewish state as the Court explained in the Tibi case. The fact that the step taken by the members of Balad in this regard was democratic – tabling a bill – does not lead to a different conclusion. This was indeed a significant action by the members of Knesset representing Balad in the 20^th Knesset attempting to realize – by means of a legislative bill – a political program and worldview that negates the existence of the State of Israel as a Jewish state. It would appear that Ra’am-Balad was aware of the significance of this evidence, but argued that it should not be given decisive weight in the current proceeding, inter alia, given the fact that it is only one piece of evidence (or at most two, if the petition constitutes a separate piece of evidence in this regard), and given the background for submitting the bill and that it was submitted in response to the legislative proceedings on the Nation State Law. These arguments attempt to minimize the significant weight of this evidence, and I agree with the position  of the Attorney General that had Balad run as an independent list comprising members of Knesset who had served in the 20^th Knesset and who presented the bill, and who now sought to stand for re-election to the 21^st Knesset, there would be grounds for seriously considering whether these two pieces of evidence show that Balad had crossed the divide delineated in the Tibi case that separates between espousing the principle of “a state of all its citizens” in order to achieve equality and seeking to negate the minimal, nuclear characteristics of the State of Israel as a Jewish state. If we were standing at that junction, we would also likely be required to consider the issue of the applicability of the probability test in applying the cause for disqualification under sec. 7A(a)(1) of the Basic Law, which was left for further consideration in the Tibi case and in the ensuing decisions. However, the list whose disqualification was requested is a joint list of Ra’am-Balad and we agree with the opinion of the Attorney General that his fact is significant for examining the causes for disqualification. In addition, it must be borne in mind in regard to the representatives of Balad on the list that none of those placed in realistic slots were among those who submitted the bill on Balad’s behalf. Moreover, in the affidavit he submitted to the Elections Committee, Shehadeh declared that he himself and all of Balad’s candidates for Knesset are committed to the principle of “a state of all its citizens” that is presented in the party’s platform as examined and approved in the Tibi case, the Balad case, and in the first and second Zoabi case (para. 2 of the affidavit). Given all of the above, and given the strict criteria outlined in the case law for the disqualification of a list from standing for election to the Knesset, we have concluded that there are no grounds for disqualifying the Ra’am-Balad list on the cause of negation of the existence of the State of Israel as a Jewish state.

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

59.       The Election Committee’s decision that “the Ra’am-Balad list is barred from participating in the elections for the 21^st Knesset” does not state whether the list’s disqualification is based upon both of the two causes in secs. 1A(a)1 and (3) of the Basic Law or only upon one of them. In the future, even if the Committee does not state the reasons for its decision, it may be appropriate that it at least note what cause grounded its decision on disqualification. In any event, for the purposes of this appeal, I will assume, as did the parties, that the disqualification rested upon both causes.

            The prevailing rule established that in order to prove that a list or a candidate seeking to stand for election supports armed struggle by an enemy state or a terrorist group, it must be shown that it is the primary objective of the list and that it actually works toward realizing it. In all of the past proceedings in the matter of both Balad and Ra’am, it was held that the evidence presented in this regard does not amount to a “critical mass” that would justify disqualifying either of the lists or any of candidates on those lists on the basis of the cause grounded in sec. 7A(a)(3) of the Basic law (EA 2600/99 Erlich v. Chair of the Central Elections Committee [20] (hereinafter: the Erlich case); the Tibi case; the first Zoabi case; the second Zoabi case). Those holdings bear consequences for the matter before us inasmuch as the evidence presented to ground the cause of support for armed struggle is immeasurably less than that presented in the above cases. The Petitioners for disqualification primarily based their arguments upon pictures of Shehadeh visiting a former security prisoner and upon quotes from an interview in which it is alleged that he refused to refer to Hamas as a terrorist organization and added that “any struggle against the occupation is a legitimate struggle”, and that he “is for a struggle against the occupation. People have a right to fight against the occupation. If there are people who are oppressed, they have a right to fight”. In addition, an interview with MK Abd Al Hakeem Haj Yahya, who holds the second slot in the Ra’am party, was presented in which he referred to an attack on the Temple Mount in July 2017 in which Israeli police were murdered. According to the petitioners for disqualification, other statements by members of the list in 2009 and 2011 demonstrate a support for terrorism. The petitioners for disqualification further added the fact that former Knesset members of Balad met with the families of terrorists who were killed while carrying out terrorist attacks; Zoabi’s participation in the “Mavi Marmara” flotilla; the meeting held by former Balad Knesset members with Bishara in 2014; and the conviction of former Balad Knesset member Ghattas for security offenses.

60.       We reviewed the above evidence, and we are not of the opinion that it constitutes a body of persuasive, clear and unambiguous evidence that shows that support for an armed struggle by a terrorist organization is a central, dominant purpose of the Ra’am-Balad list or of any of the parties that compose it. In addition, we do not think that evidence was presented that meets the evidentiary threshold for proving that this list acts for the realization of such an armed struggle in a real and consistent manner. This is an a fortiori conclusion given that the evidence presented in the prior proceedings addressed by this Court was far more significant than that presented before us, and it was nevertheless held that it was insufficient to ground a cause for disqualification under sec. 7A(a)(3) of the Basic Law. Moreover, a significant part of the evidence presented to us refers to persons who do not appear on the Ra’am-Balad list for the 21^st Knesset, and some of it was already examined in the previously noted cases. The petitioners for disqualification presented various statements by Shehadeh from which one might infer support for violent activity, but that is not the only possible interpretation and the doubt acts to the benefit of the conclusion that would permit the list to participate in the elections (the second Zoabi case, para. 73). In addition, weight should be given in this regard to the fact that Shehadeh made it explicitly clear in his affidavit that he does not support violent activity and that Balad’s approach is “democratic and employs legal means. We have never called for the use of violence, and none of the candidates on our current list have ever been convicted of any criminal offence”. It was further noted that statements expressing opposition to the Israeli policy in Judea and Samaria were examined by this Court in the past, and it was held that they do not, in and of themselves, give rise to a cause for disqualification (the second Zoabi case, para. 67).

61.       In conclusion, for the reasons stated above, I was of the opinion that we should grant the appeal in EA 1876/19, that the disqualification decision by the Elections Committee should be overturned, and we should order that the Ra’am-Balad list is not barred from participating in the elections for the 21^st Knesset. I did not find reason to address the arguments raised by the Ra’am-Balad list in regard to the authority of the Elections Committee to rule upon the causes for disqualification. The conclusion that we reached in this appeal renders those arguments moot, but in my view, the fact that those arguments were never raised before the Elections Committee suffices to dismiss them in limine.

EDA 1806/19 Lieberman v. Cassif

62.       At the request of the Yisrael Beiteinu faction and Knesset members Avigdor Lieberman and Oded Forer, the Elections Committee decided to disqualify Cassif from participating in the elections for the 21^st Knesset as a candidate on the Ra’am-Balad list. The Committee presented that decision for the Court’s approval in accordance with sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset.

Arguments of the Parties

63.       The request for Cassif’s disqualification rests upon two causes: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The evidence adduced in support of the request consisted primarily of four publications and newspaper articles – mostly from the internet – that show, according to those requesting disqualification, that in his statements, Cassif rejects the Jewish character of the State of Israel and calls for the changing of the state’s symbols and anthem, and for revoking the Law of Return. It is also argued that the evidence presented shows that Cassif supports the armed struggle of the Hamas terrorist organization against the state. This, inter alia, because he compared senior government leaders to Nazi war criminals, and because other statements testify, in their opinion, that Cassif believes that attacking soldiers does not constitute terrorism and that Israel should be fought because of its serious crimes against the Palestinian population.

64.       Cassif argued on his behalf that the evidence presented by those requesting the disqualification does not justify his disqualification from running in the Knesset elections. That is particularly so given that the request for disqualification is based, so he argues, upon distorted and tendentious quotes and relies primarily upon one interview with him in which he primarily presented academic ideas and not his political philosophy. As for the arguments that portray him as rejecting the Jewish character of the State of Israel, Cassif emphasized that he recognizes the right of the Jewish people to self-determination alongside an independent Palestinian state, while ensuring full equal rights to all residents of Israel. As for the arguments portraying him as supporting the armed struggle of Hamas against Israel, Cassif claimed that the various comparisons that he made between the State of Israel and Nazi Germany are not relevant to grounding a cause for disqualification, and that he opposes all forms of violence against any person. Similar to the arguments raised by the Ra’am-Balad list, Cassif also raised constitutional arguments in regard to the authority of the Elections Committee to examine and rule upon the disqualification of lists and candidates under the causes grounded in sec. 7A of the Basic Law, and I will already state that for the reasons mentioned in the previous chapter concerning the appeal of Ra’am-Balad, I have not found it necessary to address these arguments in the approval proceedings in regard to Cassif.

65.       The Attorney General was of the opinion that there is no cause for barring Cassif from running in the elections for the 21^st Knesset because no “critical evidentiary mass” was presented that would justify it, noting that the evidentiary grounds adduced in support of disqualification was meager in both amount and quality.

Negation of the Existence of the State of Israel as a Jewish State

66.       The evidence in the matter of Cassif on this cause relies upon two newspaper publications. The first is an article on the internet site of Makor Rishon from Feb. 7, 2019, according to which Cassif stated in an interview some two years earlier on the subject of the evacuation of Israeli settlements in Judea and Samaria that he viewed this as a first step towards a Palestinian state, and that the State of Israel cannot be and must not be a Jewish state. Cassif expressly refutes these words attributed to him (para. 10 of the affidavit submitted by Cassif to the Elections Committee). As already noted, the probative weight that can be ascribed to such articles, and all the more so to “second hand” articles is low.

67.       The second and more significant piece of evidence presented by those requesting Cassif’s disqualification is an interview with Cassif in the Ha’aretz newspaper in February 2019. According to the petitioners for disqualification, certain statements by Cassif in that interview can be understood as a call for the negation of some of the core characteristics of the State of Israel as a Jewish state. Thus, for example, in response to the interviewer’s question about the character of the Israeli public space, Cassif said: “The public space has to change, to belong to all the residents of the state. I disagree with the concept of a Jewish public space”, adding that this would be expressed “for example, by changing the symbols, changing the anthem […]”. Cassif was also asked in that interview whether he supported the revocation of the Law of Return and answered “Yes. Absolutely”. As for the question of the Palestinian right of return to Israel, he replied: “There is no comparison. There is no symmetry here at all […]”. These worrying statements, which Cassif did not deny, certainly bear significant weight in examining the cause for disqualification in his regard under sec. 7A(a)(1) of the Basic Law. However, we are concerned with a newspaper interview and a single statement made in it, and I therefore agree with the Attorney General’s view that this piece of evidence alone is not sufficient to meet the strict criteria established by the case law for disqualifying a candidate from standing for election to the Knesset. Indeed, as presented in detail above, in order to ground a cause for disqualification, it is necessary to present statements that unambiguously, clearly and persuasively testify to the negation of the core characteristics of the State of Israel as a Jewish state. One must also show that this is the dominant purpose motivating the candidate’s activity and that he vigorously and consistently acts for its realization as part of a concrete political program. To this we should add that in his statements before the Elections Committee and before this Court, Cassif noted that he sees himself as obligated to the platform of the Hadash party, whose representatives have served in the Knesset for many years, and stated in the hearing before the Elections Committee: “The party of which I am a member and which I represent, […] made it its motto and has always said that we view the State of Israel as a state in which the Jewish people in the land is entitled to define itself. I do not deny that, I have never denied that, and I have no intention of denying that” (Transcript 10/21, p. 37).

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

68.       Has it been shown, as the petitioners for disqualification claim, that Cassif supports armed struggle by the Hamas terror organization against the State of Israel? A large part of the disqualification request in this regard rests upon statements attributed to Cassif that imply a comparison between the State of Israel and senior members of the government of Nazi Germany and Nazi war criminals. Thus, for example, in the article on the Makor Rishon website mentioned above, it was claimed that “Cassif called Lieberman ‘a descendant of Adolph’, and explained: ‘A conceptual descendent, not an actual one”, and called former Justice Minister Ayelet Shaked “neo-Nazi scum”. In another article on the website of Channel 20 from March 2016, a Facebook post by Cassif was quoted in which he wrote about the Israeli government, among other things, that “this is a fascist government par excellence, with real Nazi motives […] and at its head, above all others: an incompetent scoundrel who has destroyed every good thing there ever was here […] an outstanding student of Göring’s doctrine”. In another article published on the Channel 20 website in April 2018, there was a recording of Cassif from a class that he gave in which he is heard saying that “in the Israeli discourse created by the current government, it is legitimate to kill Arabs. This is how one slides into the abyss of what happened in Germany 80 years ago”.

69.       Those statements, which Cassif did not deny, are very harsh, and the evident comparison between the State of Israel and government ministers to Nazi Germany is outrageous and were better never said, and having been said, I reject them in the most severe terms. The weak explanations provided by Cassif, according to which the statements were only made as metaphors in order to arouse critical public debate and to warn against dangerous deterioration, do not blunt their severity. Cassif also took the trouble to explain that in his publicist writings he emphasized that “any comparison between the Nazi annihilation and Israeli policy in the territories would make a mockery of the Holocaust”, of which it may be said that he did not practice as he preached. However, we must admit that as outrageous and enraging as these statements may be, they do not ground a cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel, and they cannot, in and of themselves, lead to the disqualification of his candidacy in the elections (and compare: the Kach case, p. 3). In any case, Cassif made it clear that he does not intend to repeat such things as an elected representative (para. 13 of the affidavit submitted by Cassif to the Elections Committee), and it is to be hoped that he will act accordingly.

70.       The additional evidence presented in support of Cassif’s disqualification on the cause of support for the armed struggle of Hamas against Israel also does ground a cause for his disqualification. In this regard, the plaintiffs directed our attention, inter alia, to a post by Cassif that was mentioned earlier, which, they argue, shows that he supports a violent struggle against the fascism and racism that have, in his opinion, spread in Israeli society. They also referred to an article on the website of Channel 20, also mentioned above, that includes a recording of Cassif from 2018 in which he is heard saying that “Hamas is a political party”. Lastly, the plaintiffs refer to Cassif’s statements in the interview in Ha’aretz in which he stated:

Cassif: “Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable […] Wherever there was a struggle for liberation from oppression there are national heroes who, in 90% of the cases, did things that were, in part, terrible. Nelson Mandela, who is now regarded as a hero, a Nobel Peace Prize laureate, was a terrorist according to the accepted definition […]”.

Interviewer: “In other words, the Hamas commanders today, who initiate actions against soldiers will be heroes of the Palestinian state that will be established?”

Cassif: “Certainly”.

Cassif asked to explain what he said, and told the Elections Committee and the Court that he opposes the use of violence against any person. He did not deny his opposition to the Israeli policy in Judea and Samaria and said that in his vision for the future he sees an end of the military regime there and that his activity is intended, among other things, to change the situation of the Palestinian people in Gaza and in general. However, as already noted, expressing this opinion alone does not give rise to a cause for disqualification (see para. 56), and Cassif declared unambiguously that he does not support opposition by means of armed struggle, but rather political, non-violent opposition (compare: the Tibi case, p. 50; the second Zoabi case, para. 71), and in his words: “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence, this was also expressly stated in the interviews with me and in every other framework […] I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all” (Transcript 10/21, p. 34). Cassif also expressed a similar position in that interview in Ha’aretz that was presented by the plaintiffs, a part of which was quoted above, in stating: “We have always opposed harming innocent civilians. Always. In all of our demonstrations, one of our leading slogans was: In Gaza and Sderot, children want to live. With all of my criticism of the settlers, going into a house to slaughter children, as in the case of the Fogel family, is something that is intolerable. You have to be a human being and reject this”.

As for Cassif’s statement in regard to harming soldiers, we are concerned with a severe, enraging statement that could be interpreted as legitimizing the harming of IDF soldiers by the Hamas terror organization. While Cassif tried to create a distinction in this regard between his theoretical, academic views and his political views, in my view, it is an artificial and unpersuasive distinction that is hard to accept. Nevertheless, at the end of the day, the evidentiary foundation presented by the plaintiffs relies upon those aforementioned publications, and I agree with the position of the Attorney General that this evidentiary foundation is meager and insufficient to ground the cause for disqualification under sec. 7A(a)(3) of the Basic Law in accordance with the criteria set out in the case law, which I discussed above.

EA 1867/19 Ben Ari v. Hadash-Ta’al List

71.       The request to disqualify the Hadash-Ta’al list from standing for election to the 21^st Knesset was filed by Ben Ari and Ben Gvir upon two causes: negation of the existence of the State of Israel as a Jewish state under sec. 7A(a)(1) of the Basic Law, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The Elections Committee decided by a majority of 15 for and 12 against to dismiss the request, and thus the present appeal.

Arguments of the Parties

72.       The appellants who seek the disqualification, and a few members of the Elections Committee who joined them as appellants, argued that the statements and actions of members of the list are intended to negate the character of the State of Israel as a Jewish state, and that its members support the Hezbollah and Hamas terror organizations while legitimizing harming Israeli citizens residing in the Judea and Samaria area and IDF soldiers.

73.       For its part, the Hadash-Ta’al list relied upon the decision of the Elections Committee and argued that the requesters of disqualification did not present an appropriate evidentiary foundation that could ground the claimed causes for disqualification. It was explained that the request was partly based upon old evidence that had been examined by the Elections Committee in previous elections, and that many of the statements attributed to members of the list were distorted and presented in a tendentious manner. It was further noted that most of the evidence was based upon reports taken from internet sites and newspaper clippings of low probative value, and that part are not even relevant to grounding the causes for disqualification.

74.       The Attorney General was of the opinion that the entirety of the evidence presented in regard to that request does not justify its acceptance inasmuch as it did not amount to the “critical evidentiary mass” required for disqualifying a list from participating in the elections for the Knesset. This is particularly so given that the evidentiary material presented in the matter of Hadash-Ta’al is significantly more limited than that presented in previous proceedings in which the said causes for disqualification were addressed. The Attorney General also added that the request was based largely on newspaper reports and parts of speeches that are of low probative value, and in particular, given the fact that we are not concerned with up-to-date evidence, and that part relates to the period preceding the elections for the 20^th Knesset.

75.       The appellants based their argument in regard to the cause of disqualification concerning the negation of the existence of the State of Israel as a Jewish state on a few statements by members of the list that are insufficient– both quantitatively and qualitatively – for meeting the necessary evidentiary threshold to ground the argument that Hadash-Ta’al negates the core characteristics of the State of Israel as a Jewish state. The primary piece of evidence presented by the appellants in this regard was an interview with Knesset member Tibi in the Ha’aretz newspaper in March 2017, in which he was asked to provide a hypothetical description of the situation in which the vision of two states was abandoned and instead, a single state was established in which the Arab minority became the majority. In that interview, Tibi is quoted as saying that such a state would be substantially different from the State of Israel today, and that the Declaration of Independence would be replaced by a civil declaration in which equality would be a supreme value, the Law of Return would be revoked, and the state’s symbols would be changed. However, Tibi expressly stated in that interview that his vision is a vision of two states – a fact that the appellants refrained from mentioning in their arguments. The appellants further referred to a short segment of a television interview with Tibi in 2011 in which he said that he cannot recognize the State of Israel as a Jewish state. These two pieces of evidence, which are not from the recent past, are not sufficient to show clearly, persuasively and unambiguously that Tibi acts for the negation of the existence of the State of Israel as a Jewish state. It should be borne in mind that we are concerned with a member of Knesset who has served for some two decades, and that no argument was presented in regard to his parliamentary activity that would support the claimed cause for disqualification (compare the Ben Shalom case, p. 251). The additional evidence presented consists of quotes regarding which there is doubt as to whether they could ground the cause of negation of the existence of the State of Israel as a Jewish state, and in any case, they are attributed to Raja Zaatra, who is not a member of the Hadash-Ta’al list for the 21^st Knesset and who claimed that the quotes were untrue. The appellants further referred to statements by Cassif, who is a member of the Hadash-Ta’al list, but as noted above, we did not find them sufficient to lead to disqualifying Cassif himself, and thus they cannot lead to the disqualification of the entire list (see and compare: the Tibi case, p. 44; the Balad case, para. 20).

76.       The evidence adduced by the appellants in all that regards the cause for disqualification concerning support for armed struggle by a hostile state or a terrorist organization against the State of Israel comprises, inter alia: a public address by Tibi in 2011 in Arabic in which, it is argued, he expressed praise for martyrs, and a report from 2007 on his participation in a march marking five years since Operation Defensive Shield in Jenin, among a crowd in which people dressed up as suicide bombers were present. In addition, the appellants referred to statements by a member of the Hadash party, Aida Touma Suleiman (hereinafter: Suleiman) in which she called the conduct of IDF forces in violent events on the Gaza border “premeditated murder”, refused to call the Hamas a terrorist organization, and argued that “an intifada by the people against the occupation is legitimate”. The appellants further referred to Suleiman’s participation in a demonstration in support of those who refuse to serve in the IDF, and to her refusal to hold a debate on women soldiers in the IDF when she served as chair of the Knesset committee for the advancement of the status of women. In addition, statements by a member of the Ta’al party, Osama Saadi, were presented expressing support for a popular struggle and who, it is claimed, refused to denounce harming Israeli citizens who reside in Judea and Samaria. The appellants also referred to statements by the chair of the Hadash faction, Ayman Odeh (hereinafter: Odeh), who refused to denounce harming IDF soldiers and thanked a Palestinian television station that praised the parliamentary activity of the Joint List in the 20^th Knesset. The appellants further referred to a report that Odeh had clashed with police in a conference of the Popular Front and Democratic Front organizations, reports on meetings of members of the list with security prisoners in prison, reports of discussions held with Palestinian leaders, and to the Hadash party’s condemnation of the decision of the Persian Gulf states and the Arab League to declare the Hezbollah a terrorist organization.

77.       I examined the said assembled evidence and arrived at the conclusion that it is insufficient under the strict criteria outlined in the case law for establishing a cause for disqualification under sec. 7A(a)(3) of the Basic Law. As the Attorney General noted, part of the evidence presented in this matter does not show – even prima facie – direct or indirect support for terrorist activity. To that one should add that some of the evidence adduced is old and even precedes the elections for the 20th Knesset, and the Elections Committee to which that evidence was presented in the past did not find that it grounds the cause for disqualification. Indeed, some of the material attributed to the representatives of Hadash-Ta’al as detailed above can be interpreted as supporting an armed struggle against the State of Israel by a terrorist organization, but given the fact that in those very same publications to which the appellants refer there are also statements by members of the list according to which they do not support violence as a political approach, the resulting doubt weighs against that interpretation. Moreover, those requesting disqualification did not present the official platform of the list, which is a primary source depicting its purposes (the second Neiman case, p. 186; the Moledet case, p. 362), and for this reason, as well, it is difficult to conclude that the list supports armed struggle against the State of Israel by a terrorist organization and that this is the central, dominant purpose of Hadash-Ta’al for the realization of which it acts in a real and consistent manner.

Conclusion

78.       For the reasons detailed above, I have, as stated, arrived at the conclusion that the appeal in EA 1866/19 should be granted in part, and to hold that Ben Ari is banned from contending in the elections for the 21^st Knesset, which does not apply to Ben Gvir; to overturn the Elections Committee’s decision in EA 1876/19 and hold that the Ra’am-Balad list is not barred from participating in those elections; to overturn the Elections Committee’s decision in EA 1806/19 and hold that Cassif may participate in the elections for the 21^st Knesset; and to deny the appeal in EA 1867/19 and hold that the Hadash-Ta’al list is not barred from contending in the elections for the 21^st Knesset.

Justice I. Amit:

            I concur in the decision of President E. Hayut, and I will add a few words of my own.

1.         Every election season, as a kind of ritual, the Supreme Court is called upon to address the disqualification of lists or candidates on the basis of the Knesset Elections Law [Consolidated Version], 5729-1969. Knesset elections are a purely political matter, and the Elections Committee reflects the relative political power in the Knesset like a mini-Knesset. As opposed to this, sec. 7A of Basic Law: The Knesset was originally enacted to reflect timeless constitutional criteria of causes for qualification that are not judged on the basis of prevailing sentiment. In view of the fundamental right to vote and to be elected, the Supreme Court established strict criteria for the disqualification of a list or a candidate, which were reviewed in para. 16 of the President’s opinion: dominant purpose; express declarations or unambiguous conclusions; non-sporadic conduct; and persuasive evidence.

            In putting those principles into practice, we examine each disqualification independently on its own merits, in accordance with the relevant cause for disqualification and the evidence referring to it, while not seeking any kind of political “symmetry” or “balance”. As I had the opportunity to say: “the voting in the Elections Committee is political, and thus the great caution that this Court must exercise as a party to the decision so as not to be infected by the political game” (EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi [6], para. 1 of my opinion) (hereinafter: the second Zoabi case)).

            And now to the matter on the merits.

2.         Sec. 7A(a)(2) of Basic Law: The Knesset – “Incitement to Racism”:

            The legislature stated its opinion loudly and clearly. Incitement to racism is politically out of bounds. Incitement to racism is contrary to universalist democratic values. Incitement to racism is incompatible with the values of the State of Israel as a Jewish state. Incitement to racism – not in this house and not in the Knesset. For this reason, the Kach movement was denounced and expelled from the community and placed beyond the bounds of law. Racially inciting discourse is harmful by its very nature, and as such, I am of the opinion that it should not be subject to the probability test.

3.         In the “last round”, Baruch Marzel’s candidacy was confirmed, but in his dissent, Justice Rubinstein expressed his opinion that we were concerned with “the sheerest of sheer costumes” (the second Zoabi case, para. 118 of his opinion). As the President so aptly demonstrated, the candidate Ben Ari did not even bother to put on a disguise. According to him, the logic is as follows: Whoever is not a Zionist is an enemy, the overwhelming majority of Israeli Arabs are not Zionists, therefore the conclusion is that the overwhelming majority of Israeli Arabs are to be viewed as enemies. The Attorney General was rightly of the opinion that Ben Ari should be disqualified, and we agree.

4.         Sec. 7A(a)(1) of Basic Law: The Knesset – “Negation of the existence of the State of Israel as a Jewish and Democratic State”.

            In the second Zoabi case, I noted that “the Jewish public must be sensitive to the dilemma of the Arab minority, but similarly, elected Arab representatives must conduct themselves with wisdom and sensitivity in regard to the state of which they are citizens and understand the sensitivities of the majority”. In the fascinating hearing before us, it could be inferred from the statements of those requesting the disqualification of Ra’am-Balad that a party that is not Zionist should be deemed as one that entirely rejects the existence of the State of Israel as a Jewish state and must, therefore, be disqualified. In my opinion, this argument insensitively pigeonholes a considerable part of the Arab population that, while not Zionist, identifies with the State of Israel and sees itself as an integral part of it. It is hard to accept that the State of Israel would make an outcast of anyone who is not a Zionist, or anyone who ideologically rejects the Zionist idea. Disqualifying a list or a candidate for “incitement to racism” reinforces both characteristics of the State of Israel as “Jewish and democratic”. Disqualifying a list or a candidate for discourse and speech that is not Zionist in accordance with the approach of those seeking disqualification in the present case constitutes somewhat of a lessening of the democratic element. Therefore, and for the purposes of the cause for disqualification under sec. 7A(a)(1) of Basic Law: The Knesset, the two components of “Jewish and democratic” must be balanced wisely and sensitively so that accusers will not say that our state is “democratic” for the Jewish majority and “Jewish” for the Arab minority.

            And note: we sing [in the National Anthem – trans.] “the soul of a Jew still yearns” with misty eyes, and the Law of Return, 5710-1950 is, indeed, the “Foundation Stone” of the State of Israel and a Jewish state. The Law of Return is the alpha and omega for the very existence of the State of Israel, and it is what ensures the existence of a Jewish majority in the State of Israel. But not every passing thought, notion, or expression that casts doubt about the Law of Return will inherently lead to disqualification given the strict tests for disqualification noted above (such as dominance), and perhaps the probability test as well. However, a bill to rescind the Law of Return, or a party platform that openly calls for the rescission of the Law of Return might move a list across the boundary of disqualification, and it would seem that Balad, almost as a habit, not infrequently walks on the boundary. It would not be superfluous to note that in the Tibi case (Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 40), President Barak was ready to accept the statement of MK Bishara that he did not demand the revocation of the Law of Return. From this we can infer the result had it been otherwise claimed. This brings us to the central piece of evidence presented to us in regard to Balad, which is the Basic Law: A State of all its Citizens Bill that it presented to the Knesset, and which in effect, expresses a desire to undermine the Jewish character of the state.

5.         A number of reasons led me to the conclusion that the Balad list should not be disqualified for that bill, even without addressing the question of the probability test.

            First, most of the Balad Knesset members in the prior Knesset are not on the current list, which changes its character. Second, that bill should be seen as a sporadic act of protest following the enactment of Basic Law: Israel – The Nation State of the Jewish People. The bill is not included in Balad’s platform, it is not claimed that it was part of its platform in the past, and no systematic, consistent activity in that direction was proven. The bill should, therefore, be viewed as a one-time act that does not, in and of itself, give rise to a cause for disqualification.

6.         These are the main reasons why I am of the opinion that that the Balad party walked on the margin but did not cross it, even though the bill brought it but a step away. For my part, I will leave the grounds for the Attorney General’s opinion – that Balad did not stand alone but rather as part of a joint list of Ra’am-Balad – for further consideration. One could, on the other hand, argue that the very fact of that partnership with another party placed Balad under a higher duty of care lest crossing the boundaries might harm the other party. The other side of the coin is that the unification of parties does not grant immunity from disqualification, such that parties that may join with Balad in the future will have to take that into account. I will, therefore, leave the matter for further consideration.

Justice U. Vogelman:

1.         I concur in the conclusions and the comprehensive opinion of my colleague the President, and with the main points of her reasoning.

2.         The principles applicable to appeal and approval proceedings with which we are concerned are grounded in a broad range of case law, which is appropriately detailed in the opinion of my colleague the President.

3.         My colleague the President addresses the difference between an elections appeal and an elections approval, and on the various approaches in our case law in regard to the scope of the Court’s review in the different proceedings. My colleague Justice I. Amit, for his part, addresses the caution that the Court must adopt, in his view, in proceedings such as these due to the fact that the vote in the Elections Committee if political.

4.         I see no need to set in stone the proper approach among those enumerated by my colleagues (inasmuch as each of them leads to the same result in the instant case). However, I would like to emphasize that, in my view, given the nature of the rights and balances involved, the “political” considerations cannot be given weight in terms of the constitutionality of the decisions, and that the political nature of the proceeding in the Central Elections Committee is not meant to influence the form of judicial examination and its scope.

5.         On the matter of disqualification for incitement to racism.

            The first matter I wish to address in this regard concerns the application of probability tests for the realization of the dangers that the causes for disqualification are intended to prevent (a question that has not yet been resolved in our case law). In the context of the said cause, I would like to point out that, in my view, there is no place for a “probability test” inasmuch as racist expression is not worthy of protection. In the words of Justice D. Beinisch: “Racism is the kind of affliction whose isolation and removal from the political and social arena is an essential condition for preventing its spread” (EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 88) (hereinafter: the Tibi case)).

            The words of Justice Procaccia in the same matter are apt:

The phenomenon of racism in the chronicles of history and the annals of the Jewish people is special and unique. Nothing compares to its rejection and the defense against it even among the many protections of the fundamental human rights that the constitutions of western states diligently labor to ground. The moral, ethical taint of incitement to racism, against the background of its deep opposition to the universal concept of human rights, and in view of the atrocities of the Holocaust of European Jewry that was annihilated due to racial theory, does not tolerate its inclusion on the podium of ideas and opinions of political discourse. That is so, even if there is no foreseeable danger whatsoever of the realization of the inciter’s dogma, and even if his words are like “a voice crying out in the wilderness” without echo and without being heard.

Racism is condemned, and it must be eliminated by virtue of the International Convention on the Elimination of All Forms of Racial Discrimination of 1966, of which Israel is a signatory. The parties to it pledged not to sponsor racial discrimination and to adopt immediate measures in order to uproot every phenomenon of racism (arts. 2, 4, and 5 of the Convention).

The condemnation of racism takes on a special dimension in Jewish tradition in view of the blood-soaked history of a nation that was a victim of the manifestations of this phenomenon over generations. Racism stands in contradiction to the fundamental values of the State of Israel as expressed in the Declaration of Independence, according to which full social and political equality must be ensured for all citizens regardless of religion, race, and sex. The depth and force of the condemnation of racism as a social phenomenon do not accord with granting of an opportunity to a candidate to run for office on the basis of racist ideas among the range of opinions and perspectives expressed in political discourse. Standing for election on the basis of racist ideas flies in the face of the educational, moral purpose of inculcating the principles of equality and tolerance in Israeli society. These ideas cross the bounds of the red line that guarantees tolerance even for expressing deviant ideas and views. Casting them out beyond the pale is necessary so that expressing them will not be interpreted, even by inference, as granting approval and legitimacy to those who hold them to participate in the life of the state (and compare: R. Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, p. 173).

                        […]

In this spirit, the condemnation of incitement to racism and its removal from the framework of political contest is a value unto itself, unconditional and unrestricted even where there is no attendant probability whatsoever of the realization of its potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entrance of inciters to racism into the political arena (compare the words of Justice E. Goldberg in the meeting of the Knesset Elections Committee in the matter of the disqualification of the Kach party, Oct. 5, 1988, p. 47ff.). Incitement to racism is condemned as a value of universal and national heritage, and it stands above and beyond the probability test of its foreseeable danger on the basis of some criterion or another. The contradiction between racism and the fundamental values of the stare is so deep that anyone who embraces it in his political thought should be disqualified from the outset (the Tibi case, pp. 89-90).

            I agree with every jot and tittle of these true words.

6.         Moving from the general to the specific – my colleague well described the factual grounds upon which we decided that the cause of incitement to racism is met in the case of Ben Ari, and it would be superfluous to reiterate the well-grounded presentation of the evidentiary foundations. Ben Ari’s incitement extends to a broad range of subjects, among them a call for excluding Arab citizens from residing within the limits of an Israeli city, recall dark periods in the history of nations. The addition of the cause for disqualification with which we are concerned to the Basic Law by the constituent authority of the State of Israel was intended for a war against such phenomena, and it is our role to interpret the Constitution and maintain its boundaries.

7.         The matter of Ben Gvir is different. I concur with my colleague’s conclusion – which ascribed weight to his declarations concerning changing his manner – that the foundation amassed in his regard does not amount to a “critical mass” that grounds a cause for disqualification.

8.         As for the Ra’am-Balad list – as my colleague notes, the entirety of the evidence adduced is not qualitatively different from what was presented to this Court in previous proceedings that concerned the question of the disqualification of Balad and members of the list in which it was held that it did not constitute a sufficient foundation for disqualification. I see no need to address the Basic Law bill that Balad presented, to which my colleagues referred, given that the Balad Knesset members who served in the last Knesset are not included in the current list, and given the clarification by the list’s attorney that the bill is not part of Balad’s platform.

9.         In the matters of Ofer Cassif and the Hadash-Ta’al list, as well, I concur with the conclusion that the evidentiary foundation is insufficient to ground the claimed causes for disqualification.

Justice M. Mazuz:

            I concur in the main points of the reasons and conclusions of President E. Hayut, and I wish to add two comments. Because they are not necessary for the decision, I will state then in brief:

1.         The cause of “negation of the existence of the State of Israel as a Jewish state”:

            As we know, the cause of “negation of the existence of the State of Israel as a Jewish and democratic state” under sec. 7A(a)(1) of Basic Law: The Knesset formerly comprised two separate causes: “Negation of the existence of the State of Israel as the state of the Jewish people”, and “negation of the democratic character of the state” (secs. 7A(1)-(2)). The two causes were unified in the framework of a 2002 amendment to Basic Law: The Knesset that added the authority to disqualify a candidate (not just a list) and the cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel. As explained in the Explanatory Notes, this unification derived from the desire for uniformity between the wording of sec. 7A and sec. 5 of the Parties Law, 5752-1992 (“and this because the two sections are interrelated”), and was not intended to introduce a change in the content of these causes by virtue of their unification.

            In practice, the unification of the causes, which involved a certain change in the wording of the cause, was the basis for an interpretation of this cause that was both different in content and broader in scope. While under the prior wording, the cause of “negating the existence of the State of Israel as the state of the Jewish people” addressed the negation of the view that the State of Israel is the state of the Jewish people in the sense of the place in which it realizes its right to self-determination, under the unified wording, the term “Jewish state” was interpreted as referring to the internal content of the state’s identity and the elements of the Jewish identity of the state from within (“the primary symbols” of the state and the “nuclear characteristics” of its Jewish identity).

            In my opinion, the proper interpretation of the cause for disqualification of “negating the existence of the State of Israel”, like the separate cause under the prior wording, refers to the identity of the State of Israel as the state of the Jewish people in the national sense, as the place in which it realizes its right to self-determination, and not as referring to internal features of the state that characterize it as a Jewish state. This position has consequences, inter alia, in regard to how to view the Basic Law: A State of all its Citizens Bill introduced at the time by Knesset members of Balad, however, in view of the President’s conclusions in this regard (para. 58), I see no need to expand upon my approach to the bill and I will only note that I agree in principle with the comments of Justice I. Amit in paras. 4-5 of his opinion.

2.         A Probability Test and Incitement to Racism:

            This issue has been addressed on several occasions in previous case law, beginning with the first Neiman case, and various opinions – mostly rejecting it in general, or at least in regard to the cause of incitement to racism – but it has been left for further consideration and remains undecided.

            I am of the opinion that there is no place for a probability test in applying the causes for disqualification under sec. 7A of Basic Law: The Knesset. The probability test has no grounding in the language of the law, and it raises many – theoretical and practical – difficulties in its application. I will not presume to exhaust all the reasons for this position, but will suffice with a few words: first, in terms of the interpretation of the law. As we know, the interpretation of a statute begins with its language and is limited by it. There are no grounds for requiring a probability test in the language of sec. 7A. Section 7A refers to objectives and actions, including statements, by a list or candidate. We are concerned with causes of “conduct” not “results”. Second, the Court, called upon to approve or review a decision by the Central Elections Committee to disqualify a candidate or list, lacks the tools for applying a probability test for the purpose of approving or rejecting the probability evaluation of the Elections Committee. A probability estimate in the public-political context is inherently speculative, and the Court would do well to refrain from it. Third, and this is the main point, sec. 7A treats of the lack of legitimacy of a list or candidate who meets the disqualification criteria to participate in the “democratic game”. The theoretical basis for disqualifying lists or candidates, as stated, does not suffice by preventing a real, concrete threat, but primarily concerns not granting legitimacy to lists of candidates whose objectives and actions are beyond the legitimate democratic boundaries for participating in the democratic elections.

            It would appear that the cause of “incitement to racism” under sec. 7A(a)(2) well demonstrates this. Incitement to racism and racist acts are unacceptable per se, as they are contrary to the most basic values of a democratic society, which is founded upon the idea of the equality of human beings. We are concerned with universal values accepted in the law of nations. Under the International Convention on the Elimination of All Forms of Racial Discrimination, known as the CERD Convention – signed by the State of Israel on March 7, 1966, ratified on Jan. 3, 1979, and entering into effect on Feb. 2, 1979 – the State of Israel assumed, like the other signatory nations, inter alia, the obligation to prohibit racial and other discrimination and to adopt all means, including legislation, to bring about its end (art. 2(1)(d) of the Convention). In 1985, together with the amendment of Basic Law: The Knesset and the addition of sec. 7A, the Penal Code was also amended with the addition of Article 1A: Incitement to Racism, which established various offences of incitement to racism (both amendments were included in the same pamphlet of bills – H.H. 5745 193). The offences of incitement to racism are conduct crimes, not result crimes, and do not comprise an element of probability (“it does not matter whether the publication did cause racism” – sec. 144B(b)).

            Incitement to racism is, therefore, prohibited and unacceptable without regard for the probability of the realization of its objectives. It is an illegitimate form of discourse in a democratic society. Incitement to racism does not represent any protected value that requires a balancing of interests. The value of freedom of expression, which is the life breath of democracy, was intended to protect non-violent public debate and to permit a conceptual contest among legitimate values in a democratic society. Racist discourse “pollutes” the democratic discourse and undermines the purpose of conceptual inquiry among the members of society and the free establishment of views on the basis of democratic values. Therefore, the reason for preventing the participation of a list or candidate that incites racism in the elections is not restricted to a fear of the realization of the objectives of the incitement, but is primarily concerned with the public value of not granting legitimacy to racist speech as part of the democratic discourse. In this sense, the cause for disqualification for incitement to racism is a special case of the cause relating to the negation of the democratic character of the state.

            Lastly, I would emphasize that I do not believe that the probability test is necessary for mitigating the causes for disqualification or for granting flexible tools for their application. To that end, the case law established a strict, narrow interpretive approach to the causes of disqualification. Strict criteria were also established that are implemented in judicial review of this matter, among them the demand that the objectives attributed to a list or candidate constitute a central, dominant objective and not a secondary, marginal issue, and the requirement of active, consistent, and systematic action for the realization of those objectives. It was further held that the evidence for disqualification must be persuasive, clear and unambiguous. All of these provide the Court with effective tools to ensure that the disqualification authority, which is an exceptional and intrusive authority, be exercised only in extreme, clear cases, without the need for the problematic means of a probability test.

Justice N. Sohlberg:

1.         If we were to interpret and implement the causes for disqualification in sec. 7A of Basic Law: The Knesset as written, as they would be understood by the average person, then not only would Dr. Michael Cassif be barred from candidacy for the Knesset elections. A plain reading of the section would, in all probability, lead us to conclude that additional lists and candidates whose matters have been examined by this Court over the years would also be granted this dubious honor.

2.         However, that is not the case. From the very outset, this Court adopted a strict approach to the legal interpretation of sec. 7 and to its application in practice. This approach reflects a value-based decision that democracy grants special – almost supreme – importance to the constitutional right to vote and be elected. Disqualifying a list or a candidate from standing for election to the Knesset must be the very last resort; one that is reserved for manifestly extreme case in which there is no room for doubt: “The essence of such a matter, the limitation of a basic constitutional right, inherently carries a standard of interpretation that must be strict and narrow, and section 7A should be reserved for only the most extreme cases. This interpretive approach does not conflict with the statute but is rather a result of a proper understanding of the purpose of the statute, which does not seek to limit freedoms, but to protect them against actual danger” (the second Neiman case, p. 187; emphasis here and below added – N.S.). This approach has become firmly rooted in the case law of this Court: “Preventing the participation of a party in the elections is a most extreme step. The right to vote and to be elected is a right of the highest constitutional level” (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], p. 802, per Deputy President A. Barak); “Preventing a party from participating in the elections is an extreme and exceptional step that in many ways directly contradicts the fundamental principles upon which democracy rests” (the Balad case, para. 3 of the opinion of President Beinisch); “Preventing participation in Knesset elections is an extreme step that is reserved for the most exceptional cases for which the normal democratic tools are insufficient” (the second Zoabi case, para. 75 of the opinion of President M. Naor).

            I will briefly summarize the guiding criteria as expressed in the case law: Barring participation in Knesset elections will only be done as when all else has failed.

3.         Recently, in the Basic Law: The Knesset (Amendment no. 47) (Prevention of Participation in Elections due to a Candidate’s Statements) Bill, the constituent authority expressed the view that it accepts the narrow path taken by the Court in applying sec. 7A. The bill expressly established that a person’s actions also include his statements. The Explanatory Notes clarify as follows: “The proposed amendment expressly anchors the approach accepted in the case law in this matter, according to which “actions” under sec. 7A of the Basic Law also include statements. Thus, the amendment is not intended to alter the Court’s case law according to which the application of sec. 7A of the Basic law will performed narrowly and strictly in order to protect the state’s most vital interests” (H.H. 675, p. 52). However, there was also some criticism of the direction of the case law, on the need to take care not to adopt an overly restrictive interpretation of the causes for disqualification in sec. 7A, while unduly expanding the boundaries (see, e.g., the second Zoabi case, para. 8 of the opinion of Deputy President E. Rubinstein).

4.         The criteria developed in the case law for the application of sec. 7A, which reflect the narrow interpretive approach, were set out in para. 16 of the opinion of my colleague the President. Primarily, in brief, one must show that the cause for disqualification can be found in the objectives or the actions of the list or candidate; those objectives or actions must form part of the dominant characteristics of the actions of the party or candidate; they can be learned from express declarations or from unambiguously probable conclusions; theoretical objectives are insufficient, but rather one must show systematic “activity in the field” that must constitute severe, extreme expression in terms of its intensity; and lastly, the evidence based upon the above must be “persuasive, clear, and unambiguous”.

5.         On the basis of those criteria, my colleague the President found, and my colleagues concur, that the evidentiary foundation in the matter before us paints an unambiguous and persuasive picture according to which Ben Ari “systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public” (para. 42 of the President’s opinion). Therefore, she held that he must be disqualified.

6.         I considered and reconsidered the matter. I carefully read the various statements, watched and listened. I considered the various clarifications and explanations over and over again, and the dilemma was difficult and weighed heavily. I did not easily decide to disagree with my colleague’s conclusion. The source of my dilemma was the substantial gap between the image of Ben Ari as reflected in the virtual arena – in the social networks – and that shown us in the Elections Committee’s hearings and in the Court. Thus, in his affidavit in the instant proceeding, Ben Ari rejected the claims about his racist views, and declared, inter alia, as follows:

I do not think that people are of different value due to their ethnic, national or religious origin. All human beings were created in the Divine image, and all human beings were granted free choice. Your own deeds will cause you to be near, and your own deeds will cause you to be far[1] […] In my view, the Arab National Movement, whose purpose is to destroy Jewish sovereignty through the use of violence and terror is the enemy of the State of Israel, of the Jewish people and of Zionism. I would like to emphasize that what makes it an enemy of the state, the people and of Zionism is not the ethno-national origin of its members and supporters, and not their religious belief.  What turns the members and supporters of the Arab National Movement into enemies are the political objectives that this movement established and the ways in which it acts for the realization of those objectives since the beginning of the 20^th century and to this day […] Anyone who accepts that the State of Israel is the state of the Jewish people and agrees that Israel is a Jewish and democratic state is a desirable citizen who is worthy of all the civil, social and political rights without regard for religions, race, sex, ethnic origin or skin color. In addition, I am of the opinion that basic human rights are granted to every person as such, and that the state must act justly and fairly toward every person without regard for religion, race, sex, ethnic origin, or skin color (paras. 9, 16-17 of the affidavit).

7.         Further on in the affidavit, Ben Ari addresses all the statements quoted in his regard (as opposed to in the hearing before the Elections Committee, in which he addressed only a part of them) and explained that “all of my arrows are directed against those who are not loyal to the State of Israel and hostile to the Zionist enterprise. Even if, at times, my words may sound or be apprehended as general, that absolutely does not reflect an intention to generalize, and in no way reflects my true, consistent opinion” (para. 22 of the affidavit). Like the cases adjudicated by this Court in the past, real doubt arises in regard to the sincerity of Ben Ari’s declarations.

8.         Three examples from the past: (a) Baruch Marzel declared, at the time, that he had recanted his prior views, that he sought to act only in accordance with the law, accepts the principles of democracy, and had withdrawn from the path of generalized statements of the Kach movement. A long line of evidence led the Court to a conclusion in regard to “a real doubt as to the sincerity of Mr. Marzel’s declarations, according to which he had disavowed his approach and his former racist, undemocratic ideology” (the Tibi case, para. 81 of the opinion of President A. Barak). Later, prior to another election, President M. Naor stated: “I, too, do not believe that Marzel has changed his views and thoughts” (the second Zoabi case, para. 33). (b) Hanin Zoabi declared, at the time, her opposition to violence, and nevertheless “it was difficult for me to be persuaded that MK Zoabi does not support armed struggle” (ibid., para. 7 of the opinion of my colleague Justice I. Amit). (c) MK Azmi Bishara argued, at the time, that he opposed violence and armed struggle, and he, too, did not earn much trust: “There is doubt in our hearts. But the doubt must act – in a democratic state that believes in freedom and liberty – in favor of the freedom to vote and to be elected” (the Tibi case, para. 46 of the opinion of President A. Barak).

            As may be recalled, Hanin Zoabi and Azmi Bishara served honorably as members of the Israeli Knesset. Marzel’s candidacy was also approved, twice, although he was not elected. And what of the case of Ben Ari? In the end, his statements “in real time” speak for themselves, and clearly to his detriment. I will not belabor the point and repeat what has already been presented at length in the opinion of my colleague the President. I will suffice by referring there, and the reader will not be pleased. The statements are not at all consistent with the tolerant, placating tone that arises from the above affidavit presented in these proceedings. Which Ben Ari should we therefore believe?

9.         Ultimately, I inclined to the view that there is no justification for ordering Ben Ari’s disqualification. I have not arrived at this conclusion because I take incitement to racism lightly, but because I am strict in regard to the fundamental constitutional right to vote and to be elected. Given the strict criteria applied in the case law of this Court over the years, and in view of Ben Ari’s explanations and clarifications, there is doubt as to whether the statements amount to incitement to racism or a negation of the democratic character of the State of Israel to the point that would justify barring Ben Ari from running in the Knesset elections. Indeed, the fundamental right to vote and to be elected is not absolute. In appropriate circumstances, it is proper to limit it, but that is not the situation in his regard. While the evidentiary foundation in the matter of Ben Ari is broad in scope, it is not more exceptional, extreme and severe in “quality” and intensity than matters brought before this Court in similar cases (both in the Tibi case and the second Zoabi case). While Israeli democracy requires protection, it is still strong enough to comprise even Ben Ari as a member of Knesset (as we may recall, Ben Ari already served in the position in the recent past, in the years 2009-2013).

10.       This result is required for two additional considerations that are of a practical nature: First, the procedural framework in which we act. As we know, sec. 7A was presented to the Knesset together with the Penal Law (Amendment no. 24) Bill, 5745-1985, which established an express criminal prohibition upon incitement to racism. “We are determined to combat the phenomenon of incitement to racism with full force. To that end, we decided to act on two planes – on the constitutional plane, by including incitement to racism as a cause for the disqualification of a list of candidates from participating in Knesset elections, and on the penal plane – establishing an offense of incitement to racism in the Penal Law” (from the statement of the Minister of Justice, MK Moshe Nissim, in presenting the bills for a first reading; Knesset Record (5745), p. 2381). As opposed to the criminal process, which is conducted in accordance with a clearly defined framework of procedure, which includes, inter alia, an evidentiary proceeding in which it is possible to question and interrogate carefully, in the constitutional proceeding before this Court, the factual examination is far more limited. This requires us to be especially careful in drawing conclusions and establishing facts on the basis of the evidentiary foundation presented before us. Second, lest we forget: Even after a candidate has cleared the hurdle of sec. 7A, Israel is not bereft:[2] “The very fact that a candidate is permitted to contend in the Knesset elections does not mean that from the moment he is elected he may do whatever he pleases. There is still the possibility of rescinding the immunity of a member of Knesset in certain situations, placing him on trial if it be found that he committed a criminal offense, and terminating his tenure in the Knesset if he is found guilty of an offense of moral turpitude” (the first Zoabi case, para. 35 of the opinion of President A. Grunis).

11.       It cannot be denied that Ben Ari’s statements – at least in large part – are hard to digest. I was, indeed, very annoyed by his callous style, the racist tone, and the coarse generalities. It does not do honor to him or to those who listen to his teachings. We can and should protest against evil, and against those who seek our harm and our lives – foreign and domestic. But we are obliged – particularly as public servants – to do so responsibly and carefully. Nevertheless, even when common sense protests and the soul recoils from Ben Ari’s statements, there is still no justification for placing him beyond the pale. The strength of freedom of expression, the strength of democracy “is not the recognition of the right to speak pleasantries that are soothing to my ears. Its strength is in the recognition of the right of the other to say things that are grating upon my ear and that pierce my heart” (HCJ 14/86 Laor v. Theater and Film Review Board [22], p. 441). That is true of freedom of expression in general, and of political speech in particular, when what is at stake – we will not refrain from repeating – is a mortal blow to the fundamental constitutional right to vote and to be elected.

12.       I wholeheartedly concur with my colleague the President on our obligation to combat racism uncompromisingly. As a son of my people and a descendant of my family, I am well aware of where the terrifying harm of hate of the stranger and the different leads. But make no mistake, the two are not comparable, and not even close. And note: the struggle against racism is not only on the legal plane, but also – and primarily – on the educational plane, “in a reassessment of the ways of educators and pupils alike, in all walks of our society” (the first Neiman case, p. 302). In this regard, it would be proper to quote what Rabbi Zvi Yehuda Kook wrote in the month of Nissan 1947 in a letter to the principals and teachers of a Jerusalem school. The Minister of Justice, MK Moshe Nissim, quoted part of the letter, titled “Embarrassing and Sad Conduct of Children”, in presenting the bill in regard to sec. 7A to the Knesset plenum for a first reading, as follows:

To the Principal and Teachers of a school here in our Holy City, may it be rebuilt and reestablished!

I must bring the following matter to your honorable attention, as follows: This morning, while passing by the school on the way to Yaffo-Ben Yehuda Street, I saw some from among a group of children from the school repeatedly hitting and coarsely taunting Arab peddlers who passed there. Twice together – at the two Arabs, one young and one old, who were apparently partners, beginning with the younger one and continuing with the older one with particular coarseness. This occurred a short distance from the gate to the schoolyard. Then again at a youngster on the sidewalk of Jaffa Road, at the corner of Ben Yehuda Street.

I was saddened and very ashamed by what I saw. Due to their running and mischief, I was unable to catch them and rebuke them for this. I do not know who these children are, or who are their parents and teachers. I know only that they were from the school. Not all of them, not all of the group of children from the school, took part in that despicable harm and taunting, but some of them. And I believe that some of them protested.

Nevertheless, the very existence of this fact, which pained and insulted me, as noted, requires that I bring to your awareness the need for greater and special educational attention to bringing an end to such possibilities, both in and of itself as a matter of Jewish law and morality, and in terms of the practical community and political value of preserving peace and good neighborliness.

With all due respect and in the hope of the glorification of God and the salvation of his people and heritage.

            Here we see plain, clear, resolute, human Jewish morality. We must walk in its light.

13.       For the same reasons for which I was of the opinion that we should not order the disqualification of Ben Ari, I arrived at the conclusion that the Election Committee’s decisions in the matters of the Ra’am-Balad list and of Dr. Ofer Cassif should be overturned and that the appeal in regard to the Hadash-Ta’al list should be denied, and that we should hold that they are not barred from participating in the Knesset elections. As in regard to the decision is the matter of Ben Ari, this decision, as well, was not at all easy. Some of the statements presented to us – both those attributed to Cassif and those attributed to other members of the Hadash-Ta’al list – are not pleasant to the ear, to put it very mildly. But just as we are enjoined and stand ready to defend against those who would incite to racism and thereby undermine the democratic character of the State of Israel, so we must defend against those who would undermine its Jewish character and who express support – express or implied, publicly or privately – terrorist attacks and murder. In the course of the debate on sec. 7A, prior to its first reading, MK Michael Eitan rightly stated in this regard:

The State of Israel has a political need to provide an answer to a long list of families of Jewish victims who were harmed solely because they are Jews here in the State of Israel on the question of whether the purpose of defensive democracy, that has been and is employed, is to protect them, as well. Can Jews in the State of Israel who are harmed by the agents of the PLO also find an answer in such legislation that is intended to defend democracy to the fact that there are people in the State of Israel who identify with the PLO and see themselves as its agents? And there is also a Knesset faction that once sent a telegram expressing solidarity to the Palestine National Council in Amman, which identifies with the PLO. Where is defensive democracy in their regard? Where is the symmetry? Should democracy defend itself only against insane Jewish fanaticism?

                        […]

When we discuss the issue of defensive democracy, we have to provide an answer to the Bromberg family, the Tamam family, the Ohana family, and a long list of families that daily ask the simple question: Is the purpose of defensive democracy to defend us as well, or is the only answer that marginal group to which we all take exception? And when I ask that question, I understand that we are treading a delicate, sensitive line because we are concerned with a democratic regime, we are not interested in silencing debate, we are not interested in outlawing lists. But in any event, we must ask ourselves the question what is the boundary line?

14.       Indeed, the question of where the boundary lies is difficult. It would seem that thirty years after the constituting of sec. 7A of Basic Law: The Knesset, there is no clear, unambiguous answer to this. In any case, as presented above, the special importance of the fundamental constitutional right to vote and to be elected obligates us to strict criteria whose bottom line is that when there is doubt, there is no doubt. Therefore, and for the reasons stated in the opinion of my colleague the President, I am of the opinion that what has been adduced before us is insufficient for ordering the disqualification of the candidacy of Cassif, the Hadash-Ta’al list, and the Ra’am-Balad list.

15.       One parenthetical objection: In the matter of the Balad party, the Attorney General noted that “were the Balad party running independently … there would be reason to carefully consider its disqualification”. However, “in view of the fact that under the prevailing legal situation, there is no possibility of disqualifying only half of a list (as opposed to disqualifying an entire list or disqualifying specific candidates on the basis of evidence relating to them personally), and in view of the fact that there are almost no arguments against the Ra’am list, it is necessary to examine whether the existing evidence suffices to justify disqualifying the joint list, in view of the case law of the honorable Court in regard to the need to severely limit such a disqualification”. My colleague the President did not expand upon that matter, having found other reasons for not ordering the disqualification of Balad (although she attributed weight to the fact that we are concerned with a joint list). For my part, I find the present legal situation very problematic, when a party that prima facie meets the requirements of one of the causes for disqualification can join with another party such that the joint list provides it with a “city of refuge”. This should be given consideration when and if the need to address this question arises in the future.

16.       In conclusion, where my opinion accepted, we would overturn the Election Committee’s decision in EDA 1806/19; deny the appeals in EA 1866/19 and EA 1867/19, and grant the appeal in EA 1876/19, and hold that Dr. Ofer Cassif, Dr. Michael Ben Ari, Advocate Itamar Ben Gvir, the Hadash-Ta’al list and the Ra’am-Balad list are not barred from standing for election to the Knesset.

Justice A. Baron:

            I concur in the comprehensive opinion of President E. Hayut, both in the conclusion she reached in each of the proceedings before us and in her reasoning. I will briefly add my view of the disqualification of the candidacy of Dr. Michael Ben Ari (hereinafter: Ben Ari) for election to the 21^st Knesset, in which we are concerned with an exceptionally extreme step, akin to a “doomsday weapon”.

            The racist statements in the warp and weave of all of the recorded statements of Ben Ari cry out from the page and scorch the ears. Words are not “just” words. There are times when words are also acts, and in the case of Ben Ari’s statements they constitute a clear act of incitement to racism. Ben Ari makes improper use of words to arouse hatred against the Arab public, while portraying all Arabs as murderers and bitter enemies. His statements delegitimize an entire community, instigate conflict and strife, and even call for actual violence against Israeli Arabs. Moreover, we were presented with a solid evidentiary foundation that clearly shows that we are concerned with a severe, extreme case of incitement to racism. The racist statements are explicit, systematic (some 40 instances since 2017 alone), constitute a dominant characteristic of Ben Ari’s statements, and gain wide exposure in the media and on the social networks.

            The principle of freedom of expression, and particularly freedom of political expression, is a cornerstone of a democratic regime. According to this principle, “freedom of expression is not just the right to say or hear what is generally acceptable. Freedom of expression is also the freedom to express dangerous, irritating, deviant ideas that the public reviles and despises” (HCJ 399/85 Kahane v. Broadcasting Authority [23], p. 280). Words and statements can thus find refuge under the aegis of freedom of expression even when they express marginal ideas, and even when they arouse disgust, but given their “critical mass”, as noted above, Ben Ari’s words constitute incitement to racism and therefore undermine fundamental principles of democracy. As the case law of this Court has already made clear, “one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14). In this regard, I would note that in my opinion, as well, incitement to racism does not merit any protection, and therefore there is no place for applying a “probability test” as a condition for the application of the cause under sec. 7A(a)(2) of Basic Law: The Knesset.

            Ben Ari did not apologize for his statements and did not retract them. And if that were not enough, even his explanations continue to reflect a racist attitude toward the Arab public. According to Ben Ari, his recorded statements are not directed against the entire Arab public, but only toward those among it who are not “loyal” to the State of Israel. However, the recordings deliver a clear message that any Arab is disloyal, a traitor, and enemy, and dangerous by definition. We are, therefore, concerned with an extreme case that requires Ben Ari’s disqualification from participating in the elections for the Knesset.

Justice D. Mintz:

            I concur in the opinion of my colleague the President in regard to the partial granting of the appeal in EA 1866/99 and with the holding that Ben Ari is barred from participating in the elections for the 21^st Knesset, which is not the case in regard to Ben Gvir. I also agree that the appeal in EA 1867/19 should be denied, and that it should be held that the Hadash-Ta’al list is not barred from contending in the elections for the 21^st Knesset. However, I cannot agree with the position in the matter of overturning the Election Committee’s decision in EA 1876/19 in the matter of the Ra’am-Balad list and in EDA 1806/19 in the matter of MK Ofer Cassif. In my view, those decisions should be left standing, and we should hold that the Ra’am-Ta’al list and MK Cassif are barred from participating in the elections for the Knesset, as I shall explain.

Foreword

1.         The starting point for this discussion is that the restrictions upon the constitutional right to vote and to be elected to the Knesset must be minimal, and they must protect the most vital interests of the state (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], pp. 802-803). This Court has recognized the justification for limiting those rights even before an express provision was enacted to permit the disqualification of a candidate or list from participating in the elections for the Knesset when it was long ago held that the right to vote and to be elected can be limited in order to protect the very existence of the state (EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the 6^th Knesset [8], p. 387) (hereinafter: the Yeredor case); EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset [4]) (hereinafter: the first Neiman case)). And as Justice J. Sussman stated: “Just as one need not consent to be killed, so a state need not agree to be annihilated and wiped off the map.” (the Yeredor case, p. 390). The restriction of rights is justified in the name of the right of a democracy to defend itself against those who would seek to employ democratic tools for the purpose of negating the very existence of the state, harm its fundamental principles or advance anti-democratic objectives (EDA 9255/12 Central Election Committee v. Zoabi [3], para. 8 of the opinion of President A. Grunis); EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi [6], para. 7 of the opinion of President M. Naor) (hereinafter: the Zoabi case).

2.         The desire to prevent the use of democratic tools to advance anti-democratic objectives that undermine the existence of the state stood at the basis of the enactment of sec. 7A of Basic Law: The Knesset (hereinafter also: the Basic Law), to which various amendments were made over the years. The last, in 2017 (Basic Law: The Knesset (Amendment no. 46), 5777-2017 (hereinafter: Amendment no. 46)) clarified that a candidate could be disqualified if his objectives or actions, “including his expressions”, included the negation of the existence of the State of Israel as a Jewish and democratic state, incitement to racism or support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The legislature had its say and defined the boundaries of the right to vote and to be elected in light of the basic and most vital principles for the existence of the state.

3.         It should be noted that sec. 7A of the Basic Law is not the only legal provision that restricts the use of a right granted by democracy in order to prevent harm to the basic, most vital principles for the existence of the state in general, and its existence as a Jewish and democratic state in particular. This purpose is also expressed in the framework of sec. 5 of the Parties Law, 5752-1992, which denies the possibility of registering a party, inter alia, for the causes enumerated in sec. 7A of the Basic Law. Section 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 defines the limits of the material immunity granted to an elected official by virtue of his office in a manner similar to that in sec. 7A (HCJ 11225/03 Bishara v. Attorney General [13], pp. 306-307). As the President also noted, the Basic Law was amended in 2016 to include a provision authorizing the Knesset to end the tenure of a member of the Knesset for incitement to racism or for supporting armed struggle against the State of Israel (the cause of negating the existence of the State of Israel as Jewish and democratic was not included in the framework of that provision in view of its being general and more ambiguous, and upon the presumption that the Knesset plenum would have difficulty applying it (see: HCJ 5744/16 Ben Meir v. Knesset [12], para. 29 of the opinion of President E. Hayut).

4.         These supplementary provisions define a clear boundary beyond which actions, objectives and expressions are not legitimate for elected representatives and for a party or list of elected representatives. The gates of the house of representatives are not open to those who seek to harm the character of the State of Israel as Jewish and democratic (including the cause of “incitement to racism”, which constitutes a special case of harm to the democratic foundations of the state) or to support an armed struggle against it and thus to support a threat to its very existence. What is concerned are actions that do not afford material immunity for those who succeeded in being elected to the house of representatives. Some of those causes also permit the termination of the tenure of those who seek the state’s harm. The underlying premise is that a person who seeks to take an active part in Israeli democracy and its institutions must accept the principles of its existence and the democratic “rules of the game” (see, for example: EDA 11280/02 Central Elections Committee v. Tibi [1], p. 23 (hereinafter: the Tibi case)). This, even though such actions or expressions may sometimes fall within the bounds of freedom of expression granted to every person in the state. In other words, what is permitted to every person is not necessarily granted to a person who seeks to be elected to the legislature. The reason for this is clear: the principle of freedom of expression grants every person the freedom to express himself even in a manner that contradicts the principles of the Jewish and democratic regime of the State of Israel (within the bounds of the law). However, permitting a person who voices such ideas to be elected to the legislature may lead to a situation where he will “import” his ideas into the legislature and thus undermine the foundations of the regime upon which the state rests by implementing or realizing his ideas. In this regard, Justice T. Strasburg-Cohen nicely distinguished the two (in the Tibi case, p. 70):

It would be appropriate to note that Israeli democracy does not prevent Knesset Member Bishara from expressing his views, which he terms “theoretical”, “philosophical”, or “historical”, from any platform, in accordance with the law. However, as far as membership in the Knesset is concerned, those views that are part of his political views, and he seeks to implement and realize them, inter alia, by means of his membership in the Knesset. Therefore, those views greatly deviate from theory, philosophy, and history and cross into the area of political activity.

The Causes for Disqualification and Amendment no. 40 of the Basic Law

5.         The criteria established in the case law in regard to the implementation of the provisions of sec. 7A of the Basic Law were clarified at length by the President, and I do not intend to dwell upon the matter. I will only say a few words about the distinction in the framework of this provision between disqualifying a candidate and disqualifying a list from participating in the Knesset elections. Thus, while the section establishes that “a list of candidates shall not participate in elections to the Knesset … should there be explicitly or implicitly in the goals or actions of the list …” (emphasis added – D.M.) one of the causes enumerated therein. The wording in regard to the disqualification of a candidate is somewhat different. As it reads at present, after Amendment no. 46, the disqualification of a candidate shall be possible “should there be in the actions of the person, including his expressions” one of the causes enumerated in the section. This difference is no trifling matter.

6.         As we know, a law is interpreted in accordance with its language and purpose. First, the starting point of interpretation is the language of the law, where the written text should be given the meaning that its language can carry (Aharon Barak, Interpretation in Law – Interpretation of Statutes 81 (1993) (Hebrew) (hereinafter: Interpretation in Law); HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner [24], para 9). The language is the framework for the work of the interpreter, and he may not breach it (HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset [5], p. 702). When the text tolerates different meanings, the interpretation that realizes its purpose should be chosen (Interpretation in Law, 85). In the present matter, as noted, Amendment no. 46 added the words “including his expressions” to sec. 7A of the Basic Law in regard to a candidate. According to the plain meaning, statements that can undermine the existence and fundamental principles of the state are sufficient to lead to the disqualification of a candidate from being elected to the Knesset, and there is no need for acts. That is also the interpretation that is consistent with the purpose of the section, which is intended to contend with those who seek to employ democratic tools in order to further anti-democratic objectives.

7.         Indeed, as the President noted, the Explanatory Notes to the bill state that the amendment was not intended to change the case law of the Court “according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state” (H.H. Knesset, 675). It is also important to explore the legislative history of legislation, through which it is possible to ascertain the legislative intent and purpose (Interpretation in Law, 161; CA 4096/18 Chacham and Or-Zach v. Assessment Officer [26], para. 20). However, I cannot concur with the position that the language of the amended provision is meaningless and that what has been is what will be. As has been said: “The legislative purpose, and certainly the legislative history, cannot give the law legal meaning that it cannot bear” (Interpretation in Law, 353). Indeed, there is nothing in Amendment no. 46 that would violate the principle that the provisions of sec. 7A of the Basic Law be interpreted narrowly. I also accept that the words of a candidate or the Knesset, as well as his deeds, be examined meticulously, inasmuch as disqualification remains an extreme act that should be employed only in exceptional circumstances, as has been held in the past (see, e.g., EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset [2], para. 3 (hereinafter: the Balad case)). Nevertheless, that does not mean that the amendment does not affect the causes for disqualification established under sec. 7A of the Basic Law as we knew them in the past.

8.         First, one cannot ignore that in the past, the view was expressed in the case law of this Court that “expressions”, as opposed to “actions” do not fully fall within the compass of sec. 7A of the Basic Law. Thus, for example, in the Zoabi case, Justice H. Melcer noted: “An action in Israel’s sub-constitutional law does not generally include expression, and therefore, when the legislature sought to treat of expressing an opinion orally or in writing, it did so separately, alongside the action, or defined: “an action including an expression” (para. 2b of his opinion; and compare para. 121 of the opinion of Deputy President Rubinstein in the same matter). If, at the time, there was any doubt whether “expressions”, as distinct from “actions”, could be included under the provisions of sec. 7A of the Basic Law, then since the enactment of Amendment no. 46 of the Law, it has been expressly clarified. The legislature made itself unambiguously clear that the power of a word is as good as the power of an action. As was said: “Death and life are in the hand of the tongue” (Proverbs 18:21), “Does the tongue have a hand? This comes to teach us that just as the hand can kill, so the tongue can kill…” (Babylonian Talmud, Arakhin 15b).

9.         Second, although the line separating “expression” and “action” is not always clear, we cannot ignore that the interpretive principles outlined in the past in regard to the causes for the disqualification of a candidate placed emphasis on the candidate’s actions as against his expressions. Thus, for example, “actions” that must be given severe, extreme expression was spoken of (the Tibi case, p. 17). As for the third cause, which concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel, it was held that such “support” can be “material” or “political” (the Tibi case, p. 26; the Balad case, para. 7). Thus, Amendment no. 46 has the potential to change the criteria that were developed for the disqualification of a candidate, which have, until now, been based upon those established for the disqualification of lists.

The Probability Test

10.       Another matter that requires examination, and which should be addressed prior to diving into the appeals before us, is the question of the applicability of “the probability test” noted by the President, that is, whether the participation of a party or a candidate can be prevented from participating in the elections where it has not been proven that there is a probability that they may actually realize one of the causes established under sec. 7A of the Basic Law. This question already arose in the first Neiman case, which was adjudicated prior to the enactment of sec. 7A of the Basic Law, in regard to the disqualification of a list. In that matter, Justice A. Barak expressed his view that although the matter was not expressed in either the majority or minority opinions in the Yeredor case, the disqualification of a list is possible only when there is a “reasonable possibility” that the party’s platform will be realized in practice. However, after the enactment of sec. 7A of the Basic Law, it was clearly established in EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12^th Knesset [5], 188 (hereinafter: the second Neiman case) that:

In setting forth the principles of sec. 7A, the legislature did not require the existence of a clear and present danger, the probability of danger arising from the objectives and conduct of the party in question, or any similar test that looks to the connection between the condemned action and the possible results. Through this, the legislature changed the legal status until the enactment of Basic Law: The Knesset (Amendment no. 9).

            Thus, in enacting sec. 7A of Basic Law: The Knesset, the legislature abandoned the possibility of “the probability test”. In this regard, I join in the comments of my colleague Justice M. Mazuz. The provisions of the Basic Law contain no requirement for a reasonable possibility of the actual realization of the threat arising from the actions or platform of the list or its objectives (or from the actions of a candidate or his objectives, under the current wording of the section). There is firm support for the view that the matter was decided long ago in the second Neiman case, despite the questions that later arose in the Tibi case. In brief, I would note that I also find great substance in the view of Justice E. Mazza in the Tibi case (pp. 98-99) that making disqualification contingent upon the probability test could render sec. 7A devoid of all content, inasmuch as the more extreme, severe and outrageous the message, the less the probability of its actually being realized.

“Critical Mass”

11.       The case law of this Court has established that in order to approve a disqualification decision, the Court must have before it evidence that is “persuasive, clear and unambiguous” (the first Neiman case, pp. 250-251; the second Neiman case, p. 197). When the Court is convinced that such evidence has been laid before it, then the material thus constitutes the critical evidentiary “mass” required in this regard (see: the Tibi case, p. 42). This evidence can satisfy the Court as long as it is convinced of its truth, as the Court does in every matter given to its decision.

            This is not a quantitative but a qualitative test. If, for example, the Court is convinced by a single piece of evidence (and unlike this case in which there is a compendium of evidence) that can decide the matter in a certain direction, then it can base its decision thereupon. Only then will that single piece of evidence constitute a “critical mass”. As opposed to this, sometimes there is an accrual of many pieces of evidence whose force does not tip the scales and it will not constitute a “critical mass”. There is nothing actually new in this (see, for example, in the various proceedings: CrimA 7007/15 Shmil v. State of Israel [27], para. 22; CA 8742/15 Astrolog Publishers Ltd., v. Ron [28], para. 44; Yaakov Kedmi, On Evidence, Part IV, 1761ff. (2009) (Hebrew)). Indeed, the force of the evidence required for a decision changes in accordance with the category of the matter given to the Court’s decision. Sometimes, evidence that banishes all reasonable doubt is required. Sometimes, evidence that tips the scale of probability is required. Sometimes, “administrative” evidence of varying degrees is required. This, too, is not new (see, for example: CrimA 961/16 Alharoush v. State of Israel [28], para. 15; AAA 3326/18 A. v. Director of Firearm Licensing [30], para. 20). The present matter requires highly persuasive administrative evidence, and not necessarily a large amount of evidence. It is not the quantity that is decisive, but the quality.

            And now to the matter before us in the proceedings in which I disagree with my colleagues.

EA 1806/19 In the Matter of Cassif

12.       As noted, my colleagues decided not to disqualify Cassif’s candidacy for the Knesset elections, and I cannot concur. In my view, an examination of the material presented to us reveals that there is no room for doubting that Cassif’s statements clearly cross the legitimate boundaries defined in the framework of sec. 7A of the Basic Law. Thus, inter alia, Cassif published the following:

Uniting the democratic forces for a struggle against the Judeo-Nazism that is taking over our society is not enough, although it is certainly needed, there is a necessity for changing the methods, you don’t sing songs against fascism, you fight (report on Channel 20, May 22, 2016, quoting Cassif).

            In another report, he is heard saying that “in the Israeli discourse that the current Israeli government has created, killing Arabs is legitimate. This is how one descends into the abyss of what happened in Germany 80 years ago” (report of Channel 20 of April 12, 2018). Similarly, in regard to the Hamas, which is known to be a terrorist organization that is waging a murderous war of terror against Israel (and see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior [31], para. 10 of the opinion of Deputy President M. Cheshin), Cassif is quoted as saying that the organization is a “political party” (report on Channel 20 of April 11, 2018). In addition, in an article on the Makor Rishon website from Feb. 7, 2019, it is reported that in the course of an interview with him, he stated that the State of Israel must not be a Jewish state. In addition to those statements, his clear, unambiguous statements expressed in a personal interview in the Ha’aretz supplement of Feb. 8, 2019, entirely fall within the scope of two of the causes for disqualification under sec. 7A: negation of the existence of the State of Israel as a Jewish and democratic state, and support for armed struggle by a terrorist organization against the State of Israel. Thus, Cassif presented an unadorned statement of his worldview, which includes the revocation of the Law of Return, 5710-1950 (hereinafter: The Law of Return) (p. 28 of the interview) and changing the symbols and anthem of the state (p. 26 of the interview).

            One cannot ignore that it is his position that The Law of Return should be revoked, as if it were a stumbling block rather than a law that expresses a supra-constitutional principle grounded in the Declaration of Independence, the Jewish people’s right to self-determination, and its connection to its homeland (see, for example: HCJ 7625/06 Rogachova v. Ministry of Interior [31], para. 28 of the opinion of President M. Naor; Ariel Bendor & Elichai Shilo, Israel as a Jewish State: Constitutional Significance, in Strasburg-Cohen Volume 160 (2017) (Hebrew)). Cassif’s clear statements fall completely within the bounds of statements that express the negation of the most nuclear foundations of the State of Israel as a Jewish and democratic state, as defined long ago in the Tibi case.

13.       However, these statements are dwarfed in their intensity in view of what Cassif stated about harming IDF soldiers. This is what he said:

Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable (p. 26 of his interview with Ha’aretz).

            We are concerned with matters that are most explicitly included in the cause for disqualification for support for armed struggle against the State of Israel. The fact that harming soldiers, in certain circumstances, is viewed differently from harming civilians under international law, or that it can be defined, according to Cassif, as “guerilla warfare”, does not change the fact that his statements explicitly express granting legitimacy and support for armed struggle against the State of Israel in accordance with the cause of disqualification under sec. 7A of the Basic Law. We are concerned with clear, unambiguous statements that cannot otherwise be interpreted or explained. There is “cold comfort” in that Cassif does not see such harm as “something wonderful, delighting, or desirable”.

14.       I do not find any real repudiation of these strong statements in Cassif’s statements before the Central Elections Committee or in the affidavit he submitted to the Committee, other than a denial of things attributed to him in the Makor Rishon newspaper (sec. 10 of the affidavit submitted to the Elections Committee), which, in any case, can be given only minimal weight in view of their being “second hand”. Cassif tried to place his extreme statements in a “political” context (pp. 29-30 of the transcript of the Elections Committee hearing of March 6, 2019), but this does not constitute a retraction of his harsh statements. In view of the severity and clarity of the statements, a general declaration alone, as Cassif expressed in para. 9 of his affidavit to the Elections Committee, is insufficient: “The request to disqualify my candidacy is a factual distortion and misleading interpretation of my words, and I therefore completely deny what is cited there”. It might have been expected that Cassif would clarify what that “factual distortion” was, and what misleading interpretation was given to the words. But other than this general, vague statement, what Cassif declared is insufficient to refute the existence of the solid evidence grounding the causes for disqualification.

            Cassif indeed notes, in a general way, in his affidavit that he “opposes all forms of violence against any person” (Cassif’s affidavit of March 3, 2019, para. 11). However, he in no way retracted the things he said in that interview – and not what he said in regard to harming IDF soldiers, in particular. On the contrary, in his affidavit, Cassif emphasized that in that interview in the Ha’aretz supplement he noted that he opposes harm to innocent civilians (ibid.). And as for harming IDF soldiers? Cassif’s silence is deafening.

15.       In his affidavit, Cassif reiterates his explanation that the statements attributed to him are, at most, “isolated” statements that “were made in order to sharpen a particular idea”, that the style of expression that included the term “Nazi” is not “characteristic” of him in general, that the statements were made in the heat of political debate, and that we are merely concerned with metaphor (para. 13 of the affidavit to the Elections Committee of March 3, 2019). However, it cannot be said that Cassif denies those expressions, retracts or denounces them, but at most, he explains them with various excuses. In the hearing before the Elections Committee, as well, Cassif did not express a clear, concrete disclaimer as to what he said, and in particular, I did not find any clear disclaimer of the statement that there is legitimate and moral justification for harming IDF soldiers. In the end, Cassif was kind enough to tell the Committee that he opposes violence (p. 34 of the transcript of the Elections Committee hearing of March 6, 2019). But that, as noted, is not enough. General statements according to which he rejects and opposes violence are insufficient in view of his sharp, clear statements in regard to harming IDF soldiers. According to Cassif’s approach, harming soldiers is not a form of “violence”. Moreover, when he was expressly asked in the Elections Committee hearing: “When you justify terrorist attacks upon IDF soldiers, is that not violence?” (ibid.), he did not provide a pertinent answer. In response to the question, he diverted to the causes for disqualification: “We are speaking here the language of the law, and we are talking about whether there are causes for my disqualification in light of Basic Law: The Knesset…”, while he repeated his general position that “I never even hinted at support for armed struggle or violent struggle at all. That is one cause that I do not meet”.

16.       Even Cassif’s repeated excuse that he made the statements as a “regular citizen” and not as a public representative, and that he would “not necessarily” use those expressions if he were elected to the Knesset (para. 13 of the affidavit submitted to the Elections Committee), do not work to his benefit. Cassif is currently being examined in regard to what he has already said, and upon opinions he has already expressed as a citizen. I would note in this regard that it is clear that the provisions of the law look to the future and do not seek to “punish” a candidate for his conduct in the past, but rather to contend with the fear of an elected official exploiting his status to perform improper acts (see: the Tibi case, p. 64). However, in order to answer the question whether the actions of the list or a candidate meet one of the causes for disqualification listed in sec. 7A of the Basic Law, the evidence that has accumulated in regard to that list or candidate must be examined, and this, naturally, often means before they were elected to the legislature. How can one accept the argument that Cassif should not be held accountable merely because we are concerned with statements that he made as a private individual? Every statement and action of a candidate (who has not served as a member of the Knesset in the past) is examined with consideration for the fact that the person concerned is a private individual seeking that the gates of the legislature be opened before him. Every such candidate is examined with consideration for things that he said before being elected as a public representative, while the accumulated material will always be from the period prior to his candidacy.

17.       Moreover, the argument by Cassif’s attorney that only “ideas on an intellectual basis” were concerned, cannot be of help. Statements supporting armed struggle against Israel and the negation of the existence of the State of Israel as a Jewish state cannot be explained away by saying that they concerned an “intellectual” debate (see, for example, the Tibi case, p. 70, which was quoted above in para. 4). This is all the more so in view of Amendment no. 40 to Basic Law: The Knesset of 2017, which made it clear, as noted, in accordance with the interpretive rules set out, that a candidate will be disqualified if his objectives or actions, “including his expressions”, constitute a negation of the existence of the State of Israel as Jewish and democratic, incitement to racism or support for armed struggle by a hostile state or terrorist organization against the State of Israel.

18.       As noted (in para. 4, above), the provisions of sec. 7A of the Basic Law create a distinction between the legitimate right of every person to express “ideas on an intellectual basis”, whatever they may be, from every platform (subject to very limited constitutional restrictions) and the statements of a candidate for election to the Knesset, where such a person seeks to move to the area of political activity. In accordance with the dictate of the legislature, theoretical ideas are examined from a different perspective when a person seeks to realize them by means of membership in the Knesset. Were Cassif’s statements examined as of an ordinary citizen, one might say that they are infuriating and enraging or that one should forcefully take exception to them, but they are protected as free speech. However, once Cassif sought to be elected to the Knesset, we must examine whether we are concerned with statements that express support for armed struggle by a terrorist organization against the state of Israel or whether they negate the existence of the State of Israel as a Jewish state, in the sense of denying its core foundations as established in the Tibi case. If the answer is positive – and as noted, I find it difficult to think otherwise – the candidate cannot rely upon the argument that the statements were made by him as “a private person” and that he is, therefore, exempt from answering for them. That is so in view of the purpose of sec. 7A, which, as noted, limits the use of the right granted by democracy, and in the present matter, the right to vote and to be elected, in order to prevent harm to the most basic, essential principles of its existence.

            In any case, once Cassif chose to clarify in his affidavit that he would “not necessarily” use the same expressions once elected to the Knesset (para. 13 of his affidavit), the excuse that the statements were made by him as a private individual cannot be maintained. Cassif is even unwilling to declare that those severe statements will no longer leave his lips as a public representative. Cassif himself made it clear that even after being elected, it is not necessarily the case that he will not repeat those things. In so doing, Cassif also declares that he refuses to accept the rules of the game – even if ultimately elected to the legislature (which actually occurred while these lines were being written).

19.       Indeed, not infrequently, a candidate will seek to “fix up” the positions that he publicly flaunted after he is threatened with disqualification, and in the framework of disqualification proceedings he will seek to explain that things are not what they seem. However, as a rule, a candidate’s request to deny his public statements – statements that often are those that paved his way to election to the Knesset and upon which the public trust in him was based – should be taken with a grain of salt. Dissociating from such statements in the disqualification proceedings may show those “corrected” positions to be stated solely to evade the verdict, as lip service, and not reflecting an authentic position (see: the opinion of Justice E. Rubinstein in the Zoabi case, para. 48). Cassif’s statements should be measured by the same criterion by which Ben Ari’s statements were measured. The two should not be distinguished. In a certain sense, Amendment n. 46 closed the gap between the evidentiary requirement for proving the causes for disqualification in regard to negation of the existence of the State of Israel as Jewish and democratic and support for armed conflict against the State of Israel and that of the cause of incitement to racism. Just as incitement to racism generally disqualifies by means of verbal statements (as also noted in para. 47 of the position of the Attorney general in EDA 1866/19), so too, the other causes disqualify through expression. If not identical, the evidentiary level of all the causes for disqualification should be similar.

            Just as Ben Ari’s statements disqualify him from running for the Knesset – despite his claim that he “is not a racist”, so Cassif’s words should disqualify him – despite his general claim that he “opposes violence” of any kind. The result should be identical for both.

20.       However, in certain circumstances, the gates can be opened to a candidate who retracts his statements. This, for example, if the candidate convinces that the evidence presented refers to old events, while declaring that he has changed his ways (that is the situation in the matter of Ben Gvir). A candidate who changes his ways is like a “penitent”, of whom the sages said: “In the place where penitents stand, even the wholly righteous cannot stand, as it is stated: Peace, peace upon him who is far and him who is near” (Babylonian Talmud, Berakhot 34b). Such a person is unlike one who “confesses but does not repent” who is likened to one who “immerses himself with a reptile in his hand”:

R. Adda b. Ahava said: To what can one compare a person who has sinned and confesses his sin but does not repent? To a man holding a reptile in his hand, for even if he immerses himself in all the waters of the world his immersion is useless for him. But if he throws it away, then as soon as he immerses himself in forty se'ahs of water, his immersion is immediately effective, as it is said: “He who confesses and gives them up will find mercy” (Babylonian Talmud, Ta’anit, 16a).

            A fortiori in the case of Cassif, who does not even confess his expressions. Even before the Elections Committee, and in his affidavit as well, there is no retraction of his words, nor a declaration that he has changed his path. The paltry statements that Cassif uttered do not come close to the vitriolic statements that he uttered from a public platform. On this it has been said: “He who covers up his faults will not succeed,” as opposed to “He who confesses and gives them up will find mercy” (Proverbs 28:13).

21.       The State of Israel, as a Jewish and democratic state, is obligated to defend itself and to act against those who oppose it. My colleagues defend Cassif, and it has, indeed, been said, “Judge your neighbor justly” (Leviticus 19:15). Relying upon the Gemara in tractate Sanhedrin, Rashi explains: “Judge your neighbor favorably”. However, the Siftei Chachamim [Shabbethai ben Joseph Bass (1641–1718)] adds: “That is to say, specifically when he is your neighbor judge him favorably”. In other words, when he behaves like your neighbor. In my opinion, there is no doubt that the terrible things said by Cassif do not allow us to judge him favorably, and they clearly and unambiguously meet the causes for disqualification that seek to protect the state against its destroyers and block their path to being counted among its legislators.

22.       To summarize this section, as noted, Cassif presented the core of his social and political approach in the interview with him and before the Committee, and his extreme, severe and unambiguous statements express dominant, central, core characteristics of his approach. We are concerned with persuasive, clear evidence that constitutes a “critical mass” that indicates support for armed conflict and terror against Israel, and negation of the existence of the State of Israel as a Jewish state. The force of the evidence is bolstered by the absence of clear, concrete repudiation of his statements by Cassif.

            In my opinion, all of the above unequivocally suffices to ground the causes for disqualification in sec. 7A in accordance with the criteria and proper interpretation as delineated above and that are long established by this Court.

EA 1876/19 In the matter of Balad

23.       Here too, as opposed to the view of my colleagues, I am of the opinion that that there is no room for doubt that the Balad list openly undermines the State of Israel’s existence as a Jewish and democratic state and openly supports armed struggle by a terrorist organization against the State of Israel.

24.       The evidence presented includes various statements and actions by members of Balad, some from the immediate past. Additionally, the petitioners requesting Balad’s disqualification referred to Balad’s activity in the past, and to the statements and actions of it former head – MK Azmi Bishara – and to the relationship between its activity and its current Knesset members to Balad’s former leader. In addition to all of that, it was argued that the “State of all its Citizens” bill (hereinafter: the bill) that the Balad Knesset members sought to present before the 20^th Knesset last June makes it unequivocally clear that Balad expressly denies the existence of the State of Israel as a Jewish State.

            In this regard, and even were I of the opinion that no significant weight should be accorded to the other evidence to which I will refer later, I am of the opinion – like position taken by the President in para. 58 of her opinion, with which I fully concur – that no one can deny that the bill expresses a negation of “nuclear characteristics” of the State of Israel as a Jewish state. Presenting the bill crossed the line sharpened in the Tibi case, which distinguished between one who supports a “state of all its citizens” in the sense of achieving civil equality and one who seeks to negate the minimal, core characteristics of the State of Israel as a Jewish state. Moreover, after reviewing the opinion of my colleague Justice Mazuz, I would add that, in my opinion, not only does the bill express a negation of “the nuclear characteristics” of the State of Israel, as noted, but even denies the existence of the State of Israel as “the State of the Jewish people in the national sense”. This, in reference to the identity of the state as a place where the Jewish people realizes its right to self-determination, as my colleague so well expressed in his opinion.

            In order to understand the consequences of presenting this bill in regard to examining the disqualification of the list, I will expand somewhat on the prior proceedings in the matter of Balad.

25.       The matter of Balad was addressed in the elections for the 15^th Knesset (EA 2600/99 Ehrlich v. Chair of the Central Elections Committee [33] (hereinafter: the Ehrlich case)), and in the elections for the 16^th Knesset (the Tibi case), as well as in the elections for the 18^th Knesset (the Balad case). Already in the Ehrlich case in 1999 – which addressed the matter of MK Azmi Bishara, who led Balad, along with the matter of the list (when the provisions of the law permitted only the disqualification of a list and not a candidate) – it was made clear that, on their face, Bishara’s statements at the time, declaring that the Jewish people does not have a “right to self-determination”, constituted a denial of the existence of the State of Israel as the state of the Jewish people. Indeed, it was ultimately found that Balad’s candidacy should not be disqualified despite coming “dangerously close” to the line that cannot be crossed that is defined in sec. 7A of the Basic Law.

26.       In the Tibi case (in the framework of which the matter of the party was examined in a manner identical to that of Bishara, given the “powerful” connection between them), it was found that the actions attributed to Bishara in regard to the negation of existence of the State of Israel as a Jewish state and in regard to support for armed struggle were at the heart of its purposes and constitute a dominant objective of its activity that constituted a political potential that was realized in repeated activity and with great force. However, persuasive, clear and unambiguous evidence against Bishara was not found, and thus not against the Balad list, when it was held that Bishara’s approach as to the State of Israel as a “state of all its citizens” “comes dangerously close to the possibility of negating the existence of the State of Israel as a Jewish state”, but it was not found that the “border had been crossed” (the Tibi case, p. 42). In addition. It was not found that there was sufficient evidence in regard to support of armed struggle, although there was some “doubt” in that regard (ibid.).

27.       Some clarification is required in this regard. In the Tibi case there was a difference of opinion as to the meaning of the phrase “a state of all its citizens” that appears in Balad’s platform. It was held that the principle of “a state of all its citizens” can take various forms, and that a purpose that sees Israel as “a state of all its citizens” does not inherently negate the existence of the State of Israel as a Jewish state. Thus, a person who acts to achieve the purpose of “a state of all its citizens” in the sense of guaranteeing equality among citizens is not the same as a person who employs that principle in order to infringe the rationale grounding the establishment of the state and thereby negates the character of the State of Israel as the state of the Jewish people (the Tibi case, p. 22).

28.       The minority was of the opinion that the evidence, taken in its entirety, showed that the expression “a state of all its citizens” served as a codeword for “abolishing Zionism, abolishing the State of Israel as the national home of the Jewish people, and abolishing the state as a Jewish state and replacing it with another state, if not more than that” (para. 2(b) of the opinion of Deputy President (emer.) S. Levin), and that striving for “a state of all its citizens” was intended to strip the State of Israel of Zionism and of its Jewish national character (para. D of the opinion of Justice E.E. Levi).

29.       As opposed to that, the majority, as noted, did not find that the meaning of “a state of all its citizens” in regard to Bishara “crosses the line” in regard to the negation of the existence of the State of Israel as a Jewish state. This, after finding that Bishara recognized the right of every Jew to immigrate to Israel, did not argue for the repeal of the Law of Return, did not deny the centrality of the Hebrew language as the language of the state, and did not oppose the holidays and symbols of Israel (also see: para. 54 of the opinion of President E. Hayut).

            In other words, in the Tibi case, as well, where it was found that striving for the objective of “a state of all its citizens” in regard to Bishara and Balad was close to the disqualifying boundary, a remedy was found in the form of non-negation of the core principles of the State of Israel as a Jewish state. The Court reiterated this position that the principle of “a state of all its citizens” in Balad’s platform does not ground a cause for disqualification in the Balad case. There, too, Justice E.E. Levy, dissenting, noted that in his opinion, the vision of Balad in regard to “a state of all its citizens” was nothing but a guise for the establishment of an Arab national state in all the territory of the Land of Israel.

30.       Thus, when examining the expression “a state of all its citizens” in the framework of Balad’s platform in the past, this Court was forced to cast about in order to discover what inhered in the concept and what meaning to give it. Where a doubt was found, the doubt worked in favor of approving the list, in view of the criteria established in regard to disqualifying a list. However, now that Balad has clarified – in the framework of dominant, significant, public and clear political activity – the significance of the expression “a state of all its citizens” for it, and the steps that it is willing to take in order to realize that vision, it can no longer be said that we are concerned with an ambiguous term. Now, following the presentation of the bill, it has been made absolutely, unambiguously clear that for this list “a state of all its citizens” means annulling the principle of return, denying the principle by which the state’s primary symbols reflect the national revival of the Jewish people, and denying the Hebrew language as the primary language of the state. It cannot now be said, by any criterion, that we are not concerned with the negation of minimal, nuclear elements of the State of Israel as a Jewish state, as held in the Tibi case.

31.       The fact that the bill was ultimately not brought before the plenum – only because on June 4, 2018 the Knesset presidium decided upon the drastic step of not approving its presentation to the Knesset – cannot be accounted to the list’s benefit, which argues that it is being retaliated against merely because it raised a theoretical “idea”. We are not concerned with just an “idea”, but rather with a concrete act – submitting a bill that sought to ground principles that undermine the existence of the State of Israel as a Jewish state (and also see in regard to expression by means of submitting a bill: the second Neiman case, p. 196). In view of this bill, I also find problematic the claim by the Balad list in its appeal that the requests for disqualification were not based upon a clear, direct statement, its publications, or official notices. What is a bill if not a “clear, direct statement” that expresses the values of the list and the principles that it pursues in the most simple, “clean” manner? What need do I have in looking for publications, official notices and so forth given the submission of a bill that seeks to undermine the most nuclear foundations of the state as a Jewish state? MK Mtanes Shehadeh’s “excuse” in his affidavit (affidavit of March 3, 2019 that was presented to the Elections Committee) that the bill was submitted only to “challenge the Nation State Basic Law and to hold a public debate on the issue” changes nothing in this regard or “kosher” this clear public step. On the contrary, even if the bill was submitted out of a sense of anger and grievance, I do not see how that could act in the list’s favor. Even if the members of the list presented the bill in a moment of rage, the saying goes: “By three things may a person's character be determined: By his cup, by his purse, and by his anger” (Babylonian Talmud, Eiruvin 68b). Rashi explains there: “In his anger – that he is not too hot tempered”. It is precisely when one is roiled and angry that a person is judged, and not when he is calm and at ease.

32.       Under these circumstances, no weight can even be given to what is stated in the affidavit that Shehadeh submitted to the Elections Committee that he and the members of Balad are committed to the principle of “as state of all its citizens” as reflected in the in Balad’s platform that was examined and approved long ago by this Court.  Balad itself clarified – in its own voice and not in the framework of quotes from newspaper articles that may be given to different interpretations – in the petition that it submitted to the Court (HCJ 4552/18) that the bill was consistent with its platform. In this sense, the claim that Balad now adheres to the platform that was examined and approved long ago – before the true nature of its vision of “a state of all its citizens”, which was recently publicly clarified and expressed as noted by Balad – cannot be accepted.

33.       That being the case, and in view of the background detailed above, I am of the view that there is no alternative but to say that by presenting the bill, and certainly in filing the petition (HCJ 4552/18) by members of Balad in which it was made clear that the bill was consistent with Balad’s platform, the Balad party crossed the line to which it had come “dangerously close” more than once in the past. In this context I would note that presenting the bill was an expression of real, substantial, clear parliamentary activity that, in my view, cannot be dismissed as a one-time or sporadic matter, as is the opinion of my colleague Justice Amit.

            The argument presented by Balad’s attorney that the matter of the bill was not raised before the Elections Committee but first and unexpectedly in the position of the Attorney General submitted to this Court, and that he is therefore unprepared to address it, cannot be accepted. Not only was this matter expressly raised in the framework of the disqualification request presented to the Elections Committee (paras. 17-24 of the Likud faction’s request to disqualify Ra’am-Balad), and not only was it raised in the hearing before the Elections Committee (p. 4 of the transcript of the hearing of the Elections Committee of March 6, 2019), but it was also addressed on the merits by Balad’s attorney, who raised the same claim made in that hearing that he raised before us that this is retribution merely for raising an “idea” (p. 35 of the transcript off the hearing before the Elections Committee of March 6, 2019). Moreover, the Ra’am-Balad list also expressly referred to the matter of the bill in the appeal that it submitted to this Court (paras. 23-25 of the appeal in EA 1876/19).

34.       In any case, beyond the fact that submitting the bill (together with what was stated in the petition) significantly and unambiguously grounds the said cause for disqualification, this bill does not exist in a vacuum. The bill is not the only evidence under consideration, although it would appear to be decisive evidence in and of itself. Additional evidence was presented that when added together points to a collection of evidence and a “critical mass” that demonstrates that we are concerned with a list that has raised the banner of open struggle against the foundations of the State of Israel.

35.       In this framework I would note that I do not believe that the fact that Balad’s activity and members were examined in the past renders addressing them now superfluous. Are we not required to examine the matter of Balad in accordance with the up-to-date material presented to us, which also casts light upon what was presented in the past? When the matter of Balad was examined in the past, the Court had before it the material that had accrued up to that date. Given that additional evidence has accrued in the interim, which might have led the Court to a different conclusion at that time, we cannot continue to rely upon conclusions drawn in the past from the material presented then while ignoring the updated material.

36.       Given the above, an examination of the entirety of the evidence in the matter of Balad and its members shows that this time it has gone too far. Even if in the past, the material presented in regard to it and its members came close to the bounds defined in the Basic Law but did not cross them, today the situation is different. Indeed, this Court found that MK Zoabi’s participation in the Marmara flotilla did not disqualify her from standing for election to the Knesset (the Zoabi case). However, I believe that weight should be accorded to her actions in examining the disqualification of the list of which she is a member (even if not in a “realistic” place), and in view of the additional evidence that has accrued in regard to that list since the Zoabi case. This is also true in regard to the Bishara matter, which was addressed in the past in the Ehrlich case and the Tibi case. Only later, as was also noted in the matter of Balad (in which the matter of Bishara was not addressed as he had left the country), it became clear that Bishara was suspected of serious security offenses pursuant to which he was forced to flee the country. Therefore, in examining the current evidentiary foundation in regard to the list in its entirety, weight should also be given to this matter (even though Bishara no longer stands at the head of the party). In view of the above, can one imagine that if the matter of Bishara were examined after new material came to light that pointed to serious suspicions of committing offenses, this Court would rely upon its findings in the Ehrlich case and the Tibi case without examining whether the new evidence added to the material that was examined and remained in “doubt”?

            The actions of those has since been compounded by the criminal-security related activity of MK Basel Ghattas, a member of the party who was convicted in 2017 of smuggling cellphones and other items into a prison in which security prisoners were held, as well as the conviction of another MK who was a member of the party, Said Naffaa, for the offense of contact with a foreign agent in 2014, after meeting with the deputy secretary general of the Popular Front (see the denial of his appeal in CrimA 6833/14 Naffaa v. State of Israel [34]), which was not considered in the past in the matter of the entire party.

37.       Added to all of that was the connection affirmed by Balad to its erstwhile leader Azmi Bishara in the course of the annual convention of the Ra’am-Balad party in Nazereth, when it deemed it appropriate to send him a “blessing”. And note that it was made clear to the Elections Committee that this matter was not denied (pp. 29-32 of the transcript of the Elections Committee hearing of March 6, 2019). By that, the present Balad list also declared that it is the successor of the person who led it in the past. It should be emphasized that we are not concerned only with a relationship with Bishara that justifies disqualifying the list (compare: the Balad case, para. 20), and I am not unaware that of the list’s argument that it cannot be held responsible for the actions of MK Naffaa, who has not been a member of the Balad party since 2010, or the actions of Zoabi, who is in an “unrealistic” place on the list. We are concerned with an aggregation of additional, compounded evidence over the course of years that indicates a significant, persuasive, and unambiguous tapestry in regard to meeting the causes of disqualification. An additional connection to Bishara was also presented in the article in the Ha’aretz newspaper of Aug. 18, 2014, according to which then members of the list – Jamal Zahalka, Hanin Zoabi, and Basel Ghattas – met with Bishara in Qatar, which was not denied by Shehadeh (pare. 8 of Shehadeh’s affidavit to the Elections Committee). To all of this is added the current conduct of the members of the list in the form of giving unambiguous, blunt support for terrorist actors who were convicted and incarcerated, whom the current head of the list, MK Shehadeh, refers to as “political prisoners” (article in the Makor Rishon newspaper of Jan. 13, 2019). This is compounded by unambiguous statements in a recorded interview (on Galei Yisrael radio) in the course of which Shehadeh stated in his own words that “every struggle against the occupation is legitimate” and that “we support every popular struggle”.

            Thus, the entirety of the clear, unambiguous evidence – together with the most significant piece of evidence concerning the submission of the bill – shows that the dominant characteristics at the center of the list’s parliamentary and extra-parliamentary action are directed at infringing protected values. The list vigorously acts to realize its objectives through actions and verbal statements.

38.       Under these circumstances, the list’s argument that part of the evidence concerns persons who are no longer candidates of the Ra’am-Balad list for the elections to the 21^st Knesset can be of no assistance. The candidates of the 21^st Knesset sought, of their own initiative, to join a list that has a “rich” past as detailed above. We are concerned with people who seek to join an existing list based upon the “reputation” that it has acquired, the ideology that is its banner, its purposes and actions that were expressed on various public platforms, and of course, its supporters. The candidates’ distancing themselves from the action of that list – at least in regard to the matter of the bill that was submitted during the term of the 20^th Knesset – cannot be accepted. Beyond the fact that evidence was presented that indicates a real connection to its erstwhile leader Bishara, we cannot countenance the argument that the current members of Balad do not stand behind Balad’s platform that Balad itself declared in the 20^th Knesset was consistent with what was stated in the bill that was submitted. The claim that we are concerned with “a new generation” cannot be accepted when it concerns the disqualification of a list regarding which clear, unambiguous evidence was presented regarding the meeting of a cause for disqualification.

39.       According to the position of the Attorney General as expressed before us (in sec. 44 of his written position as well as in the oral arguments – despite the fact that he said absolutely nothing on this matter in the written position presented to the Elections Committee), there is nothing in the bill that would lead to the disqualification of the entire list because we are concerned with a joint list of Ra’am-Balad and not of Balad alone. In my opinion, the Ra’am-Balad list cannot be approved for this reason alone. It is difficult to accept the argument that the existence of a cause for disqualification can be “healed” by joining one list to another in a joint list. In view of the purposes of sec. 7A of the Basic Law, the combining of lists cannot confer “immunity” or a defense to a party that has deviated from the path. This, while undermining the fundamental principles defined in the framework of the Basic Law, is not repaired by adding a party. The Sages taught us the principle: “Woe to the wicked person and woe to his neighbor,” and “Blessed is the righteous person and blessed are his neighbors,” which is derived from the arrangement of the Israelite encampment in the desert. Thus, the tribe of Reuben, which encamped beside the members of Kehat, was punished with them in the dispute with Korach and his followers, while the tribes of Judah, Issachar, and Zebulon, which encamped beside Moses, Aaron and his sons, became great Torah scholars (Numbers 3:29 and Rashi ad. loc.). If that is so for the arrangement of an encampment and the placement of neighbors, all the more so when we are concerned with a party joining with another. Joining together is premised upon a shared ideological, political, and conceptual platform. As the prophet Amos said: “Can two walk together, unless they are agreed?” (Amos 3:3). We cannot accept the argument that if there is a cause for the disqualification of the Balad party, the very joining of Ra’am suffices to remedy it. The joining of the Balad party with the Ra’am party does not purify it, but rather it contaminates the Ra’am party that tied its fate with it in a joint list. The “pure” does not purify the “impure”, but rather the “impure” corrupts the “pure”. It would be better were parties to act cautiously when choosing to join parties whose extremist course is on the boundary (and certainly when it crosses the boundary) defined in the Basic Law.

            To summarize, in my opinion, both in the matter of Cassif and in the matter of the Ra’am-Balad list, “all else has failed” even according to the strict criterion of my colleague Justice Sohlberg.

40.       In conclusion, my colleagues’ interpretation in regard to the disqualification of a single candidate and in regard to the disqualification of a list on the cause of support for armed struggle against the State of Israel and the cause of denying the existence of the State of Israel as a Jewish state render the words of the legislature merely theoretical. The Talmud (BT Sanhedrin 71a) addresses the elements of the offense of an individual – the stubborn and rebellious son, and of a group – the idolatrous city, which have committed certain offenses. However, the Tannaim interpreted the elements of the offenses so rigidly that that the Talmud concludes: “There never was and never will be a stubborn and rebellious son. And why was it written? So that you may expound upon it an receive reward”, and: “There never has been an idolatrous city and there never will be one. And why was it written? So that you may expound and receive reward” (a similar expression also appears in regard to Job, of whom it was said: “Job never existed and was never created, but was a parable” (BT Bava Batra 15a). However, alongside this view we find the view of Rabbi Yochanan, who was of the opinion that these were not merely theoretical matters, and who states in regard to the stubborn and rebellious son, “I saw him”, and in regard to the idolatrous city, “I saw it”. We are concerned with practical matters that were and will be in the future. By analogy, the above is applicable to the matters before us, as well.

            And so I say loudly and clearly: “I saw him,” “I saw it,” and we cannot turn our eyes away from seeing.

Justice G. Karra:

            I concur in the opinion of President E. Hayut and with the opinions of my colleagues U. Vogelman, I. Amit and E. Baron on the matter of the inapplicability of the probability test to the cause of disqualification for incitement to racism under sec, 7A(a)(2). I would add that the accumulated critical mass of statements and actions detailed at length in the President’s opinion thoroughly ground the conclusion that incitement to racism is a dominant, firmly rooted, and central purpose of Ben Ari’s doctrine. The escalation of racist statements over the last years leaves no possibility for accepting his artificial explanations, not even to the extent of raising doubt as to the intention and purpose of the statements.

            From among Ben Ari’s racist statements and actions, I would like to spotlight a dark, severe act mentioned in para. 44 of the President’s opinion, that is lost in the large catalogue of his inciteful publications. I refer to the act of tearing up the New Testament and throwing it into the waste basket when Ben Ari was serving as a member of the Knesset in the years 2009 to 2013. It is an act that has nothing to do with incitement against Arabs, but it serves to show us that Ben Ari’s racist worldview, which he has espoused over the course of years, is much broader and deeper than incitement against Arabs, whom he sees as enemies. It would appear that this racism is deeply rooted in hatred of the “other” and the different, per se.

            Approving the candidacy of a person who incites to racism and hatred of the other would taint Israeli democracy, and therefore, a normative statement is required saying that such an inciter must be relegated from the Israeli Knesset.

Justice N. Hendel:

1. I concur in the clear, comprehensive opinion of my colleague President E. Hayut. I would briefly sharpen what I see as the main points in regard to each of the actors – candidates and lists – examined in the present proceedings, regarding which there are disagreements among the members of this panel. I will also present my position on a number of general issues regarding which questions or doubts were raised – the probability test, the consequences of two parties running jointly in regard to the existence of a cause for the disqualification of one of them, and the interpretation of the cause “denial of the existence of the State of Israel as a Jewish and Democratic state”.

The relationship between law and elections can be likened to two pillars. One pillar says: “This is democracy’s holiday. An equal vote for every citizen. The people must have its say. The Court does not – and must not – take a stand as to the desired results”. The other pillar says: “Elections without law may distort democracy. Not a day of celebration but of mourning. Bribery, bullying, or a regime takeover of the elections. The answer is the open eyes of the law as written, expressed, and intended. There must be rules even for the smallest details: the timeframe must be strictly observed; the ballot box must be accessible; who can vote and who can be elected. Maintaining the laws is also vital to democracy”. While the first pillar maintains a distance between the law and the elections, the second requires involvement and supervision. Is there a contradiction between the two? I believe that the answer is in the negative, and it is unsurprising. The two pillars sing the praises of democracy together. In other words: there is no contradiction between democracy and the Court’s supervision over the rules. On the contrary, the Court acts to advance democratic principles by virtue of the authority conferred upon it by the legislature.

            Democratic elections are not self-evident. History gives context. In the past, and for a very long period, change of regime was achieved by military coup or the death of the autocratic ruler. Democracy changed the rules. Not power but election. Decisions are made not by the powerful but rather every citizen has equal power. That is the aspiration, and it must strictly be put into practice. It is not a simple task. After all, the voice of the single voter is not, of itself, strong in comparison to the regime. Democracy strives to preserve its character and not lose it in the course of elections. This gives rise to the role of the Court and the proximity of the pillars.

2. Israeli law establishes when a candidate or a list should be prevented from participating in the elections due to their objectives, actions, and expressions. Section 7 of Basic Law: The Knesset presents the substantive test and the procedures for preventing a list or candidate from participating in elections for the Knesset. This section, and section 63A of the Knesset Elections Law [Consolidated Version], 5729-1969, establish the procedures for this. The substance is defined by three causes for disqualification:

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

The procedures are that when the Central Elections Committee for the Knesset Elections prevents the participation of a candidate, the approval of a nine-judge panel of the Supreme Court is required. It is not an appeal but an approval proceeding. The law chose to introduce the Court into the proceedings. It is not post facto judicial review but an ex ante decision. For the prevention of the participation of a list or the approval of a candidate of a list – there is an appeals process.

We addressed the tension between the two pillars presented. Each holds great power in our legal system, and thus the sensitivity required in the course of moving between them in practice and in real time. The path chosen by this Court is one of caution and self-restraint before it prevents the participation of a candidate or a list. Doubt acts in favor of the candidate. This is the consistent approach of the case law in election matters, as explained by my colleague the President. It is interesting to turn to another area of law in which doubts wields great power. In criminal law, a person can be convicted if the charge is proved beyond reasonable doubt. The reason for this is the recognition of the regime’s power to taint and punish the individual. As opposed to this, in Knesset elections, the power of doubt lay in a different consideration – the role of the voter in choosing the candidate and the list it prefers. This Court does not eagerly intervene in election matters. On the other hand, the law requires it to do so in the appropriate circumstances. Just as the will of the electorate must be honored, so too the will of the legislature in such matters. The compromise – or more precisely, the proper balance – is to employ the law only to prevent candidacy in exceptional cases in which, for example, the doubt is not of substance and is not rooted in reality. This rule is intended to permit the voter to express its position on the matter within the four cubits of the ballot box. As opposed to criminal law, in which the court establishes facts in regard to the defendant’s acts and intentions – in the present matter, we look not only backward but forward as well: is the candidate or the list, at the time of the elections, expected to act contrary to the causes enumerated in the law if elected – but in the present and not necessarily in the past. We are thus concerned with a certain evaluation in regard to the future.

However, in the exceptional case in which the candidacy of a candidate or a list meets the following criteria: the cause is a dominant characteristic of the list or the candidate; there is clear, unambiguous evidence of the cause; there is active conduct, including expression in the case of a candidate, for realizing the wrongful objectives; there is a critical mass of highly credible evidence (see the detailed description in para. 16 of the opinion of my colleague the President). Only if these conditions are met is there the necessary certainty to justify the result of disqualification. In the background stands the right to vote and to be elected. That underlies the democratic foundation of elections. And note that the right to be elected has direct consequences for the right to vote.

Another aspect of the matter is remorse or a candidate’s recanting an objective or activity related to one of the constitutional causes. The reason is self-evident. The decision is not personal or punitive but rather institutional and preventative. In other words, its purpose is to prevent an inappropriate actor from becoming a member of the next Knesset. Of course, we are not concerned merely with a declarative test. There must be an examination of whether there are grounds to conclude that the declaration is sincere. Or more precisely – that the declaration is not sincere. Of course, there is a possibility that a candidate may not live up to his declarations. This is not a danger that would justify expanding the list of disqualified actors. If a candidate or list does not live up to its expectations, there are “sanctions” and other means for contending with the matter, whether in the course of the Knesset’s term or in the elections for the next Knesset.

3.         Two points to conclude the general sections. The first concerns the dissenting opinions of my colleagues. I have read the opinions of my colleagues Justice N. Sohlberg and Justice D. Mintz. My colleague Justice Sohlberg is of the opinion that no one should be prevented from participating in the elections for the 21^st Knesst, while my colleague Justice Mintz is of the opinion that along with Michael Ben Ari, Ofer Cassif and the Ra’am-Balad list should be prevented from participating in the elections for the Knesset. In my opinion, and pursuant to the above, Justice Sohlberg’s approach might lead to the non-disqualification even of candidates who clearly meet the causes for disqualification. This, while making even the strict case-law tests weighed prior to preventing the participation of a candidate or list in the elections more strict. As for the approach of my colleague Justice Mintz, in my view, his approach might lead to over-disqualification of candidates and lists from both sides. It would appear to me that the path taken by the case law in the past and in the present embraces both of the pillars presented above. Disqualification is imposed cautiously and only exceptionally.

            The second point is that of the symmetry test. My colleague Justice Sohlberg presented a statement by MK Michael Eitan in which he asks: “Where is the symmetry?” I agree with this question and would only like to sharpen the point. Symmetry does not have to be expressed in the final result, but rather in the application of equal criteria. Aspiring to symmetry in order to balance the results is a quasi-political consideration that the Court cannot adopt. I will allow myself to say that reading the opinions of my colleagues – of the majority and the minority – shows that the conclusions were based upon a legal approach and the examination of the evidence, and not upon any desire to maintain equally balanced results.

            Armed with these tools, I will conduct an individual examination of the relevant actors – Michael Ben Ari, Ofer Cassif, and the Ra’am-Balad list.

4.         Michael Ben Ari: The relevant cause in the matter of Ben Ari is “incitement to racism”. We are concerned with some forty different statements, most of which were uploaded to the Facebook page of “Otzma Yehudit with Michael Ben Ari”, such that the matters cannot be denied. Indeed, Ben Ari does not deny them. Most of the material dates from the year preceding the elections. My colleague the President presented the relevant statements (paras. 38-41 of fer opinion). It makes for difficult reading. What was presented suffices, and there is no need to present it again, Comparing the statements with the language of the law raises the question of what is the test for “incitement to racism”?

            I will begin with the term “incitement”. Not racism but incitement to racism. The hand or mouth of one and the hearing ear of the other. In other words, we are not concerned with personal views that the candidate keeps to himself. The opinions must be expressed in order to incite to racism. In addition, my colleague Justice M. Mazuz referred to the probability test. In his opinion, that test should not be applied to the causes under sec. 7A of Basic Law: The Knesset. I agree with his conclusion and reasoning. The language does not support the application of such a test, and such is also the purposive interpretation. Such a test would be too speculative and very difficult to apply at the time of the elections. Additionally, the basis of the causes for disqualification is not necessarily the prevention of a real, concrete threat to one of the protected values, but rather clearly expresses not granting legitimacy to lists or candidates who adopt the approaches set out in the causes. In summary, I accept his conclusion that “we are concerned with causes of ‘conduct’ not ‘results’” (para. 2 of his opinion).

            Now to the question of what constitutes “racism”. My colleague the President addressed, inter alia, the aspects of hatred, hostility, persecution, degradation, and humiliation (paras. 25-32 of her opinion). In regard to Ben Ari’s candidacy, I will say: there is no need to establish the minimal threshold for disqualifying a candidate on the basis on incitement to racism. It suffices to find that in this case, the candidate exceeded the threshold by a wide margin. His statements seek to influence conduct. And note that the lack of a need to prove the elements of the probability test does not contradict the fact that the aspiration to influence conduct in practice reinforces the ground for disqualification. In his statements, Ben Ari espouses the denial of civil rights to the Arab public. So in regard to participating in public tenders and so in regard to their ability to live in cities. He supports their collective deportation in certain circumstances, and employs violent imagery in regard to that community, including shooting. The evidence is very substantial, unambiguous, and dominant in his doctrine.

            In his affidavit to the Elections Committee, Ben Ari argues that he is not a racist, in that he accepts that every person – including the Arabs – are created in God’s image. Only then does Ben Ari proceed to the loyalty test. He is not against Arabs because of how they were born, but because they failed the loyalty test. Moreover, the overwhelming majority of Arabs are not loyal. That “overwhelming majority” was defined in various statements: from 99% to a few who can be counted on the fingers, and Ben Ari never met a loyal Arab. Thus, they have all become enemies. This is the fallacy at the base of incitement to racism. As President Shamgar held, racism is not just a matter that derives from the biology of the other (EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset [5], 191-192). Racist views can also be examined in accordance with theories, conclusions, and factors that arose after a person’s birth and not upon the DNA that characterizes a group of the population. Not just genetics but epigenetics. Ben Ari did not explain the meaning of the “loyalty test” – what are the criteria of this test, when does one fail it, and how is it that with the exceptions of a very small number of individuals, all Arabs belong to the disloyal group. We are concerned with very severe matters that are not based upon facts but upon a circular conclusion. The results are harsh. An Arab is presumed to be an enemy who must be dealt with. This, by means of denial of rights, deportation, or the possibility of violent treatment. For example, it was stated that anyone who dares to speak against a Jew doesn’t live. He doesn’t live, but rather “a firing squad kills him, he is done away with”; that the “murderers” should not be employed, also in reference to the Arab residents of Israeli cities; that affirmative action should be rescinded in view of the “treasonous” and “murderous” character of Arabs; that Arabs are a “murderous people, a murderous nation”; and that the village from which a terrorist went to an “airport” should be uprooted and its residents “flown” to other countries.

5.         I will clarify the matter from another perspective. One may ask why these particular causes established in the law were chosen. The cause of support for armed struggle against the state is clear and requires no explanation. The cause of denial of the State of Israel as a Jewish and democratic State was intended to defend the existing foundations of the state. As for incitement to racism, we are concerned with a desire to deny the legitimacy of a group. In a varied, multi-group society like that of the State of Israel, this harms the nature of the society. This is striking when we are concerned with some twenty percent of the population. It saddens me to say that reading Ben Ari’s positions – and the reader can read paras. 38-41 of the opinion of my colleague the President – leads not only to racism in the form of humiliation and hatred, but also to severe acts that might undermine social order or create discriminatory law in regard to the foundations of civil rights, including the right to remain a citizen of the state. This is not due to the actions of the group, not due to criminal offenses perpetrated or plans to do harm, but because they do not meet the conception of a proper minority as Ben Ari understands it. By that, I am not finding that he has committed a crime, but there are special requirements in regard to lists and candidates for the Knesset. Particularly in a system in which a representative often represents a specific group, we must make certain that even if he does not fight for the rights of the group, he cannot fundamentally deny the legitimacy of the other group and its right to elementary rights. And all the more so, harm and violence lacks any legitimacy.

6.         The conclusion from all of the above is that this is an unambiguously extreme case. And note well, Ben Ari did not express remorse, but rather embraced his position while explaining that he is not a racist and does not reject Arabs on the basis of their birth. To clarify the picture, let us compare him to Advocate Itamar Ben Gvir and to former candidate Baruch Marzel. It can be assumed that the three share a similar ideology, in that they ran together on the same list. However, this Court refrained from disqualifying Marzel and Ben Gvir. The decision not to disqualify Ben Gvir in these proceedings was unanimous. What difference is there between him and Ben Ari, who was disqualified by an eight-judge majority? It would appear that the tests of the strength of the evidence, its extent, quality, and unambiguity led to that result. But we would note one additional criterion: expressing remorse. Both Marzel and Ben Gvir informed the Court that they intended to act in accordance with the requirements of the law, including the causes for disqualification that it establishes. Even if they behaved differently in the past, they declared that that is how they would conduct themselves. They understood and internalized the qualifying conditions for Knesset candidacy. Ben Ari was not a partner to that choice. He continues to support the views that he expressed. We are not concerned with some technical defect or lack of comprehension. Just as we must respect the manner in which Ben Gvir and Marzel presented their arguments at the moment of truth, so we must respect Ben Ari’s position that justifies his disqualification. My colleagues spoke of how, due to its history, the Jewish people in particular must be sensitive to statements like those expressed by Ben Ari. In my view, we should add that it is not just the history of the Jewish people, but also its faith.  But truth be told, there is no need for that. In these circumstances, there is not even a need to demonstrate the matter by a thought experiment in which Ben Ari would express his views in another country against Jews.

7.         Ofer Cassif: The disqualification request points to two causes that can bar his participation in the Knesset elections. The first is “negation of the existence of the State of Israel as a Jewish and democratic state” and the second is “support for armed struggle by a hostile state or a terrorist organization against the State of Israel”. The evidence presented against him relies upon four publications, the central of which is an interview he gave to the Ha’aretz newspaper in February 2019. It would appear that my colleague Justice Mintz addressed both causes together, but there is a difference in the scope of the evidence and in Cassif’s explanations in regard to each cause, which requires that they be addressed separately. My colleague presented Cassif’s case as so clear as to leave no doubt, and according to his approach, there is no possibility of arriving at a different result.

            Below, I will sketch the general outline of why I hold a different view. The question in regard to Cassif, as for every candidate, is whether there is justification for preventing him from being elected as a member of Knesset in view of the causes established in the Basic Law. As I explained above, the matters are examined in a particular period of time, with a view to the future, and in regard to the candidates functioning in the legislature if he be elected. Past statements and actions may serve as the evidentiary foundation in regard to a position in the present and in the future. The purpose is not to punish improper actions and statements, but to ascertain whether the candidate constitutes an exception that justifies barring his participation in the elections. Cassif said things in the past, although not with great frequency and consistency, that would require him to explain why he should not be prevented from participating in the elections. Cassif’s answer to this is clear, consistent, and divided into three parts: one, in regard to the possibility that he supports armed struggle by a terrorist organization against the State of Israel, is that he does not support violence, not in the past and certainly not at present. I believe that an examination of the matter, as I will explain, supports that conclusion. Even if Cassif spoke harshly, there is a lack of a foundation proving that he supports violence – certainly the foundation needed to prove that he supports armed struggle by a terrorist organization against the State of Israel.

            The second part of his answer concerns the possibility of negating the State of Israel as a Jewish and democratic state. In this regard, he does not deny that he has made statements in the past against various symbols of the state and against the Law of Return, but he declared that he accepts the platform of his list – Hadash-Ta’al – and does not, in that or any other frameworks, act or call for the annulment of the symbols or the Law of Return. He accepts the parliamentary rules. In other words, not only is this not a case of a dominant purpose, but rather there is no such purpose at all. As I explained above, the Court has consistently granted weight to a change of position and a declaration in regard to an absence of intent to act or express oneself contrary to the causes enumerated in Basic Law: The Knesset. As noted, this consideration, applied mutatis mutandis to other causes, is what allowed the candidacy of Baruch Marzel in the past, as well as that of Itamar Ben Gvir at present. It his unwillingness to follow that path that stands in Ben Ari’s way.

            The third part concerns various statements by Cassif that compare the State of Israel and the members of its government to Nazi Germany. My colleague Justice Mintz gave weight to those statements. We are concerned with shameful statements that do no honor to one who makes them, and certainly not to one who seeks election a member of Knesset. It were better had they never been said, and one hopes that if Cassif is elected to the next Knesset, he will refrain from acting in this manner. However, as my colleague the President noted in her opinion – and this is the third part of Cassif’s response – those statements do not fall within the scope of any of the causes enumerated in sec. 7A, and to my understanding, the Court cannot take them into account in examining the disqualification of a candidate. In this regard, I would note that the opinion of my colleague Justice Mintz also referred to Cassif’s statement in his affidavit (para. 13) that he would “not necessarily use those expressions if elected to the Knesset” (emphasis added). According to his approach, the absence of an undertaking by Cassif in regard to his future conduct does not work in his favor. However, and see paras. 12 and 13 of the affidavit, it appears that this statement referred to the shameful statements mentioned above, and not to statements related to the causes enumerated in the law, such that I do not think that this can be held against him in this proceeding.

            In view of the severity of the cause of supporting armed struggle by a terrorist organization against the State of Israel, it would be proper to present Cassif’s own words as stated in his affidavit to the Elections Committee. He affied that “I have never called for violence, and I am opposed to violence as such against any person”. As my colleague the President noted, Cassif explained to the Elections Committee that “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence […]” and stated further on that “I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all”. In regard to the definition of the term “terror” as opposed to “guerilla warfare” in all that concerns harm to soldiers, Cassif’s attorney emphasized in the hearing before us that the statements were made in the course of an academic debate on the subject and that one should not infer that he expressed support for harming soldiers from the presentation of his position in the matter:

He said that he has a dispute with the term “terror” even in the UN there is a dispute about this word. He wrote this and teaches his students. The dispute about the Prevention of Terror Ordinance then was a debate. Therefore, what he says about this matter of who is or isn’t a terrorist from an intellectual and academic perspective is debated […] these terms that he employs are not foreign to the Supreme Court and not to the international humanitarian court. Not one word here is a call [to terror] (p. 9 of the transcript).

            Even if one does not agree with the definitions adopted by Cassif, and even if they cause indignation, in the context presented to us they cannot be taken to imply, of themselves and certainly not given the entire collection of statements and explanations, support for armed struggle by a terrorist organization against the State of Israel. It is sad that his words show, in my opinion, a certain sense of contempt for the lives of IDF soldiers and complacency in regard to many citizens who have lost what was most dear to them in the name of defending the homeland. In such matters, a member of Knesset and a candidate for election as a member of Knesset is expected to act with sensitivity. But there is a gap between such a failing and the existence of a cause to prevent participation in the elections.

            In summation, I would say as follows. In my opinion, there is no basis for attributing to Cassif statements that support armed struggle by a terrorist organization against the State of Israel or the negation of the existence of the State of Israel as a Jewish and democratic state. As noted above, there are four conditions that must be met in order to bar a candidate from participating in the Knesset elections: the cause for disqualification constitutes a dominant feature; the existence of clear, unambiguous evidence of the existence of the cause; activity, including expression, for the realization of the wrongful purposes; a critical mass of highly credible evidence. In my opinion, there is no basis for attributing to Cassif expressions of support for armed struggle by a terrorist organization against the State of Israel. He made it clear that he always was and always will be against violence. As for his positions on the symbols of the state and the Law of Return, he declared that he abides his party’s platform. In regard to both causes, the evidentiary foundation is sparse, certainly not unambiguous, and lacks the requirement of dominance or activity for the realization of the purpose. In other words, both independently and cumulatively, the evidentiary foundation against him does not meet the four tests.

8.         Ra’am-Balad: The proceeding in the matter of the Ra’am-Balad list focused upon the Balad party. It is argued that the central piece of evidence for disqualifying the list in these elections is the Basic Law: A State of all its Citizens Bill that Balad sought to propose to the 20^th Knesset. The bill was submitted to the Knesset presidium, but that body did not approve its presentation before the Knesset.

            The bill was of a general character. For example: “The state is a state of all its citizens, in which the regime is democratic; the state’s regime is based upon the values of the dignity of the person, his liberty and his being an equal among equals”. There is also reference to the language, the symbols and the anthem, which will be in the same spirit. It is argued that the positive implies the negative, that is, that the practical significance of this bill is the revocation of the Law of Return and changing the symbols of the state and its anthem such that they would not express its being Jewish but only democratic. Taking this step carries some weight. It is more forceful than a newspaper interview, for example. It is parliamentary activity that can bear fruit. The list’s attorney argued that the bill was a sort of “gimmick” in response to Basic Law: Israel – The Nation State of the Jewish People. This argument, in itself, is insufficient. The bill refers to the negation of the State of Israel as a Jewish (and democratic) state, and even if some party or other is frustrated as a result of the activity of the government and the Knesset, it is not exempt from the requirements of the Basic Law. However, the submission of the bill must be examined not just on the legal level but on the factual level. To be more precise, the factual level constitutes a central part of the legal examination. Thus, the party’s conduct in regard to the causes under the law must be examined in accordance with the strict rules. From that perspective, the bill, by itself, does not cross the necessary threshold. First, as already stated, one of the conditions is that of dominance in the purposes and active conduct. It was not argued that the bill also appears in the party’s platform. Second, the bill is signed by the Knesset members who served at the time, some of whom are no longer candidates in the current list, and others are place only symbolically. Thus, for example, MK Hanin Zoabi was placed in the 118^th spot on the list. In regard to the candidates who appeared before us and who are placed at the top of the list, it turns out that they do not support that position. Their attorney even referred to the bill as a kind of mistake. And again, the matter must be examined according to the relevant tests. It would not appear that the desire to annul the anthem, the law and the symbols is dominant, or that they are actively working in such a manner, in particular in regard to the figures who currently represent the list. On the contrary, those positions are not part of the party’s planned parliamentary activity. Not just remorse, but a lack of devotion to the purpose, and conduct at a very specific time. Were the list continuing in that conduct – since the Law of Return remains in force – the situation might be different. But that is not the situation before us.

            From reading the opinion of my colleague Justice Mintz, it appears that he does not agree with the reasoning of the majority. He expanded upon the subject of the party’s conduct that was addressed in the case law in the past, in regard to previous Knesset elections. Of course, one can be of this or that opinion in regard to decisions rendered in regard to previous Knesset elections, but it does not appear that at present, significant weight should be attributed to conduct that this Court already decided was insufficient to prevent the party’s participation in the elections. Thus, the focus is upon the new material, and that is what I addressed.

            My colleague Justice Mazuz is of the opinion that the term “Jewish state” in the context of Basic Law: The Knesset should be understood as referring to the identity of the state in the national sense. In other words, it does not necessarily refer to a change of the internal content, like the state’s symbols. In my view, it would be incorrect to construe the term “Jewish state” as a test of the right of the Jewish people solely to national existence for three reasons. First, the term “Jewish” is not merely a geographical matter, but an historical one as well. The state’s symbols carry weight in the basic definition of the state. So it is in regard to other states as well. Second, the case law has also adopted this view in the past (see, e.g., EDA 50/03 Central Elections Committee v. Tibi [35], 21-22, according to which “the ‘nuclear’ characteristics that shape the minimal definition of the state being a Jewish state…the right of every Jew to immigrate to the State of Israel in which Jews will be the majority; Hebrew is the primary official language of the state; Jewish heritage is a central component of its religious and cultural heritage”). Third, it would appear that practical experience shows that the objections in debates upon negation of the Jewish state focused upon the return to Zion, and not upon questions of general, historical, and religious symbols. Thus, the practical consequences of this distinction are unclear. The primary practical problem concerns proposals to annul the Law of Return, and not merely the changing of the symbols. In any case, it would seem that a construction that includes “internal” characteristics of the term “Jewish” would be more precise, and thus I would take exception to my colleague Justice Mazuz’s distinction. Of course, when I say “internal”, I refer to the most basic matters, but there is no need for elaboration or for a precise delineation.

            A final point. According to the position of the Attorney General, there is significance to the fact that the Ra’am and Balad parties are running together on one list. As opposed to this, I am of the opinion that as a rule, a party that has been tainted by a cause that disqualifies it from participating in the elections cannot cross the hurdle by joining with another party. Such an approach would afford too easy an exemption for a party that should be disqualified simply because it joins with another. In my view, the Attorney General’s approach, according to which weight should be given to the combining of parties – even if this does not grant an “exemption” – is problematic. The reason for this is that it is not clear how to calculate such a factor. There is also the fear that parties might join together so that one will “clean” the other of the cause that has tainted it. It is one thing to recognize remorse, and another to grant a seal of approval due to joining another party. I am of the opinion that if there is a cause for disqualification, then the law requires that the list be barred from running, subject, of course, to restricting disqualification to exceptional cases. Therefore, I did not grant weight to the arguments concerning the relationship between Balad and Ra’am in examining the matters.

9.         The right to vote and the right to be elected are twins, but not identical. In practice, “to vote and be elected” is presented as a single right, when each actually has an independent dimension. This is so, despite the strong connection between them, regarding which it suffices to mention that the right to be elected influences the right to vote. I will demonstrate what the two rights share and what distinguishes them in regard to the issue addressed in these proceedings – the application of sec. 7A of Basic Law: The Knesset.  

            The right to vote focuses upon the identity of the decider and the right to be elected on the question of who is qualified to represent the people, or in our case – who is not qualified to represent them. It would appear that the right to vote places its emphasis upon the individual. The vote of every voter is worth no less that the vote of any other voter, regardless of his status, position, conduct, or statements. Therefore, the criteria for identifying who is entitled to vote are formal. As opposed to this, the question as to who can be elected is not merely formal, but value based. This is how we are to understand the causes that prevent participation in the elections that concern not only support for armed struggle, but also negation of the existence of the State of Israel as a Jewish and democratic state, and incitement to racism. Its purpose is to define the society and its boundaries. The purpose of the right to vote is to protect the individual, whereas the purpose of the right to be elected is to protect the unity of the nation. Both rights are precious.

***

It was therefore decided, on March 17, 2019, by a majority, in accordance with the opinion of President E. Hayut, not to approve the decision of the Central Elections Committee in the matter of the disqualification of the candidacy of Cassif; to grant the appeal in the matter of the Ra’am-Balad list and rule that it is not barred from participating in the elections for the 21^st Knesset; to grant the appeal in the matter of Ben Ari and rule that he is barred from participating in these elections. In addition, the Court unanimously decided to deny the appeal in all that regards the Election Committee’s decision not to disqualify the Hadash-Ta’al list, and to deny the appeal in the matter of the non-disqualification of Ben Gvir.

Given this day, 15 Tammuz 5779 (July 18, 2019).

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).

 

 

 

 

 

 

 

because on appointment a member  does  not  become an agent  of the appointer, the 'umbilical cord' between  them  being cut (per Silberg J.) or because even though appointed to represent some interest, his appointment may not be revoked if he becomes a 'rebel' (per Witkon J.).'

2. (Cohn J. dissenting) The resignations took legal effect and there was no need for such resignations to be accepted by the Com­ mittee.
3. (Silberg J. dissenting) the Committee, whether consisting of five effective members (if the resignations were effective) or of eight could act by a majority of its nominal complement.

 

Palestine cases referred to:

 

1. H.C. 43/46-Adel Ibrahim El Farrah  v. Chairman  and  Members of the Electoral Committee of Khan Younis (1946) 13 P.L.R. 336.

Israel cases referred to:

2. H.C. 3/58; 9/58-Yona Berman and others v. Minister of the Interior; "Izhar" Israel Oil Industries Ltd. v. Minister of the Interior (1958) 12 P.D. 1493 (translated at p. 29)
3. H.C. 19/56-Eliezer Brandvein v. Governor of the Central Prison, Ram/a, and others (1956) 10 P.D. 617.
4. H.C. 221/56-Joseph Malahi v. Chairman of the Local Council, Rosh Ha-ayin (1957) 11 P.D. 925.

In H.C. 210/60

Spaer for the petitioner.

Hausner, Attorney-General, and Ter/o, Deputy State Attorney, for the first and second respondents.

The third, fourth, fifth and seventh respondents were not rep­ resented.

Salomon and Mizrahi for the sixth respondent.

In H.C. 205/60

Bechori for the petitioner.

Hausner and Ter/o for the first and second respondents. The third respondent was not represented.

Salomon for the fourth respondent.

 

SILBERG J. The petitions before s and the answers in opposition were conceived and born in the disturbed  atmosphere  surrounding, to everyone's sorrow, the elections to the Chief Rabbinate Counci.. This is attributable in no small measure to the existence of some very

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resolutions,by a majority of votes, and in case of an equal division of votes the Jewish Agency for Palestine shall appoint a member with a casting vote...

2. The Electoral Committee shall address a request in writing to the Rabbinical Council to compile within one month a list of officiating Rabbis in Palestine.... The list shall be submitted to the Electoral Committee which shall nominate out of the Rabbis included therein the forty-two Rabbinical members of the Electoral Assembly for the election of the Rabbinical Council....If the list is not compiled within the prescribed period of one month, it may be drawn up by the Electoral Committee itself. The Electoral Com­ mittee shall provide each member with a certificate confirm­ ing his nomination as a member to the said Electoral As­ sembly.
3. The Electoral Committee may call upon the General Council (Vaad Leumi) to submit within one month a list of the Local Communities and of the names of their respective delegates to the Electoral Assembly..

The General Council (Vaad Leumi) shall draw up a list of the Local Communities, shall prescribe the number  of their respective representatives, of whom the total number shall be twenty- ight, shall call upon the Local Communities concerned to nominate the prescribed number of candidates, and shall prescribe the number of Sephardic and Ashkenazic candidates respectively. The candidates of the Local Com­ munities shall be appointed by the committees of the Local Communities and each candidate shall deliver to the Com­ mittee of the Local Community concerned a declaration in writing affirming his positive attitude to the Jewish religion. Upon receipt of the names of the candidates of each Local Community, the General Council (Vaad Leumi) shall for­ ward the list to the Electoral Committee. In the event of the General Council (Vaad Leumi) failing to submit the list within the prescribed period of one month, the Electoral Committee itself may draw up the list. The Electoral Com­ mittee shall provide each member with a certificate confirm­ ing his election as a member of the Electoral Assembly for the election of the Supreme Rabbinical Council."

 

The 1954 amendment provides in Reg. 4:

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not explained in that case, is that when the minority has ceased to exist, it is utterly impossible to compose one's doubt whether, if the minority had existed, it might not have succeeded in persuading the majority to accept its view, the question involved not having been canvassed in all its different aspects. This can be illustrated by taking the case of a judge­ ment given without first hearing the arguments of all parties. The rule assumes special significance when a seat is allotted to one or more meip.bers in a composite body on the ground that they possess a special "character", such as, for instance, sex, race, religion, party affiliation, intellectual capacity, ideology or outlook-a condition of  "parity" which also existed in the case of the committee before us.

5. Now briefly and focally to relate the facts necessary for  the heart of the matter.
   
   1. On  19  February,  1960,  the  Rabbinical  Council   nominated as four members of the Electoral Committee, Rabbis A. Goldschmidt,

S.H. Abudi, Z. Markovitz and E. Abu Revia. These members will hereafter be called "the Council appointees." In using the term "nomi­ nated" I do not thereby hold as yet that this was an "appointment" and not an "election." I shall return and devote para. 7 of this judgment to this question.

2. Precisely four months later, on 19 June, 1960, the Minister of Religions, with approval of the Government, nominated as the four remaining members of the committee, Rabbis Y.L. Maiman, A. Walden­ berg, Y. Kaafah and D. Shalush. These members are hereafter  called "the ministerial appointees."
3. Trouble began at once with the convening  of  the first meeting of the eight members of the committee. The Rabbinical Council argued that the invitation had to be sent out jointly by the President of the Coun­ cil and the Minister of Religions, whilst the Minister argued to the contra­ ry that he,.and he alone, was authorised to convene the Committee, which he proceeded to do. Notices of the meeting, signed by the Minister alone, having been sent on 4 July,  1960,  the  Council  appointees,  including the said Rabbi Abu Revia, refused to attend the meeting of the Com­ mittee. Let it be said at once that on this point, so I think, the Minister and not the President of the Council was right, and that for two reasons.

1. This trivial question of precedence  belongs without  any doubt to that class of questions which the  Minister  is empowered  to  decide by virtue of the said provisions of Reg. 4(4) of the 1954 amendment.
2. In earlier elections, as also in the 1955 elections, the meeting

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was called by the Deputy Minister  of  Religions  and  nobody  worried or protested about it.

I fun not prepared to set aside the work of the Committee for this reason.

4. Thereafter things came to a head.  The  dispute  between  the two "camps" grew sharper and more profound until  the  situation reached the impasse at which it remains today. We may note the following facts:

.(i) The first meeting took place on 6 July, 1960, five members attending, the four ministerial appointees and Rabbi Abu Revia. According to his contention, Rabbi Revia was convinced, after receiving a letter from the Minister (Exhibit 7), that the latter indeed was alone competent to summon the members of  the  Committee.  According  to the contention of the Qther.side, the matter sprang from the fact that in the meantime Rabbi Abu Revia had for private re sons decided to change camps. At that meeting Rabbi Maimon was chosen to .be -chairman of the Committee, to which at first all the Council appointees agreed, the fight between them and the ministerial appointees not yet having flared up.

 

2. On 8 July, 1960, in view of the step taken by Rabbi Abu Revia, the three Council appointees, Rabbis Abudi, Goldschmidt and Mar­ kovitz, despatched a letter to the. Council (Exhibit 10) in which they asked to be released .from membership of the Electoral Committee. That letter states:-

"To our great distress and discomfiture, a serious matter has occurred which brings into question the basis of the Com:. mittee's work, at least in a public and moral sense. We have read in the newspapers that one of the Rabbinate's represent­ atives on the Committee, Rabbi Amtam Abu  Revia,  who was associated with.us in the said consultation [the reference is to the consultation in which all the Councµ appointees unanimously accepted the decision that the first meeting must take place either on the initiative of the members of the Com­ mittee themselves or on the invitation of the two bodies which had constituted the Committee] and signed the letter and was of one mind with us, and also expressed his-satisfaction at the end of our meeting with our unanimity of  views,  saying 'And Israel encamped there opposite the mountain, as one man with one mind'. Yet after all this he attended the said

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meeting without previously getting in touch with us and conducted himself as he did.

Even after the event Rabbi Abu Revia did not find it proper. to maintain any contact regarding the step he had taken, which it is not necessary to elaborate. It is superfluous to describe the seriousness of the matter  and  the  offence and consternation it has caused among the  Rabbinical  public and the grievous impression which this event with all its consequences and repercussions has made upon the community."

3. On 10 July, 1960, the Rabbinical Council considered the request of the three rabbis and after a discussion adopted the following resolutions (Exhibit 11):-

" 1. In view of the conduct of Rabbi Abu Revia as reflected in this meeting, it was resolved to remove him from member­ ship of the Electoral Committee and to cancel his appoint­ ment.

2. It was resolved to appoint Rabbi Mordechai Eliyahu of Jerusalem as a member of the Committee in the place of Rabbi Abu Revia. That Rabbi is accordingly appointed.
3. In view of the above resolutions, the Chief Rabbinate Council appeals to its three representatives, Rabbis S.H. Abudi, Goldschmidt and Markovitz, that  they  withdraw their request to be released from membership of the Electoral Committee."

4. On 14 July, 1960, the three above-mentioned rabbis addressed themselves  again  to  the  Rabbinical  Council  and  requested-   that  they should still be released.  Their  reason  for  this  was  that "the members of the Committee, representative of the Minister of Religions, do  not pay any regard to this resolution  of  the Rabbinical  Council,"  that is, the resolution about the removal of Rabbi Abu Revia and the appoint­ ment of Rabbi Eliyahu. With this request Rabbi Eliyahu associated himself. On the same day, the Council dealt with the plea of the four rabbis and decided t9 accept their resignations.
5. In the meantime the chairman of the Committee,  Rabbi Maiman, continued with the activities of the Committee-further invitations were sent to the members thereof, the Rabbinical Council sought to obtain a list of officiating rabbis and so on-on receiving an

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opinion from the Attorney-General that neither the removal of Rabbi Abu Revia nor the resignation of the three other rabbis had any legal effect, until on 27 July, 1960 an order nisi (in File 205/60) issued from this court including an interim order to halt the committee's work. A similar order was made some few days later in another file (210/60).

To-day Mr. Zephania and Rabbi S.H. Abudi appear as litigants on one side and the Minister of Religions and the ministerial appointees and Rabbi Abu Revia on the other side-the Rabbinical Council was sum­ moned as respondent No. 7 in file 210/60 but has not appeared-and the  proceedings  revolve around  the following  two  basic questions:

1. whether the Rabbinical Council was competent to remove Rabbi Abu Revia, and
2. whether Rabbis Goldschmidt, Markovitz and S.H. Abudi could resign from office.

The petitioners argue that the two questions must be answered in the affirmative; the respondents on the contrary reply that  it is not so and that neither the removal nor the resignations are legally effective.

6. Before we tum to elucidate these questions, we must attend to one argument that runs throughout the final submissions of Mr. Spaer. The argument is twofold, that ab initio the appointment of the four Council appointees was not a lawful one either from the point of view of the composition of the Council or from that of the date of appointment.

 

From the point of view of composition, the late  Chief  Rabbi Herzog passed away on 25 July, 1959 and the appointment of the mem­ bers of the Committee by the Council took place on 19 February, 1960. At that date the Rabbinical Council did not have its full complement, lacking one of its members; although some days later, as will be recalled, the council's term of office, as it then was, was extended (see below  para. 8). This extension, as expressly stated in Reg. 2 of the extending regulations, came into force only on 21 February, 1960. Thus, when the appointments were made, the Council was not complete and inevitably  in consequence of the Nahlath Yitzhak rule it was not competent  to  effect the appointment of the four Council appointees.

From the point of view of date, according to Reg. 1 of the Election Regulations the Rabbinical Council is obliged to participate in "the task of constituting" the Electoral Committee "not later than three months prior to the expiry of the term of office of the Rabbinical Coun­ cil"; on the day of appointment, 19 February, 1960, the Council's

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5 year term of office had not yet been extended and it was due to expire on 21 February, 1960. Thus, the appointment was made later than "three months before the end of the term"-it was made two days before-and obviously was null and void and there is no lawful appointment of the Council appoint es.

This double argument was put by Mr. Spaer with great restraint­ and he himself convincingly answered the first limb, as we shall see later. It merely served him as a desperate resort after all other hope had been lost, since if we accepted his argument, the very existence of the Supreme Rabbinical Council would be put in jeopardy and it was very doubtful whether his client or clients would thank him for this. There is no need to say that the Attorney-General did not rely on this argument since his main burden was to legitimate the Committee in its full composition of eight members and enable the elections to take place as soon as possible.

Nevertheless, I do not reject this argument because of the lack of importance  attached  to it  by the  parties.  I  reject  it  because it is  bad.

Mr. Spaer himself found the  conclusive  answer  to  the argument of incomplete composition in the provisions of Reg. 21 of the Elections Regulations, which provides:

"21, If a vacancy should occur in  the office of Chief  Rabbi or of member of the Rabbinical Council by reason of death or resignation of the holder of such office, the vacancy shall be filled by the candidate belonging to that community... .If there be no such candidate, and the deceased or resigned member be a Chief Rabbi, fresh elections shall be held in accordance with .these Regulations."

Now  ask  yourself,  if  a  "truncated"  Council   cannot   function, ow then will the elections tal<e place? The answer, perforce,  is  that Reg. 21 is a statutory provision which excludes the operation of the Nahlath Yitzhak rule with regard to the election of the Council and permits the latter to function forthis purpose even with seven members alone.

As to the point of time, my view is that one should not attach too much importance to the period of three months prescribed by Reg. 1.  The period was fixed for effective operation, so that the Council and the Vaad Leum( (now the Minister of Religions) could manage to implement the whole complicated procedure bound up with the Council elections. But if for any reason they could not  constitute  the  Committee  until after tµe commencement of the three months, they might do so within

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8. The third and  last ground  does not recommend  itself to me at all. ' The late Chief Rabbi Herzog passed away on 25 July, 1959. Seven months after his death, on 23 February, 1960, the Minister of Religions made th Regulations extending retrospectively from 21 February, 1960 the term of office of the Council to 21 July, 1960. When these regulations were made the Council comprised seven and not eight members. Hence the authority to act granted to the Council was given to a seven-man Council alone, the quorum of which was obviously four and not five.
9. Likewise I do not see any basis for the first ground. The learned Attorney-General drew his main support for this from the language adopted by the regulation-maker in Reg. I of the Elections Regulations, where it is provided that "one half of the number of members of the Electoral Committee shall be -elected by the Rabbinical Council and one half by the General Council (Vaad Leumi)". But whilst the learned Attorney-General is very precise indeed about the language of the legislator and invokes  its  materiality,  the  legislator  himself  who  is the "master mind" is not at all exact in his terms and uses in­ terchangeably two expressions. Thus In Reg. 1 itself, in the fourth sentence, he says "Any layman (non-Rabbi) appointed to serve on the Committee shall deliver to the...(Vaad Leumi) a declaration in writing confirming his positive attitude to the Jewish religion." The argument of the Attorney-General that this really means the special member appointed by the Agency in the event of an equal vote does not appeal to me at all. Why impair the position of this individual member more than that of any other member of the Committee who is not a rabbi? Is the Agency more suspect in matters of "religious qualification"

than the Local Councils?

'·

We came across this very same phenomenon of saying one  thing and meaning another at another point in the Elections Regulations, according to the Hebrew version which is now binding by virtue of the Rabbinical  Council   (Miscellaneous   Provisions)   Law,   1955.   Thus in accordance with Reg. 3, in the language of the legislator, the non­ rabbinical representatives are nominated by .the Committees  of  the Local Communities (at present the Councils of the Local Authorities)

)ut after such appointment and their approval by the Electoral Com­ mittee, the representative receives a certificate that he was elected to the Assembly which elects the Rabbinical Council. Thus the one means the other, election is appointment, and accordingly nothing is to be deduced from the expression "shall be elected" in Reg. 1 and we may define the status of a member as if the phrase was everywhere "shall be nominated".

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10. More-much more-serious attention is to be paid to the dispute between the parties over the second ground of the Attorney-General, in which he underscores the absence of any power to remove Rabbi Abu Revia.

Yet I prefer on  this  point  the  Attorney-General's view to  that of Mr. Spaer. One can easily imagine how great would be the uproar and how debased the probity of the elections if every member of the Electoral Committee were the "personal representative" of the body which nominated him, foreswom to comply with the directions of his nominator. Mr. Spaer himself argued that the Minister of Religions had suggested to certain rabbis membership of the Electoral Committee on the condition that they undertook in writing to work for the election of a certain candidate for the office of Chief Rabbi and he regarded-and justly so-such conduct as highly tainted. I make no finding of fact at all with regard to this serious allegation. Rabbi S.H. Abudi gave evi_dence that he heard of this from Chief Rabbi Nissim who heard of it from Rabbi Kook. Rabbi Lufas gave evidence that the Minister of Religions told him that there was absolutely nothing in it. Neither the Chief Rabbi nor the Minister appeared before us and we have no possibility of deciding which is the true version. One thing, however, is clear and beyond all doubt, that tainted acts of this kind attributed by Rabbi

S.H. Abudi to the Minister of Religions, such acts and their "kith and kin" are likely to occur if a vital tie survives between appointer and appointee, and the first is permitted to give the second orders even after the appointment. This consideration alone compels the conclusion that upon appointment-as· the·Attorney-General expressed it-the "umbilical cord" should be cut  between  appointer  and  appointee, the latter becoming a being with its own life, who may and even must fulfil his task according to his personal conscience, his own inner voice and not that of others, without accepting any instructions whatsoever from the person of his appointer. This conclusion necessarily involves a denial of the power of removal, since otherwise this power would be a sword of Damocles enslaving the appointee to the will of the appointer.

Sec. 22 of the Interpretation Ordinance, however, provides that an authority empowered to appoint a person to an office may also remove him therefrom, but it adds immediately "unless a contrary intention appears." Here a contrary intention is implied by reason of the very nature of the office.

In my  opinion,  accordingly,  the  removal  of  Rabbi  Abu  Revia  is devoid of all legal effect  and  therefore  obviously  the  appointment of Rabbi Eliyahu also is nugatory.

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11. As against this, I do not accept the contention of the Attorney­ General when he propounds the ineffectiveness of the three resignations, in spite of their being accepted by the Rabbinical Council. I have found no   warrant   for   this   extreme   proposition,   either   in   Jewish   law or in common law and Israel case law.
    
    1. Jewish law. The learned  Attorney-General  found support for his contention in the well known rule, the source of which is in the Tosefta of Baba Bathra, that a guardian who takes possession of the property of orphans or intermeddles in their affairs cannot resile (see Shulhan Arukh Hoshen Mishpat and Rama, Art. 290, para 23; Tur Hoshen Mishpat, Art. 290, para. 30 and Beth Joseph ad. loc.,

subpara.  18;  Magged  Mishneh   n   Rambam,   Laws  of  Inheritance, ch. 10, rule ·s, citing Rambam and Rashba) ut the matter bears no

comparison. There is no need to e;,cpand on the fact that a member of the Committee is not a "guardian" and committee matters not "orphan property." Even if the analogy is s retched to the extreme and these two. disparate things are mediated, Rabbis Goldschmidt, S.H. Abudi and Markovitz had most  certainly  not  yet  begun  to "intermeddle" in tlie Committee's affairs nor received any "property". Moreover this rule of guardianship is not an absolute rule but qualified. It allows for the resignation of the guardian for good reason, such as "if he leaves town" (see Rama, ibid. and Beth Joseph on Tur, ibid., citing Rashbatz). Thus the guardian himself can in certain circumstances free himself of his duties.

2. Common law and Israel case law. I have examined the_ American and local sources cited to us by the Attorney-General but have not found any relevant precedent for the present matter.

1. The reference to 19 A.L.R. (American) 37, 38, proves nothing, since it merely indicates the policy of cer:tain statutes. In thlS' country there is no law which prohibits or penalises the resignation of a public officer.
2. The references to 19 A.L.R. 44-46, are evidence to the con­ trary. Two kinds of rights to resign a.re here stated (at the beginning of chapter 4) to exist, one absolute on the free volition of the officer, the other qualified, that is to say dependent upon the consent of the appointing authority. All the decisions mentioned deal exclusively with the question whether the officer may resign without the appointer's consent. The majority of the decisions cited permit  resignation  even  without  leave of the appointing authority. In the  case  before  us  the  resignation  of the rabbis was accepted by the Rabbinical Council.                     '

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3. The judgment of Agranat J. In Brandvein v. Governor of the Central Prison, Ram/a (3). The Attorney-General can derive no benefit for his argument from this judgment. It is there said (at pp. 626, 627):-

"There remains, however, another consideration which supports the construction we have decided to give to sec. 16 [of the Judges' Law, 1953]. This  consideration  is  based upon the principle inherent in the common law that a person appointed or elected to serve in a public office assumes a public duty from which he cannot divest himself unless express provision exists in the enabling Law empowering him to do so, or. alternatively his voluntary resignation is accepted by those appointed over him...

This view, that a person appointed or elected to public office assumes a heavy ·public duty from which he cannot divest himself by a unilateral expression of his desire to do so etc."

A pedantic person might lay great significance upon the words "those appointed over him." The Rabbinical Council, he would argue, was not appointed over the Committee and therefore this dictum does not apply here.

I do not think that Agranat J. intended this in his judgment. The idea is that resignation may not be unilateral. It must receive the seal of those concerned with filling the. office. In this sense, the Council also is "appointed over the committee." Thus if the office falls vacant, it can and must fill it anew in accordance with sec. 20 of the Interpretation Ordinance.* I do not agree with the argument of the Attorney-General that upon the appointment of the members of the Committee the Council was functus officio and could no longer act in accordance with sec.20 as aforesaid. If it were otherwise, what should the Rabbinical Council do if one of the members it appointed dies?

4.  

The judgment of Berinson J. in Malahi v. Chairman of the Local Council, Rosh Ha-ayin (4). This judgment is most certainly in complete contradiction to the argument advanced by the Attomey­ General. After sketching the position under English common law tegarding the right of resignation and the more lenient attitude under American case law, Berinson J. there went on to say (at p. 932):-

 

• This section provides that a duty imposed by statute must be performed as occasion arises.

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"It appears to me that the background of public life in this country and Israel public opinion towards abandoning public office is far nearer to that of the United States than of England. We have no serious fear that, Heaven forfend, there will be a lack of persons ready to assume public office. Nor does it enter the mind of anyone that filling a public post involves any proprietory or possessory right for the person in office or that the office is some kind of burden imposed upon him by the public, which he must continue to bear so long as he is not given permission to yield it up by the appropriate authority. Such principles are completely opposed to the views which prevail among us of the character of public service and the freedom of action of the individual in his attitude towards public office, to enter upon it, to persevere in it or to give it up. Accordingly, I am of the opinion that whilst there in no

provision in the enabling Law which denies or qualifies the right of the holder of public office to resign, his right to give it up voluntarily at any time continues to exist and it is enough for

him to _express his d7sire clear!)! and unequivocally."

The learned Attorney-General sought to disting sh between permanent public office and an isolated public task such as membership of the Electoral Committee. Resignation from the first is possible with or without approval of the appointing authority, from the second, never. There is no precedent for this distinction. It is also likely to bring in its wake the injurious result that the blind, the lame and the sick will thereby be compelled to continue to serve in office whatever the sorry consequences thereof.

I have not closed  my eyes to the fact  that  in  the case  before  us,  if the resignation of the three rabbis is set aside, they still need do nothing, since their "work" will be done by others, the five members of the Com­ mittee, who constitute a majority by virtue of  the provisions  of sec. 37 of the Interpretation Ordinance.* Yet I think it would be an incorrect  and even a very dangerous legal principle if we held that a person ap­ pointed for an isolated public task could not rid himself of it even with the approval of the appointers.

Accordingly,   my  opinion  is  that  the  resignation  of  Rabbis S.H.

Abudi,  Goldschmidt  and  Markovitz,  which was accepted  by the Rab-

 

 

 

• "Any matter, the doing of which is placed upon a number of people more than two, may, unless a contrary intention appears, be validly done by a majority of them."

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binical Council, took legal· effect and they are no longer members of  the Committee of eight.

12. What are the consequences? The situation is certainly  neither easy nor very pleasant, but such is the law and  we are not at  liberty to depart from it or to "sweeten the pill" by a  wrong construction. The committee to-day consists of five members alone, that is to say,  it is a truncated committee and as a result of the Nahlath Yitzhak rule it cannot perform its functions until the Chief Rabbinate fills the vacan­ cies by the appointment of three members. Theoretically, the Council can halt the activity of the Committee by refraining from doing anything, by not "accrediting" the three missing members. That would be "sabotage" and I hope that the Rabbinical  Council  will not follow this unseemly course. If it so conducts itself, somebody is likely to be found who will volunteer to apply to this court and seek an order against the Council for the appointment of members, and there will be further cause for indignity and indignation. I think that although the order made by this court rp.ay not actually exert pressure either upon one or upon the other "camp", a way will be found  to  right  the situation and respect for the humiliated rabbinate restored.

 

In my opinion, accordingly,  the  order  nisi  in  both  files  should be made absolute in the following terms:

 

The committee must cease from doing any  act  whatsoever until the Rabbinical Council appoints the three members lacking for the lawful number of the Committee.

 

WITKON J. Two questions  present  themselves  to  us,  one,  whether the removal of Rabbi Abu Revia from office as a member of the Electoral Committee is sound in law, and two, what are the effects and implications of the resignation of the other members of the Committee,  chosen  by the Rabbinical  Council.  In  answering  these  questions  we are obliged, I think, to place in the forefront the special character of the Committee which must be constituted by the Rabbinical Council together with the Minister of Religions in accordance  with  the  Elections  Regulations. We must remember who  are  the  constituents  and  who  the  members of this Committee, what  is the structure  of  the  Committee  and  what its functions. There is not much sense in speaking of "removal" and "resignation" as such in the void. The rule associated with one type of committee or function  does not necessarily  attach  to every other  type. It is very possible that it also does not attach  to  the  type  with  which we are concerned.

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The principal and central argument of Mr. Spaer for the petitioner was that the Electoral Committee is comprised of "representatives" of two bodies, each of which needs to elect or appoint its half. This argument was the main pillar of all his careful submissions. He regarded the four members elected to the Committee by the Religious Council as members whose task it is to represent that institution. It should, however, be noted for the sake of accuracy that the petitioner also,. Rabbi Abudi, did not himself contend that such a representative is some kind of agent who must obey the instructions of  his principal. The rabbi emphasized  that he had to act according to his conscience. But his argument was that since the regulations assign the task of constitution to these two different bodies,  the  persons  they  choose  also  reflect  the  particular   attitude of the body- which elected them. One found to be lacking expects to be removed. The main thing is that when a place falls vacant, whether because of death, removal, resignation or any other reason, the Com­ mittee becomes defective in composition and is deprived of the authority to act.

 

It appears to me that this argument loses sight of the true character of the Electoral Committee. As will be  recalled,  the  Regulations  in their original form of 1936 gave the task of constitution to the Rabbinical Council and the Vaad Leumi jointly, and in the event of deadlock between' the members chosen by these two bodies the right to decide rested in a member appointed by the Jewish  Agency.  To  my  mind, even in this dualism of the two bodies, the Council and the Vaad Leumi, it is difficult to see any recognition  of the existence of special interests. It is true that the Rabbinical Council is a rabbinical-religious institution, whilst the Vaad Leumi is a "secular" institution which represents the people in all its streams and strata. But this difference between the religious and secular approach is certainly not relevant to the differences of opinion which have now revealed themselves between the  Council and the Min1ster. However, if no hint is to be found in the old regulations for the representation of bodies possessing different attitudes, how much more so with the regulations of 1954. The latter-the handiwork of the then Minister of Religions-became currently necessary upon the establishment of the State. The Minister of Religions now took the place of the Vaad Leumi concomitantly with the abolition of  the  deciding vote which the Jewish Agency had previously possessed. Two things followed upon this amendment. The first, whilst  during  the  Mandate the law in the religious field had honoured the principle of the autonomy of the institutions of the Jewish Settlement in the country,  now  under the State the order of things was put upon a national basis. Thus the

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who serves as representative of the party interest of his electors, as for instance a party member in the Knesset or on a local council or any other body, is not under the domination of his electors and they may not control how he discharges his mandate, how much more so a member of the kind here under consideration. There is certainly nothing wrong for such a member to receive guidance from the body which chose him and to act in its spirit. But from this it is not to be concluded that when a member throws off the yoke of discipline, those who sent him may revoke his mission. Once chosen, he sits in his own right and ceases to be subject to the governance of those who chose him. Why does this rule

_apply doubly to a member of the Electoral Committee? Because from the very structure and function of the Committee it follows that a11 its activity is confined to one end and must be carried out within a fixed time. Not only that the election itselfis tied to a limited period, but the function is an isolated one and does not continue indefinitely. We would reach a state of chaos if the electing body were at liberty to go back on its choice and elect another at any time, so long as the Committee had not com­ pleted its work. In accordance with what sec. 22 of the Interpretation Ordinance states, a contrary intention is here implied  from  the  very task and the mode of election involved.

 

I now pass to the question of the resignations and I must confess that this question worried me not a little. We have heard much from counsel of both parties about the right or the absence of the right of a person to resign from an office to which he has been elected or appointed. At the end of it all, it seems to me that no such person is to be denied the right to resign, at least when his resignation is acceptable to the body from which he accepted office. Even on the strictest view, a person may resign with the consent of his principal. I have not overlooked the argument of the respondents that upon  the election  of its members the Council completed its work and thenceforth the Council had no contact or connection with them. On the other hand and without laying down any firm rule oflaw, since differences are revealed in the observa­ tions of Agranat J. in the Brandvein case (3) and those of Berinson J. in the Malahi case (4), I see the difficulty in accepting the view of the Attorney-General that a person elected fo be a member of the Electoral Committee cannot resign whatever the circumstances. It seems to me that the question is quite another one-and it is the  only  question which interests us here: what are the implications of this "resignation" and what is its effect regarding the continuance of the work of the Electoral Committee. The Attorney-General and Mr. Salomon relied upon sec. 37 of the Interpretation Ordinance and contended that the

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a member was assigned to represent a vital interest, it is possible that by his  absence  the  committee  would  be  "truncated"  and  then  the  rule of the Nahlath Yitzhak matter would apply. But if he did not represent any special outlook and attitude and  was  indistinguishable  from  the rest of his colleagues and his place fell vacant because of death or resigna­ tion, is it the intention of sec. 37 that the committee should carry on without him? I have considered the matter and in the end have reached the conclusion that indeed so it follows from the plain meaning of the terms of this provision. But more than this, in the present case we are dealing with the resignation of three members who took this step  with the express intent that they should no longer be  associated  with  the work of the Committee. They washed their hands of the wholt; business. Is there any difference between such "resignation" and ceasing to have any connection with the work  of  tlie Committee?  In my  view there is no  real difference. In the face of a  resignation,  whose  whole purpose   is to.set at nought the intention of the rule-maker and render it nugatory, one cannot say that a c9ntrary intention is implied in  these  regulations. In the absence of any provision to the contrary for the case of resignation of this kind, it is not to be assumed that the rule-maker meant them to be thwarted.

It follows therefore in my opinion that the remaining  members  of the Committee, who are the majority, are competent to continue with their work. Like my respected colleagues, I also am not happy with this conclusion that leaves to the five what the law entrusted to eight. But I annot see any escape from this except in one of two ways. It is possible for the Council now to re-elect three members to make up the number. lfit does so, I also think that the time factor will not stand in the way. If the Council does not take this course, the Government could consider whether thi is not a case for putting into effect the provisions of sec. 23 of the Interpretation Ordinance, under which it has the authority to direct that others shall replace those who have resigned.

 

I advise to discharge the orders nisi.

 

COHN J. I am of the same opinion as my respected colleagues that the removal of Rabbi Abu Revia from membership of the Electoral Com­ mittee is of no effect. To the reasons given therefor by Silberg J., I wish to add that an express rule' exists in Common law under which a body that participates in the constitution of another body (as the Rabbinical Council here participated in forming the Electoral Committee) may not deny a member of the constituted body his membership therein even

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The provisions of that section apply only when a statutory duty or power is imposed upon the person who is prevented from carrying out his task or whose office falls vacant, but not when the power or duty is that of a committee or body of which that person is only one member.

In view of the conclusion I have reached, which falls within the category of a decision on the facts, there is no need also to decide the question of law whether sec. 37 of the Interpretation Ordinance deals only with a majority of the members of a body when all of them exist, even though they do not  in fact join in doing  the act concerned,  or  whether it deals with a majority of members in any event, either when they all exist or when some  are lacking. This distinction  is not  of importance for the matter before us, since even if sec. 37 were construed restrictively, its provisions would apply here where all the members of the Committee are alive and in office. But because the distinction has in practice occupied the great codifiers, and out of respect for tlie parties who appear before us and counsel who have cited Jewish law as well, I have given much

_thought to the relevant Jewish law and shall briefly consider it.

There is no difference of opinion among the jurists that in judicial acts the majority decision of judges or arbitrators is not followed unless all were present at the hearing. Even if one out of ten or one out of a hundred is removed, the structure will collapse.-

"since the majority prevails only when it has reached its decision after all have considered the question and not if some are ab.sent. For it may be said that had the latter been present, they might have shown some reason for reversing the view agreed upon by the majority and the majority might have adopted it....This is obvious for judicial purposes and it ap­ plies likewise to arbitrations. There is never a majority unless it emerges from a body as a totality after due deliberation. But a mere majority out of a whole which considers or assesses or implements a matter by itself and not in consultation with the total body or not in its presence can decide nothing."

(Responsa of Ritba, 85; so also Responsa of Rashba cited in Tur Hoshen Mishpat, 9, 13.)

The learned Attorney-General argued that the functions of the Electoral Committee are quasi-judicial and thereby sought to give some reason why its members may not resign. I do 'not accept this argument since were I to regard our Committee as quasi-judicial, even I also would hold that there is no majority unless all are present and participate

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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