Petitions granted.

21 Kislev 5767.

12 December 2006.

 

 

HCJ 212/03

Herut – The National Jewish Movement

v.

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

 

 

The Supreme Court Sitting as the High Court of Justice

[January 8, 2003]

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

 

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

 

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

 

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

 

Legislation Cited:

Flag and Emblem Law-1949, § 5

Knesset Elections Law (Consolidated Version)-1969 § 137

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

Basic Law: The Judiciary § 15

Administrative Courts Law-2000

Foundations of Law Act-1980, § 1

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

Penal Law-1977, § 1

Basic Law: The Knesset, § 7

 

Israeli Supreme Court Cases Cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Petition denied.

 

For the petitioners— Shai Zuckerman

For the respondent— Shai Nitzan; Dani Hurin

 

JUDGMENT

President A. Barak

 

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

 

Original

                 

Biladi Biladi
Phalastin

Arafat Salah-A-Din

Mabruk Yah Shahid

Al-Hamdu Li’llah

Fatah Ashaf Hizballah

Yaffo Aco Ramleh V’Lod

Ya Habibi Imshi al-Yehud

Allah Hu Akbar Allah Al-Karim

Phalastin Al-Quds Yerushalayim

 

Translation

 

My State My State

Palestine

Arafat, Salah-A-Din

Congratulations, O Martyr

Praise to God

Fatah, PLO, Hizballah

Jaffa, Aco, Ramleh, and Lod

My Friend, Jews Out

Allah is Great, Allah is Generous

Palestine Al-Quds Jerusalem

 

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

 

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

 
The Authority of the High Court of Justice

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Authority of the Chairman of the Elections Committee

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Authority of the Chairman of the Elections Committee

 

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

 

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

 

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

 

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

 

The Discretion of the Chairman of the Elections Committee

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Scope of Judicial Review

 

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

 

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

 

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

 

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

 

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

 

Justice E. Mazza

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Justice T. Strasberg-Cohen

 

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

 

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

 

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

 

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

 

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

 

Petition Denied.

January 16, 2003

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

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

 

 

 

 

HCJ  10203/03

 

"Hamifkad Haleumi" Ltd.

v

1.         Attorney General

2.         Broadcasting Authority

3.         Second Authority for Television and Radio

4.         National Labour Court                                           

 

 

The Supreme Court sitting as the High Court of Justice

[20 August 2008]

Before President D. Beinisch,  Justices  A. Procaccia, E.E. Levy, A. Grunis,

 M. Naor, S. Joubran, E. Hayut

 

Petition for order nisi to the Supreme Court sitting as the Supreme Court of Justice.

 

Facts: The petitioner is a private company working for the promotion of political program to solve the Israeli-Arab conflict. It applied to the respondents for permission to expose the public to the central principles of its political program by way of advertisements on television and radio. Due to the political contents of the advertisements the Authorities rejected the applications, relying on, respectively, Broadcasting Authority’s Rules - (Advertisements and Notifications on Radio) and the  Second Authority Rules (Ethics in Advertising in Radio Broadcast)  and (Ethics in Television Advertising) (hereinafter-the Rules).

The petitioner contested this refusal in the High Court of Justice, claiming that the Rules unconstitutionally infringed his right to freedom of political expression, which is a part of his right to human dignity, and was thus unconstitutional and invalid. The infringement did not comply with the conditions of the limitation clause because neither the Broadcasting Authority Law nor the Second Authority Law authorize any infringement of the freedom of expression, and a prohibition on broadcasting a political advertisement would not serve any legitimate public interest, because there are no grounds for distinguishing between other media avenues in which political content is permitted, and the advertising media in which it is prohibited. Moreover, the Rules are disproportionate, in terms of its various subtests, specifically in terms of their ability to attain their purpose and of being the least harmful means of achieving the purpose of the violation.

\

The respondents claimed that the right to freedom of speech does not impose an obligation on the Broadcasting Authority to broadcast the political messages of the petitioners at the time, place, and manner requested by the petitioner, and the petitioner has no vested right to transfer information specifically by way of advertisements. The regular broadcasting framework is the appropriate framework for exercising freedom of speech, because the broadcasts must comply with the duty of balancing between different viewpoints, as opposed to the advertising framework which could be unfairly exploited by those with financial power. The law contains an express general authorization for prohibitions and restrictions on the broadcast of advertisements, leaving the specification of particular restrictions to the discretion of the administrative authority. Furthermore, channeling political speech into the appropriate framework of regular broadcasts, which is subject to the fairness doctrine and the duty of balancing, protects the equality of opportunity to present political opinions, and prevents a situation in which extensive dissemination of opinions is granted to those with financial means. Invalidation of the rules would undermine this doctrine which does not apply to the advertising framework, and enable the financially powerful bodies to purchase advertising time and be more effective in influencing social and political discourse without being subject to the restrictions attendant to the duty of balance prescribed by the Law. Moreover, imposing a blanket restriction is the most effective way of achieving the purpose, because invalidating the existing rules and imposing specific regulation would drag the regulator into the realm of political censorship.

 

Held: In a majority opinion, the petition against the legality and constitutionality of the Rules of the Broadcasting Authority and the Second Authority for Television and Radio, prohibiting broadcast of advertisement carrying political contents, was dismissed.

Per Justice Naor: The constitutionality of the Rules in this case must be decided based on the two stage examination: the first stage examines whether the Rules prohibiting political content in advertisements violate a right protected in the Basic law, and the second stage examines whether the Rules satisfy the requirements of the limitations clause.

In the case at hand, the Rules violate the freedom of political expression, which constitutes a violation of the constitutionally protected value of human dignity.  With respect to the second stage however the Rules satisfy the requirements of the limitation clause, insofar as the authorizing sections of the relevant legislation authorize the regulator to restrict the contents of the advertising broadcasts by conferring the authority to establish content based “restrictions” and “prohibitions” on the broadcasting of advertisements. Despite the absence of primary legislation determining the limits of its powers,  the legislative provisions establish requirements to ensure fair and balanced expression of all views to the public, and as such justify regulation of the communication marketplace and the Rules are consistent with that overall purpose and the fairness doctrine, that has been adopted in Israeli law, and they effectively achieve that purpose in a proportionate manner.

Per Justice Levy, The opposition to political advertisements is also and primarily supported by the fundamental consideration of the maintenance or at least the prevention of further deterioration, of the character of public discourse in Israel. Opening the broadcasting realm to political content poses a substantive danger to the quality of political discourse in Israel, and the relevant rules of the broadcasting authorities should be interpreted first and foremost with the goal of distinguishing between political expression and its commercial aspect. This form of analysis enables a synthesis between the purpose and the means adopted to achieve the appropriate purpose in a proportionate manner are satisfied by the ban on political advertising.

Per Justice Joubran, concurred with Justice M. Naor and held that  enabling the broadcast of political expressions on disputed  matters in the framework of paid advertisements would, in practice, spell the demise of the fairness doctrine in Israel, and given that the fairness doctrine is thoroughly anchored in the primary legislation, the rules satisfy the requirement of “explicit authorization”.

Per Justice Procaccia – Having reference to the two stage examination for purposes of constitutional review, held that in the case at hand, the prohibition on political advertisements does not violate the constitutional right to freedom of speech, including the freedom of political expression. The existence of a constitutional right to freedom of speech, including political expression does not necessarily mean that every possible means of expression is included in the right. According to its purpose, the scope of the right to political expression does not extend to expression in the form of paid advertisements by way of public media authorities. Political expression is given an extensive platform in the framework of the programs themselves, without special payment. Commercial and neutral expression was allocated a paid advertisements track, which does not affect or distort public discourse through the monetary purchase of the power to disseminate information. It is difficult to argue that this approach, with its particular distinctions, provides grounds for a claim of inequality and unlawful discrimination, in either the constitutional or the administrative realm, that warrants judicial intervention

Per President Beinisch (dissenting view) - The authorization to establish limitations on the contents of advertising broadcast in the Broadcasting Authority Law and the Second Authority Law are general. The immense importance of freedom of political expression for the individual and for society and its contribution to the democratic process affects not only its constitutional status, but also the scope and degree of the protection given to such expression, and given that the absolute violation under the Rules significantly and severely violates the freedom of political expression, the general authorization does not suffice. The establishment of that kind of prohibition requires an explicit authorization that determines the fundamental principles governing the particular prohibition, even if only in general terms. As such, the absolute ban on the broadcast of political advertisements in the Rules was established without the appropriate statutory authorization, and as such in contravention of the first condition of the limitations clause.

Per Justice Hayut – Concurs with the President’s position that in the absence of an explicit authorization in primary legislation, rules restricting freedom of expression cannot stand, but in the case in point, section 86 (a) of the Second Authority Law satisfies the requirement of explicitness, and provides a statutory anchor for the Second Authority to prohibit political advertisements. The asymmetry thus caused between the Broadcast Authority and the Second Authority with respect to the same politically based advertisements is undesirable and points to the need for a standard statutory arrangement.

 

Petition rejected

Legislation Cited

Broadcasting Authority Law, 5725-1965, ss. 2,3,4,7(2) 25A (a)(1), 25A (b)2, 33, 85,

Broadcasting Authority (Amendment No. 8) Law 5753-1993,

Second Authority for Television and Radio Law, 5750-1990, 5, 5 (b)(7),5 (b) (10),  22, 24(a)(6). 46(a),46(a)(3), 47, 81, 86, 86(1), 88,

Basic Law: Human Dignity and Liberty, s.8

Basic Law: The Judiciary, s. 15 (d)(2)

Basic Law: Freedom of Occupation

Israeli Cases Cited

[1]     HCJ 259/84 M.I.L Israeli Institute for the Choice Product and Business Ltd v. Broadcasting Authority [1984], IsrSC 38(2) 673.

[2]     HCJ 1858/96 Assam, Investments Ltd v. Broadcasting Authority 1999], (not reported).

[3]     HCJ 6032/94 Reshet Communications and Productions Company (1992) v. Broadcasting Authority [1997], IsrSC 51(2) 790.

[4]     HCJ 226/04 Neto M.A Food Trade Ltd v. Second Authority for Television and Radio (2004), IsrSC 59(2) 519.

[5]     HCJ 7012/93 Shammai v. Second Authority for Television and Radio [2004] IsrSC 48(3) 25.

[6]     HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee [2001], IsrSC 46(2) 701.

[7]     HCJ 15/96 Thermokir Horshim v. Second Authority for Television and Radio [1996] IsrSC 50(3) 379.

[8]     HCJ 4644/00 Jaffora Tabori Ltd v. Second Authority for Television [2000] IsrSC 54(4) 178.

[9]     HCJ 7200/02 D.B.C. Satellite Services (1998) Ltd v. Committee for Cable Broadcasts and Satellite Broadcasts [2005], IsrSC 59(6) 21.

[10]   HCJ 951/06 Stein v. Commissioner of Israel Police [2006] (not reported). 

[11]   HCJ 4541/94 Miller v.Minister of Defense [1995] IsrSC 49(4) 94; [1995-6] IsrLR  178

[12 ]  HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior  [2004] (unreported)

[13]   HCJ 1661/05 Gaza Coast Regional Council v.Knesset [2005], IsrSC 59(2) 481.

[14]   HCJ 6427/02 Movement for Quality of Government in Israel v. Knesset [2006] (not yet reported).

[15]   CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 431; [1995] (2) IsrLR 1

[16]   HCJ 2194/06 Shinui- The Center Party v. the Chairman of the Central Elections Committee [2006] (not yet reported).

[17]   HCJ 4804/94 Station Film Co. Ltd. v. Film Review Boar [1997], IsrSC 50(5) 661.[1997] IsrLR 23

[18]   HCJ 6962/03 Media Most Company Ltd v. Council for Cable and Satellite Broadcast [2004], IsrSC 59(3) 14.

[19]   HCJ 806/88 Universal City Studios Inc v. Films and Plays Censorship Board [1989], IsrSC 43(2) 22; IsrSJ X 229

[20]  HCJ 2245/06 Dobrin v. Prisons Service  [2006] ( not reported).

[21]  HCJ 4593/05 United Bank Mizrahi Ltd v. Prime Minister

[2006] (not yet reported).

[22]   HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority (1981)[1993], (IsrSC 48(2) 1.

[23]  HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting (2004), IsrSC 58(3) 65.

[24]   CA 723/74  Ha'aretz Daily Newspaper Ltd. and Others v. The Israel Electric Corporation Ltd. and Another [1977], IsrSC  31(2) 281.

[25]   PPA 4463/94 Golan v. Prisons Service Authority [1996]136, [1995-6] IsrLR 489

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

 [27] HCJ 6396/93 Zakin v. Mayor of Be’er Sheva 1999], IsrSC 53(3) 289.

 [27]  HCJ 11225/03 Bishara v. Attorney General -[2006] (1) IsrLR 43

[28]  HCJ 6226/01 Indoor v. Jerusalem Mayor  [2003], IsrSC 57(2) 157.

[29]   CA 4534/02 Shoken Network Ltd. v. Herzkowitz [2004], IsrSC 58(3) 558.

[30]   CA 105/92 Re’em Engineers Contractors Ltd v. Upper Nazareth Municipality [1993], IsrSC 47(5) 189.

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

[32]   HCJ  2557/05 Mateh Harov v. Israel Police [not reported].

[33]   LCA 10520/03 Ben-Gvir v. Dankner [2006].

[34]   LCA 2687/92 Geva v. Walt Disney Company [1993], IsrSC 48(1) 251.

[35]   HCJ 6126/94 Szenes v. Broadcasting Authority [1999], IsrSC 53(3) 817, [1998-9] IsrLR 339

[36]   HCJ 6893/05 Levy v. Government of Israel [2005], IsrSC IsrSC 59(2) 876.

[37]   HCJ 8988/06 Meshi Zahav v. Jerusalem District Commander [2006] (not yet reported).

[38]   HCJ 953/01 Solodkin v. Beth Shemesh Municipality [2004], IsrSC 58(5) 595.

[39]   HCJ 5118/95 Maio Simon Advertising Marketing and Public Relations Ltd v. Second Authority for Television and Radio [1996] IsrSc 49(5) 751.

[40]   HCJ 4520/95 Tempo Beer Industries Ltd v. Second Authority (1995) (not published).

[41]   HCJ 7144/01 Education for Peace v Broadcasting Authority (2002), IsrSC 56(2), 887. Peace Block v. Broadcasting Authority

 [42]  HCJ 213/03 Herut National Movement v. Chairman of Central Elections Committee for Twelfth Knesset [2003], IsrSC 57(1) 750.2117

[43]   HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security  [2004], IsrSC 58(2) 741.

[44]   HCJ 5936/97 Dr. Oren Lam v. Director General, Ministry of Education and Sport [1999], IsrSC 53(4) 673.

[45]   HCJ 3267/97 Rubinstein v. Minister of Defenseשגיאה! הסימניה אינה מוגדרת. [1998], IsrSC 52(5) 481, [1998-9] IsrLR 139

[46]  HCJ 6971/98 Paritzky v. Government of Israel [1999], IsrSC 53(1) 763.

[47]   HCJ 11163 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel [2006] (not yet reported) [2006] (1) IsrLR 105.

[48]   HCJ 10338/03 Wesh Telecanal Ltd v. Minister of Communications [2006].

[49]   HCJ 7052/03 Adalah Legal Center for Rights of Arab Minority v. Minister of the Interior Adalah [2006] (not yet reported) [2006] (1) IsrLR 443

[50]   HCJ 4769/95 Menahem v. Minister of T0ransport [2002] IsrSC 57(1) 235.

[51]   HCJ 2888/97 Novik v. Second Authority for Television [1997], IsrSC 51(5) 193.

[52]   HCJ 6218/93 Cohen v. Israel Bar Association  [1995], IsrSC 49(2) 529.

[53]   HCJ 1/81 Shiran v. Broadcasting Authority [1981], IsrSc 38(3), 365.

[54]   HCJ 399/85 Kahane v. Managing Committee of the Broadcasting Authority [1987], IsrSC 41(3) 255. 

[55]   HCJ 4915/00 Reshet Communications and Production Company v. Gov’t of Israel [2000], IsrSC 54(5) 451.

[56]   HCJ 5933/98 Documentary Creators Forum v. President of the State (2000) IsrSC  54(3) 496.

[57]   AAA 3307/04 Kol Acher BeGalil v. Misgav Local Council [2005],

[58]   CrA 71/93 Flatto Sharon  v. State of Israel [1984], IsrSC 38(2)757.

[59]   HCJ 7833/96 Melnik v. Second Authority for Television and Radio [1998], IsrSC 52(3) 586.

[60]   HCJ 73/53 Kol Ha’Am Ltd. V. Minister of the Interior [1953], IsrSC 7, 871.

[61]   HCJ 316/03 Bakri v. Film Censorship Board [2003] IsrSC 58(1) 249 [2002-2003] IsrLR 487

[62]   HCJ 5277/07 Marzel v. Commander of Jerusalem Regional Police [2007] (unreported).

[63]   HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v Director of Sabbath Work Permits [2005], (unreported).

[64]   HCJ 1715/97 Israeli Office of Investments Managers v. Minister of Finance [1997], IsrSC 51(4), 367.

[65]   HCJ 1893/92 Reshef v. Broadcasting Authority [1992], IsrSC 46(4) 816.

[66]   HCJ 3434/96 Hoffnung v. Knesset Speaker [1996], IsrSC 50(3) 57

[67]   HCJ 8035/07 Eliyahu v. Government of Israel [2008], (not yet reported) IsrLR 2008

[68]   HCJ 757/84 HCJ 3420/90 The Daily Newspaper Union in Israel v. The Minister of Education and Culture [1987], IsrSC 337.

[69]   CA 723/74 Ha’aretz Daily Newspaper Ltd. v. The Israel Electric Corporation Ltd  (1977), IsrSC 31(2) 281.

[70]   HCJ 9596/02 Pitzui Nimratz, Experts for Realization of Medical Rights and Insurances v. Minister of Justice (2004), 792.

[71]   CA 506/88 Shefer v. State of Israel (1993), 87.

[72]   HCJ 337/81 Miterani v. Minister of Transportשגיאה! הסימניה אינה מוגדרת. (1983), IsrSC 37(3), 337.

[73]   CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers S   Settlement Ltd [1991] IsrSC 48(4) 529.

[74]   HCJ 144/72 Lipevski-Halipi v. Minister of Justice [1973], IsrSC 27(1) 719.

[75]   CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006], (not yet reported). [2006] (1) IsrLR 320

[76]   HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructures [2002], IsrSC 56(6) 25, 25

[77]   HCJ 11163/03  Supreme Monitoring Committee for Arab Affairs in Israel et al. v. Prime Minister of Israel [2006] [2006] (1) IsrLR 105.

[78]   HCJ 256/88 Medinvest Herzliya Medical Center v. CEO of. Minister of Health [1989]  IsrSC 44(1) 19.

[79]   HCJ 2740/96 Chancy v. Supervisor of Diamonds [1997]), IsrSC 51(4) 481

 [80] HCJ 7083/95 Sagi Tzemach v. Minister of Defense [1999], IsrSC 53(5) 241, [1998-9] IsrLR 635

[81]   HCJ 8276/05 Adalah – The Legal Center for Arab Minority Rights in Israel  v. Minister of Defense [2006] (not yet reported

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

[83]   HCJ 5503/94 Segel v. Knesset Speaker [1997] IsrSC 51(4) 529.

[84]   LAA 696/06 Alkanov  v. Supervisory Court for Custody of Illegal Residents [2006] (not yet reported)

[85]   CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

[86]   CrimA 2831/95 Alba v. State of Israel [1996] IsrSC 50(5) 221.

[87]   HCJ 1435/03. A v. Haifa Civil Servants Disciplinary Tribunal [2003] IsrSC 58(1) 529

[88]   HCJ  326/00 Municipality of Holon v N.M.C. Music Ltd [2003], IsrSC 57(3) 658.

[89]   HCJ 3420/90 The Daily Newspaper Union in Israel v. The Minister of Education and Culture [1991], IsrSC 48(2) 24.

[90]  HCJ 1/49 Bajerno v. Minister of Polic [1949], 2 IsrSC 80,82)

[90]   HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [2002] IsrSC 56(5) 393.

[91]   HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309

[92]  HCJ 7111/95 Local Government Centre v. Knesset [1996] IsrSC 50(3) 485.

[93]  HCJ 5394/92 Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority (1994) IsrSC 48(3) 353

[94]   HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [1998] IsrSC 52(2) 193

[95]   HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [1998], IsrSC 52(4) (1998).

[96]   HCJ 2223/04 Levi v. State of Israel [2006] (not yet reported).

[97]   HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel (2006) (not yet reported).

[98]   HCJ 8487/03 IDF Invalids Organization v. Defence Minister (2006) (not yet reported).

[99]   HCJ 11956/05 Suhad Bishara. v. The Ministry of Construction and Housing (2006) (not yet reported).

[100] HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [1998], IsrSC 52(4) (1998).

[101]     HCJ 10076/02 Rozenbaum v. Prison Authority Commissioner (2006) (not yet reported). [2006] (2) IsrLR 331

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

 

 

For the Petitioner –                 Motti Arad, Hila Goldberg

For Respondents 1 – 2                         Avi Licht

For Respondent 3 –                  Yair Eshael, Liat Benmelekh, Nachi Ben-Or

 

JUDGMENT

 

Justice M. Naor

Are the prohibitions on the broadcast of an advertisement with a political subject, as prescribed in the Broadcasting Authority (Radio Advertisements and Announcements) Rules 5753-1993, and in the Second Authority for Television and Radio (Ethics in Radio Advertisements) Rules 5759-1999,  void in that they are an unconstitutional violation of freedom of speech? This is the question confronting us in this petition.

The facts

1.    The petitioner is a private company that incorporated in Israel in 2002.  It promotes an initiative for a permanent solution to the Israeli-Palestinian conflict. In the framework of this initiative, Mr. Ami Ayalon, who until 6.12.2004 served as the chairman of the petitioner’s directorate, together with Mr. Sari Nusseibeh formulated a document entitled the “Declaration of Principles” (hereinafter: "the Document"). The petitioner sought to expose the Israeli public to the contents of the Document and to encourage the public to sign it. To that end, the petitioner prepared advertisements for radio. The advertisements directed the listeners to the petitioner’s Internet site and to a telephone number from which they could obtain further details concerning the initiative (hereinafter: "the advertisements"). The wording of the six advertisements, all sharing a similar conception, was attached to the petition.  One reads as follows:

‘Ami Ayalon

I say to you: the political reality in this region can be changed.

               A declaration of principles has been signed between Israeli and Palestinian citizens.

               It preserves our red lines, which are a Jewish democratic state without the right of return. We have partners on the other side and many of them have signed. Join us now .... Together, you and I can [bring about] change.

Hamifkad Haleumi – Citizens Sign an Agreement.

Telephone: 03-9298888 or Internet www.mifkad.org.il’

Respondent 2 (hereinafter: "the Broadcasting Authority"), which is responsible for broadcasting programs and advertisements on national radio stations, approved broadcast of the advertisements on channels B, C and 88FM from 14 – 28 September 2003. On 19 October 2003, respondent 3 (hereinafter: "the Second Authority"), which is responsible for the broadcast of programs and advertisements on the regional radio stations, announced its refusal to approve the advertisements, in that they dealt with a “political issue which is the subject of public controversy”, and because their entire "purpose was to 'enlist support' for a particular position on an issue which is the subject of public controversy.” The Second Authority directed the attention of the Broadcasting Authority to its decision, in the wake of which the Attorney General, on 29 September 2003, instructed the Broadcasting Authority to discontinue the advertisements because they dealt with “a political-ideological matter which was the subject of public controversy”. On 21 October 2003, the Broadcasting Authority notified the petitioner that it could no longer approve the broadcast of the advertisements on national radio. On 23 October 2003 the petitioner lodged appeals against the decisions of the Broadcasting Authority and Second Authority. On 13 November 2003 the Second Authority dismissed the appeal, and on 16 November 2003 the petitioner received the answer of the Broadcasting Authority Appeals Committee, which likewise dismissed the appeal that had been lodged.

The original petition and the granting of order nisi

2. On 16 November 2003 the petitioner filed a petition (hereinafter: "the original petition") contesting the decisions of the Broadcasting Authority and the Second Authority prohibiting the broadcast of the advertisements, arguing that they were void due to their grave and unconstitutional violation of the petitioner’s freedom of speech. The next day the petition was heard by the Court (President Barak, and Justices Türkel and Hayut) together with an additional petition. As noted by the petitioner (s. 154 of its summations), it was proposed at the hearing to separate the two petitions: HCJ 10182/03 T.L. Education for Peace Ltd. v. Broadcasting Authority (judgment in which was given on 25 November 2004 (hereinafter: HCJ 10182/03 Education for Peace)) would focus on the question of whether the specific advertisement under discussion complied with the Rules; and the hearing of the present petition would concentrate on the question of the constitutionality of the Rules themselves, with the petitioner demanding to disqualify the Rules on the assumption that the specific advertisement does not comply with them as they currently stand.  In the course of the hearing the petitioner therefore requested to limit the remedies sought in the original petition. Following receipt of the response to this request, on 29 July 2004 an order nisi was granted (Justices Cheshin, Rivlin and Hayut) as requested for the three heads of the original petition. The order was directed at the Broadcasting Authority and the Second Authority, ordering them to show cause why the Court should not issue the following declaration:

1. The refusal of respondents 2 and 3 to allow the broadcast of the petitioners’ advertisements, as per the formulation requested in the application attached to this petition as appendix A ... is unlawful in view of its unconstitutional violation of the petitioner’s freedom of speech. Accordingly, the decisions of respondents 2 and 3 should be reversed and the advertisements permitted.

2.            Section 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993, which prohibits the broadcast of advertisements "on a matter which is the subject of public political-ideological controversy”, is invalid, since it unconstitutionally violates freedom of speech.

3. Section 5 of the Second Authority for Television and Radio (Advertising Ethics in Radio Broadcasts) Rules 5759-1999 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules 5754-1994 which prohibit the broadcast of an advertisement “regarding a matter which is the subject of political or ideological controversy” are invalid by reason of their unconstitutional violation of freedom for speech.

            The amended petition and the expansion of the bench

3.         On 6 December 2004 Mr. Ami Ayalon resigned from his position as chairman of the petitioner’s Board of Directors. Following this, the petitioner submitted a request to amend the original petition. On 26 January 2005 the Court (Justices Rivlin, Hayut and Adiel) granted the petitioner’s request and ordered that an amended petition be filed (hereinafter: "the amended petition"). On 27 January 2005 the same panel decided that the hearing should be held before an expanded bench, and on 1 February 2005 the amended petition was filed. On the same day President Barak ruled that the amended petition would be heard by an expanded bench. On 29 November 2005 the amended petition was heard by the expanded bench (President Barak, Deputy President Cheshin, and Justices Beinisch, Procaccia, Naor, Hayut and Adiel). The parties persisted in their request that the Court decide on the fundamental question of the constitutionality of the Rules. Following the retirement of President Barak and Deputy President Cheshin, and in view of the petitioner’s request, on 29 April 2007 the petition was heard by a new bench (President Beinisch, and Justices Procaccia, Levy, Grunis, Naor, Joubran and Hayut). The petitioner again requested that a ruling be given on the fundamental issue of the constitutionality of the rules. The hearing focused on ss. 2 and 3 of the order nisi (regarding the constitutionality of the Rules). The petitioner no longer insisted on s. 1 of the order nisi (permitting the broadcast of the advertisements as specified in the petition), because the petitioner and the Broadcasting Authority had already agreed, on 25 November 2004, on a new format for the advertisement, which was approved for broadcast on the Voice of Israel.

            This brings us to the decision on the issue of the constitutionality of the Rules, and we will begin with a description of the existing statutory arrangement.

            The normative framework – advertising in broadcasts of the Broadcasting Authority 

            4.         The Broadcasting Authority is a statutory corporation, established by virtue of the Broadcasting Authority Law, 5725-1965 (hereinafter: "Broadcasting Authority Law"). The Broadcasting Authority Law authorized the Broadcasting Authority to broadcast advertisements that are presented to the public as a government service (ss. 2 and 3 of the Law; see HCJ 259/84 M.L.I.N. Israeli Institute for the Choice Product and Business Ltd. v. Broadcasting Authority [1], at p. 673). As elucidated below, the Law explicitly authorized the Broadcasting Authority to broadcast advertisements on the Voice of Israel radio station; with respect to television advertising, the Law permitted only sponsorship advertisements, subject to certain limitations (see Yuval Karniel, The Law of Commercial Communication, at p. 162 (2003)).

            Regarding television broadcasts it has been held that “the Broadcasting Authority Law contains no provision, explicit or implied, authorizing the Broadcasting Authority to broadcast commercial advertisements, and according to the nature and the purpose of the Law, no such authority may be attributed to it. Nonetheless, this Court is not prepared to vacate the Broadcasting Authority’s decision to broadcast service advertisements aimed at increasing public awareness on various national, public subjects, and  sponsorship advertisements intended as an acknowledgement on the Authority’s part of the assistance given by a particular commercial company in the production of the program, provided that it involves no direct advertising message” (see HCJ 1858/96 Osem Investments Ltd. v. Broadcasting Authority [2], para. 6).

            Regarding radio broadcasts, the Broadcasting Authority (Amendment No. 8) Law 5753-1993 added Chapter Four A to the Broadcasting Authority Law. When that amendment came into force, Basic Law: Human Dignity and Liberty was already in force, though in fact, the petitioner did not challenge the amendment, but rather the rules of the Broadcasting Authority that were made by virtue thereof. In the said chapter, the Broadcasting Authority was granted explicit statutory authorization to broadcast advertisements and announcements on radio (only) for payment. Section 25A(a)(1) of the Broadcasting Authority Law provides as follows: 

‘The Authority may broadcast on radio advertisements and announcements for consideration (hereinafter: “advertisements and announcements”), and commission them, prepare them or produce them by itself or through one or more other people, as determined by tender.’

Accordingly, s. 25A(b)(2) of the Broadcasting Authority Law (hereinafter: "the Broadcasting Authority authorization section", and see also s. 33 of the Broadcasting Authority Law) authorized the Management Committee of the Broadcasting Authority to prescribe rules regarding prohibitions and restrictions on the broadcast of advertisements and announcements on radio:

‘25A. Advertisements and Announcements on Radio

              ….

(b) The management committee shall determine, in consultation with the Director General, rules concerning - 

         …

(2) prohibitions and restrictions on the broadcast of advertisements and announcements’.

            This distinction authorizing the Broadcasting Authority to broadcast advertisements on radio but not on television has ramifications for the sources of funding of the Broadcasting Authority as a public broadcasting agency, since “broadcasts on Channel One are funded primarily by the television fees paid by all citizens of the State who own a television set” (HCJ 6032/94 Reshet Communications and Productions Company (1992) v. Broadcasting Authority [3], at p. 808; see also “Report of the Committee for Examining the Structure of Public Broadcasting in Israel and its Legal and Public Status” (1997) at p. 59 (hereinafter: "Structure of Public Broadcasting Report")). Accordingly, it was determined that to the extent that the Broadcasting Authority seeks to expand its funding sources through advertisements on radio and television, it must do so by way of legislation (see Reshet Communications and Productions Company (1992) v. Broadcasting Authority [3], at p. 809). Indeed, the authority to broadcast advertisements on radio and television is, as stated, grounded in legislation, and the prohibition on radio broadcasts of advertisements also has its source in legislation, i.e. in s. 25A(b)(2) of the Broadcasting Authority Law.

            5. By virtue of s. 25A(b)(2) of the Broadcasting Authority Law, the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993 (hereinafter: "Broadcasting Authority Rules" or "the Rules") were laid down.  Section 1 of the Broadcasting Authority Rules provides the following definitions of “advertisement” and “announcement”:

‘“Advertisement” – an advertising broadcast, sponsorship broadcast, or an announcement, broadcast on radio in consideration for payment to the Authority.

“Announcement” - the relaying of information to the public.’

            Section 4 of the Broadcasting Authority Rules specifies those advertisements the broadcast of which is prohibited:

‘The Director General will not approve the broadcast of an advertisement prohibited under Chapter C. In addition to the provisions of Chapter C, he is authorized to deny approval for the broadcast of an advertisement that is publicly or morally reprehensible or offensive to good taste or to public order, or damaging to the public.’

            The relevant section in Chapter 3 of the  Rules, referred to in s. 4 above, is s. 7(2) which establishes the prohibition on the broadcast of party propaganda or a matter that is the subject of public political or ideological controversy:

‘7.It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

                                    …..

Party propaganda or a broadcast on a matter that is the subject of public political or ideological controversy, including a call for a change in the legislation concerning these matters.’

By virtue of the section of this rule relating to a broadcast on a matter that is the subject of public political or ideological controversy, the Broadcasting Authority disallowed the petitioner’s radio advertisements, in accordance with the instructions of the Attorney General (see also s. 8 of the Broadcasting Authority Rules, which relates to sponsorship advertisements on radio).

In this context it is also important to mention s. 4 of the Broadcasting Authority Law, which establishes the principle of balance in programs of the Broadcasting Authority:

‘4.  Ensuring Reliable Programs

The Authority shall ensure that programs accommodate the appropriate expression of different approaches and points of view current among the public, and that reliable information is transmitted.’

The Normative Framework – Advertising in Broadcasts of the Second Authority

            6. The Second Authority is a statutory corporation, established by virtue of the Second Authority for Television and Radio Law, 5750-1990 (hereinafter: "Second Authority Law"). Its role is the presentation and oversight of broadcasts in accordance with the provisions of the Second Authority Law (s. 5; see also I. Zamir, Administrative Authority, vol. 1  (1996) 395; and see HCJ 226/04 Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4], at p. 522).

It will be stressed that as public corporations, both the Broadcasting Authority and the Second Authority are “subject to full judicial review, similar to any other administrative authority. As a body fulfilling a public function under law, in the words of s. 15(d)(2) of Basic Law: The Judiciary,  the public corporation is subject to the review of the High Court of Justice and to the laws of public administration” (Zamir, Administrative Authority, at pp. 400-401). "The public media – television and radio - operate in Israel by virtue of legislation. From the perspective of Israeli law they are governmental bodies"(Aharon Barak, "The Tradition of Freedom of Speech and its Problems”, Mishpatim 27 (1997), 223, 237).    

Unlike the Broadcasting Authority, the broadcasts of the Second Authority are executed by broadcasting franchisees (hereinafter: “franchisees” and see s. 5 of the Second Authority Law). The franchisees are subject to the oversight of the Second Authority (s. 5 of the Law). The broadcasts themselves are at the franchisees’ expense, and s. 81 of the Second Authority Law provides that the franchisee “is permitted to include advertisements within the framework of its broadcasts in consideration for payment at the rate that it determines” (hereinafter: “the framework of advertisements”). One of the franchisees’ main sources of funding is the broadcast of advertisements (Hanna Katzir, Commercial Advertising (2001) at p. 168).  In accordance with the recommendations of the Report of the Committee for Investigation into a Second Television Channel in Israel (1979), the framework of advertisements was likewise subjected to the statutory arrangement (see Report, at pp. 41-43).

The Second Authority Law states that the Second Authority is authorized to prevent “prohibited programs” (s. 5(b)(10) of the Second Authority Law) as well as prohibited advertisements, as stated in s. 86 of the Second Authority Law, which provides as follows:

‘A franchisee shall not broadcast an advertisement  –

(1)          On subjects the broadcast of which is prohibited under section 46(a);

(2)          On behalf of a body or organization the aims of which, all or in part, involve subjects as aforesaid in paragraph (1) or labor disputes.’

            The relevant sub-section of s. 46(a) of the Second Authority Law, to which the said s. 86(1) refers, lays down prohibitions on broadcasts (that are not advertisements) involving party propaganda, and includes additional prohibitions prescribed by the Second Authority Council in its rules:

‘A franchisee shall not broadcast programs that contain -

   …

   (3)       party propaganda, except for election propaganda that is permitted by law;

   (4)       a breach of a prohibition set by the Council in its Rules, under another provision of this Law.

            Sections 24(a)(6) and 88(2) of the Second Authority Law (hereinafter: “the authorizing provisions of the Second Authority”) authorize the Council of the Second Authority to make rules concerning subjects of advertisements, the broadcast of which prohibited:

24. Establishing Rules

(a)          The Council, on its own initiative or at the request of the Minister and subject to the provisions of the First Schedule, or the Second Schedule where applicable by virtue of the provisions of section 62C, shall make rules concerning broadcasts, their execution, and oversight thereof, as it deems necessary for realizing the purposes of this law, and including in matters of -

…

Prohibited programs as stated in section 46;

…

The subjects, style, content, scope and timing of advertisements that are permitted under this Law;

 

88.  Rules for Advertisements

The Council shall make rules concerning the broadcast of advertisements, and inter alia, concerning the following matters:

The format of advertisements and the mode of their presentation;
  Subjects that are prohibited for broadcast as advertisements in general, or in specific circumstances, or by reason of being offensive to good taste or to public sensitivities.'

7.    Accordingly, the Second Authority Council enacted the Second Authority for Television and Radio (Ethics in Radio Advertisements) Rules, 5759-1999 (hereinafter: “Second Authority Radio Rules”), pursuant to ss. 24 and 88 of the Second Authority Law. Section 5 of the Second Authority Radio Rules establishes the prohibition on advertising that imparts a political, social, public or economic message that is the subject of public controversy:

'A franchisee shall not broadcast an advertisement that imparts a message on a political, social, public, or economic matter that is the subject of public controversy.'

The Second Authority disqualified the petitioner's advertisements under this rule (an identical rule appears in s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertisements) Rules, 5754-1994).  The Second Authority's decision, dated 19 October 2003, noted that indeed, "further to the above, and beyond that which is necessary, we feel that the said advertisement constitutes real party propaganda, which is prohibited under s. 46(a)(3) of the abovementioned Second Authority Law as well."  However, as noted, s. 46(a)(3) was not the reason for the disqualification, and it was added only as an extra precaution (on the sanction against a franchisee who broadcast on a matter that was prohibited, see s. 49(a) of the Second Authority Law).

            In this context it is important to mention s. 47 of the Second Authority Law, which establishes the obligation of balance in the Second Authority's programs:

'47. Providing the Opportunity for Response

(a) The franchisee shall ensure that in programs on current affairs, the contents of which are of public significance, proper expression shall be given to the various views prevailing amongst the public.

(b) The Council will make rules on providing an opportunity to respond in a manner fitting the circumstances, for those who are, or are liable to be, directly harmed by the programs.'

Regarding the duty of balancing, see also s. 5(b)(7) of the Second Authority Law, which determines that in the fulfillment of its obligations, the Second Authority shall act "to broadcast reliable, fair and balanced information"; s. 5(b)(6)  sets one of its obligations as "giving expression to the cultural diversity of Israeli society"; and s. 46(c) of the Second Authority Law states with respect to franchisees that "a franchisee shall not, in its programs, directly, or indirectly, in writing or in any other form, give any expression to its personal views, and if it is a body corporate – the views of its directors or of interested parties therein."

The Question that Arises in the Petition: The Constitutionality of the Rules

            8.         As we have said, the amended petition seeks the invalidation of s. 7(2) of the Broadcasting Authority Rules and of s. 5 of the Second Authority Rules, on grounds of unconstitutionality.  We will quote the Rules once more:

S. 7(2) of the Broadcasting Authority Rules:

‘7.          It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

                                    …..

 Party propaganda or a broadcast on a matter that is the subject of a public political or ideological controversy, including a call for a change in the legislation concerning these matters.'

Section 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules, 5754-1994 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994  are identical in their wording:

'A franchisee shall not broadcast an advertisement that imparts a message on a political, social, public, or economic matter that is the subject of public controversy.'

The parameters of the dispute – two clarifications

At the outset of our discussion, it is important to clarify two matters.

First, the concern of both this petition and the order nisi of 29 October 2004 is the question of principle – the constitutionality of the Rules, and not the applied question – whether and how the advertisements violate the Rules. As we said, in the hearing of 17 November 2003 the petitioner already agreed to a point of departure whereby the advertisements violated the Rules (and it will be noted that on 25 November 2004, the petitioners and the Broadcasting Authority reached an agreement regarding the wording of a new advertisement, which was approved for broadcast on The Voice of Israel).

It will be emphasized that the question of the constitutionality of the Rules was not decided in HCJ 10182/03 Education for Peace (by the panel comprising President A. Barak, and Justices Y. Türkel and E. Hayut), which dealt only with the interpretation and the application of the Rules. As stated there, “our assumption is that the prohibiting provisions that require interpretation were enacted for a proper purpose, and their violation of the freedom of speech does not exceed the proportionate violation that is required to achieve the underlying purpose of the prohibition" (ibid, para. 8). This assumption will be examined in the present petition.

Secondly, in our case the question is not whether an advertisement on a subject of public political controversy as defined in the Rules (hereinafter: “political advertisement”) also constitutes party propaganda as per the opening section of s. 7(2) of the Broadcasting Authority Rules and s. 46(a)(3) of the Second Authority Law. The parties' pleadings focused on the “political” content element of the petitioner’s advertisements and not on the petitioner's prima facie “party” character element.  Furthermore, on the factual level, the Broadcasting Authority’s decision did not rely on the grounds of "party propaganda", whereas reliance upon those grounds in the Second Authority’s decision was only an added precaution. Accordingly, in the framework of the petition we are not required to consider invalidation on the grounds of "party propaganda". Consequently, we are not required to consider the factual aspects of the petitioner’s apparent connections with political parties, nor need we consider the nature and character of “party propaganda” by way of advertisements other than during the pre-election period or in the context of elections (for interpretation of the term “party propaganda”, see HCJ 7012/93 Shammai v. Second Authority [5], at p. 33). In that case the Court did not adopt a position regarding the Second Authority Rules – see para. 7 of the judgment. On the other hand, regarding interpretation of the term “election propaganda”, see HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee [6], at p. 701). Indeed, the subject of propaganda broadcasts is regulated in separate legislation, which  permits the broadcast of propaganda under certain conditions immediately prior to elections (See Elections (Modes of Propaganda) Law, 5719-1959, which inter alia imposes restrictions on radio and television  broadcasts (ss. 5, 15, 15A, and 15B,  and see also s. 16D(b);  see also Elections (Modes of Propaganda) (Propaganda Broadcasts on Regional Radio in the Elections for Local Authorities) Rules, 5758-1998; see further in Katzir, Commercial Advertising, at pp. 257-259). In our case, as noted, the decisions of the Broadcasting Authority and the Second Authority were not based on these grounds of invalidation. In any case, in view of the wording of the order nisi that was issued, the question of the constitutionality or the interpretation of the provisions regarding propaganda does not arise here.

It will be emphasized that in HCJ 10182/03 Education for Peace, too, the Court did not consider the question of whether party propaganda can be attributed to a body that is not a “party” as defined in s. 1 of the Parties Law, 5752-1992, but some of whose members have a party-political identity (see HCJ 10182/03 Education for Peace, para 10).

10. We will therefore consider only those grounds of invalidation relating to "a broadcast on a matter that is the subject of public political or ideological controversy" (as per the wording of the Broadcasting Authority Rules); or a broadcast "imparting a message on a political, social, public, or economic matter that is the subject of public controversy" (as per the wording of the Rules of the Second Authority). This is the focus of the discussion in the petition.

The petitioner’s claims

11. The petitioner claims that the Broadcasting Authority Rules and the Second Authority Rules violate freedom of speech. Freedom of speech is not merely a basic right, but a constitutional right by virtue of Basic Law: Human Dignity and Liberty. It is argued that by virtue of their political character, the advertisements are protected under the rubric of freedom of political, rather commercial expression, even though the means is advertising. The advertisement is a form of political expression, and as such is entitled to the highest possible degree of protection within the scale of protections of freedom of speech.  It was further argued that the respondents are not intended to serve as a platform only for those views that enjoy public consensus; they must serve as a platform for the expression of the full spectrum of views and beliefs in a society, and this too – not only in the framework of the broadcasting of programs but also in the framework of the advertisements that are broadcast. In the words of the petitioner: “Advertising time [which] is a strip of transmission that constitutes, in effect, a free platform for the public, in the framework of which it can acquire “air time” for the airing of its opinions and beliefs…. Advertising time in the media is the modern town square in which any person who so wishes can set up his own soap-box, stand on it, and voice his controversial political opinions in an attempt to win over his audience (paras. 42 and 44 of the petitioner’s summations).

The petitioner maintains that the Rules violate a constitutional right protected by Basic Law: Human Dignity and Liberty, and that they were enacted after the enactment of the Basic Law (in 1993 and 1999); therefore, they must satisfy the conditions of the limitation clause (s. 8 of the Basic Law).

The central argument in this context is that the first condition of the limitation clause is not satisfied, i.e. that the violation be “by law or according to said law by virtue of explicit authorization therein.” The petitioners claim that neither the Broadcasting Authority Law nor the Second Authority Law authorize any violation of the freedom of speech, and that to the extent that such authorization exists, its interpretation must reflect the importance of the constitutional right. The petitioner raised no arguments relating to the second condition.  Regarding the third condition of the limitation clause – that the violation be for a proper purpose – it was argued that the prohibition on the broadcast of a political advertisement would not serve any legitimate public interest.  The public interest that might be relevant – equality of opportunity to present political opinions – does not merit protection. According to the petitioner, there is no presumption that certain types of political views enjoy broader financial support than other views. It was also argued that in any case, economic equality between entities seeking exposure for their political views through other media, such as the printed press, the internet, billboards, notice-boards, and direct mailing to addressees does not exist; nevertheless, there is no prohibition on “political” broadcasts via such avenues. This indicates that a restriction specifically on radio and television advertising requires special justification, which would provide a satisfactory explanation for the distinction between radio and television on the one hand, and the other media mentioned above.  At all events, our concern here is with a vertical balance between the applicant’s freedom to publish a political expression and the interests of those with limited financial means who are not able to do so. Here, the balance tilts in favor of the applicant’s freedom of speech in publishing his political expression. Another public interest that is arguably relevant – the interest of balance and objectivity in the state broadcasting media – does not merit protection either. According to the petitioner, this argument is not valid in relation to the Broadcasting Authority, because the advertisements are included in the broadcasting slot intended for advertisements and can be identified as such, so that the listener knows that the opinion expressed in the advertisement is not that of the Broadcasting Authority. The argument is similarly inapplicable to the Second Authority, because the regional radio stations are not owned by the State (even though they are subject to the oversight of the Second Authority). The petitioner also rejects the argument concerning the “captive audience” that is forcibly exposed to the advertisements, saying that in any case, political opinions are conveyed to the public via all the printed and electronic media, and this is the desirable situation which should be encouraged.  Finally, the petitioner claims that the Rules do not satisfy the fourth condition of the limitation clause, i.e. the condition of proportionality.  In this context it was argued that the Rules are sweeping and absolute to the extent that they disqualify any advertisement on a publicly controversial subject, without determining criteria for such disqualification and without specifying exceptions. The petitioner claims that “in order to protect the interests specified in the respondents’ summations, it would be more correct to establish a framework for and restrictions on the broadcast of political advertisements, and not to ban them absolutely".  There are three ancillary tests for proportionality, and the Rules fail the first and the second of them. Regarding the first test (the test of suitability), it was argued that the means employed by the Rules fail to achieve their purpose, because the political opinions that are barred from broadcast are presented and disseminated to the public via all the other media. Regarding the second test (the test of the lesser harm) it was claimed that the means selected by the Rules do not represent the less harmful solution, since it would have been possible to formulate more specific rules that included criteria for disqualification and exceptions to disqualification, instead of the absolute and sweeping ban on all political advertisements.

The petitioner argues that invalidation of the Rules will enable a person holding a political opinion whose view did not receive exposure (or sufficient exposure) in regular broadcasts to express his views at his own expense in a recognized framework of political advertisements. In its absence, his access to the public is blocked and he is condemned to silence.

As for the concerns expressed by the respondents in their response (as elucidated below), the petitioner’s response is that political advertisements in the overall framework of advertising broadcasts can occupy only a “minute percentage” of the air time of the broadcasting channels relative to total broadcasting time, so that the concerns expressed by the respondents are not as serious as claimed.

Therefore, according to the petitioner, the Rules violate freedom of speech and do not satisfy the conditions of the limitation clause. The obvious remedy is the invalidation of the Rules due to their unconstitutionality.

Arguments of the Broadcasting Authority

12. The Broadcasting Authority concedes that the “petitioner has a right of access to the media, as part of its right to freedom of speech” but argues that the right to freedom of speech does not impose an obligation on the Broadcasting Authority to “broadcast the political messages of the petitioners at the time, the place, and in the manner that the petitioner wishes.” This is because the specific broadcasting slot for advertising (hereinafter: "framework of advertisements") was not intended to serve as a platform for voicing controversial political opinions. To constitute a framework for advertisements is not one of the functions of the Broadcasting Authority.  It is strictly an ancillary power, intended to enable the Broadcasting Authority to enlist additional funding for its programs. "Its purpose is to improve the economic balance" of the Broadcasting Authority. Hence, the Broadcasting Authority is authorized to broadcast advertisements, but is not obligated to do so. This is what distinguishes advertisements from the regular programs of the Broadcasting Authority (hereinafter: "the programs"). The Broadcasting Authority is both authorized and obligated to broadcast programs (see s. 3 of the Broadcasting Authority Law, which prescribes the functions of the Authority).  As such, the programs themselves are the basic framework for realizing the petitioner's freedom of speech. The petitioner's material is actually political speech in the “guise” of commercial advertising, but the framework of advertisements "is totally inappropriate for political speech." Consequently, the petitioner's advertisements cannot be approved within that framework.  As stated in the response: "The petitioner is entitled to have its message heard, but the respondents have the discretion to determine the mode of realization of this right, within the framework allocated for political speech in the programs of the Broadcasting Authority … [and not] in the framework of broadcasts intended primarily for commercial advertising.  … The major avenue for the broadcast of expressions is in the programs of the Broadcasting Authority ... which is the marketplace of ideas and the locus of expression. The ancillary framework of commercial advertising has its own objectives."

Furthermore, the Broadcasting Authority argues that the programs are also the appropriate framework for exercising freedom of speech, because programs must comply with the obligation of achieving balance in the presentation of different viewpoints (see s. 4 of the Broadcasting Authority Law). Permitting the broadcast of advertisements of a political character within the (unique) framework of advertisements alongside the (regular) programs undermines that obligation. It may well transform the framework of advertisements into an alternative platform aimed entirely at circumventing the regular framework of programs, which is subject to the obligation of ensuring balance.  This could confer an unfair advantage upon those with the economic power to advertise over those who are unable to do so: "Commercial advertising … allows the wealthy and the powerful to gain exclusive control of the message: not only the contents of the message but also its mode of presentation, the frequency of transmission, the broadcasting hours and the type of program."  As such, the point of departure for the statutory arrangement as a whole is that "this is not an efficient marketplace of ideas in which all of the opinions vie for the viewer’s heart … . The variety of viewpoints, the complexity of the issues, the time constraint, and the importance of the medium require the establishment of rules that will assist in the creation of a marketplace of opinions that is efficient, reliable and fair." An efficient marketplace of ideas can be attained by way of “an obligation to ensure reliable and balanced broadcasting that reflects the entirety of opinions on a given issue.” In this context it was further argued that the recognized exception to the principle of balance is the law governing the pre-election period, which permits the broadcast of political advertisements directly to the public. However, these party political broadcasts, too, are subject to regulation and oversight by the Chairman of the Central Elections Committee (see Elections (Modes of Propaganda) Law, 5719-1959).

In its summations, the Broadcasting Authority did not adopt a clear position on the question of whether freedom of speech is a constitutional right protected by Basic Law: Human Dignity and Liberty.   Nevertheless, its position is that the Rules meet the conditions of the limitation clause.  Regarding the first condition, it was argued that s. 25A (entitled "Radio Advertisements and Announcements") explicitly authorizes the Management Committee of the Broadcasting Authority to prescribe rules, inter alia on the subject of "prohibitions and restrictions on the broadcast of advertisements and announcements," and by virtue of that explicit authority the Rules were made. In this context it was argued that the contention that the Rules must be established in primary legislation should be rejected. An explicit general authorization that leaves the details of the particular restrictions to the discretion of the Broadcasting Authority as an administrative authority is sufficient.  Regarding the third condition it was argued that the Rules were designed to protect the value of equality of opportunity to present political opinions and to prevent a situation in which a person with financial means could achieve more extensive dissemination of his political views than one who lacked those means.  By the same token, they were designed to protect the value of objectivity of the state broadcasting media by subjecting programs to the obligation of ensuring balance. In this sense, the Rules separate the framework of advertisements from that of programs.  This separation will lead to an efficient and equality-based marketplace of political views. As for the fourth condition, it was asserted that the first ancillary condition (the test of suitability) was fulfilled: the Rules channel the political speech into an appropriate framework, i.e. that of regular programs.  Likewise, the requirement of the second ancillary test (the test of the lesser harm) is met. The imposition of a uniform blanket restriction is the most effective way of achieving the purpose, and there is no way of creating any other effective regulation mechanism. A different mechanism which includes qualifications and exceptions is liable to drag the Broadcasting Authority into the political arena. In this context it was mentioned that other frameworks exist for such expression, whether in the Broadcasting Authority itself (in the programs) or external to it (in the other media, such as the print media etc.).  Similarly, the third ancillary condition is also satisfied (the proportionality test, in the "narrow sense"). The benefit from the restriction exceeds the harm caused by the violation of freedom of speech, for our concern is not with preventing expression but rather with channeling it into the framework of regular broadcasts.  

Arguments of the Second Authority

13.  Naturally, the arguments of the Second Authority resemble those of the Broadcasting Authority. I will dwell briefly on these arguments to the extent that they differ from or add to the line of argument of the Broadcasting Authority.

The Second Authority claims that its Rules are justified and that they satisfy the criterion of constitutionality.  In its summations the Second Authority addressed two main concerns in the event of the Rules being invalidated. The first is that invalidation of the Rules would undermine the obligation of ensuring balance in broadcasts, because it would be the financially powerful elements who would purchase advertising time and who could most effectively influence the social and political discourse, unburdened by the constraint of balance prescribed by the Law (which applies only to programs and not to advertisements). It is the obligation to ensure balance in programs that provides the response to the freedom of political expression. The second concern is that invalidation of the Rules will lead to bias in news coverage, since franchisees are liable to avoid publishing news items that may dissuade certain elements from advertising with them, and elements of this nature are even liable to exert pressure upon them in that context. In other words, an economic incentive may be created for franchisees to alter the contents of the programs themselves so as not to jeopardize potential income from advertisements on behalf of various political elements.  Another concern, shared by the Broadcasting Authority, was that invalidation of the existing Rules and a requirement of detailed regulation of the subject are liable to force the regulator to engage in political censorship. Hence the existing position, under which there is a general and uniform prohibition and which distances the regulator from the area of political censorship, is preferable.

According to the Second Authority, "any restriction on broadcasting violates freedom of speech to some extent."  However, it believes that the principle of freedom of speech in advertising is weaker than in other forms of expression. The reason is that "expression" in the framework of advertisements, which is by nature a commercial framework, is accorded the (weak) protection of commercial expression and not the (strong) protection of political expression.

It was further argued that the electronic media in Israel constitute a limited resource. The advertisements that are broadcast over that media are an even more limited resource, in view of the regulatory restrictions on advertising time (see s. 85 of the Second Authority Law which deals with the scope of advertising broadcasts). This necessitates regulation in accordance with the principles of fairness and balance. In the framework of advertisements, however, it is impossible, on a practical level, to fulfill the obligation of ensuring balance, which is inherently linked to political expression.

The Second Authority further argued that its Rules satisfy the requirements of the limitation clause. Regarding the explicit statutory authorization, the argument is that ss. 24(6) and 88(2) of the Second Authority Law authorizes the Second Authority to impose restrictions on advertisements.  The Second Authority contends that s. 88(2) of the Law (the section is entitled “Rules for Broadcasting Advertisements”) authorizes the Council of the Second Authority to establish rules to regulate various restrictions pertaining to advertisements, inter alia regarding entire subjects in relation to which advertising is prohibited. By virtue of this explicit authorization, the Council of the Second Authority enacted the Second Authority Rules that impose restrictions on the broadcast of advertisements both on radio and on television.  Regarding their purpose, it was asserted that the Rules were intended to protect the obligation to ensure balance and the objectivity of the broadcasts. They were intended to prevent a situation in which “money talks”. The principle of balance is of particular importance in the context of a limited public resource such as radio and television broadcasts which have a limited number of channels.  As for proportionality, it was argued that the Second Authority Rules do not restrict freedom of expression in relation to a controversial matter per se, but rather, they restrict its transmission via the “platform” of commercial advertisements. The petitioner has no vested right to relay information specifically by way of advertisements; it may relay the information to the public in the framework of regular programs (subject to the obligation of balance) or in the framework of advertising in other media (such as the print media).

Deliberation and Decision

The test of constitutionality is also applicable to administrative guidelines

14. The Rules of the Broadcasting Authority and of the Second Authority (hereinafter: “the Rules”) are in fact administrative guidelines (HCJ 15/96 Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 403; cf: Y. Dotan, Administrative Guidelines (1996), at p. 45)).  The Chairman of the Broadcasting Authority is signed on the Broadcasting Authority Rules and his signature is accompanied by the confirming signature of the Minister of Communications. The Rules of the Second Authority are signed by the Chairman of the Second Authority. These Rules too, which guide the exercise of administrative authority, are subject to judicial review of their constitutionality (see Zamir, Administrative Authority, at pp. 115-116; see also Aharon Barak, The Judge in a Democracy (2004) at p. 370). The criteria for judicial review are those set in the limitation clause:

‘The criteria prescribed in the limitation clauses of s. 8 of Basic Law: Human Dignity and Liberty and in s. 4 of Basic Law: Freedom of Occupation also apply to a violation of basic rights by an administrative authority.  In other words, an authority’s violation of rights must be by law, or in accordance with the law by virtue of explicit authorization therein; it must be consistent with the values of the state, for a proper purpose and to an extent that does not exceed that which is required' (HCJ 4644/00 Jafora Tabori Ltd. v. Second Authority for Television [8], at 182A; and see also HCJ 7200/02 D.B.C. Satellite Services (1998) Ltd. v. Committee for Cable Transmissions and Satellite Transmissions [9], para. 26).

Indeed, “it goes without saying that that which is forbidden to the legislator under the limitation clause is likewise forbidden, a fortiori, to an administrative authority” (Zamir, Administrative Authority at p.115) and that “the administrative authorities must exercise those powers that allow them to violate constitutional basic rights -  including powers rooted in laws that preceded the Basic Law – in accordance with the criteria established in the limitation clause” (HCJ 951/06 Stein v. Commissioner of the Israel Police [10]). There are two reasons for this rule: first, basic rights in Israel should be protected on the basis of like criteria, irrespective of whether the legal norm whose validity is being examined is a law or some other legal norm. Secondly, the arrangement set out in the limitation clause — which distinguishes, inter alia, between the purpose of the violation of the right and the extent of the violation — is fundamentally suited to all legal norms, and not only statutes” (HCJ 4541/94 Miller v. Minister of Defense [11], at p. 138, {232}; see also HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior [12]).

The stages of the constitutional test

15.   As we know, constitutionality is examined in three stages (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [13], at 544-549): the first stage examines whether the rules violate a human right enshrined and protected in the Basic Law. If the answer is no, the constitutional examination ends.  If the answer is yes, we proceed to the next stage. The second stage examines the question of whether the violation of the constitutional right is lawful. At this stage, the question is whether the rules that violate human rights satisfy the requirements of the limitation clause. If the answer is yes, the constitutional examination ends. On the other hand, if the answer is no, we proceed to the third stage. This third stage examines the consequences of the unconstitutionality.  Let us therefore proceed to our constitutional examination.

16. The first stage of the constitutional examination: the violation of a constitutional right

The first stage of the constitutional examination examines whether the rule violates a human right protected by a Basic Law.

In our case, two questions present themselves at this first stage (see HCJ 6427/02 Movement for Quality of Government in Israel v. Knesset [14]): the first is whether the Broadcasting Authority Rules and the Second Authority Rules violate freedom of speech. The second is whether the violation of freedom of speech is a violation of freedom of speech only as recognized in our common law, or whether it also constitutes a violation of human dignity as anchored in Basic Law: Human Dignity and Liberty. We will begin with the first question.

Do the Rules violate freedom of speech?

            17. Judicial review will be required only if it is found that the rule substantially violates protected rights. A trivial violation [de minimis] is not sufficient:

‘In principle, it seems to me that any violation or restriction of a basic right should be considered, and that the constitutional examination should move on to the second stage (in which the question of whether the violation or restriction was legal is examined). It should, of course, be assumed that if the violation or restriction is not substantive, it will be easy to show that the conditions of the "limitation clause" are satisfied’ (Aharon Barak, Interpretation in Law, vol. 3: Constitutional Interpretation, 469 (1994); see also CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15], at p. 431 {236-237}).'

            Both parties agreed that the Rules of the Broadcasting Authority and of the Second Authority violate freedom of speech. The petitioner sought to express itself via an advertisement to be broadcast on national and local radio. The respondents prohibited the broadcast of the advertisement on national and local radio. Expression – in the manner sought by the petitioner – was prevented, constituting a violation of freedom of speech. The violation in this case is not a trivial matter. Indeed, freedom of speech is "a right in the form of a ‘liberty’. It includes the right to receive information and to respond to it, to listen and to be heard, to see and to listen… . The scope of freedom of speech extends to all the forms and modes of expression and to all of the contents of expression” (HCJ 2194/06 Shinui - the Center Party v. Chairman of the Central Elections Committee [16]).  “‘Expression’ in this context is any activity seeking to convey a message or meaning. It extends to a political, literary or commercial expression” (HCJ 4804/94 Station Film Co. Ltd. v. Films and Plays Review Council [17], at p. 674 {34-35}. This form of expression was prevented in the case at hand.

    The answer to the first question is therefore in the affirmative.

  Here it should be mentioned that the framework of advertising does not constitute a goal per se. It was created as a financial aid in the framework of distributing the funding sources amongst the media market (HCJ 6962 Media-Most Co. Ltd v. Council for Cable and Satellite Broadcasts [18], at p. 25).  On the other hand, since "freedom of speech does not distinguish between the different means of expression” (HCJ 806/88 City Studios Inc. v. Films and Plays Censorship Board [19], at p. 36, {248} then in addition to the funding aim, the framework of advertisements also provides a means of expression for payment. In our case, the Broadcasting Authority Rules do not, prima facie, designate the framework of advertisements exclusively as a means of imparting a commercial message (“advertisement, sponsorship broadcast or announcement that are broadcast on radio as against payment to the Authority”). By contrast, the Second Authority Law apparently does designate the framework of advertisements for the imparting of an exclusively commercial message (“the broadcast of a commercial advertisement as defined in Chapter 6 of the Law”, which prescribes, in s. 81, that “the franchisee is permitted to include in the framework of its broadcasts, advertisements for consideration at a rate that it determines”). However, the exclusive dedication of the framework of advertisements to the imparting of a purely commercial message is not sufficient in my view to negate the violation of freedom of speech in that framework.

For it to be possible to say that there has been absolutely no violation of the right to expression in the present matter, it must be said that this right does not exist in the case of a funding-related means of imparting a commercial message. However, freedom of speech does not distinguish between the different modes of expression, and “a person does not need a law to grant him freedom of speech. He has that freedom without a law” (Zamir, Administrative Authority, at pp. 50-51). It is the administrative authority that requires statutory authorization in order to restrict a human right and violate it (per Justice A. Procaccia in HCJ 2245/06 Dovrin v. Prisons Authority [20], para. 16). Thus, explicit authorization by law is required for any limitation or violation of freedom of speech, even in the framework of advertisements, which are indeed a means of funding. Therefore, the prima facie exclusive dedication that I referred to above does not suffice as grounds for claiming that freedom of speech was not violated, and at all events there must be an explicit limiting rule, which will be examined in accordance with the criteria of the limitation clause as a condition for its validity and its effect.

19. My conclusion is that the petitioner’s freedom of speech in the framework of advertisements has been violated. Is this a violation of political freedom of speech or rather, commercial freedom of speech? This question is important both at the first stage of the constitutional examination, which has just taken place, involving a demarcation of the constitutional parameters of the right itself, for “political freedom of speech is not the same as commercial freedom of speech” (Station Film Co. Ltd. v. Films and Plays Review Council [17]); Jafora Tabori Ltd. v. Second Authority for Television [8], at p. 181), and at the second stage of the examination which will be undertaken below, involving a demarcation of the extent of protection given to a constitutional right (HCJ 4593/05 United Mizrahi Bank Ltd. v. Prime Minister [21], para. 13; HCJ 606/93 Kiddum Yazamut U-Molut (1981) v. Broadcasting Authority [22], at p. 13; HCJ 5432/03 Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], per Justice Dorner, at  para. 13).  

How then should we classify the “expression” that was violated – is it political or commercial?

20. My view is that the content of the expression that was prevented in this case is political, whereas the framework is commercial. The dominant components for classifying the expression are the contents of the expression (political or commercial), the character of whoever or whatever is making the expression (a political or commercial body), and the aim of the expression (political or commercial).  On the other hand, I would attach lesser importance to the technical means or external framework via which the expression is conveyed.  What must be examined is the dominant effect of the broadcast from the perspective of the viewer (regarding propaganda broadcasts, cf. Zwilli v. Chairman of the Central Elections Committee [6], at pp. 704-705; regarding the distinction between commercial and other forms of expression in which exceptional use was made of the regular format of commercial advertising, see Karniel, The Laws of Commercial Advertising, at pp. 321-323).  In my opinion, the conclusion that arises from weighing up all these components in the present case is that the petitioner sought to broadcast a political expression, not a commercial one. The Second Authority too, agreed that the petitioner requested to broadcast a “political expression in a commercial context.”

21.  Basic Law: Human Dignity and Liberty does not contain a separate and independent right entitled “freedom of political speech”, but it does contain a separate and independent right entitled “human dignity”. The claim is that the freedom of speech violated by the Rules – i.e. freedom of political expression – is part and parcel of human dignity. Is this claim justified? This is the second question confronting us, which we will now examine.

Does a violation of freedom of political expression constitute a violation of human dignity?

22.  Freedom of speech is included among the basic human freedoms in Israel, as a foundational right and a prerequisite for the existence and faithful observation of most of the other basic rights (CA 723/74 Ha'aretz Daily Newspaper Ltd. et al. v. Israel Electric Corporation Ltd. et al. [24]; Zeev Segal, "Freedom of Speech from the Perspective of Meir Shamgar", Shamgar Volume, Pt.1, 111, 114 (2003); Eli Salzberger and Fania Oz-Salzberger, “The Tradition of Freedom of Speech in Israel" in Be Quiet! Someone is Speaking: The Legal Culture of Freedom of Speech in Israel  (ed. Michael Birnhack, 2006), 27). Indeed, "recognition of the status of freedom of speech as a basic right existed in Israel long before the enactment of Basic Law: Human Dignity and Liberty" (PPA 4463/94 Golan v. Prisons Service Authority [25], at p. 157-158). 

There are three reasons underlying freedom of speech: the first reason is based on the desire to expose the truth. The second is based on the need to enable human self-realization. The third reasons bases freedom of speech on the democratic regime (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23]; Aharon Barak, “Freedom of Speech and its Limitations”, HaPraklit 40 (1991), at pp. 5, 6 – 10; Ilana Dayan-Urbach, “The Democratic Model of Freedom of Speech”, Iyunei Mishpat 20 (1996), at p. 377; Guy Pesach, “The Theoretical Basis of the Principle of Freedom of Speech and the Legal Standing of the Press”, Mishpatim 31 (2000) 895, at pp. 897-911). Against the background of these reasons it is possible to characterize different forms of freedom of speech, some of which are located at the very heart of the right, and others in its outer coating. A violation of the very heart of the right is not equivalent to a violation at its periphery (HCJ 5016/96 Horev v. Minister of Transport [26], at p. 49{202}).

23.  Indeed, in our case law it has been ruled that freedom of political expression lies at the heart of the right to freedom of speech (Shinui - the Center Party v. Chairman of the Central Elections Committee [16], per Justice Rivlin, at para. 3). “Freedom of political expression warrants maximum protection, both because of its extreme importance from a social perspective as a basic foundation of the democratic regime, and because it is more exposed than any other form of expression to incursion on the part of the government” (HCJ 6396/93 Zakin v. Mayor of Beer Sheva [27], at p. 303). Indeed, freedom of speech “takes on special meaning in the context of political expression in general and in the context of political expression in the framework of the struggle for rights of the individual in particular …. One of the main reasons justifying freedom of speech is the upholding of the democratic regime. Without freedom of speech the democratic regime loses its soul. In the absence of democracy, freedom of speech is lifeless … freedom of speech guarantees the exchange of opinions between members of society, thus allowing opinions to be formed on issues that are on the national agenda (see Zwilli v. Chairman of the Central Elections Committee [6]; see also per Justice E. Hayut in HCJ 11225/03 Bishara v. Attorney General [27], para. 15). “Of all the various forms of protection, the protection given to political expression – which is an essential condition for the maintenance of a democratic process – is particularly broad (HCJ 6226/01 Indor v. Mayor of Jerusalem  [28]).

This brings us to question of whether a violation of freedom of political expression is a violation of human dignity.

24.  Resolution of this question involves interpretation of the nature of the right to human dignity and its scope. In the Shin case, which was heard by an expanded panel of eleven judges, the question was left pending (“Needless to say, the question of whether freedom of speech is included in the rights specified in Basic Law: Human Dignity and Liberty, regarding which differing views have been expressed by the justices of this Court, does not require a decision or consideration in this proceeding” (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], at p. 83; but see per Justice Rivlin who ruled in that case that freedom of speech is a constitutional right, ibid, p. 96; President Barak concurred with his view, id.).

25.   Several Justices of this Court have expressed their position on the matter explicitly, holding that freedom of speech is part of the constitutional right to human dignity (see the survey in Katzir, Commercial Advertising, at pp. 4-6). This is the position of President Barak (in CA 4534/02 Schocken Chain Ltd. v. Herzkowitz [29], at p. 564; and see his comments in CA 105/92 Re’em Engineers Contractors Ltd. v. Upper Nazareth Municipality [30], at p. 201; HCJ 2481/93 Dayan v. Wilk [31], at p. 468{341}  and recently in HCJ 2557/05 Mateh Harov v. Israel Police [32], para. 12). This is also the position of Justice Rivlin (LCA 10520/03 Ben-Gvir v. Dankner [33] para. 10), of Justice Procaccia (ibid, para. 13) and of Justice Arbel (ibid, para. 3). It is similarly the position of Justice Mazza (Golan v. Prisons Service Authority [25], at p. 156 and of Justice Meltz (LCA 2687/92 Geva v. Walt Disney Company [34], at p. 264),  and finally, although only hinted at, of Justice Cheshin (HCJ 6126/94 Szenes v. Broadcasting Authority [35], at pp. 865-867, but see his comments in Golan v. Prisons Service Authority [25], at p. 187).

On the other hand, some Justices have held that freedom of speech is not necessarily part of the constitutional right to human dignity.  This was the position of Justice Dorner (in Golan v. Prisons Service Authority [25], at p. 191 and of Justice Zamir (in HCJ 453/94 Israel Women's Network v. Minister of Transport [36]; and see Zamir, Administrative Authority, at p. 113).

The picture that emerges from the judgments I cited taken together is that freedom of political speech is included in the constitutional right to human dignity.

26.  Recently, in Movement for Quality Government in Israel v. Knesset [14], it was held, regarding the right to equality, that human dignity includes only those rights which are materially and closely bound (whether at the core or on the periphery) to human dignity:

 ‘The median model does not limit human dignity exclusively to humiliation and desecration, but neither does it extend it to the entirety of human rights. In the category of human dignity it includes all those aspects thereof that figure in different constitutions as specific human rights, but which are characterized by what we regard as close and material connection to human dignity (whether to the core or at the periphery)…. I believe that the appropriate model for structuring the relationship between human dignity as a constitutional right, and equality is the median model…. The appropriate conception of human dignity which accords a central role to the autonomy of individual will, freedom of choice, a person’s physical and spiritual integrity and the entirety of his humanity – justifies the inclusion within the parameters of human dignity of those aspects of equality that ensure this fitting conception of human dignity’ (per President Barak, paras. 38 and 40).

            This criterion, in my opinion, is also in keeping with the relationship between human dignity as a constitutional right, and freedom of political expression. My view is that the right under discussion – freedom of political expression – is, according to our juridical conception, closely and materially bound to human dignity, for –

‘What is human dignity according to the approach of the Supreme Court? … Human dignity is based on the autonomy of individual will, freedom of choice and a person's freedom of action as a free agent. Human dignity rests on the recognition of the individual’s physical and spiritual integrity, on his humanity and on his value as a human being, regardless of the extent of his utility to others (ibid. at para. 35).

This conception of human dignity invites the conclusion that freedom of political expression is part of the constitutional right to human dignity (see also Barak, "The Tradition of Freedom of Speech and its Problems", p. 231; Barak, Interpretation in Law, p. 427). Indeed, freedom of political expression is an essential component of human dignity. And as mentioned, it has already been held that freedom of political expression is “the “core” of the right to freedom of speech (per Justice Rivlin in Shinui - the Center Party v. Chairman of the Central Elections Committee [16], para.3). As for freedom of commercial expression – in my view this issue does not arise in the matter before us, and I will therefore leave it pending.

27.  The conclusion is that a violation of freedom of speech by the Rules entails a violation of human dignity. The Rules violate those rights and values that are the foundation of human dignity as expressing recognition of the autonomy of individual will, freedom of choice and a person’s freedom of action as a free agent (cf. Dan Birnhack, “Constitutional Genetics: The Methodology of the Supreme Court in Value-based Decisions”, Bar Ilan Law Studies19 (2002), 591, 626). Thus a positive answer is also given to the second question that I posed.

We will now proceed to the second stage of the constitutional examination, at which we examine whether the violation of rights protected by Basic Law: Human Dignity and Liberty is lawful. The “geometric location” of this question is in the limitation clause of Basic Law: Human Dignity and Liberty.

The second stage of the constitutional examination: Is the violation of the constitutional right lawful? 

28.  At the second stage of the constitutional examination, the lawfulness of the violation of the constitutional right is considered.  Indeed, a distinction exists between the scope of the right and its lawful realization; this distinction is the basis of a recurring statement in the case law and in the legal literature to the effect that human rights are not absolute, but rather, of a relative nature (see recently in the context of freedom of speech, per President Barak, Shinui - the Center Party v. Chairman of the Central Elections Committee [16], paras. 8 and 9).

29.  The “balancing formula” which is the basis of the parties' claims is that which is found in the limitation clause of s. 8 of Basic Law: Human Dignity and Liberty:

‘There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or according to a law as stated by virtue of explicit authorization therein.'

            The limitation clause is the accepted criterion today for achieving a balance between conflicting values. This point was made by President Barak:

 ‘In the petition before us, the values of state security and the maintenance of public order are in conflict with the rights of a person to freedom of movement, freedom of occupation, property and dignity as a human being. The military commander must achieve a balance between these conflicting interests. How should he strike this balance? What is the accepted criterion for achieving the balance? The accepted criterion today, in the wake of the enactment of the Basic Law on human rights, is found in the limitation clause (s. 8 of Basic Law: Human Dignity and Liberty)’ (HCJ 6893/05 Levy v. Government of Israel [36a], at p. 887; and see Horev  v. Minister of Transport [26], at p. 41 {192}).

President Beinisch also dwelt on this point in relation to a violation of freedom of speech:

‘Freedom of speech and demonstration are derived from human dignity, and for that reason the application of s. 8 [of Basic Law: Human Dignity and Liberty] to the exercise of administrative authority is direct (HCJ 8988/06 Meshi Zahav v. Jerusalem District Commander [37], at para.10).

The limitation clause aspires to minimize the violation of a human right (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], at p. 87). It reflects on “the proper balance between conflicting values and rights which form the background to the actions of the public administration … and it constitutes the background of the appropriate conception of the process of weighing up conflicting values” (per Justice Procaccia, Ben-Gvir v. Dankner [33], para.13). The limitation clause gives expression “to the notion that human rights do not enjoy full protection. This emphasizes the conception that the individual exists as part of a society, and the needs of society and its national objectives may permit the violation of human rights …. There are, however, limits to the restriction of human rights. These are set in the limitation clause” (Gaza Coast Regional Council v. Knesset [13], at pp. 545-546). The limitation clause is the constitutional balancing formula applicable to the current case and evidently, the parties were not in dispute on this (regarding the limitation clause as a constitutional balancing formula, see: HCJ 953/01 Solodkin v. Beth Shemesh Municipality [38], at p. 612f; Birnhack, “Constitutional Engineering”, pp. 623, 627-629; Gideon Sapir, “Old versus New – Vertical Balancing and Proportionality”, Legal Studies 22 at pp. 471, 476).

The limitation clause contains four conditions, all of which must be met. We will examine the conditions in relation to our case, one by one.

Limitation clause - first condition: by a law or according to a law by virtue of explicit authorization therein

30. The first condition for the constitutionality of a rule that violates a human right protected by Basic Law: Human Dignity and Liberty is that the violation be “… by a law … or according to a law by virtue of explicit authorization therein.”  For the readers’ convenience, we again quote the authorizing provisions as prescribed in the primary legislation.

The authorizing provision for the Broadcasting Authority is s. 25A(b)(2) of the Broadcasting Authority Law: 

‘25A    Advertisements and Announcements on Radio

….

(b) The Management Committee shall determine, in consultation with the Director General, rules concerning  -

     (2) Prohibitions and restrictions on advertisements and announcements.’

The authorizing provision for the Second Authority is s. 88(2) of the Second Authority Law:

‘88          Rules for Advertisements

The Council shall make rules concerning the broadcast of advertisements, inter alia, on the following matters:

 (2) Prohibited advertising subject-matter for broadcast as advertisements, in general, under specific circumstances, or by reason of being offensive to good taste or public sensitivities;’

Are the aforementioned rules made "by virtue of explicit authorization" in primary legislation? My answer is affirmative. Although the legislative provisions pertaining to the Second Authority differ from those relating to the Broadcasting Authority, in both cases authorization appears in primary legislation.

31. Regarding the Second Authority Law: this Law authorizes the Second Authority Council to determine prohibited "advertising subject-matter" for broadcast as advertisements. This phrase was construed as authorizing the Second Authority Council to impose prohibitions on the contents of advertisements: “It is clear that the authority to disqualify 'advertising subject-matter' encompasses both the style and the contents of the advertisements” (HCJ 5118/95 Maio Simon Advertising Marketing and Public Relations Ltd. v. Second Authority for Television and Radio [39], at  p. 755). Indeed –

'[T]he Council’s authority to impose prohibitions applies not only to the advertising subject-matter, but also to the contents of the advertisements, their format and the manner of their presentation. Furthermore, the choice facing the Council, in exercising its authority, is not necessarily between absolutely permitting and absolutely prohibiting advertisements on particular subjects, but also between permitting them in general and prohibiting them in particular circumstances. This emerges explicitly from the language of s. 88(2) of the Law …. The interpretative presumption regarding … the authorizing law … is that it intended to realize and uphold the basic rights' (HCJ 4520/95 Tempo Beer Industries Ltd. v. Second Authority [40]; see also per President Barak in Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4],  at p. 526A).

Here it should be mentioned that the Rules of the Second Authority, as per their previous formulation relating to both television and radio together (Second Authority for Television and Radio (Ethics in Television and Radio Advertising) Rules, 5754-1994, K.T. 640) (hereinafter: "previous Second Authority Rules") have been approved, on the level of statutory authorization, by this Court (see Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 403). However the previous Second Authority Rules did not include provisions regarding “advertisements on controversial subjects”). These provisions appear in the current Rules.

32.  Regarding the Broadcasting Authority Law: this Law authorizes the Broadcasting Authority to set “prohibitions and restrictions” on advertisements. The phrase "advertising subject-matter" does not appear in the Broadcasting Authority Law, but in my view, the above-said authorization, too, empowers the Broadcasting Authority to set prohibitions on the contents of advertisements (see HCJ 7144/01 Gush Shalom Society v. Broadcasting Authority [41], at p. 891g).  This authority is subject to interpretation; interpretation provides a more complete picture of the authority. This point was taken up by Prof. Zamir:

‘A law without interpretation resembles a sketch of a picture. Interpretation adds colour, depth and soul to the law. A statutory provision that confers authority upon an administrative body without being accompanied by an interpretation of the provision does not provide a full picture of the authority.... The law and interpretation are not the same thing. They are two sources of law, a principal source and a complementary source, but they are linked by a close bond of partnership, as though they were spouses who constitute a family. When complementing a law that confers authority, interpretation changes that authority. It may broaden or narrow the scope of the authority that emerges from a plain reading of the law. It may add tools of implementation to the authority, or restrict it to certain conditions, or channel it for certain purposes. In short, the authority after interpretation is different from the authority before interpretation’ (Zamir, Administrative Authority, at pp. 142-143).

On the interpretative level, my opinion is that the language of the authorization in the Broadcasting Authority Law is very similar to the wording of the authorization for the Second Authority, and requires that the interpretation of both be uniform. Admittedly, the arrangement specified in the Second Authority Law is more detailed than that of the Broadcasting Authority Law, but I accept the State’s position that the difference in wording does not, per se, constitute cause for establishing separate arrangements for the Second Authority and the Broadcasting Authority. The fine linguistic difference between the respective wordings relating to “advertising subject-matter” is not of sufficient interpretative importance to preclude a uniform interpretation, in view of the purpose of the authorization, which we will discuss presently. The purpose of the arrangements is identical, and as such the legal arrangements require similar interpretation.  It is not very logical to permit the broadcast of a political advertisement on one radio channel and to prohibit the same broadcast on a second channel (cf. HCJ 213/03 Herut National Movement v. Chairman of Central Elections Committee for the Twelfth Knesset [42], at pp. 763-764, which compared oversight of propaganda broadcasts on radio and on television, despite the differences in the legal arrangements).

In any case, the authority to totally prohibit a particular activity plainly includes the authority to partially prohibit it: “Even had this not been explicitly stated, it would have emerged from the nature of the authority. Is it conceivable to decide that an authority that is authorized to prohibit a particular action is precluded from prohibiting part of it?" (Tempo Beer Industries Ltd. v. Second Authority [40]). For our purposes, the authority to prohibit the broadcast of an advertisement - in its entirety - includes the authority to prohibit the broadcast of a particular component thereof. This applies to the Second Authority Law as well as to the Broadcasting Authority Law.

33. The authorizing sections relating to both the Broadcasting Authority and the Second Authority explicitly authorize the secondary legislator to restrict the contents of advertisements. They confer authority to establish content-based “restrictions” and “prohibitions” on the broadcast of advertisements. This is an explicit authorization to deal with the said matter by way of restriction or prohibition, and not simply a general authorization to make regulations and rules (cf. HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Internal Security [43]); this constitutes explicit authority to prohibit and to restrict (see Oren Gazal, “Violation of Basic Rights ‘By a Law’ or ‘According to a Law'”, Law and Administration  4, 381, at pp. 396 – 412); and cf. Barak, The Judge in a Democracy, 345; Barak, Interpretation in Law, 504).

34. Our interim conclusion is that both laws explicitly authorize the secondary legislator to make rules that prohibit or restrict advertisements. According to the petitioner, however, the Rules regulate matters for which they have no mandate. They establish primary arrangements that properly belong in primary, not secondary legislation. On this issue, the petitioner invokes the principles laid down in settled case law:

‘Violation of human rights, even when it promotes the values of the State, even if for a worthy purpose, and even when not exceeding the required degree, must be established in a law that prescribes primary  arrangements, and the formal vesting of legislative competence in the executive branch is insufficient.’ (HCJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [44], at p. 684b).

The petitioner also refers to HCJ 3267/97 Rubinstein v. Minister of Defence [45], in which the Court stated:

‘The basic rule of public law in Israel provides that where governmental action is anchored in a regulation or an administrative directive, then the general policies and basic criteria pursuant to which the regulation was enacted should be grounded in primary legislation by virtue of which the regulation was enacted or the administrative directive issued. In more “technical" language, under this basic rule, “primary arrangements” that determine general policy and the guiding principles must be fixed in Knesset legislation, whereas regulations or administrative directives should only determine “secondary arrangements” (p. 502) {164}.’

35. I cannot accept the petitioner’s argument that the Rules should be abrogated (to the extent that they apply to the case before us) because they prescribe a primary arrangement that should be established by way of primary legislation.

The argument is appealing, but in my opinion, a reading of the statutory provisions taken together provides its refutation. Indeed, a perusal strictly of those sections of the two Laws concerning advertisements gives no indication of the intention of the primary legislator regarding that which is permitted and that which is forbidden. However, one cannot read the provisions concerning advertisements in isolation from the other provisions of the Law, as if these broadcasts were a limb severed from the body of the Broadcasting Authority or of the Second Authority. We mentioned the provisions of s. 4 of the Broadcasting Authority Law which concerns “ensuring reliable programs” and which directs the Authority to ensure suitable expression of different approaches and points of view current among the public, and the broadcast of reliable information.  Similarly, regarding the Second Authority, we mentioned s. 47 of the Second Authority Law, dealing with the principle of providing the opportunity to respond and which states that in relation to current events which are of public significance, the franchisee must ensure that proper expression is given to the variety of views prevailing amongst the public; s. 5(b)(7) of the Law under which the Authority must ensure the broadcast of “reliable, fair and balanced information"; s. 5(b)(6), under which the functions of the Authority include ensuring that suitable expression be given to the different views current amongst the public, and  s. 46(c) that prohibits the franchisee or the managers from expressing their personal views. (Similar legislative sections also relate to other communications entities in the Israel media world: see s. 34F(7)(5) of the Communications (Bezeq and Broadcasts) Law, 5742-1982 and ss. 10-11 of the Communications (Bezeq and Broadcasts) (Broadcasting Licensee) Rules 5748-1987)). We will elaborate on these matters below, when we explain our position whereby the Rules were enacted for a proper purpose.

In my opinion, these principles, which deal with programs  –  the "hard kernel" of the functions of the  Broadcasting Authority and the Second Authority – are the primary arrangement in the light of which the Rules should be made. The Rules for advertisements must be consistent with the primary arrangement in the primary legislation, and in my opinion – and to the extent that they relate to the matter before us - they are indeed consistent. We are not in a “legislative vacuum” and in my view, the claim regarding the absence of primary legislation in the authorizing law is not relevant here. The subject of advertisements is a subsidiary matter that follows the main matter.

36.  Over and above what is required, I would point out that there can be no sharp and absolute distinction between primary and secondary arrangements. As noted by Vice-President (ret.) M. Cheshin:

‘An absolute separation of this kind between the legislature, which enacts primary legislation, and the executive, which executes and implements, exists only in Utopia, since "the complexity of life in modern society leaves the legislature with no choice other than to transfer some of its powers to the executive branch, mostly by delegating to the government and those who act on its behalf the power to make regulations that contain primary arrangements (praeter legem regulations)" (HCJ 6971/98 Paritzky v. Government of Israel [46], at p. 790) … How do we distinguish between a primary arrangement and a secondary arrangement? The answer to this question is not at all simple, and the line between primary arrangements and secondary arrangements can sometimes be somewhat vague…. Of this it has been said that the substance of the arrangement, its social ramifications and the degree to which it violates individual liberty will all affect the determination as to whether we are dealing with a primary arrangement or a secondary arrangement’ (HCJ 111/63 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israe [47], paras. 30 and 39).

Let us reiterate: advertising is not the principal function of the respondents. Their main function relates to the programs themselves, and the advertisements are simply a means of funding the respondents’ activities.

Furthermore, the media market is a dynamic one (cf. in another context of the communications market, and in relation to cable and satellite broadcasts, HCJ 10338/03 Wesh Telecanal Ltd. v. Minister of Communications [48]).  To require explicit and detailed regulation on the subject of advertisements in primary legislation may well yield cumbersome primary legislation and may occasionally even lead to the regulatory process becoming paralyzed and frozen at a particular point in time, and cause harm to the interests of those active in the area and to the public interest at large due to the inability to regulate all of the activities of the regulator in primary legislation:

‘Indeed, on the one hand, substantial detail in the criteria should not be required, for this would freeze the legal position, and make it impossible to take into consideration the dynamic reality of everyday life. On the other hand, criteria that are so general and abstract that they add nothing will not suffice. According to this line of argument a golden mean must be found which charges the legislature with prescribing criteria that provide sufficient guidance on the one hand, but which are not overly specific to the extent of precluding consideration of the changing realities of life’ (Barak, Constitutional Interpretation, at p. 504).

In summary, the first condition of the limitation clause is satisfied. We now proceed to the second condition.

Limitation clause – second condition: befitting the values of the State of Israel.

37. The second requirement of the limitation clause is that the rule “befits the values of the State of Israel”. It was not argued here that this condition was not satisfied.

38. The third condition (“proper purpose”) and the fourth condition (“to an extent no greater than is required”) are connected. The first establishes the proper purpose, and the second the appropriate means of achieving it. As long as the purpose is not known and as long as it has not been determined that the purpose is proper, we cannot know what the appropriate means for achieving that purpose are (see HCJ 7052/03 Adalah Legal Center for Rights of Arab Minority [49], para. 59 of President Barak’s judgment). We will now address each of these two conditions, beginning with “proper purpose”.

Limitation clause – third condition: proper purpose

39. The third condition in the limitation clause is that a rule that violates a human right anchored in a Basic Law be for a “proper purpose”. It will be recalled that the “proper purpose does not neutralize the possible violation of the right but at the very most, and subject to the fulfilment of the required conditions, renders the violation legal and constitutional” (per Justice Rivlin in Association for Civil Rights in Israel v. Minister for Internal Security [43], para. 3; see also per President Barak in Movement for Quality of Government [14], para. 52; HCJ 4769/95 Menahem v. Minister of Transport  [50]).

The Rules in the case before us represent a balance between freedom of speech and other values that the Broadcasting Authority and the Second Authority must protect (see Gush Shalom Society v. Broadcasting Authority [41], at p. 892). What are the conflicting values in the case before us? What values are the Rules designed to realize? I referred above to the statutory provisions intended to ensure balanced and fair programs. The case law, too, speaks of the importance of fair and balanced programs in keeping with the “doctrine of fairness”. Indeed, the Rules of the Broadcasting Authority and of the Second Authority are “a system of rules that reflects the ‘doctrine of fairness’… which is appropriate for any communication medium worthy of its name” (HCJ 2888/97 Novik v. Second Authority for Television [51], at p. 204d).

The fairness doctrine in Israeli law

40. The fairness doctrine is the underlying justification for the Rules. The doctrine as understood in Israeli law was succinctly described by its “father”, President Shamgar:

‘The fairness doctrine applies to situations in which a number of opinions prevail regarding a public matter that is controversial. If the media, which is subject to this doctrine, provides a platform for those holding a particular view, it is not permitted to discriminate and prevent the expression of other mainstream views. In fact, the fairness doctrine is actually part of the laws of discrimination’ (HCJ 6218/93 Cohen v. Israel Bar Association [52], at p. 541).

            The fairness doctrine has its source in the status of the Broadcasting Authority as a public authority, which is also a platform that is subject to the principle of equality:

‘The regulation of programming on the basis of equality is dictated by the principle of equality (see HCJ 1/81 Shiran v. Broadcasting Authority [53], at p. 386). To be precise: if the broadcast constitutes election propaganda, then at all events it is prohibited. But even if the broadcast does not constitute election propaganda, care must be taken in its transmission to ensure compliance with the principle of equality…. This interpretation-based conclusion is dictated, as stated, by the Elections (Modes of Propaganda) Law itself. It dovetails with the general obligation of the Broadcasting Authority to maintain equality in its programs. It finds expression in the ‘fairness doctrine’ to which this Court has related on a number of occasions…. As such the authority must ensure that its programs – even if they do not contain prohibited election propaganda – must adhere to the principle of equality' (Zwilli v. Chairman of the Central Elections Committee [6], at pp. 705-706).

            The fairness doctrine was extended to include broadcasts of the Second Authority:

‘Our case law contains much discussion of the importance of an independent Broadcasting Authority, which “is not merely a ‘mouthpiece’ but also a ‘platform’ that must guarantee the expression of viewpoints and opinions… [reference has been made to] the Authority’s obligation to guarantee the public’s freedom of speech …. These comments related to the Broadcasting Authority, but whatever holds for the application of freedom of speech to the activity of the Broadcasting Authority also applies by definition to the activity of the operators of the Second Channel and to the Administration of the Second Authority (Novik v. Second Authority for Television [51], at p. 203); and see also Karniel, Laws of Commercial Communication, at p. 70; Barak, "The Tradition of Freedom of Speech and its Problems", at pp. 239-240).

The purpose of the fairness doctrine is to ensure a free “marketplace of ideas” which properly reflects the range of views on the matter under discussion (HCJ 10182/03 Education for Peace, at p. 416c). Indeed, “the rationale of the fairness doctrine is obvious: presentation of the different aspects of a particular issue or event to the community and maintenance of equality or at least a minimal equality, between the different positions, are intended to improve the flow of information and to prevent distortions and entry barriers” (Reichman, at p. 223; and see also Daphne Barak-Erez, “The Individual’s Access to the Media: Balance of Interests and the Freedom of Speech,” 12 Tel-Aviv U. Law Rev. (1987) 183, 196-200 (hereinafter: Barak-Erez)). The fairness doctrine is intrinsically linked to the principle of equality (Shiran v. Broadcasting Authority [53], at p. 373d); Zwilli v. Chairman of the Central Elections Committee [6], at p. 708; HCJ 399/85 Kahane v. Management Committee of Broadcasting Authority [54], at p. 303).

Abandonment of the Fairness Doctrine in the U.S.A.

41. Admittedly, in 1987 the fairness doctrine was abandoned in the U.S.A (Karniel, Laws of Commercial Media, at pp. 67-69; Pesach, “The Theoretical Foundation”, at p. 961; Amnon Reichman, ‘"The Voice of America in Hebrew? The Israeli Court’s Reliance on the American Law of Freedom of Speech" in Be Quiet! Someone Is Speaking: The Legal Culture of Freedom of Speech in Israel (ed. Michael D. Birnhack) 185, at p. 223 (2006 (hereinafter: Reichman)). This development does not, however, alter my view. President Shamgar already ruled on this very matter:

‘I am of course aware that in its native country, the standing of the fairness doctrine has diminished somewhat. I do not think that we are bound to endorse the negative view that has been accepted in the U.S.A.  The fairness of the doctrine exists in its own right, and no change of wind in the U.S.A. need disturb the bounty of its trees. The reality in the U.S.A., with its hundreds of newspapers and thousands of broadcasting stations, and the broad range of choice offered thereby to every individual, differs from the local reality. The question of whether the fairness doctrine is necessary and reasonable must be determined in accordance with prevailing domestic conditions' (Cohen v. Israel Bar Association [52], at p. 542; see also per Justice Strasbourg-Cohen, ibid, at p. 570).

The fairness doctrine in Israel is therefore anchored in a statutory arrangement in primary legislation, both in the Broadcasting Authority Law and in the Second Authority Law (see also the Structure of the Public Broadcast Report, at pp. 40 – 41). It has taken root in Israeli case law, and it has in fact become Israeli-style common law.

42.  It will be mentioned that the principle of equality in programming, whether or not we refer to it as the “fairness doctrine”, operates with even greater force in the statutory arrangements of the European states. For example, Italy recognizes the doctrine of par condicio (equal conditions) whereby in order to conduct the democratic discourse, the media must be equally accessible to all political bodies and must treat them all equally and fairly in terms of the place and time of broadcasting. This Italian legislative arrangement prohibits the broadcast of a political advertisement, other than in specific and exceptional conditions. The par condicio doctrine was anchored in Italian legislation in the year 2000 (in relation to all forms of regular programs that were not within the framework of pre-election propaganda; on political advertising, see s. 3 of Legge 22 Fabbraio 2000). France too has an explicit and total prohibition on the broadcast of political advertisements (see s. 14 of Law no. 86-07 of 30 September 1986, which relates to freedom of the press, and s. 29 of Regulation no. 88-66, of 20 January 1988, which supplements the law and establishes a prohibition on the broadcast of an advertisement that contains elements liable to offend to political, religious and philosophical opinions or beliefs). Below I will relate to the law in Europe, and particularly in England, which is closer to Israel in terms of the media market and its regulation.

The Fairness Doctrine and the Justification for Regulation of Broadcasts

43. The point of departure of the fairness doctrine is that in all that pertains to freedom of speech in the electronic media such as radio and television, the "marketplace of ideas” is not a free and efficient marketplace.

‘The free marketplace may fail. A "constitutional marketplace failure" may eventuate in which a small circle of powerful people dictate and fashion the "marketplace of ideas”’ (Cohen v. Israel Bar Association [52], at p. 540; HCJ 4915/00 Reshet Communications and Production Company v. Government of Israel [55], at p. 471).

This gives rise to the need to “impose limitations on a process that threatens to transform freedom of speech into the special privilege of a minority group, instead of it being a universal right” (Barak-Erez, at p. 186). Limitations are imposed by way of oversight and regulation of programs:

‘In view of the great social importance attaching to the electronic communications media, and against the background of their unique features, the general view is that there is a need for regulation in this area. The aim of governmental oversight is to ensure that the maximum number of opinions and views find expression in the framework of the media and hence protect the “marketplace of ideas”’ (Satellite Services (1998) Ltd. v. Committee for Cable and Satellite Broadcasts [9], paras. 12 -13).

An additional point of departure that justifies regulation in the communication marketplace derives from the conception that “the airwaves are public property and do not belong to any particular individual” (Shiran v. Broadcasting Authority [53], at p. 378), the conception that the electronic media constitute a “public platform” (Cohen v. Israel Bar Association [52], and see Zwilli v. Chairman of the Central Elections Committee [6], at p. 707; HCJ 5933/98 Documentary Creators Forum v. President of the State [56], at p. 515) as well as a “limited resource” (Media Most Company Ltd v. Council for Cable and Satellite Broadcasts [18], at p. 24), and from the conception that the public media – television and radio – “constitute a governmental authority from the perspective of Israeli law” (Barak, "The Tradition of Freedom of Speech and its Problems", p. 237).

It follows that whoever controls the public platform is also subject to obligations. President Barak discussed this point in relation to the affirmative aspect of the freedom of speech:

‘The media is not just a mouthpiece. It is also a platform. It is likely to be perceived as governmental in nature, and as discharging a public function. This is the affirmative aspect of freedom of speech’ (Barak, "The Tradition of Freedom of Speech and its Problems", at pp. 237-240, 247).

Regarding the Broadcasting Authority, Barak stated explicitly:

‘Recognition of the governmental nature of the Broadcasting Authority made it possible … to recognize the obligations of the Broadcasting Authority as a governmental authority. These are the obligation of objectivity in programming, prevention of politicization of the authority, fairness in advertising, equality, reasonability, the absence of conflict of interest, and good faith in its decisions. It is its obligation not to discriminate’ ("The Tradition of Freedom of Speech and its Problems", at p. 238).

For a comprehensive discussion of the possibility - which does not arise in our case - of imposing legal obligations in relation to private newspapers due to their social function, see: Pesach, "Analytical Basis", at pp. 933-962, 975-984, and Aharon Barak, "Private Printed Media", Alei Mishpat, at p. 293 (2002).

44.  In this context I accept the State’s position that the role of regulating freedom of speech for our purposes is to ensure equality in public discourse and to prevent unfair and unequal influence on the listening and viewing public.

Whereas equality is often realized by removing obstacles to expression in fori that are particularly accessible to the public and in which expression is effective (cf: AAA 3307/04 Kol Acher BaGalil v. Misgav Local Council [57]),  sometimes - seemingly paradoxically -  a specifically restrictive act is required to ensure substantive equality between political expressions. On the theoretical level, this approach is based on the democratic theory of the freedom of speech (Dayan-Urbach, at pp. 388-391, 395-404), on the importance of the principle of equality (Guy Pesach, "Resources of Expression – Characterization and Guidelines for their Allocation" in Be Quiet! Someone is Speaking: The Legal Culture of Freedom of Speech in Israel, 299 at pp. 333, 353-354 (ed. Michael Birnhack, 2006)) and on the role of the media as operating in the “public domain” (Pesach, "Analytical Basis", pp. 970-974):

‘The paradigm of discourse … takes a positive view of a certain degree of governmental regulation in the area of communications and expression …. This kind of involvement is regarded as essential in order to ensure proper discourse and a fitting environment for expression in terms of the degree of decentralization, the variety and the multiplicity of opinions and information' (Pesach, "Resources of Expression").

            In this context, where a concern arises that the possibility of purchasing advertising time for the purpose of disseminating political messages may lead to discrimination against those expressions that lack the financial support to enable them to appear in the framework of advertisements, the threat to the preservation of a balance between the different views in society is clear.  In such a situation, the restriction of political expression in the framework of advertisements as prescribed by the Rules, insofar as it is proportionate under the circumstances, is a factor that actually strengthens rather than weakens public discourse. It limits the influence of wealth on processes of choice in society and allays the concern expressed by the State – a concern to which this Court has related in the past:

‘Freedom of election means not only the physical freedom to cast a ballot in the booth, but also, and principally, the complete freedom to experience the voting process as a free person, both psychologically and intellectually. Therefore, any act that could reduce or eliminate, either directly or indirectly, the voter's freedom of thought and his ability express his preferred course of action and his philosophy genuinely, in accordance with his independent judgment – whether due to a benefit that interferes with this freedom or because the opinions of others have been forcibly imposed upon him - violates the basic principle of freedom and independence of choice. Hence, acts such as these are fundamentally improper. A different or more lenient approach to this subject, or acceptance of and succumbing to such acts, would necessarily undermine the democratic process and distort its character, because the inevitable result would be that he who pays the piper would call the tune, in addition to holding the reins of power with all that it implies; there can be no greater perversion of the principle of the democratic system in an enlightened society’ (CrA 71/93 Flatto-Sharon v. State of Israel [58], at p. 766; see also the Report on the Structure of Public Broadcasting, at p. 57).

President Barak also commented on the importance of equality between participants in political discourse and on the persuasive power of capital:

‘Placing a “price tag” on the realization of a right means violating the rights of those who are unable to pay the price' (Mateh Harov v. Israel Police [32], para. 16; this judgment was partially the subject of a Further Hearing, see HCJFH 552/07 Magen David Adom BeYisrael v. Mateh Harov [58a]).

            On the importance of the principle of equality amongst the participants in political discourse and the concern about the undue influence of wealth see below, in para. 53, quotations from the judgment of the House of Lords in 2008, in R (on the application of Animal Defenders International) v. Secretary of State for Culture, Media and Sport, [2008] 3 All ER 193. 

The fairness doctrine in programs and its effect on the framework of advertisements

            45. In the present case, the respondents’ responses to the petition focused largely on their concern that abrogation of the Rules in such a way as to open the framework of political advertisements to political entities and messages, would lead to domination of the framework of advertisements by those powerful elements who are better able than others to express their positions in political advertisements, thus negating all substance of the fairness doctrine in programs.

In the similar, though not identical, context of election propaganda, President Barak noted in the past:

‘The desire to ensure equality between the parties leads to extending the prohibition on election propaganda, due to fear of the governing parties “gaining control”, one way or another, over the media during the election period. The same applies to the desire to prevent “undue influence” on the elector. Ensuring attainment of this desire - which the mandatory legislator had in mind - also led to the extension of the prohibition on election propaganda' (Zwilli v. Chairman of the Central Elections Committee [6], at p. 703; and cf. Shammai v. Second Authority for Television and Radio [5], para.17).

This concern also exists in relation to advertisements:

‘Public bodies with large advertising budgets may try to acquire immunity against oversight through the use or threat of use of their advertising budgets…. Even where nothing explicit is said, a particularly large and inflated advertising budget confers upon the giant companies a certain degree of immunity, or at least protection against damaging publications…. The natural tendency of some of the advertisers and some of the commercial media [is that] they have no interest in falling out with the advertisers who are the source of their livelihood. This is a serious restriction of the flow of information and of the public’s right to know…. It reveals the influence of the advertisers over the contents of the media…. It is the very heart of the discussion regarding commercial media, its character, and its regulation' (Karniel, Laws of Commercial Media, at pp. 133-136).

This concern is amplified in view of the fact that radio and television broadcasts are very powerful communication media:

‘When the target audience of the expression is the general public, the most effective means of realizing freedom of speech is the communications media, particularly radio and television broadcasts, which reach almost every house in Israel’ (Gush Shalom Society v. Broadcasting Authority [41], at p. 891c. And see, regarding commercial advertising, HCJ 7833/96 Melnik v. Second Authority for Television and Radio [59], at p. 595b; Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4], at p. 526).

46. The respondents’ aforementioned concern provides the background for these comments. As noted, the fairness doctrine aims to “neutralize” this concern in relation to regular programs. It was not intended to neutralize the concern in the framework of advertisements. As we held in HCJ 10182/03 Education for Peace, the fairness doctrine is inapplicable within the framework of advertisements:

‘Commercial advertising that realizes the freedom of commercial expression is also subject to rules intended to ensure fairness in advertising from consumer and other perspectives…. However, as noted, the “fairness doctrine” underlying the restrictions and conditions specified in s. 4 of the Broadcasting Law and in s. 47(a) of the Second Authority Law cannot be applied in relation to advertising. As a result, tremendous difficulties arise where advertisements are used for non-commercial purposes (HCJ 10182/03 Education for Peace, at para. 7; cf. in the context of service broadcasts of the Broadcasting Authority, Israeli Association for Prevention of Smoking, at p. 166).

This invites the question of the relationship between the programs, which are subject to the fairness doctrine, and the framework of advertisements, in which the fairness doctrine cannot be applied. In my opinion it is inappropriate to thwart the legislative intention to apply the fairness doctrine in programming by “shattering the boundaries” by means of the framework of advertisements (cf. Zwilli v. Chairman of the Central Elections Committee [6], at p. 707).

47.By its very substance, the framework of advertisements was not intended to provide a platform for the airing of controversial ideological-political views, as decided in Gush Shalom Society v. Broadcasting Authority [41]:

‘The Broadcasting Authority serves inter alia as a forum for the expression of varying positions and views, in the framework of the programs broadcast and the time allotted to them. The Authority is charged with ensuring reliable programming “which provides suitable expression of different approaches and points of view current among the public” (s. 4 of the Law). At the same time, it is clear that by its very essence, the framework of advertisements is not intended as a platform for broadcasting controversial ideological-political views. The broadcast of such opinions in the framework of paid commercials frustrates the preservation of a balance between different views in the framework of the Authority’s programs’ (Gush Shalom Society v. Broadcasting Authority [41], at p. 894).

Indeed, the broadcast of a political advertisement in the framework of advertisements is liable to upset the balance between the different views in the framework of the public programs of the Broadcasting Authority, and undermine the doctrine of fairness in programming. The Rules under discussion are intended to prevent this, and here too, that which is ancillary (the framework of advertisements) is determined by the principal (the programs).

            The comparison between the public platform in the town square in which a person stands on a soapbox and voices his opinions, and between the political advertisement in the media is incomplete. A person who wishes to express his opinion in the town square needs only a megaphone, and perhaps a soapbox, both of which can be used repeatedly, at minimal cost.  The town square is large, and there is usually enough room for all those wishing to have their say. Not so with the broadcast of political matters in the framework of advertisements via the channels of the electronic media. Here funding is required; in other words, this is not really an avenue which is open to all.

48.  In summary: The main purpose of the Rules in our case is to ensure balanced and fair programs. The Rules were intended to prevent erosion of the application of the fairness doctrine in  programs and “the shattering of the framework” by the broadcast of political messages within the framework of advertisements, to which, as stated in Gush Shalom Society v. Broadcasting Authority [41], the fairness doctrine is not applicable. In my view this reason suffices to determine that the Rules satisfy the requirements of the third subtest of the limitation clause, i.e. the condition of a proper purpose.

The means adopted by the Rules to realize this goal is the total prohibition on the broadcast of political messages in the framework of advertisements.  We will now proceed to examine the proportionality of the means adopted.

Limitation clause - fourth condition: proportionality

49. The fourth and final condition for the constitutionality of the violation of a human right protected by the Basic Laws is that the violation be “to a degree no greater than necessary.” This condition comprises three subtests, which will be examined below.

In my view, the State’s argument that the right to freedom of speech does not impose an obligation on the Broadcasting Authority "to broadcast the political messages of the petitioner at the time, place and manner desired by the petitioner” has merit. It has already been held that “freedom of speech is not an absolute value. The mere recognition of an expression as being protected by the freedom of speech does not require that it be granted a platform in every framework …. Not every individual is entitled to realize his freedom of speech through the Authority, with respect to every expression, in every framework, and at any time he wishes” (Gush Shalom Society v. Broadcasting Authority [41], at p. 891). Even the petitioner acknowledges that “certain rules must be set that will permit the publication of political or controversial matters, subject to certain restrictions … including the contents of the message, the manner of its presentation, the frequency of its broadcast, the hours of broadcast etc.”  The petitioner thus recognizes the importance of restricting rules in this area. Hence, the real dispute is only whether the existing, restricting rules are proportionate, or whether different, more lenient rules should be formulated.

A.Limitation clause – proportionality: the rational connection test

50. The first subtest for the proportionality of the violation is that of the rational connection. The means chosen must lead rationally to the realization of the objective. The rational connection is examined by means of the “results test” (per President Barak, Movement for Quality Government in Israel v. Knesset [14], at para. 58), despite the fact that “[i]n most cases it is possible to base the rational connection on experience and common sense. On this basis, it is possible to show that the legislation is not arbitrary, but based on rational considerations” (per President Barak, Adalah v. Minister of the Interior [49], at para. 67).

In our case, a complete prohibition on political advertisements is an effective means for realizing the objective that we discussed above. The conclusion is therefore, that the Rules satisfy the first subtest.

B. Limitation clause - proportionality: the test of the least harmful measure

51.  The second subtest of proportionality of the violation is the test of the least harmful measure. From among the measures available to the legislature, the one chosen must be that which is the least damaging to human rights. The chosen measure need not be the least harmful in an absolute sense, but it must be within the bounds of proportionality:

‘The obligation to choose the least harmful measure does not amount to an obligation to choose the measure that is absolutely the least harmful …. The rational options must therefore be compared, and the option selected must be that which, in the concrete circumstances, is capable of achieving the proper purposes with a minimal violation of human rights’ (per President Barak, Adalah v. Minister of Interior [49], para. 68).

In the case before us, the Rules that were laid down represent the selection of the least harmful measure. We were not shown any other, less harmful measure, capable of effectively achieving the same goal.  Under the circumstances there is no appropriate alternative to a total prohibition. The petitioner proposed an alternative based on “individual examination” of each advertisement in accordance with specific restricting criteria to be laid down in primary or secondary legislation, instead of the total prohibition. For example, it was proposed to set criteria relating to the date of the advertisement and its duration, the number of times it would be broadcast per day, the position of the political advertisement in the cluster of advertisements etc. I have two reasons for rejecting the petitioner’s proposal. First, this kind of "individual examination" already exists by virtue of the binding interpretation of the Rules as determined in HCJ 10182/03 Education for Peace. Secondly, the question is not whether the rules proposed by the petitioner constitute less of a violation of freedom of speech than the blanket prohibition. Rather, the question is whether the same goal, and especially the fairness doctrine, can be achieved using a less harmful measure. After all, “[i]f the less harmful measure is less effective in achieving the proper purpose, it is not a measure that the legislature is obliged to adopt” (per President Barak, Adalah v. Minister of the Interior [49], para. 88). In our case – will the measures proposed by the petitioner realize the goal that we discussed above to the same extent as the full prohibition? In my opinion the answer is negative, and there is therefore no obligation to choose that measure (cf. ibid, para 89). In my opinion the Authority was entitled to choose the complete prohibition for which it in fact opted.

The conclusion is that the Rules also pass the second subtest.

52. Here it should be mentioned that recourse may also be had to comparative law on the subject of the proportionality of a total prohibition on the broadcast of political advertisements. In England a complete prohibition was established in ss. 319 and 321 of the Communications Act, which prohibits the broadcast of political advertisements outside the framework of propaganda broadcasts (see: Ian Walden and John Angel, Telecommunication Law and Regulation 444-447 (2nd Edition, 2005). Following the ruling of the European Court of Human Rights regarding similar prohibitions in other states (in Switzerland, VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI; and in Ireland, Murphy v. Ireland, no. 44179/98, ECHR 2003-IX), the issue recently arose in the context of R (Animal Defenders International) v. Secretary of State for Culture, Media and Sport, [2006] EWHC 3069 (Admin).  Another question that arose was whether English law conformed to the European Convention on Human Rights and Fundamental Freedoms (hereinafter: “the European Convention”). In that case the British Communications Authority disqualified the broadcast of an advertisement of the Organization for the Protection of Animals that protested against the use of monkeys for entertainment purposes in zoos and circuses. The Organization for the Protection of Animals petitioned against this decision in the High Court of Justice - Administrative Court, asking the Court to declare that the total ban "does not comply" with the requirements of the European Convention as incorporated in the Human Rights Act of 1998 in Britain. The Court examined whether the total ban satisfies the requirements of the limitation clause in art. 10(2) of the European Convention, which permits a violation of freedom of speech subject to the fulfilment of three cumulative conditions: the prohibition is established by statute; the prohibition is essential in a democratic society; the prohibition is for purposes of national security or public safety (there are also alternatives relating to additional interests that are not relevant to the present case). The dispute in the Court related to the question of whether the total ban was “essential in a democratic society”. The Court ruled that this condition was satisfied and held that it would not declare that a total ban was in conflict with the European Convention. Some of the rationales that I discussed above are mentioned at length as the basis of the Court’s decision.

Lord Justice Auld ruled that in this context a total ban is justified because a lower-level ban would thwart the general aim of protecting the democratic process:

'79. […] To have attempted to limit the prohibition by a more restricted and more precise definition of such bodies or ends would have defeated the overriding objective of preventing the distortion of political debate, which takes many forms and embraces a vast range of matters of public importance and interest.  Moreover, it would have engendered much uncertainty and scope for litigation, and would have invited evasion by political parties thus disadvantaged to “contract” out their political advertising to other bodies or individuals'.  

Mr. Justice Ousely ruled that the purpose of the total ban was to support the democratic process in a wide sense:

'108.The justification for the view embodied in the legislation is clearly made out.  Does it however demonstrate a pressing social need, to a high level, for this legislation?

109. I take the view that it does.   As I have said, at root the prohibition in s. 321 is aimed at supporting the democratic process in a wide sense, supporting a fair framework for political and public debate and avoiding an undesirable advantage being obtained by those able and willing to pay for advertisements in the most potent and pervasive media.  The prohibition thus achieves a very important aim for a democracy'.

Mr. Justice Ouseley added that a ban at a lower level, limiting political advertisements according to specific criteria, would not achieve its purpose in view of the difficulty of accurately distinguishing between parties, and between types and categories of advertisements:

“103. […] It is also difficult to see what principle underlies an outcome permitting access only to those who have enough to advertise, but not so much as to be over wealthy. I cannot see why under Article 10 those who have money should be denied access to the media accessed by their  opponents - poorer  but not so poor as to be unable to afford access.

…

104. It is clear that part of the justification for the complete ban is the real difficulty of drawing any rational, practicable distinctions between parties, groups and types of advertisements.

…

110. No lesser degree of restriction adequately achieves that aim, by time or group. The democratic process is not confined to election time but extends to all those decisions which Government or the legislature may have to make between times. The existence of parties and groups which would have sought to influence debate through their economic power and willingness to spend money on broadcast advertising is quite clear. The potentially malign effect of over-mighty groups spending in a way which alters the terms of public debate, or of policies, or which alters the votes of legislators and influences electoral outcomes to the disadvantage of those less well-endowed or well-organised is obvious, and at work not only at election times. The power of the broadcast media, pervasive and potent, in that respect is not readily deniable.

111. For the reasons which I have already given, no sound or practicable distinction can be drawn between political parties or groups and social advocacy groups, or between groups by reference to their individual wealth or worth'. 

He further emphasized that the importance of unbiased broadcasting was undisputed, and summed up:

'125. In summary, the necessity for restrictions on political/social advocacy broadcast advertising outside elections periods has been convincingly shown.  It is necessary to protect the rights of others through preventing undue access to the broadcast media based on willingness and ability to pay.  At root it supports the soundness of the framework for democratic public debate.  The broadcast media remain pervasive and potent throughout the period between elections.  The suggested distinction between political parties or groupings and social advocacy groups does not reflect the true political impact of all such advertising.  The completeness of the prohibition avoids arbitrary and anomalous distinctions in practice”.

         On 12 March 2008, the House of Lords, sitting as a panel of five justices, unanimously rejected the appeal filed against the judgment (R (on the application of Animal Defenders International) v. Secretary of State for Culture, Media and Sport [2008] 3 All ER 193).  The leading judgment was written by Lord Bingham of Cornhill, who adopted the basic reasons of Justices Auld and Ouseley. I have chosen to quote a number of comments appearing in the opinion of Baroness Hale of Richmond, which I think are also germane to the case at hand.

            Baroness Hale dwelt upon the fact that the background to the decision was the concern for the tremendous power wielded by television and radio in the molding of public opinion.

'My Lords, there was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times.'

According to Baroness Hale, democracy is based on equality in voting power. Opinions backed by a greater budget must not be allowed to trample on other opinions purely by virtue of financial differences. The total ban thus expresses the proper balance between the right to freedom of speech and the principle of equality in elections.

'[48] In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. 'Within the sphere of democratic politics, we confront each other as moral equals' (see Ackerman and Ayres, Voting with Dollars (2003) p. 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

[49] So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality….

[51] For all the reasons which my noble and learned friend, Lord Bingham of Cornhill, has so eloquently and comprehensively given, I agree that the ban as it operates in this case is not incompatible with the appellants' convention rights.'

In conclusion she clarified that a person seeking to disseminate a political advertisement was entitled to express himself via other means of communication, in which the danger of tilting public opinion was lower. There is no justification for establishing exceptions to a total ban that have no practical application.

'It is a balanced and proportionate response to the problem: they can seek to put their case across in any other way, but not the one which so greatly risks distorting the public debate in favour of the rich. There has to be the same rule for the same kind of advertising, whatever the cause for which it campaigns and whatever the resources of the campaigners. We must not distinguish between causes of which we approve and causes of which we disapprove. Nor in practice can we distinguish between small organisations which have to fight for every penny and rich ones with access to massive sums. Capping or rationing will not work, for the reasons Lord Bingham gives.'

Similar dilemmas arise with respect to political advertisements in the framework of public broadcasting in England. The rationales for justifying the total ban that I referred to above are similar, and as I showed, the discussion of the subject in England, too, is accompanied by an examination of the proportionality of the total ban, as well as an elucidation of the concern about abuse of public broadcasting.

53.  It would seem that in the case law of the European Court of Human Rights, too, there have been developments. 

The case of VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI involved the request of a Swiss association for the protection of animals to publish a response to an advertisement of meat marketers on Swiss television, which would include their opposition to the manner in which pigs were raised. Swiss law prohibits the publication of religious and political advertisements. Based on this law, a private television company banned the advertisement. The matter finally came before the European Court of Human Rights. The Court ruled that this constituted a violation of the association's freedom of speech, and it examined whether the conditions of the limitation clause in the European Convention were fulfilled. The Court ruled that the violation was lawful and that it was for a proper purpose – the provision of equal opportunity for the development of a public platform that was not influenced by wealthy sectors (s. 73 of the judgment). According to the Court, however, the ban was not proportional, and where a 'political expression' - as the particular advertisement was perceived – was concerned, the state had less room for maneuver.

Two years later, however, the same court handed down a decision in Murphy v. Ireland, no. 44179/98, ECHR 2003-IX that concerned a refusal on the part of Irish television to broadcast an advertisement with religious content that was liable to offend public sensibilities. Here too it held that there had been a violation of freedom of speech protected by the European Convention, but this time the Court confirmed the refusal to broadcast the advertisement as complying with the conditions of the limitation clause of the European Convention, distinguishing between the "political" advertisement that was considered in the VgT case and a "religious" advertisement. It held that there was greater latitude when it came to religious advertisements. In its judgment the Court stated that the advertisement was not subject to the rules of equality (in the category of the fairness doctrine that applies to broadcasts) and the fact that the broadcasting time was purchased for consideration operates in an unbalanced manner in favour of religious groups with financial resources. Regarding this, the Court's ruling, similar to the ruling issued in Israel in HCJ 10182/03 Education for Peace, was that there are practical difficulties in the fair and equal implementation of various criteria and distinctions that are made in each and every case, and it is preferable to ban such an advertisement completely:

 '77.  In the first place, the Court would accept that a provision allowing one religion, and not another, to advertise would be difficult to justify and that a provision which allowed the filtering by the State or any organ designated by it, on a case by case basis, of unacceptable or excessive religious advertising would be difficult to apply fairly, objectively and coherently (the above-cited case of United Christian Broadcasters Ltd v. the United Kingdom). There is, in this context, some force in the Government's argument that the exclusion of all religious groupings from broadcasting advertisements generates less discomfort than any filtering of the amount and content of such expression by such groupings.

...

78.  Secondly, the Court considers it reasonable for the State to consider it likely that even a limited freedom to advertise would benefit a dominant religion more than those religions with significantly less adherents and resources. Such a result would jar with the objective of promoting neutrality in broadcasting and, in particular, of ensuring a “level playing field” for all religions in the medium considered to have the most powerful impact.'

54.  My view is that the arrangement for political advertising in Israel is not exceptional in comparison with other arrangements in Europe.  There too it was difficult to find an alternative to a total ban. The rationales specified there to justify a total ban as the least harmful measure, are similar to those I discussed above. As stated, I believe that the balance achieved in the framework of the Israeli legislative arrangement satisfies the second subtest, and it is the least harmful measure. We will now proceed to the third and last subtest.

C.  Limitation clause - proportionality: the proportionality test “in the narrow sense”

55. The third subtest is the proportionality test “in the narrow sense”. “Whereas the rational connection test and the least harmful measure test are essentially determined against the background of the proper purpose, and are derived from the need to realize it, the test of proportionality (in the narrow sense) examines whether the realization of this proper purpose is commensurate with the violation of the human right” (per President Barak, Adalah v. Minister of Interior [49], para. 75; see also  United Bank Mizrahi Ltd. v. Migdal Cooperative Village [15], para. 23).

The third subtest is a “values-based test” (per President Barak, Adalah v. Minister of Interior [49], para.75, and see per Deputy President M. Cheshin, ibid. para. 107).  It is a “test of balancing” between conflicting values and interests according to their weight” (per President Barak, ibid. para. 74). It is an expression of the principle of reasonableness (Levy v. Government of Israel [36a], at p. 890d; see also Horev v. Minister of Transport  [26], at p. 43 {195}). Ultimately, the third subtest requires a reasonable balance between the needs of the public and the harm to the individual:

‘According to [the third subtest] a decision of the governmental authority must maintain a reasonable balance between the needs of the general public and the harm to the individual. The objective of the test is to determine whether the severity of the harm to the individual and the reasons justifying it are duly proportionate (HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [59a]).’

What is required, therefore, is a values-based balance of a “reasonable relation between the damage … and the social benefit engendered by the violation” (HCJ 4769/95 Menahem v. Minister of Transport [50], at p. 279; see also per President Barak in Movement for Quality of Government v. Knesset [14], para. 60; and Gaza Coast Regional Council v. Knesset [13], at p. 550). “This values-based balancing … is not new in Israel. It is common in the case law of the Supreme Court since the founding of the State” (per President Barak, Adalah v. Minister of Interior [49], para. 47; see also Barak, The Judge in a Democracy, at pp. 270-274; Sapir, ‘Old versus New,’ pp. 478 – 480, 487; Birnhack, ‘Constitutional Engineering,’ at pp. 620, 639). The values-based balance is therefore the thread running through the rulings of this Court in relation to freedom of speech as well  (Barak, ‘Tradition of Freedom of Speech and its Problems,’ at p. 226; Salzberger, ‘Tradition of Freedom of Speech in Israel,’; and see inter alia the methods of balancing of values in HCJ 73/53I Kol Ha’Am Ltd. v. Minister of the Interior [60], at p. 892; Miller v. Minister of Defense [11] at p. 138 {232}; Horev  v. Minister of Transport [26], at p. 43 {195}; HCJ 316/03 Bakri v. Film Censorship Board [61],  at p. 263e; Solodkin v. Beth Shemesh Municipality [38], at p. 612; Levy v. Government of Israel [36a], at p. 889; per President D. Beinisch in  Meshi Zahav v. Jerusalem District Commander [37], para.10; per President D. Beinisch in  HCJ 5277/07 Marzel v. Commander of Jerusalem Regional Police [62], para. 2).

56. In the present case, the requirements of the third subtest are similarly satisfied, for there is a reasonable balance between the damage to the individual and the benefit to society stemming from the violation.  The violation of the petitioner’s freedom of political expression is not serious, and it is reasonable in relation to the benefit to society from upholding the fairness doctrine. The benefit from upholding the fairness doctrine is considerable. Above we discussed the importance attaching to the values and interests that the Rules are designed to realize. As opposed to this, the damage occasioned by the violation of the petitioner’s freedom of political expression is not great. Indeed, in the framework of the balance of values, the magnitude of the violation of the right must be taken into consideration as well (per President Barak in Adalah v. Minister of Interior [49], para. 65). Many alternatives are available to the petitioner for the publication of the political expression in frameworks suited for political expression, both in the programs themselves, such as news programs, or in political broadcasts which are aired by the Broadcasting Authority and the Second Authority by virtue of their functions and subject to the fairness doctrine (see Zakin v. Mayor of Beer Sheva [27], at p. 303b), and in other advertising frameworks, such as the print and the electronic press. Under these circumstances, the violation of the constitutional right does not carry great weight (cf. Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 414). The violation affects equally all those with an opinion that they wish to express in the framework of the advertisements, and this fact, too, has implications for the proportionality of the Rules (cf.  HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits [63]). In terms of the “effect” that the Rules have on the constitutional human right, it cannot be said that the recourse to a legislative measure causes a grave violation of a human right while the anticipated benefit for the public is negligible (cf. HCJ 1715/97 Israeli Office of Investments Managers v. Minister of Finance  [64], at p. 385). At the very least there is a reasonable balance between the benefit conferred by the Rules and the damage they entail.

57.  I do not accept the petitioner’s approach whereby abrogation of the Rules will enable a person whose political opinion did not receive sufficient exposure in the regular programs, to express his opinion in the framework of advertisements. The petitioner claims that otherwise, such a person will have no access to the public, and will be condemned to silence. I have two reasons for rejecting this approach. First, the holder of the opinion has numerous means at his disposal for expressing his views, outside the framework of the programs of the Broadcasting Authority and those of the Second Authority, and consequently, he is not condemned to silence. In this context we must not underestimate the growing importance and influence of the Internet, which serves as a kind of modern “town square”, the size of which is that of the entire country (see Pesach, "Sources of Expression", 307, at pp. 312-315; and see also Laura Stein, Speech Rights in America: The First Amendment, Democracy and the Media(2006) 81-112).

Secondly, even within the framework of the broadcasts of the Broadcasting Authority and the Second Authority, the holder of a political opinion is not condemned to silence, because the regular programs are governed by the fairness doctrine. If he so wishes, the holder of a political opinion should apply to the Authority with data that supports his claim (Kahane v. Management Committee of the Broadcasting Authority [54]; Gush Shalom v. Broadcasting Authority [41], at p. 894).

58. The conclusion is that the Rules also satisfy the third subtest, and they embody a reasonable and proper balance between freedom of speech and other values that the Broadcasting Authority and the Second Authority are required to protect in their capacity as public broadcast channels (see Gush Shalom v. Broadcasting Authority [41], at p. 892).

59. Having concluded the examination of proportionality, it will be mentioned that the proportionality of the Rules is reinforced by the interpretation of the Rules in HCJ 10182/03 Education for Peace, which permitted the broadcast of political advertisements provided that the focus be exclusively on the factual message (see also in HCJ 1893/92 Reshef v. Broadcasting Authority [65], at p. 820).  Admittedly, in that case the Court dealt with the application of the Rules, and it was not required to rule on their constitutionality, since the point of departure was that they were constitutional (see ibid, para. 8). Nevertheless, the binding interpretation of the Rules in that case may buttress their constitutionality: as we know, “it is preferable to interpret and not to cancel” (Zakin v. Mayor of Beer Sheva [27], at p. 299c).

In my comments above I mentioned that in HCJ 10182/03 Education for Peace, the petitioner and the Broadcasting Authority came to an agreement regarding the wording of the advertisements that would satisfy the case law requirements. The result was that the petitioner was permitted to broadcast an advertisement in accordance with the existing Rules, in a manner that complied with the case law. This is an additional indication of the proportionality of the existing arrangement as explained in HCJ 10182/03 Education for Peace. This practical solution is equally availableto those holding unorthodox opinions (cf. Kahane v. Management Committee of Broadcasting Authority [54]).

60. I am of the opinion, therefore, that the Rules satisfy the requirements of the limitation clause. They do not raise a “constitutional problem”; consequently, in the case before us there is no need for relief or for a constitutional remedy.

Epilogue

61.  Summing up: I accept that the Rules of the Broadcasting Authority and of the Second Authority violate the petitioner’s freedom of political expression. This is a violation of a constitutional right. However, this violation does not render the Rules unconstitutional. This is because they satisfy the conditions of the limitation clause. The arrangement prescribed in the primary legislation and in the Rules is for a proper purpose – ensuring fair and balanced programs in accordance with the fairness doctrine. The violation of freedom of speech is of a degree that does not exceed that which is necessary. As such the petitioner’s constitutional argument is rejected. The Rules of the Broadcasting Authority and of the Second Authority have “passed” the constitutional examination and there are no grounds for us to interfere with them.

If my opinion is accepted, we should deny the petition without an order for costs.

 

 

 

Justice E.E. Levy

1.  I concur with the result reached by my colleague, Justice M. Naor, but my view is based on an additional consideration, which I will discuss briefly.  Personally, I am not convinced that the fairness principle is the only core issue.  Indeed, the importance of substantive equality between concerned parties should not be underestimated; it was referred to by Justice I. Zamir as the “equality of chances” [of the concerned parties] to convey their message to the public for the purpose of influencing its position (HCJ 3434/96 Hofnung v. Knesset Speaker [66], at p. 67). This principle has found expression in a string of legislative acts: the Second Television and Radio Authority Law, 5725-1965; Political Parties Funding Law, 5723-1973, and the Elections (Modes of Propaganda) Law, 5719-1959, as well as the rulings of this Court.

Indeed, even though we know that the great mass of water that has flowed in the stream of political dealings in Israel since its very beginning has occasionally cast doubt on the actual existence of such equality – so that it sometimes seems that despite legal restrictions, the wealthy have found ways to use their wealth to obtain an advantage in the  struggle over public opinion - nevertheless, the importance of ensuring equal allocation of public resources as far as possible cannot be overstated.

2.  In my view, however, the principle of equality can be realized in a way that involves less of a violation of freedom of speech. Apart from an absolute ban on advertisements with political contents, one can think of several options for the allocation of communications resources in a manner that would promote equality among all those seeking to use the media. If this does not happen, it is only because the reason for the prohibition must be sought elsewhere. My view is that the fundamental consideration underlying  the opposition to political advertisements involves the maintenance, or at least the prevention of further degeneration, of the character of public discourse in Israel.

3.  Opening the field of advertising to political content would radically change the nature of public discourse as we know it. I am particularly perturbed by the element of indoctrination that is liable to accompany the advertising media. Marketing ideological views like sausages on the supermarket shelf, in which the frequency of repetition of the jingle singing their praises influences the willingness of people to endorse them, poses a substantive danger to the quality of political discourse in Israel, which even now is not ideal. It may be that in the particular case at hand, the effect would not be extreme, but one can easily imagine how slippery the slope is and how quickly we might find ourselves at the bottom. If we must resign ourselves to a similar phenomenon on the eve of election campaigns, it is only by virtue of express legislative provision, which in like vein attempts to clearly delineate the times at which it is permitted; it does so on the basis of a  purpose that does not exist on a daily basis, namely the need to influence the voting public before it goes to the polls.

It may be argued that regulation restricting the contents or the spirit of broadcast advertisements would help reduce the dimensions of the difficulty. I do not think so. Not only would the application of this kind of restriction not satisfy the advocates of freedom of expression and freedom of political association, but primarily, it would be the commercial interests -  which usually predominate -  that would dictate the regulatory result in the final analysis.  My colleague Justice Naor rightly ruled that the broadcast of these advertisements stems from the need to find funding sources for the activities of the broadcasting bodies.  From my perspective it is immaterial if the advertiser is charged, or if it is allowed to transmit for free, at the expense of time allotted to paid commercial advertising. A concrete example of this is the ubiquitous complaint of commercial broadcasting franchisees, whenever an election period is just around the corner. It is then that they are required to comply with the requirements of the Elections (Modes of Propaganda) Law, and to broadcast election propaganda at the expense of their programs.

4.  I propose that the relevant rules of the relevant broadcasting authorities be interpreted first and foremost with the aim of distinguishing between political expression and its commercial aspect. This form of analysis makes it possible to reconcile the purpose and the means adopted to achieve it on the one hand, with the conditions of the “limitation clause” of Basic Law: Human Dignity and Liberty, which is the appropriate means of examining any government action that violates a basic right or protected interest of the individual, irrespective of whether the examination is based on the provisions of constitutional law, or whether it is based on the rules of administrative law (HCJ 8035/07 Eliyahu v. Government of Israel [67], at para. 6, and references).

5.  It is clear that in the absence of proof of such a violation there is no point, nor any advantage, in invoking these tests.  Nevertheless, I am unable to concur with the conclusion of my colleague, Justice Procaccia, for I believe that in the case before us,  the restriction of the petitioner’s access to such a central avenue of expression,  that offers exposure to a broad public and draws significant public attention, and even the very act of conditioning such access upon payment, violates the petitioner's freedom of expression. I think that the petitioner has successfully cleared the hurdle of proving a violation, but disposing of the remaining hurdles may prove difficult.  Unlike my colleague, the President, my view is that the authorizing language of the Law is sufficiently clear and explicit to enable the secondary legislator to anchor the violation in regulations. It is abundantly clear that the legislation under discussion, which concerns advertising in the media, impacts directly on freedom of expression. As such, the authorization it grants to impose restrictions on those advertisements would seem to be an explicit authorization to impose restrictions on freedom of expression, even though the Laws do not establish criteria for the regulation of those restrictions.  I believe that the legislative intention is sufficiently clear.  The specific question of its appropriateness is a matter for the other components of the judicial examination, i.e. the question of the propriety of the purpose, and the proportionality of the means adopted for its attainment. As I explained above, and bearing in mind that the use of the mode of expression under discussion has yet to strike roots and that television broadcasts anyway provide an extensive platform for political expression, my view is that the foundations of the proper purpose and proportionality are satisfied by the ban on political advertising.

6.    For these reasons I agree that the petition should be denied.

 

 

President D. Beinisch

I have read the opinion of my colleague Justice M. Naor and I concur with significant parts thereof, but I am unable to remain in step with her along the path to the final result.

Like my colleague, I too think that the prohibition on the broadcast of advertisements on political subjects, prescribed in s. 7(2) of the Broadcasting Authority Rules 5753-1993 (hereinafter: “Broadcasting Authority Rules”),  in s. 5 of the Second Authority for Radio and Television (Advertising Ethics in Radio Broadcasts) Rules, 5759-1999, and in s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994 (hereinafter: "Second Authority Rules"), violates the freedom of political expression that is part of the constitutional right to human dignity. I also agree that this violation must be examined from the perspective of the limitations clause. The first condition of the limitations clause is that the violation must be “by law  … or according to … law by virtue of explicit authorization therein.” According to Justice Naor, this condition was satisfied in the current case, for the reasons set out in her judgment. On this matter, my view is different.  In my view, like all the other substantive conditions of the limitations clause, the requirement of “explicit authorization” should be construed in accordance with the entirety of the circumstances, including the nature of the right being violated, its underlying reasons, and the magnitude of the violation.  Bearing in mind that the prohibition on political advertisements is an absolute one, which constitutes a substantial, and grave, violation of the freedom of political expression that is accorded central status in our legal system, my opinion is that the authorization sections in the existing legislation do not constitute “explicit authorization” by law to establish a prohibition in secondary legislation.  This considered, my view is that the Rules with which this petition is concerned were enacted without the appropriate legal authorization, and for that reason, the petition should be granted.  In this context it will be stressed that granting the petition by reason of that defect should not be understood as the expression of a position on the question of whether a total ban on political advertising is appropriate and proportional. My approach is that the issues of the proper purpose and proportionality do not arise in the current circumstances because of the failure to satisfy the condition of “explicit authorization” by law to violate the aforementioned right.

In my comments below I will elaborate on the reasons for my conclusion that the petition should be granted. At the outset, and before addressing the issue at hand, I will discuss the statutory authority of the Broadcasting Authority and the Second Authority to broadcast advertisements on television and radio. As clarified, the authority to advertise for consideration is not limited to essentially commercial advertisements and in principle is also granted for advertisements intended to take a position on publically disputed political and ideological matters.

Statutory authorization for the broadcast of advertisements for consideration

1.    The Broadcasting Authority and the Second Authority are statutory corporations, established by law, by virtue of which they are authorized to broadcast. Section 25A(a)(1) of the Broadcasting Authority Law (hereinafter:  "Broadcasting Authority Law") authorizes the Broadcasting Authority to broadcast advertisements, as follows:

'25A – Radio Advertisements and Announcements 

 (a)(1) The Authority may broadcast on radio advertisements and announcements for consideration (hereinafter: advertisements and announcements), and commission them, prepare them or produce them by itself or by way of one or more other people, as determined by tender.’

It will be pointed out that the Broadcasting Law contains no provision authorizing the Broadcasting Authority to broadcast advertisements on television, and the authority to broadcast advertisements therefore relates exclusively to radio advertisements (see Osem Investments Ltd. v. Broadcasting Authority [2], para. 6 of the judgment of Justice Strasberg-Cohen).

As for the Second Authority -  s. 81 of the Second Authority for Television Law, 5750-1990 (hereinafter: "Second Authority Law") states that the franchisee may include advertisements in the framework of his broadcasts. This authorization applies to both television and radio broadcasts (see definition of “broadcasts” in s. 1 of the Law). Following is the text of the aforementioned s. 81 of the Law: 

'81. Broadcast Advertisements

(a) The franchisee is permitted to include within the framework of its broadcasts, advertisements for consideration at the rate that it determines.'

What does the term “advertisement” mean in s. 25A(a)(1) of the Broadcasting Law and s. 81(a) of the Second Authority Law? What kinds of advertisements are included in the authorization in principle to broadcast “advertisements” on radio and television?

The Broadcasting Authority Law does not provide a statutory definition of the term “advertisements”. Nevertheless, s.1 of the Broadcasting Authority Rules states that for purpose of the Rules, “advertisement” means “an advertising broadcast, sponsor broadcast, or an announcement, broadcast on the radio for payment to the Authority”. In the same section, “Announcement” is defined as “giving information to the public”. Regarding the Second Authority Law, s. 1 of the Law, entitled “Definitions”, states that a broadcast advertisement is “the broadcast of a commercial advertisement as defined in Chapter F (italics not in original). It is noteworthy that Chapter F of the Second Authority Law is entitled “Advertising”, and it begins with the abovementioned s. 81, which authorizes the franchisee to include “advertisements” in the framework of its broadcasts.

As a rule, the term “advertisement” admits of various meanings in accordance with its context. The meaning of the term “advertisement” in the authorizing sections of the Broadcasting Authority Law and the Second Authority Law is not necessarily identical to its meaning in a different context (cf. per Justice I. Zamir in Zakin v. Mayor of Be’er Sheva [27], at p. 300 ff). On the face of it, the terms “advertisements” and “commercial advertising” in ss. 25A(a)(1) of the Broadcasting Authority Law  and 81(a) of the Second Authority Law may bear more than one literal meaning in accordance with the context. One meaning of “advertisement” is the broadcast of an advertisement for consideration. The person ordering the advertisement pays for the publicity, and acquires the possibility of influencing the wording of the advertisement, its contents and the frequency of its public transmission subject to legal restrictions. According to this meaning, the statutory authorization for advertising on radio and television means sanctioning in principle the commercial vehicle of paid advertising, without limiting, in advance, the contents, the message or the purpose of the advertisement.  Thus, according to this meaning, the "advertisement" that the Broadcasting Authority and the Second Authority are permitted to broadcast is not confined to an advertisement with a commercial purpose and nature; an advertisement may also be intended to convey other messages, including political or ideological messages, provided that the means of imparting the message is commercial/funding-related. Accordingly, to impose restrictions on the message, the contents or the character of advertisements, would require separate statutory provisions.

Alternatively, "advertising" means publicizing a certain product or service, for the commercial purpose of marketing and promoting its sale in public. According to this meaning, the broadcast of advertisements is authorized not only because the means of advertising are commercial, but also because the contents, the character and the purpose of the advertisements are commercial. In other words, according to this meaning, the Broadcasting Authority and the Second Authority are authorized to broadcast  advertisements of a commercial character, intended to promote sales of a product or a particular manufacturer (cf. per Justice M. Elon in Israeli Daily Newspapers Association v. Minister of Education and Culture [68], at p. 389).

It seems that the second meaning of “advertisement” is the common and normal one (see per Justice E. Hayut in HCJ 10182/03 Education for Peace, para.7). Nevertheless, the question confronting us is that of the normative meaning of the word “advertisement” in the authorizing provisions prescribed in s. 25A(a)(1) of the Broadcasting Authority Law, and s. 81(a) of the Second Authority Law.  In their arguments, both the petitioner and the respondents assumed that the term “advertisements” in the aforementioned authorizing provisions bore the first of the two meanings mentioned above.  Both parties refrained from arguing that advertisements dealing with political or ideological matters do not fall within the framework of “advertisements”. The preliminary assumption in court was, therefore, that the term "advertisements" in the abovementioned ss. 25A(a)(1) and 81(a) includes advertisements that are designed to adopt a position on a political matter. This interpretative position is correct.

First, as noted above, the definition of “advertisement” in s. 1 of the Broadcasting Authority Rules also includes an “announcement” which is defined in that section as “giving information to the public.” Linguistically, the definition is a broad one that makes no exceptions with respect to the substance and contents of the information being conveyed.  Section 1 of the Second Authority Law defines advertising as “the broadcast of a commercial advertisement within the meaning of Chapter F”.   This definition, too, is linguistically broad and does not necessarily relate to the contents and purpose of the advertisement. Moreover, s. 25A of the Broadcasting Authority Law and s. 81 of the Second Authority Law stress that the authorization that they grant is for the broadcast of advertisements “for consideration.” This phrase reinforces the conclusion that the authorization was intended specifically to sanction the commercial/funding-related medium, and it is not concerned with imposing limitations on the contents and purpose of the advertisements.   Secondly, regarding their purpose, the authorizing sections are intended to allow the Broadcasting Authority and the Second Authority to recruit additional sources of funding for their broadcasts by means of advertisements.  The aim of the authorization was, therefore, to permit the use of the funding medium of paid advertising, even though the authorizing sections as such did not establish an advance limitation on the contents and the aim of the advertisements. Finally, it will be noted that s. 25A(b) of the Broadcasting Authority Law authorizes the management committee, in consultation with the Director General, to make rules regarding "prohibitions and restrictions on advertisements and announcements."  Section 88(2) of the Second Authority Law states that the Council will make rules on matters concerning the broadcast of advertisements, inter alia relating to “Prohibited advertising subject-matter for broadcast as advertisements ….” These statutory provisions, which will be discussed at length below, support the conclusion that the authorization for the broadcast of “advertisements", as such, does not impose any limitations on the contents and substance of the advertisement, and that in order to impose such restrictions it would be necessary to establish explicit constraints.  In fact, it is one of the restrictions prescribed in the Rules of the Broadcasting Authority and of the Second Authority that is the focus of this hearing, i.e. the restriction whereby advertisements may not be broadcast to impart political or ideological messages that are the subject of public controversy.  It will be noted that if the meaning of the said authorizing sections was that the Broadcasting Authority and the Second Authority are authorized to broadcast, ab initio, only advertisements with a commercial purpose and content, it is doubtful whether a prohibition would have been established on advertisements on political subjects that arouse public controversy.

Thus, the statutory authorization of the Broadcasting Authority and the Second Authority to broadcast advertisements on television and radio is not restricted to advertisements intended to promote the commercial sale of a particular product.  In principle, the Broadcasting Authority and the Second Authority are also authorized to broadcast advertisements intended to convey other messages, including political and ideological messages. Note that this interpretation is compatible with the general principles of our legal system, whereby the application of prohibitions and restrictions on freedom of expression should be limited to the minimum necessary extent (see e.g. per Justice (ret.) M. Shamgar in CA 723/74 Ha’aretz Daily Newspaper Ltd. v. Israel Electric Corporation Ltd [68], at p. 295).  The obvious conclusion is that no restriction on the character, purpose and contents of advertising broadcasts can be derived from the basic authorization provisions in s. 25A(a)(1) of the Broadcasting Authority Law and s. 81(a) of the Second Authority Law. These restrictions were established in the Rules of the Broadcasting Authority and the Second Authority.  One such restriction is the focus of this proceeding.

The prohibition on the broadcast of political advertisements

2.    The dispute between the parties concerns the constitutionality of the prohibition established by the Rules of the Broadcasting Authority and the Second Authority on the broadcast of an advertisement regarding a matter “which is the subject of a public political or ideological controversy” (as per s. 7 of the  Broadcasting Authority Rules) or an advertisement intended for the “imparting of a message on a political, social, public, or economic matter that is the subject of  public controversy” (as per ss. 5 and 11 of the Second Authority Rules).  For the reader’s convenience I will cite the full text of these rules as they were also cited in the judgment of my colleague. Section 7 of the Broadcasting Authority Rules, concerning advertising broadcasts and radio announcements states as follows:

‘7.  Prohibited Advertising

It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

…..

(2) Party propaganda or a broadcast on a matter that is the subject of public political or ideological controversy, including a call for a change in the legislation concerning these matters’ (emphasis not in source – D.B.).

Similarly, s. 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules 5759-1999 states the following regarding advertising broadcasts on radio:

'5.  Advertising on Controversial Subjects

A franchisee shall not broadcast an advertisement that imparts a message on  a political, social, public, or economic matter that is the subject of  public controversy.' 

The wording of s. 11 of the Second Authority Rules for Television and Radio (Ethics in Television Advertising) 5754-1994 is identical to that of the aforementioned s. 5, and concerns the prohibition on television advertising regarding controversial topics:   

‘11.  Advertising on Controversial Subjects

A franchisee shall not broadcast an advertisement that imparts a message regarding a political, social, public, or economic matter that is the subject of   public controversy.' 

The parameters of the prohibition on the broadcast of advertisements on controversial subjects were recently considered in the aforementioned HCJ 10182/03 Education for Peace.  In that case Justice E. Hayut held that in accordance with the most restrictive construction of prohibitions and restrictions upon freedom of expression –

'… the test for classifying a broadcast as being controversial should be that of the "dominant component", which examines whether the broadcast is intended primarily to convey information, with no emphasis nor any adoption of a stand on the substantive issue; or whether the broadcast also features a dominant component of persuasion concerning the advantages of the subject that is the focus of the broadcast…. An advertising broadcast may relate to a subject that is essentially a matter of public dispute, but without being controversial in terms of its text, its contents or form, and hence permitted for broadcast' (ibid,  at para. 8; see also: HCJ 1893/92 Reshef v. Broadcasting Authority [69], at p. 820).

 In that case the parties agreed to changes in the texts of the advertisements so that their focus would be the imparting of information to the public concerning a controversial matter, with no element of persuasion or adoption of a stand. It was held that this kind of broadcast is not included in the prohibition under discussion.

The ruling in HCJ 10182/03 Education for Peace invites the conclusion that the prohibition on advertisements regarding publically controversial issues does not apply to advertisements consisting primarily of the imparting of factual information to the public. In terms of both essence and purpose, advertisements included in the prohibition under discussion take a position on a publically controversial political or ideological issue.  Such advertisements are at the center of this hearing. For the sake of brevity I will refer to advertisements of this kind as “political advertisements”.

3.  It will be emphasized that in the course of these proceedings, the petitioner agreed that the broadcasts constituting the subject of the original petition are political advertisements within the meaning explained above. The dispute between the parties does not, therefore, concern the classification of the broadcasts as political advertisements; the principal focus of the discussion is the question of the legality of prohibiting political advertisements.  It is further emphasized that in view of the reasons on which the Broadcasting Authority and the Second Authority based their original decision to disqualify the petitioner’s advertisements, and in accordance with the wording of the order nisi granted on 29 July 2004, the present petition does not concern a prohibition on an advertisement that contains “party propaganda” as stated in s. 43(a)(3) of the Second Authority Law and in the opening clause of s. 7(2) of the Broadcasting Authority Rules (see para. 9 of Justice Naor’s judgment). The present case focuses, therefore, on the constitutionality of the Rules that prohibit the transmission of political advertisements within the meaning elucidated above, i.e. – advertisements whose dominant component is influence, persuasion or the adoption of a position regarding an issue which is a subject of public, political or ideological controversy.

Political advertising as political expression

4.    Political advertising features mixed aspects. On the one hand the messages of political advertisements are imparted to the public via a commercial avenue in return for payment. The external framework is therefore commercial. On the other hand, the entity requesting publication is not necessarily a commercial or business entity. The purpose and message of the advertisement are not commercial but rather political-ideological. Political advertising does not seek to promote a commercial transaction of the sale of a particular item, but rather to promote a political or ideological position among the public. (see Andrew Scott, "'A Monstrous and Unjustifiable Infringement'? Political Expression and the Broadcasting Ban on Advocacy Advertising", 66 Modern L.R. 224, 225 (2003)). These hybrid features raise the question addressed by Justice Naor in her judgment regarding the classification of political advertising as political or commercial expression.

In principle, the distinction between kinds of expressions is not always clear-cut, given that a particular speech may comprise hybrid features. The decision on whether the expression in this case is political or commercial should be based on the test of the “dominant aspect” of the expression from the perspective of the reasonable viewer, listener, or user (cf. Melnik v. Second Authority for Television and Radio [57], at p. 595, per Justice Y. Zamir). In this regard I agree with my colleague Justice Naor that the contents and the purpose of the expression, the motivation for its publication, its target audience, and the character and identity of the entity expressing itself are components of greater significance than the type of medium or the external framework through which the expression is brought to the public’s knowledge.  Bearing this in mind, I too believe that where an advertisement aims to communicate a political-ideological message to the public, and the publicizing entity functions on a public level as opposed to a commercial-business level,  it should be classified as political expression even if the medium of publication is of a commercial character.

5.    The classification of a political advertisement as political expression is significant in terms of the degree of protection accorded to such expression. Indeed, commercial expression, too, is accorded protection in the framework of freedom of speech. Commercial expression realizes the right of the public to receive information, and guarantees business competition between advertisers in the framework of the market of products and services. Commercial expression also enables the personal fulfillment of the individual issuing the publicity and of the public at whom the advertisement is directed, and it is a part of the freedom of occupation.  At the same time, it seems that commercial expression does not constitute a strong realization of the range of possible rationales for freedom of expression. Commercial expression, whose essence and purpose are to promote a commercial transaction for the sale of products, does not make a direct contribution to public dialogue on the subjects on the national agenda.  Considering all these, it was held that the scope and degree of protection granted to freedom of commercial expression are more limited than the protection of freedom of political, literary or artistic expression (on the kinds of legal restrictions on freedom of commercial expression see: per Justice E. Mazza in Maio Simon Advertising Marketing and Public Relations Ltd. v. Second Authority for Television and Radio [39], at p. 755; per Justice I. Zamir in Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 414; and see  Kiddum Yazamot  v. Broadcasting Authority  [22]).

Political expression, on the other hand, lies at the very core of the right to freedom of speech and it constitutes the highest degree of realization of the reasons underlying that right. Freedom of political expression is an essential condition for the existence and development of the democratic regime, which in turn secures other basic rights. It makes possible the exchange of views between the members of society and thus enables them to consolidate their positions regarding matters on the public agenda. Freedom of political expression is also a tool for the individual's self-realization and the crystallization of his world view. Through freedom of speech in general, and freedom of political expression in particular, the individual is able to formulate independent views, to give expression to his own personal credo, to persuade and be persuaded, and to be involved and influential in matters  of concern to the society of which he is a part (see Kahane v. Broadcasting Authority [52], at p. 270 ff.).  All of these affect the constitutional standing of the said right. On this matter  I agree with those who maintain that that there is a close substantive connection between freedom of political expression and human dignity, which is based on the autonomy of will and the freedom of choice of the individual. Accordingly, I too believe that freedom of political expression falls within the bounds of the constitutional right to human dignity (see my comments in Meshi Zahav v. Jerusalem District Commander [37], at para. 10, regarding freedom of expression and demonstration(.

The great importance of freedom of political expression for the individual and for society, and its contribution to the democratic process, affect not only its constitutional status but also the scope and degree of the protection accorded to such expression. Our case law has already held that among the different categories of expression, the protection afforded to political expression “… is particularly broad” and that political expression deserves “maximum protection”, albeit not absolute (per Justice D. Dorner in Indoor v. Jerusalem Mayor [28], at p. 164; and see also Kahane v. Management Committee [54], at p. 293). The classification of political advertising as political expression therefore affects the scope and degree of protection given to this form of expression, and we will elaborate below.

Violation of freedom of political expression

6.    As mentioned, the Rules of the Broadcasting Authority and of the Second Authority prohibit the broadcast of political advertisements on radio and television.  This is an absolute ban on the broadcast of advertisements whose dominant component is the adoption of a position on a subject that is the subject of public controversy. This ban violates freedom of political expression, and to my mind the magnitude of the violation is significant. As explained above, the authorization on principle for the broadcast of advertisements on radio also applies to advertisements of an essentially political or ideological nature (see para. 1 above). The unqualified prohibition on political advertisements totally excludes the possibility of utilizing the media’s advertising framework for purposes of persuasion and relaying political messages, thereby giving absolute preference to commercial expressions over political expression in the financial framework of paid advertisements (see Eric Barendt, Freedom of Speech 445 (2005). Considering all this,  my view is that the prohibition under discussion involves a significant, and serious, violation of freedom of political epression.

Here it should be mentioned that the respondents did not dispute that the Rules of the Broadcasting Authority and of the Second Authority violate freedom of speech. Their argument, however, was that freedom of political speech can be realized by way of the regular broadcasting framework as distinct from the framework of advertisements on radio and television.  Bearing that in mind, it was argued that the said right was not violated to a significant degree. I cannot accept this argument. Indeed, the existence of another effective avenue for relaying speech may be a relevant consideration when examining the magnitude of the violation of freedom of speech (see: Cohen v. Israel Bar Association [52], per President Shamgar, which was the minority view with respect to the outcome in that case). At the same time, in the present context it cannot be said that the format of news broadcasts or political programs constitutes an effective, equivalent alternative to the relaying of a political message by way of an advertisement, in which the person commissioning the advertisement can significantly influence its content, its manner of presentation and the scope of its public exposure. Neither can it be claimed that other media in which political advertising is permitted, such as the print media or the Internet, have the same value in terms of publicity as the broadcasting media which has such extensive power of communication. The inevitable conclusion is that preclusion of all possibilities for  persuasion and the conveying of political messages by way of advertisements on television and radio constitutes a significant, and serious, violation of freedom of political expression. As will be explained below, this conclusion is significant for purposes of examining whether the conditions of the limitations clause, which include the requirement that the violation be “by a law … or according to a law … by virtue of explicit authorization therein”, have been fulfilled.

It will be mentioned that the Broadcasting Authority emphasized that the broadcast of advertisements is not part of its duties, being no more than an ancillary power intended to enable it to enlist an additional source of funding for its broadcasts by law. The argument is that the Broadcasting Authority is authorized to broadcast advertisements on radio, but it is under no obligation to do so. In view of the fact that advertisements are broadcast by the Broadcasting Authority by virtue of an ancillary power the purpose of which is financial, and considering the respondents’ position whereby the advertising framework is “inappropriate” for political speech – it is argued that the prohibition on the broadcast of political advertisements does not constitute a serious violation of freedom of speech. I am unable to accept these arguments either.  The various communications media are not just a platform for the realization of freedom of speech of those speaking and of the target audience; the media itself enjoys autonomy with respect to its broadcasts as a substantive component of freedom of speech. It has already been held in our case law that “the right of access [to the media] is not a key to all channels of communication …. The holder of the right does not have freedom of speech at all times, in all forms and in all places" (per President M. Shamgar in Cohen v. Israel Bar Association  [52], at p. 552; see also per Justice (previous title) A. Barak in   Kahane v. Management Committee [54], at p. 268 and in Senesh v. Broadcasting Authorit [35], at p. 846).  Nevertheless, since the Broadcasting Authority and the Second Authority chose to exercise their authority to establish a framework for advertisements on television and radio, the preclusion of any possibility of political advertising constitutes a serious violation of freedom of political expression, considering all the above-mentioned reasons.  It is stressed that the question of whether advertisements are a suitable means for conveying political messages is not relevant when examining the scope and degree of violation of the protected right; rather, it arises in the framework of the examination of the constitutionality of the violation according to the criteria of the limitations clause (cf: Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2006 BCCA 529, par. 131. That case concerned the invalidation of a decision of the public bus company to refrain from placing political advertisements on the sides of buses.  An appeal on the judgment is currently pending in the Canadian Supreme Court).

Examination of the constitutionality of the violation – the Limitations clause

7.    Like all human rights, the right to freedom of speech is not absolute, and at times it must give way to other rights or values or competing interests. As explained in the judgment of my colleague Justice Naor, the relevant balancing formula is that which appears in the limitations clause in s. 8 of Basic Law: Human Dignity and Liberty. This is indeed “the criterion accepted at present for balancing conflicting values” (para. 29). On this matter, I would like to add several comments.

First, the Rules of the Broadcasting Authority and of the Second Authority under discussion have the normative status of secondary legislation. The Broadcasting Authority Rules were made by the management committee, in consultation with the Director General by virtue of the authority under ss. 25A (b)(2) and 33 of the Broadcasting Authority Law. The Second Authority Rules were made by the Second Authority Council by virtue of their authority under ss. 24 and 88 of the Second Authority Law. These Rules were enacted with the knowledge of the Knesset Education and Culture Committee. As such they acquire the normative status of secondary legislation (cf: per Deputy President T. Or in HCJ 9596/2 Pitzui Nimratz, Experts for the Realization of Medical Rights and Insurances v. Minister of Justice [70], at p. 797 and the sources cited there regarding the normative status of the Bar Association Rules.   While the principal aim of the limitations clause was to limit the powers of the primary legislator, it is clear that anything forbidden to the primary legislator would certainly be forbidden to the secondary legislator (see I. Zamir, Administrative Authority, vol. 1, pp. 135, 138, 154). Bearing this in mind, I too am of the opinion that the Rules under consideration should be examined through the spectrum of the limitations clause.

Second, the limitations clause in the Basic Laws on human rights is the tool for assessing the constitutionality of a violation of rights enjoying meta-legal status, in that they are included in the inner core of rights specified in the Basic Laws. Nevertheless, the tests of the limitations clause may also be applicable by virtue of general principles governing human rights, which are part of the “Israeli common law”, and which do not have a status that is entrenched directly in the Basic Laws (see per President Barak in Horev v. Minister of Transport [26], at p. 43 {195}).  Accordingly, even on the view that freedom of political expression is not included in the constitutional right to human dignity, the constitutionality of secondary legislation that violates the aforementioned right must still be examined in accordance with the conditions stipulated in the limitations clause. These conditions are essentially similar to the tests applied in the case law relating to protection of human rights prior to the enactment of the Basic Laws (see my comments in Meshi Zahav v. Jerusalem District Commander [37], at para. 10); see also per Justice D. Dorner in Bakri v.  Film Censorship Board [61],  at para. 10).

Finally, it is noteworthy that counsel for the state argued that in the circumstances of the case, the criteria of the limitations clause should not be applied. The argument is that in order to examine the constitutionality of the prohibition on political advertising, the freedom of speech of the person wishing to advertise much be weighed up against the freedom of speech of the entire state citizenry, who are entitled to receive reliable and balanced information from the media.  According to counsel for the state, this is a horizontal balance between two rights of equal status, which should be based on compromise and mutual waiver of both rights. In light of this, it is argued that the balancing formula prescribed by the limitations clause should not be invoked, because this formula is suited only to a vertical balance between a right and a conflicting interest, and not to a horizontal balance between two rights of equal status.  Counsel for the state based his arguments on the comments of Justice D. Dorner in Shin v. Council for Cable Broadcast  [23], (at para. 19).

I do not accept these arguments.  The petitioners’ freedom of political expression to publish political advertisements is not competing with the right of an individual or a defined group of individuals amongst the public, but rather, with the general public interest of the members of society to receive reliable, balanced information from the media.  As such, the absolute ban on the broadcast of political advertisements requires, in essence, a vertical balance between the individual right and the general public interest, and not a horizontal balance between two rights of equal status, as claimed by counsel for the state. In any case, we are not faced with the question of whether the fundamental balancing formula prescribed by the limitations clause applies only to vertical balances between competing rights and interests or whether it can also be applied to horizontal balances between two conflicting human rights. I will just mention that according to my understanding, the requirements of the limitations clause – and especially the requirements of a  proper purpose and proportionality – may under suitable circumstances also be invoked in cases involving horizontal balancing of competing human rights.  I tend to the view that the tests of limitations clause may also serve for striking horizontal balances between rights of equal status, even if the manner of applying these tests may change in accordance with the category of the conflicting values, their relative weight, the nature of the balance, and the overall circumstances. Under the current circumstances this issue does not require further discussion and it may therefore be left for future consideration (cf: per Deputy President M. Elon in Shefer v. State of Israel  [71], at p. 105; regarding the view that the proportionality tests allow for waiver and mutual compromise between conflicting values, see Gideon Sapir, “Old versus New: Vertical Balance and Proportionality,” 22 Bar-Ilan L. Stud. 471 (2006)).

The Requirement that the violation be “by a law … or according to a law by virtue of explicit authorization therein”

8. The limitations clause in s. 8 of Basic Law: Human Dignity and Liberty, the wording of which is essentially identical to that of s. 4 of Basic Law: Freedom of Occupation, provides as follows:

'There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or according to a law as stated by virtue of explicit authorization therein' (italics not in original – D.B.). 

The limitations clause specifies four cumulative conditions that must be satisfied for the violation of a protected right to be lawful and to pass the constitutional examination: the violation must be by a law, or according to a law or by virtue of explicit authorization therein; the violating law must befit the values of the State of Israel; the violation of the protected right must be for a proper purpose; and the violation must be “to an extent no greater than is required.” The last three conditions express the principle of the rule of law in the broad substantive sense. Their concern is with the contents of the normative arrangement that violates a human right. Their purpose is to ensure that the violation of the right of the individual is necessary and justified from a substantive point of view, and that it strikes a proper balance between individual rights and the needs of the public.  On the other hand, the provision requiring that the violation be “by a law …or according to a law as stated by virtue of explicit authorization therein” is not concerned with the contents of the legal norm but rather, with the need for its existence. This provision expresses the principle of the rule of law in the narrow,  formal-substantive sense, as we will now explain.

In the circumstances of this case, my position is that the Rules of the Broadcasting Authority and the Second Authority, which establish a total ban on the broadcast of political advertisements, do not comply with the first condition of the limitations clause.  In order to explain my position, I will first consider the meaning of the requirement that the violation of the protected right be “by a law… or according to a law as stated by virtue of explicit authorization therein.” To that end, we must first consider the interpretation of the term  “by a law”  or “according to a law”. I will then discuss the interpretation of the requirement for "explicit authorization" in the law. It will be stressed that the following discussion will focus on the interpretation of the components of the said provision in the present context,  i.e. secondary legislation that violates a protected human right.

"By a law” or “according to a law …”

9.  The first requirement of the limitations clause according to which the violation of the protected right must be "by a law" means that as a rule, the violation of the right must derive its force from primary legislation. Where the violation is dictated by secondary legislation, the administrative authority must show authorization that originates in a legislative act of the Knesset ("according to a law"). This is an expression of the principle of administrative constitutionality, which is a constituent of the principle of the rule of law in the formal sense, whereby the executive authority may only act in accordance with the powers vested in it by law (see Baruch Bracha, Administrative Law, vol.1, 35, 38-40 (hereinafter: Bracha); Zamir, at p. 60). This principle is particularly applicable to powers that involve a violation of basic human rights.  For such a violation of rights, the secondary legislator must receive "explicit" authorization from the primary legislator.  Below we will discuss the meaning of the requirement of “explicit authorization”. 

It will be noted that the phrase "according to a law …" in reference to the violation of a protected right was not included in the original version of the limitations clause at the time of passage of the two Basic Laws concerning human rights in 1992.  It was added to the limitations clause in 1994, in the framework of an amendment to the two said Basic Laws (see: Basic Law: Freedom of Occupation (Amendment) Bill, H.H. 5754 129, that prescribed an indirect amendment to the limitations clause in Basic Law: Human Dignity and Liberty (hereinafter: "the Amendment").  The explanatory note to the Amendment states that "… the existing requirement whereby any limitation of the freedom of occupation must find expression exclusively in primary legislation and not in secondary legislation – is unnecessarily extreme." This clearly indicates that the phrase relating to a violation "according to a law" was intended to enable the secondary legislator to violate human rights subject to the restrictions that we will now discuss.  In that sense, the requirement that the violation be "by a law" or "according to a law" resembles the requirement of "prescribed by law" appearing in the European Convention of Human Rights and in s. 1 of the Canadian Charter. The European Court of Human Rights and the Canadian Supreme Court interpreted the word "law" in this  requirement as permitting a violation of basic rights not only in primary legislation but also in secondary legislation that complies with the other conditions of the limitations clause (see: Peter W. Hogg, Constitutional Law Of Canada  (5th ed., 2007) 123 (hereinafter: Hogg)).

Further to the above it will be mentioned that the requirement that the violation be "by a law" or "according to a law" is an expression of the rule of law not only in the formal sense, but also in the narrow-substantive sense. Accordingly, in order to pass the test of constitutionality, legislation that violates human rights must comply with all of the elements that are essential for the validity of legislation as binding legal norm, including publicity, accessibility, generality, absence of ambiguity, and absence of arbitrariness (see A. Barak, Interpretation in Law,  vol. 3, Constitutional Interpretation, at pp. 480-490 (1995) (hereinafter: Barak, Constitutional Interpretation). Indeed, this interpretation is also consistent with the interpretation of the requirement “prescribed by law" in the rulings of the European Court of Human Rights and the Canadian Supreme Court. In keeping with this interpretation, a norm that violates human rights must be public, accessible and sufficiently clear so that the aggrieved individual, as well as the authority causing the violation, can plan their course of action and conduct their affairs in accordance therewith (see: The Sunday Times v. United Kingdom, 2 EHRR 245 (1979); Hogg, at pp. 122-123, 125-126). Concluding this section, it is noteworthy that in our legal system, the aforementioned requirements, including the requirement that the offending norm be clear and unequivocal, may also be dictated by the substantive components of the limitations clause, including the requirement of a proper purpose and proportionality.

Violation “according to a law" by virtue of “explicit authorization" therein  

10. The provision under which the violation of human rights must be "by a law… or according to a law as stated by virtue of explicit authorization therein" includes an important additional component.  A violation that is "according to a law" must be by virtue of "explicit authorization" in the primary legislation. This requirement is not included in the limitations clauses of the European Convention of Human Rights or the Canadian Charter.  What is the reason for adding the requirement of “explicit authorization” by a law in the limitations clause of the Basic Laws?  The explanatory note to the Amendment of 1994 reveals that the aim was to restrict the possibility of violating human rights by means of secondary legislation. To that end, three cumulative conditions were set that had to be satisfied in order to affirm the constitutionality of the violation of a human  right by way of secondary legislation. First, authorization for such a violation must be in primary legislation (“by a law”); secondly, the authorization in the primary legislation must be “explicit”; and thirdly, the authorizing law, like the secondary legislation itself, must satisfy the substantive conditions of the limitations clause.

It must be said immediately that the requirement for “explicit authorization” by law for the violation of a protected right by way of secondary legislation is not new to us. Even prior to the enactment of the Basic Laws concerning human rights, the case law of this court established that any violation of human rights by way of secondary legislation requires explicit authorization in primary legislation. It further determined that such authorization would be narrowly and meticulously construed in view of the interpretative presumption whereby the primary legislator did not intend to authorize the secondary legislator to violate central basic rights or values. In order to refute that presumption, it was ruled that there must be  explicit and unequivocal authorization in a law. In the words of President M. Shamgar in the context of violation of freedom of occupation:

 ‘A basic right can be neither revoked nor restricted other than by way of explicit statutory provision of the primary legislator, and also, as long as the Basic Law does not determine otherwise, by the secondary legislator who was authorized to do so by the primary legislator ….

In my view, such authorization means  “explicit authorization”, by which I mean exclusively a case in which the primary legislator  states clearly and explicitly, that he authorizes the secondary legislator to make regulations that establish prohibitions or restrictions on engaging in a particular profession ….

To summarise this point, ... secondary legislation draws its force exclusively from the authorizing act of the primary legislator, and in relation to matters concerning the restriction of fundamental rights, in my view the secondary legislator is not authorized to act in that regard unless the primary legislator granted him clear, overt and explicit authority to deal with the said matter by way of restriction or prohibition, as the case may be’(HCJ 337/81 Miterani v. Minister of Transpor  [71], at p. 360; italics not in original – D.B).

As mentioned, this ruling had already struck roots in our legal system in the period that preceded the Basic Laws concerning human rights (see e.g. per Justice (previous title) Barak in CA 524/88, Pri HaEmek Agricultural Cooperative Society Ltd. v. Sde Yaakov Workers Settlement Ltd. [73]). However, it is noteworthy that in the case law that preceded the Basic Laws, less rigorous approaches may be discerned, whereby basic rights may be violated by way of secondary legislation even in the absence of explicit statutory authorization, provided that the authorization for the violation of human rights was clearly implied by the purpose of the authorizing law. In the words of Justice Berinson:

‘[a basic right – D.B.] … can neither be revoked nor restricted other than by way of a clear and unequivocal legislative provision. This is the case a fortiori when executed by the secondary legislator, who can do only that which the sovereign legislator has authorized him to do, and this authorization must be clearly and expressly stated, or at least it must be implied by the general purpose and intention of the law by virtue of which the secondary legislator presumes to act’

 (HCJ 144/72 Lipevski-Halipi v. Minister of Justice [73], at p. 723. On the different approaches taken by this Court during the period preceding the enactment of the Basic Laws concerning human rights, see Oren Gazal-Ayal, “Restrictions of Basic Rights “By Law” or “According to Law” Mishpat Umimshal - Law and Government in Israel 4, pp. 381, at pp. 385-389 (1998) (hereinafter: Gazal).

11.  The enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation created an opportunity for a fresh interpretative perspective of the requirement of “explicit authorization” currently anchored in the limitations clause. Our case law has already established that in keeping with the status accorded to human rights in the Basic Laws, and in view of their spirit, greater weight is assigned today to the obligation to take into account protected human rights (see CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [75], at para. 46 of my judgment). Indeed, as mentioned, the requirement of “explicit authorization” by law seeks to reduce the damage to basic rights by way of secondary legislation, while giving expression to the principle of the rule of law in its formal and narrow-substantive sense. However, the interpretative question arising in this context is this: when is an authorization in a law considered to be “explicit” as stated in the limitations clause? A variety of interpretative questions may arise in this context: is it sufficient for the primary legislator to authorize the secondary legislator to fix an arrangement in a particular area that by its very nature is liable to involve a violation of human rights, or is clearly-stated authorization to violate the relevant protected human right necessary? Is it sufficient that the law contain a general authorization to violate a human right, without determining the substance and scope of the violation, or must the statutory authorization also determine the fundamental criteria for the offending arrangement, in order to direct and define the secondary legislator’s discretion when fixing an arrangement that restricts human rights?

These questions necessitate a balance between different and even conflicting considerations. Two main approaches present themselves in this context. On the one hand, our case law has established that the principles of the separation of powers, the rule of law, and democracy in both its formal-representative sense and its substantive sense, all require that the principal norms and the fundamental criteria for implementing them  be fixed in primary legislation (“primary arrangements”) (see per Justice (previous title) T. Or in HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructures [76], at p. 56 and references cited).

The considerations underlying this basic rule of public law in Israel were discussed at length by  President Barak in Rubinstein v. Minister of Defence  [45] and by Deputy President Cheshin in HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel et al. v. Prime Minister of Israel [77]. Briefly, this doctrine is based on a conception of representative democracy in which the parliament elected by the people is the principal carrier of the legislative role, enjoying social legitimacy in that capacity. A sweeping conferral of legislative authority on an administrative agency without the fundamental arrangements for exercising such authority being set out in legislation is tantamount to transferring the legislative power granted to the Knesset to the executive branch or one of its offshoots, and may directly contradict the fundamental basis upon which the system of the regime is premised.  According to this conception, it is the Knesset, as opposed to administrative authorities, that must prescribe the fundamental criteria for the violation of basic rights. This is the way to ensure that the Knesset fulfils its constitutional role and that it guides the administrative authorities in their activities that involve violations of human rights. In this way, there will also be a public parliamentary discussion of the relevant constitutional and normative considerations, in a manner that provides a “certain institutional guarantee that basic rights will not be violated except where necessary” (per Justice D. Dorner, Lam v. Director General of the Ministry of Education, Culture and Sport [44], at p. 684; and see further per Justice E. Hayut, Association for Civil Rights in Israel v. Minister of Internal Security [43], at p. 762; per Deputy President E. Rivlin, ibid., at p. 765; Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. 1, pp. 127-128, 159ff (2005) (hereinafter: Rubinstein and Medina)).

It will be noted that this conception also underlies the interpretative presumption operative in our legal system, the status of which was reinforced by the enactment of the Basic Laws concerning human rights, whereby it is not the intention of the primary legislator to authorize the secondary legislator to prescribe primary arrangements in secondary legislation (on this interpretative presumption, see:  New Dialogue Society  v. Minister of National Infrastructures [76], at pp. 56-57, per Justice (previous title) T. Or; Rubinstein v Minister of Defence [45], at p. 523 {193}, per President Barak; A. Barak, Interpretation in Law, vol. 2,  Legislative Interpretation, at pp. 527-530 (1993); Rubinstein and Medina, at p. 166). In accordance with this presumption it was held that as a rule, the secondary legislator should refrain from establishing primary arrangements itself and should focus on determining the means for implementation and enforcement of the substantive arrangements outlined by the primary legislator. This ensures that the “democratic-parliamentary regime” is not replaced by a "formal democratic regime” (per President M. Shamgar in HCJ 256/88 Medinvest Herzliya Medical Center v. Director General, Ministry of Health [78], at p. 45).

In this context it is noteworthy that in parliamentary democracies in which the constitutional system protects human rights, the requirement to specify the manner of limitation of rights in primary legislation is anchored within the system.  Thus, in the German legal system, this concept finds specific constitutional anchorage in s. 80(1) of the Basic Law (Grundgesetz). This section stipulates that the federal and state governments may be authorized by law to establish secondary legislation, but the contents, purpose, and scope of the authorization must [also] be determined by law. A similar conception is evident in the case law of the Supreme Court of the United States. Basing itself on the principle of separation of powers, this court ruled that legislative powers are given to Congress, and that delegation of these powers to administrative authorities is conditional upon Congress setting standards to guide the secondary legislator in exercising his authority. In actual practice, it must be said, the Supreme Court of the United States deems sufficient the establishment of broad and general standards in a law, thus weakening the status and the application of the doctrine in the American legal system (see: Mistretta v. United States, 488 U.S. 361 (1989); and Calvin Massey, American Constitutional Law: Powers and Liberties 394-395 (2nd ed., 2005)).

The constitutional considerations discussed so far are likely to support a strict and precise interpretation of the requirement of “explicit authorization” in the limitations clause. Accordingly, in order for secondary legislation that violates protected human rights to be constitutional, a general, comprehensive  blanket statutory authorization concerning enactment of harmful secondary legislation does not suffice. It is necessary to point to a clearly articulated authorization in the law, specifying the nature of the violation of the protected right and its fundamental criteria in the framework of the authorizing statute.

As opposed to this interpretative approach, it could be argued that in the modern reality, the multitude of matters requiring statutory regulation prevents the primary legislator from dealing personally with all the matters that require legislation. According to this argument, the requirement of a clear, detailed authorization in the law for purposes of violating basic rights by way of secondary legislation is liable to lead to cumbersome and slow primary legislation that does not allow for adaptation to the changing circumstances of life and to the needs of time and place. This situation is liable to paralyze the regulatory enterprise, harming the broad public interest and even the protection of human rights. Moreover, a rigid construction of the requirement of “explicit authorization” may overly limit the power of the administrative authorities to exercise broad discretion in the regulation of matters within their area of expertise. Furthermore, it is difficult to determine a clear guideline for distinguishing between  primary and secondary arrangements, and it is thus doubtful whether it is practically possible to single out the primary legislator as being charged with establishing primary arrangements (see para. 36 of the judgment of Justice Naor and her judgment in Association for Civil Rights v. Minister of Internal Security  [43], at pp. 759-760; also see and compare Bracha, at p. 82; Zamir,  at p. 68).  Indeed, this Court has already said that “the complexity of life has forced us to reconcile ourselves to the existence of primary arrangements in secondary legislation…” even though this is not a desirable situation (per Deputy President Cheshin in HCJ 2740/96 Chancy v. Inspector of Diamonds [79], at p. 505).

These considerations may justify a more moderate approach to the requirement of “explicit authorization”, whereby it would suffice for the authorization for violating a basic right to be dictated by the purpose of the authorizing law, without requiring explicit wording or a specific arrangement in primary legislation regarding the substance and scope of violation of the protected right (cf: Gazal, at p. 416). A similar approach prevails in the English legal system, where it was ruled that not only an explicit provision, but also an intention that is necessarily implied by a parliamentary statute, may rebut the interpretative presumption whereby the secondary legislator is not authorized to make arrangements that violate the basic principles of the system (see: A.W. Bradley & K.D. Ewing, Constitutional and Administrative Law 687-688 (14th ed., 2007); P. Craig, Administrative Law 389-390 (5th ed., 2003)).

12.  How should we balance all of the above considerations? What construction should be given to the requirement of “explicit authorization” in the limitations clause, in view of the variety of considerations as stated? It would seem that our response to these questions must be from a broad perspective that takes in the other components of the limitations clause of the Basic Laws. As explained above, the limitations clause expresses a complex conception of the rule of law, in both the formal and the substantive senses. The conditions of the limitations clause are grounded in a delicate balancing of human rights among themselves, and human rights as against the general good. The balancing task does not admit of precise, fixed advance definition, being the product of evaluation and estimation. The task of balancing eludes precise advance definition, for it is the product of relative calculation and evaluation. It must be sensitive to the context in which it takes place (see: Barak, Constitutional Interpretation, at p. 548).

Considering all the above, we have ruled previously that the interpretation and manner of application of the substantive conditions of the  limitations clause - especially the requirements of a proper purpose and proportionality - should be determined in light of all the parameters, including: the area with which the offending legislation deals; the reasons underlying the protected right and its relative social importance; the nature of the violation and its magnitude in the concrete case; the circumstances and the context of the violation; and finally, the nature of the competing rights or interests (see my comments in Menahem v. Minister of Transport [48], at pp. 258-259). Further to this it was ruled that the nature of the violation of the protected right and its magnitude are likely to impact on the examination of the violation from the perspective of the limitations clause. In the words of Justice I. Zamir:  “In principle, the level of protection accorded to a basic right must be directly proportional to the importance of the right and the magnitude of the violation” ( HCJ 7083/95 Sagi T‘;’/.. v. Minister of Defense [80], at p. 262 {657}; see also Menahem v. Minister of Transport [48], at p. 260; Horev v. Minister of Transport [26], at p. 49 {202}).

In accordance with the above, this court has ruled that the greater the social value of the violated right,  and the more comprehensive and severe the violation, the more important and substantive the purposes must be in order to satisfy the requirement of “proper purpose” in the framework of the limitations clause (see e.g. Movement for Quality of Government in Israel v. Knesset [14] at p. 890, per President A. Barak;  HCJ 8276/05 Adalah – The Legal Center for Arab Minority Rights in Israel  v. Minister of Defense [81],  para. 28, per President Barak).

Similarly, regarding the requirement of proportionality it was ruled that “the magnitude of the violated right or  the magnitude of the violation of that right will determine the extent of our strictness with the authority regarding the grounds of proportionality” (HCJ 3648/97  Stemkeh v. Minister of the Interior [82], at p. 777, per Justice (previous title) M. Cheshin; see also HCJ 5503/94 Segel v. Speaker of the Knesset [83], at p. 544, per Justice A. Goldberg; Tzemach v. Minister of Defence [80], at p. 282, per Justice I. Zamir;  Menahem v. Minister of Transport [48], at p. 280 of my judgment; Israeli Office of Investments v. Minister of Finance [64], at pp. 420-423, per Justice Dorner). It will be mentioned that insofar as the requirement of proportionality is concerned, the examination of the nature and extent of the violation are an integral part of the tests of this requirement, especially of the third subtest, in the framework of which  the relationship between the nature and the extent of the violation and the benefit stemming from it is examined (see e.g. LAA 696/06 Alkanov  v. Supervisory Court for Custody of Illegal Residents   [84],  per Justice Procaccia, at para. 21).

Thus, according to the settled case law of this court, the substance of the violated right, the reasons underlying the right and its relative social importance, the magnitude of the violation, and the context in which it occurred, all have implications for the interpretation and the mode of application of the requirements of proper purpose and proportionality that   constitute an expression of the principle of the rule of law in the broad, substantive sense. In my opinion, the requirement of "explicit authorization" by law, which likewise is a manifestation of the principle of the rule of law, should be interpreted in similar fashion (para. 9 above). Indeed, the requirement of “explicit authorization” by law does not have a single, essential meaning. Its application calls for sensitivity to the context and all the circumstances of the case.  Accordingly, the nature of the violated right and its underlying rationales, the relative social importance of the right, the magnitude of its violation, its social ramifications, the nature of the offending authority and the context – should all affect the mode of interpretation and application of the requirement for “explicit authorization” in the limitations clause.

Bearing this in mind, the closer the substantive connection between the violated right and the dignity and liberty of the person, the greater the social importance of the right, and the more serious and comprehensive the violation, the stricter will be  our interpretation of the requirement of “explicit authorization” in the concrete case.  Accordingly, in cases involving a serious violation of a major basic right, clear statutory authorization in the authorizing law establishing general criteria for the essential features of the violation that is permitted by way of secondary legislation will be required. The level of detail required in the authorization will be a function of the magnitude of the violation of the protected right, the nature of the matter, and the overall context. President Barak dwelt on this issue in his discussion of the basic principle whereby primary arrangements must be fixed by the primary legislator:

 ‘The level of abstraction of the primary arrangement changes from case to case. The greater the violation of individual liberty, the less acceptable is too high a level of abstraction, and an arrangement in primary legislation establishing – even if only in general terms -   the nature or the extent of the violation of liberty is required.  When the object of the arrangement is a complex matter, necessitating great expertise, it is sometimes possible to accept a high level of abstraction ....

Indeed, the nature of the arrangement, its social ramifications, and the degree of violation of individual liberty all affect the scope of the primary arrangement and the degree of detail required thereof’ (Rubinstein v. Minister of Defence [45], at pp. 515-516 {182-184}; see also Supreme Monitoring Committee v. Prime Minister of Israel [47], per Deputy President Cheshin at para. 37-39).

On the other hand, the lower that the underlying rationales of the protected right lie in the scale of social importance, and more minimal the violation of the right in the context and under all the circumstances of the case, the more it becomes possible to interpret the requirement of “explicit authorization” in a flexible and lenient manner.  Under these circumstances the secondary legislation can draw its validity from explicit authorization dictated by the clear purpose of the authorizing law. In other words, where the nature, scope and magnitude of the violation of the protected right are not significant, it is sufficient that the authorization to violate the basic right is an inevitable outcome of the particular purpose of the authorizing law, even in the absence of clear language and of regulation of the main features of the violation in primary legislation (cf: Gazal, at pp. 403-408).

13. This interpretation of the requirement of “explicit authorization”, which is based on the connection to the nature and magnitude of the violation of the protected right, is a suitable one. It creates interpretative coherency and harmony between the various components of the limitations clause, which constitute one integral unit, the purpose of which is to allow a violation of human rights for the purpose of maintaining human rights (see Barak, Constitutional Interpretation, at pp. 486-487). It allows flexibility in accordance with the context and the circumstances, while striking a proper balance between the reasons supporting the establishment of basic criteria in primary legislation for the violation of human rights, and the need for administrative efficiency and for leeway for the secondary legislator as part of the public good and the protection of individual rights (see para. 11 above).

The proposed interpretation also reconciles the varying approaches expressed in the decisions of this court regarding the requirement of “explicit authorization” in the Basic Laws (see para. 10 above).  According to the interpretation discussed above, the requirement of "overt, clear and explicit authorization”, as stated by President M. Shamgar in Miterani v. Minister of Transport [72], at p. 360, applies to secondary legislation that significantly and severely violates fundamental basic rights (cf: Justice Dorner in Lam v. Minister of Sport [44], at para 10, and Association for Civil Rights v. Ministry of the Interior [12], at para. 8). On the other hand, where the violation is insignificant in terms of magnitude and in relation to the relevant right, the requirement of "explicit authorization" is satisfied even if the authorization for violation is "implied by the general purpose and intention of the law," as stated in Lipevski-Halipi v. Minister of Justice [74], at p. 723.

Finally, it will be mentioned that the proposed interpretation is compatible with  the interpretative presumption that we discussed above, according to which the legislature did not intend to authorize the executive branch to establish primary arrangements in secondary legislation.  As we have said, this presumption was reinforced following the enactment of the Basic Laws on human rights (see para. 11 above). And indeed, under the interpretation that we are proposing, secondary legislation that involves a serious violation of major basic rights must draw its validity from a clear authorization in primary legislation that prescribes normative criteria for the regulation of that violation, at least in general terms. This ensures that arrangements involving a significant and severe violation of basic human rights will not be anchored in secondary legislation in the absence of suitable regulation of the matter in a statutory act of the Knesset.

We would also mention that our case law has yet to consider the question of whether after the enactment of the Basic Laws on human rights, the aforementioned interpretative presumption has become a binding constitutional norm that affects the ability of the Knesset to explicitly authorize an administrative authority to determine its own primary arrangements that violate human rights. This question does not arise in the current case, and what I have written in my opinion here does not resolve it (see and compare to other cases in which this question was left pending further examination: Supreme Monitoring Council v. Prime Minister [77], at para. 34, per Deputy President M. Cheshin;  New Dialogue Society v.  Minister of National Infrastructures [76] at p. 58,  per Justice (former title) T. Or; Rubinstein v. Minister of Defence [45], at p. 522-523 {192-194}, per President A. Barak; also see: Rubinstein and Medina, at p. 170).

From the general to the specific

14.  This petition concerns the constitutionality of the prohibition on the broadcast of political advertisements on radio and television. The prohibition appears in the Rules of the Broadcasting Authority and of the Second Authority, which constitute secondary legislation. The statutory authorization for the Broadcasting Authority to make these Rules appears in s. 25A(b)(2) of the Broadcasting Authority Law, which reads as follows:

‘25A. Advertisements and Announcements on Radio

          ….

(b)          The management committee shall determine, in consultation with the Director General, rules concerning - 

              …

(2) prohibitions and restrictions on the broadcast of advertisements and announcements’ (italics not in original – D.B.)

Regarding the Second Authority, the relevant authorization provision appears in s. 88 of the Second Authority Law, which states as follows:

88. Rules for Advertising Broadcasts

The Council shall make rules concerning the broadcast of advertising broadcasts, inter alia, concerning the following matters:

(1) …

(2) Subjects that are prohibited for broadcast as advertisements in general, or in specific circumstances, or by reason of being offensive to good taste or to public sensitivities' (italics not in original – D.B.).

In her judgment, my colleague Justice Naor made the point that the linguistic difference between the two authorizing provisions is not significant and that the Broadcasting Authority and the Second Authority are both authorized to impose restrictions on the contents of advertisements (see pars. 31-32 of her judgment and all the  references there). I agree.  However, the question here is whether the aforementioned statutory authorization constitutes "explicit authorization" by law for purposes of establishing an absolute prohibition on the broadcast of political advertisements. My colleague answered this question in the affirmative. My position on this matter is different.

In both the Broadcasting Authority Law and the Second Authority Law, the authorization to impose restrictions on the contents of advertisements is general. The discretion of the Management Committee of the Broadcasting Authority and the Council of the Second Authority in this context is extremely broad. These authorizing provisions do not specify the particular considerations that the Broadcasting Authority and the Second Authority are permitted to take into account for purposes of setting such restrictions, nor does it specify the nature, the substance and the scope of these restrictions.  Indeed, s. 88(2) of the Second Authority Law provides that the Second Authority is authorized to impose restrictions on the subjects of advertisements "by reason of being offensive to good taste or to public sensitivities," but apart from this the legislature added nothing.

I am prepared to say that the purposes of s. 25A(b)(2) of the Broadcasting Authority Law and s. 88(2)  of the Second Authority Law clearly and even necessarily imply an  intention to authorize the Management Committee of the Broadcasting Authority and the Council of the Second Authority to restrict the applicants’ freedom to advertise on radio or television. In appropriate circumstances, this authorization may even constitute “explicit authorization” by law to violate freedom of speech, even though its language is general and it does not prescribe normative criteria for imposing restrictions on the contents of advertisements.  This is the case, for example, in relation to freedom of commercial expression, for which the level of protection is lower than for political expression, or in relation to a violation of freedom of speech - including freedom of political expression  - under circumstances in which the magnitude of the violation is not great.  As explained above, in such circumstances the requirement of “explicit authorization” by law could be construed in a “more lenient and flexible manner” (see and compare: Zakin v. Mayor of Beer Sheva  [27], per Justice I. Zamir,  at para. 9).

This is not the case in the present context.  The prohibition on political advertising prevents absolutely and in advance the broadcast of political advertisements on radio and television, owing to the fact that their goal is to influence the public on a publicly controversial political matter. For the reasons elucidated above, my position is that a total ban on the broadcast of political advertisements severely violates freedom of political expression. The fundamental rationales of freedom of political speech, its immense importance to the individual and society, its crucial contribution to the democratic process, and the magnitude of its violation under the circumstances, should all affect the interpretation of the requirement of “explicit authorization” by law in the current context.

Bearing all the above in mind, my view is that for purposes of a total ban that prevents in advance any possibility of political advertising in the broadcast media, the general authorization in s. 25A(b)(2) of the Broadcasting Authority Law and s. 88(2) of the Second Authority Law is insufficient. Imposing this kind of broad prohibition requires clear authorization by law that determines the basic criteria relating to this prohibition, even in general terms.  It will be pointed out where necessary, the arrangements for implementation of the prohibition on political advertising on radio and television are likely to be made in the framework of secondary legislation, to enable the implementation and enforcement of the prohibition. Similar arrangements operate both in England and in Germany.  In Germany, all sixteen states resorted to parliamentary legislation to incorporate the German Interstate Broadcasting Treaty, which established a total ban on the broadcast of political advertisements other than during election periods (s. 7 para. 8 Rundfunkstaatsvertrag - Interstate Broadcasting Treaty). At the same time, authorization to make rules for the purpose of implementing that prohibition was prescribed by law. In England, the total ban on political advertising in the broadcasting media other than during an election period was anchored in parliamentary legislation – section 321 of the Communications Act, 2003. S. 319(2) of the said Act contains authorization to make rules for the implementation of that particular prohibition.

15.  In their pleadings, the respondents referred to other provisions in the Broadcasting Authority Law and the Second Authority Law that relate to the Authority’s duty to act fairly and to ensure reliable broadcasts that give  expression to the variety of views prevailing in the public (for the specific statutory provisions, see para. 35 of Justice Naor’s judgment). My view is that given the nature and magnitude of the violation of freedom of political expression, these statutory provisions do not constitute “explicit authorization”  by a law to establish the prohibition under consideration. The statutory obligation to maintain fairness in broadcasts may well necessitate a strict regulatory regime for political advertising on radio and television, but it is not, per se, sufficient to constitute “explicit authorization” by law to make a rule that categorically denies the possibility of political advertising.  Establishing such a prohibition requires clear authorization by law that determines the fundamental criteria for the existence of such a prohibition. 

16.  I wish to emphasize here that contrary to the respondents' claims, our conclusion in this case is not inconsistent with previous rulings of the Supreme Court. In HCJ 10182/03 Education for Peace and in Gush Shalom Society v. Broadcasting Authority [41], the constitutionality of the rule prohibiting the broadcast of political advertisements was not at issue; in any case, the rulings in that case have no bearing on the question of whether there is "explicit authorization" by a law for the establishment of the aforementioned prohibition.  The other judgments cited by the respondents in their pleadings dealt with the issue of the constitutionality of the rules that prohibited freedom of commercial speech (see e.g. Tempo Beer Industries Ltd v. Second Authority [40], para. 4, which discussed the constitutionality of the rule prohibiting a “broadcast proposing a competition or campaigns with prizes for drinking" alcoholic beverages). These judgments, which concern restrictions on  freedom of commercial speech, do not contradict our conclusion regarding the absence of "explicit authorization" in a law for establishing the rules under discussion in the present petition, which significantly restrict the freedom of political expression.

Further to the above, it is noteworthy that our conclusion in this case is consistent with the approach of this court in Association for Civil Rights in Israel v. Minister of Internal Security  [43]. In that case, the majority (Justice Hayut and Deputy President Rivlin, Justice Naor dissenting) held that the general authorization established in s. 132(17) of the Prisons Ordinance [New Version] 5732-1972 does not constitute "explicit authorization"  by a law to enact a regulation that restricts the meeting between a prisoner and his lawyer. In that case, Justice  Hayut ruled that "the magnitude of the right that is liable to be violated by the limitations specified in s. 29(b) [the right of consultation with a lawyer – D.B.] and the nature of the violation, necessitate explicit and detailed authorization in primary legislation, and the general authority in s. 132(17) of the Prisons Ordinance is insufficient" (ibid., at p. 768). Deputy President Rivlin added: " In s. 132(17) of the Prisons Ordinance I found no hint of authorization of the secondary legislator to violate the right to counsel. General statements regarding authority to make regulations “in other matters that must be arranged to ensure the effective implementation of this Ordinance” or in matters related to “the proper administration and the discipline of the prisons” are insufficient." (ibid., at p. 768).  We may therefore conclude that in view of the social importance of the right of consultation with a lawyer, and considering the nature of the violation of the said right and its magnitude in the particular circumstances, the majority view of this court is that a general authorization in the Prisons Ordinance does not constitute "explicit authorization" by law for the purpose of a serious violation of the aforementioned right in the framework of secondary legislation. This position is consistent with our conclusion in the circumstances of the case before us, which is that considering the elevated status of freedom of political speech and taking into account the magnitude of its violation, the general authorizing provisions of s. 25A(b)(2) of the Broadcasting Authority Law, and s. 88(2) of the Second Authority Law do not constitute "explicit authorization" by a  law for the purpose of establishing a rule that prohibits absolutely the broadcast of political advertisements.

17.  The conclusion dictated by the above reasons taken together is that the absolute ban on the broadcast of political advertisements in s. 7(2) of the Broadcasting Authority Rules and ss. 5 and 11 of the Second Authority Rules was established without proper authorization by law. However, under the circumstances I believe that an immediate voiding of the Rules would have undesirable consequences, due to the need for legislative regulation of the subject following a comprehensive examination of all aspects involved. I further note that even according to the petitioner, the broadcast of political advertisements on radio and television requires regulation by legislation of the Knesset. In these circumstances my proposal to my colleagues is to suspend the effect of the invalidition of the said rules for a period of one year to enable the Knesset to address the issue. (On recourse to suspension as a manifestation of the doctrine of relative invalidity, see Association for Civil Rights v. Minister of Public Security  [43], at p. 763 and citations there.)

Comments prior to closing

18.  In view of my conclusion that under the circumstances, the requirement that the violation be by virtue of “explicit authorization” in a law has not been fulfilled, I am not required to decide on the question of whether the substantive components of the limitations clause were present. Even so, I wish to make a few brief comments on the matter.

From the respondents’ pleadings before this Court it emerged that the ban on political advertising on the broadcasting media was designed to ensure the fairness and balance of television and radio broadcasts.  The purpose of the prohibition is to prevent undue and unequal influence on the public-political discourse on the part of financially powerful bodies by means of relaying political messages in the framework of advertisements at a high financial price.  The concern is that the ability to purchase advertising time in order to broadcast political messages may be detrimental to substantive equality in relation to those messages lacking the financial backing that would enable their presentation on that platform.  Such a result may undermine the aspiration for a balanced presentation of the different opinions in society and even lead to a perversion of the democratic process. The parties agreed that this purpose was a fitting one, and Justice Naor elaborated on the reasons justifying this purpose in her judgment.

In the circumstances of this case, the main dispute concerning the substantive components of the limitations clause is over the requirement of proportionality. Evidently, all are agreed that the broadcast of political advertisements over the electronic media is a subject that requires intervention and regulation. The dispute pertains to the extent of intervention and the proper means of achieving the purpose we discussed.  In this regard there are a number of conflicting considerations. On the one hand, the electronic channels constitute a limited public resource. Broadcasts over these channels are a source of tremendous public influence and power. It could be argued that a framework for the broadcast of advertisements that depends on the funding power of those seeking to advertise precludes proper implementation and enforcement of the fairness doctrine; therefore, the means necessary for maintaining a fair balance between the differing views amongst the public is the total preclusion of any possibility of political advertising on radio and television. This is the way to prevent a situation in which “money talks”.  Indeed, as mentioned, the legislation in England and in Germany established an absolute prohibition on political advertising on the broadcasting media. It will be mentioned that in Germany, the constitutionality of that prohibition has never been adjudicated by the Federal Supreme Court.  In England, the House of Lords recently handed down a decision that unanimously denied an appeal filed against a judgment of the High Court of Justice, which held that the absolute statutory prohibition on political advertisements does not contradict art. 10 of the European Convention on Human Rights (see Animal Defenders International v. Secretary of State for Culture, Media and Sport, [2008] 3 All ER 193).

On the other hand, some would argue that establishing a total ban on the broadcast of political advertisements in the electronic communications media constitutes an excessively harmful means, considering the potential contribution of such advertisements to the political-public discourse in Israel. According to this approach, in order encourage pluralism in society, political advertisements ought not to be banned entirely; rather, they should be permitted, subject to certain qualifications.  In this context it should be mentioned that today, political advertisements are published for payment in the print media, on internet sites and on public billboards. Furthermore, it must be recalled that advertisements with political content are in fact broadcast today, if the rule governing the imparting of information to the public can be applied to them. Thus, for example, in the framework of announcements about conferences, assemblies and demonstrations, there is nothing to prevent the broadcast of paid advertisements featuring political contents. Against the background of this reality, a doubt may arise, prima facie, as to whether the fear of a distortion of the public discourse due to the broadcast of political advertisements on television and radio is indeed serious and substantiated. Support for this approach can be found in the ruling of the European Court of Human Rights in the case of  VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI.[ ]. In that case, the Court ruled that a Swiss law that established a blanket prohibition on political advertising on radio and television disproportionately violates the freedom of expression protected by art. 10 of the Convention. I should mention that in view of this judgment of the European Court of Human Rights, the British Government at the time refrained from making a declaration in the House of Commons regarding the compatibility of the statutory prohibition on the broadcast of political advertisements with the European Convention on Human Rights (a declaration of this kind is required under s. 19(1)(b) of the Human Rights Act for purposes of a government draft law). See: Joint Committee on Human Rights, Scrutiny of Bills: Further Progress Report – Fourth Report of Session 2002-2003, p. 6-10, Ev 14).

A comparative examination of the position in the United States and Canada reveals that these jurisdictions permit the broadcast of political advertisements, subject to limitations. For example, a number of states in the United States, such as Kansas and Florida, require that these broadcasts be accompanied by an announcement explaining to the listener and the viewer that this is an advertisement, intended to encourage “an informed choice” in the political message that is conveyed to the public by commercial means. The Canadian legislator refrained from establishing a prohibition or restriction on the broadcast of political advertisements when it was not an election period. At the same time, the broadcasting entities themselves established partial limitations for the purpose of regulating the matter. For example, s. 1(f) of the Canadian Code of Advertising Standards states that "[t]he entity that is the advertiser in an advocacy advertisement must be clearly identified as the advertiser" in the framework of the advertisement so that the listener or viewer can know who is behind the advertisement. 

Further to the above, it will be pointed out that an approach that supports the broadcast of political advertisements on radio and television – even if only in a qualified and restricted manner - must address all the aspects requiring attention.  For example, according to such an approach, the question of whether there are alternative means of preventing the excessive domination of certain messages over others (for example, by placing restrictions on the amount of time allocated for political advertisements and the times of their broadcast, the duration of the broadcasts, their frequency and their price, and the position of the political advertisement within the cluster of advertisements) should be examined.  Moreover, the approach supporting the broadcast of political advertisements subject to limitations and qualifications requires that recourse to measures to ensure that listeners and viewers are aware that this is political advertising be considered (this is the purpose of the duty of notice in the U.S.A and in Canada). Another matter that should be considered is the relationship between the regulatory arrangement for the broadcast of political advertisements and the prohibition on the broadcast of "party propaganda", and also the question of the relationship between that arrangement and the broadcast of propaganda by the parties during an election period.  These are sensitive and complex issues that must be examined in depth, and as such they justify primary legislation.

19.  Thus, the question of the proportionality of an absolute prohibition on political advertising has no simple answer.  According to the case law of this court, the question of proportionality is the sort of question that does not have a precise, standard answer, because it requires acts of balancing and evaluation. Taking this into account, this court has acknowledged "room for constitutional maneuver”, also known as the "range of proportionality". The room for constitutional maneuver is determined in accordance with the specific circumstances of each particular case, taking into account the nature of the right and the magnitude of its violation, as opposed to the nature and substance of the competing rights or interests (see my comments in Menahem v Minister of Transport [50], at pp. 281-282 and citations).  Presumably, when regulating the broadcast of political advertisements on Israeli radio and television, the primary legislator will consider the various factors taken into account and the regulatory arrangements that were adopted by other countries. This being so, at this stage I will not adopt a position on the question of the proportionality of the Rules that are the subject of the current petition. 

I therefore propose to my colleagues to rule that the order nisi be made absolute. Accordingly, there should be a declaration of the invalidity – suspended, at this stage – of the prohibition on the broadcast of political advertisements on television and radio as prescribed in s. 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993,  s. 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules 5759-1999 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules 5754-1994 – all this,  in the absence of “explicit authorization” by a law for the establishment of that prohibition.  Should my opinion be accepted, the effect of the declaration of invalidity will be suspended for one year in order to enable the Knesset to address the matter.

Concluding Note

20. After writing the above, the opinion of my colleague Justice A. Procaccia arrived on my desk. For the reasons elaborated in her judgment, she believes that the Rules prohibiting paid advertisements of ideological – political expressions should not be viewed as a violation of freedom of speech.  I will just mention that this approach was not mentioned in the parties’ pleadings before us, and the point of departure in this hearing was that the Rules do indeed violate freedom of speech, and therefore they must be examined in accordance with the limitations clause. For the reasons elucidated in my opinion above, I too believe that the Rules violate the freedom of political expression, and I see no reason to add to those reasons. Nevertheless, I would like to comment briefly on the doctrinal-fundamental aspects emerging from my colleague’s judgment.

In her judgment, my colleague Justice Procaccia discussed the importance of the two-stage doctrine in the examination of a constitutional argument.  According to this doctrine, an argument regarding the violation of a constitutional right must be examined in two stages: at the first stage, the internal scope of the constitutional right must be defined.  In view of that definition, the question of whether the right under discussion was indeed violated under the circumstances must be examined. Only if the answer is affirmative do we proceed to the second stage, which is concerned with the degree of protection afforded to the right that was violated. At this stage of the constitutional analysis, the question that must be examined is whether the violation of the right is lawful in accordance with the criteria of the limitations clause.  The two-stage doctrine is clearly dictated by the wording and provisions of the Basic Laws concerning human rights, and constitutes a central tool of analysis in the constitutional rulings of this court.  Indeed, an examination of my own opinion and the judgments of my other colleagues on this bench reveals that we have no argument regarding the two-stage doctrine. However, on reading the judgment of Justice Procaccia, it would appear that there is in fact a dispute concerning the relationship between the two stages upon which the doctrine is based.

The two-stage doctrine is grounded in the conception that the two stages of the constitutional examination affect each other.  Thus, for example, some are of the opinion that the more the court extends the scope of the constitutional rights, so it is liable to narrow the scope of protection afforded to them (see para. 45 of Justice Procaccia’s judgment and citations there). Moreover, the nature of the violation of the protected right and its magnitude will affect the examination of the right in terms of the limitations clause (see para. 12 of my comments above).  The two stages of constitutional examination are therefore closely linked.  This does not, however, alter the fact that analytically and practically, there are two distinct stages of examination. The definition of the internal scope of a constitutional right (or a basic case-law right) is based on factors that influence the substance and dispersion of the relevant right. Usually, the definition of the internal parameters of a right reflects a value-based, normative balance between the right under discussion and other human rights (see: Barak, Constitutional Interpretation, at p. 381). On the other hand, the question of whether the violation of a constitutional right is justified according to the conditions of the limitations clause is based on “external” balances between the protected right and opposing public interests.  In the framework of the external balancing, conflicts arise between values and principles of a public nature which, by virtue of their cumulative weight, justify the violation of a protected human right.

21. I am afraid that my colleague Justice Procaccia has applied the two- stage doctrine in a way that may obscure the distinction between the two stages. In general, the accepted approach in the case law of this court is that a restriction on the manner in which a human right is realized constitutes a violation of the inner scope of the right, and the examination must therefore also relate to the violation of the manner in which a right is realized, as part of the violation of the right. According to this conception the very existence of other means of realizing a relevant human right may reduce the magnitude of the violation of the right, but it does not negate the actual fact of the violation (see and compare e.g. in the context of freedom of occupation: Menahem v. Minister of Transport [50], para. 11 of my judgment). In the circumstances of the present case, my colleague Justice Procaccia agrees that the broadcast of political advertisements for payment may constitute a “special means of realization” of the political expression. At the same time, she argues that this means of realization is not part of the inner scope of the constitutional right of freedom of speech.  Here, Justice Procaccia attached significant weight to the public interests and values forming the basis of the fairness doctrine, which aims to ensure “a free marketplace of ideas” in the media. The background for this is the nature of commercial advertising, which is purchased for payment and is dependent upon the financial abilities of the person commissioning it.

There would appear to be no disagreement amongst the justices hearing this case regarding the status and importance of the fairness doctrine in the communications media. However, the question of principle that arises here is that of the stage at which the said doctrine should be considered in the framework of the constitutional examination. Should the fairness doctrine influence the definition of the internal scope of the right to freedom of speech as suggested by Justice Procaccia’s approach? Or perhaps the appropriate context for consideration of the fairness doctrine is in the framework of the limitations clause, as indicated in Justice Naor’s judgment. My position on this matter is in line with Justice Naor’s position, as stated in para.s 18 of my comments above.

As a rule, when considering a limitation on the manner in which a protected constitutional right is realized, the balance that must be struck is between the relevant protected right and other public interests and values. This indeed is the case before us, in which the primary justification for the restriction - or more precisely, the prohibition - on the realization of freedom of political speech by way of paid advertising lies in the fairness doctrine. The balance here is an “external one” between a constitutional human right and opposing public interests, and in principle, the appropriate context for effecting this balance is within the framework of the limitations clause.  Any other approach is liable to lead to an excessive narrowing of the internal scope of human rights, because the ways of realizing these rights would be in danger of not receiving protected status. Such an approach might also lead to an analytical and practical blurring between the stage of defining the internal scope of human rights and the degree of protection afforded them, since the public interests weighed up in the framework of the requirements of proper purpose and proportionality in the limitations clause might seep into the definition of the internal scope of the rights. Inter alia, this is liable to lead to a heavier burden of proof borne by petitioners claiming a violation of a right, because the consideration given to public factors would be diverted to the first stage of examining whether or not the right was actually violated.

These comments are of a general nature, but they are especially true in relation to the freedom of political expression. In my understanding, the elevated status of freedom of political expression in the democratic system and its important underlying rationales justify viewing the various means of realizing the aforementioned right as being of constitutional status within the framework of the internal scope of the right, and the justification for any violation of them should therefore be examined in the framework of the degree of protection afforded to freedom of speech in accordance with the conditions of the limitations clause.

 

 

Justice E. Hayut

Like my colleagues President D. Beinisch and Justice M. Naor, I too believe that the protected value in the present case is the freedom of political expression, any violation of which must comply with the criteria of the limitation clause in s. 8 of Basic Law: Human Dignity and Liberty. I also accept my colleagues’ position that the petitioner's freedom of political expression was substantively violated when respondents 2 and 3 decided to prohibit the broadcast of the advertisement at issue in this petition, and that according to one of the conditions of the limitation clause, which my colleagues discussed at length, respondents 2 and 3 are required to show that this violation was ”by a law" or "according to a law… by virtue of explicit authorization therein." At this point President Beinisch and Justice Naor part ways.   Justice Naor is of the opinion that the Broadcasting Authority Rules and the Second Authority Rules  (Rule 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993; Rule 5 of Second Authority for Television and Radio (Advertising Ethics in Radio Broadcasts) Rules 5759-1999, and Rule 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994) which prohibit, inter alia, the broadcast of an advertisement that relays a publicly controversial political or ideological message (hereinafter jointly: "the prohibiting rules") were made by virtue of "explicit authorization" as required. In her view, this authorization can be read into the general authorizing provisions of s. 25A(b)(2) of the Broadcasting Authority Law, 1965-5725 (hereinafter: "Broadcasting Authority Law"), and ss. 24(a)(6) and 88(2) of the Second Authority for Television and Radio Law, 5750-1990 (hereinafter: "the Second Authority Law") respectively. According to Justice Naor’s approach, this interpretation of the authorizing provisions in the aforementioned Laws is supported by various provisions in the Broadcasting Authority Law and the Second Authority Law that give rise to a general duty to broadcast balanced programs that fairly reflect the variety of opinions prevailing amongst the public. In her own words:

'Indeed, a reading strictly of those sections of the two Laws concerning advertisements provides no indication of the intention of the primary legislator regarding what is permitted and what is forbidden. In my view, however, one cannot read the provisions concerning advertisements in isolation from the other provisions of the Law, as if these broadcasts were a limb severed from the body of the Broadcasting Authority or of the Second Authority.

….

In my opinion, these principles, which deal with programs – the "hard kernel" of the functions of the Broadcasting Authority and the Second Authority – are the primary arrangement in the light of which the rules should be determined. The rules for advertisements must be consistent with the primary legislation, and in my opinion – and to the extent that they relate to the matter before us – they are indeed consistent. We are not in a “legislative vacuum” and in my view, the argument regarding the absence of primary legislation in the authorizing law does not apply here. The subject of advertisements is a subsidiary matter that is attached to the main matter (para. 35 of Justice Naor's judgment).'

Satisfied that the condition of "explicit authorization" prescribed by the limitation clause has been fulfilled, Justice Naor proceeds to examine whether the prohibiting rules comply with the other conditions of the limitation clause relevant to our case, i.e. whether the Rules were intended for a proper purpose and whether the violation was proportionate and not in excess of that which is necessary. Here too Justice Naor gives an affirmative answer.   Regarding the proper purpose, Justice Naor holds that the Rules were intended to prevent erosion in the application of the fairness doctrine in programs, and the rupture of this doctrine by the relaying of political messages in the framework of advertisements to which it is not applicable. Regarding proportionality, Justice Naor holds that this condition too is satisfied, along with all of its subtests; there is a rational connection between the means chosen and the purpose that the Rules seek to realize; a total prohibition is necessary to realize the purpose for which the Rules were established, and there is a reasonable balance between the magnitude of the violation of the petitioner's  freedom of political speech and the benefit to society from upholding the fairness doctrine. 

2.  The President, on the other hand, opined that the authorizing provisions in s. 25A(b)(2) of the Broadcasting Authority Law and ss. 24 (a)(6) and 88(2) of the Second Authority Law do not constitute "explicit authorization" as required under the limitation clause for the establishment of prohibiting rules, and stresses in this context that -

'... in cases involving a serious violation of a major basic right, clear statutory authorization in the authorizing law establishing general criteria for the essential features of the violation that is permitted by way of secondary legislation will be required. The level of detail required in the authorization will be a function of the magnitude of the violation of the protected right, the nature of the matter, and the overall context.'

On this matter I concur with President Beinisch, and as mentioned in her judgment, I expressed this view in a previous case in which a similar question arose (Association for Civil Rights in Israel v. Minister of Internal Security [43]). This being the case, I too take the view that the order nisi should be made absolute as far as it relates to the constitutionality of the prohibiting rules. Nevertheless, I do not concur with the President regarding the outcome of the petition before us, insofar as it relates to the decision of the Second Authority for Television and Radio (hereinafter: "the Second Authority") to prohibit the broadcasts that are the subject of this petition. The reason is that s. 86(a) of the Second Authority Law, which refers to s. 46(a) of that Law, prescribes a primary arrangement concerning "party propaganda" (which has no parallel in the Broadcasting Authority Law), establishing an explicit prohibition that is relevant for our purposes.  In my view, this prohibition legitimates the decision adopted by the Second Authority in the present case.  My colleague Justice Naor maintained that the reliance of the Second Authority’s decision on the statutory arrangement in s. 86(a) of the Second Authority Law was "over and above what was required," and as such did not require further attention. She further held that in view of the wording of the order nisi of 29 July 2004, the question of the constitutionality or the interpretation of the provisions regarding "party propaganda” does not arise in our case. The President too was of the opinion that the wording of the order nisi and the reasons relied upon by the Second Authority in its initial decision to disqualify the petitioner's advertisements obviated the need to hear the Second Authority’s alternative pleadings, according to which even if the prohibiting rules were to be invalidated, the decision in the present case should not be overturned, even if only because it was also lawfully based on  the provisions of s. 86(a) of the Second Authority Law. 

My view of the matter is different. In his letter of 19 October 2003 to the petitioner’s lawyer, the Second Authority’s legal advisor did indeed stress that the advertisements were disqualified for broadcast in view of Rule 5 of the Second Authority Rules for Radio, whereas the prohibition on "party propaganda" within the meaning of s. 46(a)(3) of the Second Authority Law (to which s. 86 (a) refers concerning advertisements) was mentioned in that letter "above and beyond that which was necessary."  Nevertheless, in rejecting the appeal filed by the petitioner on this matter, the Appeals Committee of the Second Authority Council clearly relied on the aforementioned statutory provision as well, stating as follows:

‘Section 5 of the Rules (Ethics in Radio Advertising) prohibits the broadcast of an advertisement "on a political, social, public or economic matter that is the subject of public controversy." In addition, s. 46(a)(3) of the Second Authority Law, 5750-1990 prohibits the broadcast of party propaganda (Shammai v. Second Authority for Television and Radio [5]). as stated it is not disputed that the programs that are the subject of this appeal promote an initiative which is essentially of a political-ideological nature, with the intention of persuading the public to support the initiative. As such their broadcast cannot be allowed.'

This decision of the Appeals Committee with its reasons was attached as appendix H to the petition, and inter alia was challenged by the petitioner, insofar as it relates to the Second Authority. As to the wording of the order nisi: as opposed to my colleagues, my view is that s. 1 of the Order relates in a general sense to the legal and constitutional validity of the decisions made by respondents 2 and 3, including all that they were based upon, and in any case it does not limit the scope of this hearing to the validity of the "prohibiting rules". This question was specifically addressed in ss. 2 and 3 of the order. Examination of the briefs and summations submitted by the Second Authority similarly indicates that they relate extensively to the issue of anchoring the prohibiting decision in the provisions of ss. 46(a)(3) and 86(a). For all these reasons I think that this question must be addressed, and were my opinion to be accepted, we would accept the claims of the Second Authority on this matter. 

3.  Section 86(a) of the Second Authority Law provides as follows:

 ‘A franchisee shall not broadcast an advertisement  –

(1) On subjects the broadcast of which are prohibited under s. 46(a);

(2)….

Section 46 (a) of the Second Authority Law, referred to in s. 86(1), determines inter alia that -

‘A franchisee shall not broadcast programs that contain -

(1) …

(2) …

 (3)  party propaganda, except for election propaganda that is permitted by law;           

In Shammai v. Second Authority for Television and Radio [5], President Barak addressed the interpretation of “party propaganda”  in s. 46(a) of the Second Authority Law, and in preferring an interpretation that attributed maximal weight to the substance and content of the propaganda over a literal, formal interpretation, President Barak held that -  

‘"Propaganda" refers to an expression, the dominant effect of which – at a level of substantial or near-certain probability – lies in its influence on the viewer and which has no other dominant effect such as artistic, or news-related (see HCJ Zwilli v. Chairman of the Central Elections Committee [6]). It is "party" propaganda if the content directly relates to subjects that are disputed by political parties in Israel. For that purpose, the phrase “party propaganda” (in s. 46(a)(3)) cannot be restricted to (party) propaganda concerning the Knesset elections. "Parties" exist in Israel in relation to matters that are not only at the highest national level (Knesset)’ (ibid, at p. 33).

This ruling has its logic. The underlying rationale for the prohibition of advertisements on publically disputed political matters was elucidated at length in Justice Naor’s judgment, and her comments need not be repeated.   I will briefly add that the "fairness doctrine" is well grounded in the legislation regulating the media market in Israel (see s. 4 of the Broadcasting Authority Law and ss. 5(b)(6), 5(b)(7), 46(c) and 47 of the Second Authority Law) and while it has been argued that the time has come to cancel it and to adapt the legal position in Israel to the developments in this context in the U.S.A (on the significant differences between the Israeli media market and the American media market and the difficulties involved in the cancellation of the "fairness doctrine" in Israel, see Amnon Reichman, “The Voice of America in Hebrew?” Be Quiet, Someone is Speaking  – The Legal Culture of Freedom of Speech in Israel 185, 228-229 (ed. Michael Birnhack, 2006)). At all events, as long as the current statutory arrangement remains in force, and the fairness doctrine lives and breathes within its framework, the primary and secondary legislation in this area must be interpreted as legislation that is designed for its realization. There is no dispute that by their very essence, advertisements are not the appropriate platform for the application of the fairness doctrine; this being the case, it must be ensured that in relation to political and ideological subjects that are publicly controversial in Israel, these advertisements will not be used in order to circumvent this doctrine. In other words, the incursion of publicly controversial matters into advertisements, the air-time of which was paid for and which from the outset are not intended for that kind of content, should be prevented. In HCJ 10182/03 Education for Peace we pointed out the risks involved in this situation:

‘The concern arises that wealthy political bodies will be able to purchase broadcasting time in order to “market” their positions in advertisement form, and in that way purchase an advantage over political rivals with less financial capability’ (ibid, at p. 417).

Aware of that danger, in the case of Shammai v. Second Authority [5] this court interpreted s. 46 of the Broadcasting Authority Law and the term “party propaganda” in a manner that accorded primacy to the substance of the broadcast and not to the identity of the entity seeking its publication (on the separate statutory arrangement applicable to propaganda during an election period see Elections (Modes of Propaganda) Law, 5719-1959; Zwilli v. Central Elections Committee [6], at p. 709). I accept this interpretative approach. It may further be pointed out in this context that on a practical level, franchisees of television and radio programs or of the Second Authority are naturally quite limited in their ability to the identity of the entity seeking to broadcast an advertisement or the identity of the entities directly or indirectly involved in its activities, and this too supports the substantive approach applied by President Barak in Zwilli v. Central Elections Committee [6], which examines the actual content of the matter.  It will be recalled that the advertisements relevant to this petition concern the Israeli-Palestinian conflict and the principles which in the petitioners’ view could lead to its resolution. This being so, it would appear that these advertisements conform to the definition of the term “party propaganda” as interpreted in Shammai v. Second Authority [5], given that they are broadcasts the contents of which “directly relate to subjects that are disputed by [political] parties in Israel” and the dominant effect of which is to influence the viewer or the listener on these topics. As such, according to my approach, s. 86(a) of the Second Authority Law (which refers to s. 46(a) of the same Law) definitely provides a legal basis for the Second Authority’s decision, by stipulating that these advertisements are prohibited for broadcast.  It should be emphasized that this is a statutory arrangement that was enacted in 1990, and it is therefore governed by s. 10 of Basic Law: Human Dignity and Liberty regarding the validity of laws; at all events it seems that the statutory arrangement in s. 86 (a) of the Second Authority Law aims for a proper purpose and satisfies the proportionality tests;  therefore, it does not violate the spirit of the Basic Law and the conditions of the limitation clause in that Law (cf. Stein v. Commissioner of Israel Police [10], at para. 16).

4.  In conclusion, regarding the “prohibiting rules” I concur with the position of the President, that in the absence of explicit authorization on this matter in the primary legislation, the rules that violate the freedom of political expression cannot stand, and the order nisi should therefore be made absolute with respect to the invalidity of the “prohibiting rules”. At the same time, and contrary to my colleagues who were of the opinion that the matter need not be decided, my view is that s. 86(a) of the Second Authority Law is a primary arrangement that provides a legal basis for the Authority’s decision to prohibit advertisements in this case, and I would therefore deny the petition and cancel the order nisi insofar as it relates to the legality of the prohibiting decision of the Second Authority.  This result, whereby the prohibition is valid only with respect to the radio and television broadcasts of the Second Authority, creates an undesirable lack of uniformity between the Second Authority and the Broadcasting Authority regarding those advertisements that constitute “party propaganda”. It is for this reason, combined with all the other reasons given by the President in this context, that it would be appropriate to formulate with all possible speed a uniform statutory arrangement that would apply to the whole communications market, and would address all of the matters addressed by the “prohibiting rules”.  Like the President, I too believe that the effect of the invalidity of the “prohibiting rules" should be suspended for one year to enable the legislature to formulate an appropriate arrangement.

 

 

Justice A. Procaccia

I have read the judgments of my fellow justices carefully. I concur with the conclusion of my colleague Justice Naor, according to which this petition should be denied. However, my path to that conclusion is different, and I would like to present it.
In her judgment Justice Naor assumes that the Rules of the Broadcasting Authority and of the Second Authority (hereinafter: "the Rules") prohibiting political-ideological expression in paid advertisements violate the petitioner's freedom of political speech, and in doing so violate a constitutional right. Nevertheless, in her view, this violation does not render the Rules unconstitutional, since the violation satisfies the conditions of the limitation clause of Basic Law: Human Dignity and Liberty (hereinafter: "the Basic Law"). According to her approach the Rules also satisfy the test in the limitation clause that the violation be "by a law… or according to a law by virtue of explicit authorization therein."
My colleague President Beinisch, too, assumes that the Rules prohibiting paid political-ideological advertisements violate a person's freedom of political expression, which is part of the constitutional right to human dignity, and that this violation should be examined from the perspective of the limitation clause of the Basic Law. In her view, however, the case at hand does not satisfy the first condition of the limitation clause which requires, as a condition for the constitutionality of the violation, that such violation be by a law or according to a law by virtue of explicit authorization therein. According to the President, the concept of "explicit authorization" in primary legislation as stated in the limitation clause is circumstance-dependent, its actual implementation deriving from the conditions and circumstances of the case. Inter alia, weight must be attached to the nature of the violated right, its underlying reasons and the magnitude of the violation. In President Beinisch's view, the absolute prohibition on political advertisements dictated by the Rules is a significant violation of freedom of political expression, which has constitutional standing in the Israeli legal system. Under these circumstances, the general authorizing provisions to enact regulations in the Broadcasting Law and in the Second Authority Law cannot be viewed as satisfying the condition of "explicit authorization" for the competent authority to violate a person's freedom of political expression in the avenue of paid advertising. Therefore, according to this approach, the Rules do not fulfill the first condition of the limitation clause, and the petition should therefore be granted, the Rules should be declared invalid and the Knesset should be in a position to address the fundamental issue raised in this proceeding in the framework of the process of primary legislation.
The approaches taken by the President and Justice Naor proceed from the basic assumption that not providing a platform for political expression in paid advertisements on the Broadcasting Authority and the Second Authority (hereinafter: "the media authorities") is a violation of freedom of speech; hence the need to examine the significance of the violation from a constitutional perspective and to clarify whether the violation satisfies the constitutional test in accordance with the balancing formula of the limitation clause.
I disagree with my colleagues regarding the basic assumption that in the circumstances of this case, the Rules banning paid advertising of political-ideological expression violate the basic right to freedom of speech.

The essential difference in our approaches is reflected in the legal classification of the claim of a right to political-ideological expression by way of paid advertisements. In the framework of a person's broad right to freedom of political expression, is he entitled to realize that freedom by way of an advertisement on the public media? Is political expression in a paid advertisement necessarily included within the broad scope of the constitutional right to freedom of speech, such that its violation is a violation of a constitutional right, necessitating a constitutional analysis of the nature of the violation and the degree of its justification in accordance with the limitation clause? Or, on the other hand, should we say that the constitutional right to freedom of political expression does not establish the right to realize that freedom by way of the broadcast of paid advertisements, and it does not, therefore, give rise to a duty on the part of the media authorities to provide a platform for political expression in that particular broadcasting format. If this is the case, then the regulation of paid advertising tracks to exclude political-ideological expression should not be regarded as a violation of the constitutional right to freedom of political expression. Where there is no violation of the constitutional right to freedom of speech, there is no need to examine the administrative arrangement governing the advertising tracks in light of the conditions of the limitation clause.

6.    My assumption is that the second possibility reflects the correct classification of the petitioner's claims. As such, I see no need for a constitutional analysis of the Rules prohibiting political expression in paid advertisements from the perspective of the limitation clause in the Basic Law. The matter in dispute lies outside the constitutional arena, and therefore it does not involve an analysis of the limitation clause, which is required only for a matter within the purview of the basic right, when the basic right has been violated. In the case before us, the constitutional right to freedom of political expression, the scope of which is particularly broad, does not extend to the right to realize that freedom via the medium of paid advertisements. The broad scope of that constitutional right and the duty of the public media authorities to provide a platform for that expression do not engender the right to claim that the political speech must be expressed within the paid advertising track offered by these authorities. This being the case, the matter lies outside the purview of the constitutional right. Another consequence of this reality is that rules made by the competent authority limiting paid advertisements to matters that are essentially commercial and neutral do not "violate" the constitutional right to freedom of political expression, and do not draw the matter into the constitutional arena. There are no grounds, therefore, for examining the alleged "violation" from the perspective of the balances in the limitation clause. I will elaborate, and will begin with the main foundations of my approach:

(1) The argument that there has been a constitutional violation of a constitutional right requires a two-stage analysis. The first stage addresses the question of whether the violation of the right pertains to a matter situated within the parameters of the constitutional right. If the answer is negative, the constitutional examination stops at the first stage, continuing no further. If the answer is affirmative, one proceeds to the second stage, at which the nature of the violation of the constitutional right is examined in accordance with the conditions of the limitation clause in the Basic Law. While there may be a certain overlap between the factors to be considered at each stage, this does not obviate the need to differentiate them and to draw a clear distinction between the discussion of the scope of the constitutional right, and between the questions relating to the existence of a violation of the right and the degree of constitutional justification for the violation. The discontinuation of the legal-constitutional examination at the first stage may give rise to additional grounds for judicial review, for example, from the field of administrative law.

(2) In our case, in the framework of the first stage of the constitutional examination we must consider whether, within a person's constitutional right to freedom of political expression, he is entitled to demand that a public communications entity provide him with a platform for expression via the medium of paid advertisements. This question aims to classify the claim to a right of expression in that medium, and to determine whether it is included within the parameters of the constitutional right to freedom of political expression, or whether it goes beyond them. This classification involves a determination of the scope of the constitutional right and its limits. Examining the scope of a constitutional right means charting its contours, which define what falls within it and what does not. The definition of the scope of the constitutional right is extrinsic, rather than intrinsic, to the limitation clause.

(3) The definition of the contours of the constitutional right and the resolution of the question of whether or not they include the matter under consideration, directly affect the question of whether there was a "violation" of the constitutional right to freedom of speech. Only where there is a violation of a constitutional right can one progress to the second stage of constitutional examination to consider the significance of the violation in accordance with the balancing formula of the limitation clause. When the alleged violation is external to the constitutional right in terms of its defined scope, we are not required to conduct a constitutional examination of the limitation clause.

(4)   At the first stage of the constitutional examination, the scope of the constitutional right is examined by way of purposive interpretation, to which the question of the appropriate content of the constitutional right is central. Purposive interpretation is influenced by the fundamental values of the constitutional system, the foundations of the democratic system, and the social, value-related and moral goals of Israeli society. Essentially, it is a question of legal policy that guides purposive interpretation in constitutional matters. The purposive interpretation of a constitutional right answers the question of whether a particular matter falls within the area of a constitutional right or outside it.

(5)   Drawing the contours of the constitutional right impacts on the question of whether the alleged violation is of a right that is defined as a constitutional right. If the answer is in the negative, the constitutional discussion is then complete. If the answer is in the affirmative, the question then is whether there was an unconstitutional violation of the right. This too is a question of legal-constitutional interpretation. If there was a violation of a constitutional right, then the examination proceeds in accordance with the balancing formula of the limitation clause.

(6) Defining the contours of the constitutional right is of particular importance in assigning the appropriate specific weight to the constitutional right. An overly-broad conception of the scope of a constitutional right, exceeding that of the purpose it serves, may lead to a dilution of constitutional rights and to their devaluation. The constitutional discussion must focus on the core of the constitutional rights and on the questions relating to the constitutionality of their violation. A constitutional discussion of matters that lie outside the purview of the constitutional rights, or at their periphery, is liable to harm the status of the constitutional rights and the scope and the nature of protection accorded to them.

(7) The right to freedom of speech, including freedom of political expression, is a constitutional right of particular importance in the hierarchy of human rights. A violation of this right is a violation of a constitutional right. Nevertheless, realization of freedom of political expression as a constitutional right, even if it requires a positive act on the part of the public authority, does not necessarily include every possible existing means of realization. Within the framework of realizing freedom of political expression, a person does not have the right to demand that the public communications authorities provide a platform for political expression in paid advertisements for anyone who wants it. Even though the public communications authorities are obligated, by their very existence, to provide a political platform for the range of opinions and views prevailing in the public within their schedule of programs, they are not obligated, ab initio, to allocate a platform for such expression in their paid advertising track, nor are they competent to operate a track of that nature without special legislative authorization. For reasons that will be elucidated below, the issue of political expression in paid advertisements is external to the broad scope of the right to political expression. As such, the administrative regulation of paid advertisements by the communications authorities, which prevents political expression within those broadcasts, does not involve a constitutional violation of the freedom of speech, and there is therefore no need to proceed to the second stage of constitutional examination, involving constitutional adjudication of the balances formula in the limitation clause.

(8)   Beyond the issue of the constitutional violation of the freedom of speech, several other questions that were not raised or considered in the present case may well arise in the context of regulating paid advertisements. For example, on the constitutional level, the question could arise as to whether the petitioner's right to equality in the advertising track was violated in comparison with other commercial bodies who were allowed to advertise, whereas the petitioner was not. Moreover the prohibition in the Rules of paid advertising of political-ideological messages raises questions from the field of administrative law, such as whether such a prohibition gives rise to administrative grounds of disqualification, e.g. discrimination, unreasonableness, or irrelevant or unfair considerations. These issues did not arise directly in this proceeding and as such no basis was laid for judicial intervention in the Rules of the communications authorities.

We will now elaborate on the above.

The constitutional right – its essence and scope

7.    The constitutional right is not an absolute right, but a "relative" one, from two aspects. First, in terms of its scope, the borders of the constitutional right are defined and not all-encompassing. Secondly, even within its defined borders, the constitutional right is not necessarily protected in its entirety. There are circumstances in which the violation of a constitutional right may be considered permitted and justified, due to its conflict with opposing human rights, or due to conflicting values in the sphere of the public interest; this results in the limitation of the protection of the full scope of the constitutional right. This point was made by A. Barak in Interpretation in Law, Constitutional Interpretation, (1994), at pp. 370-371 (hereinafter: Constitutional Interpretation):

'The first aspect of the "relativity" [of the constitutional right – A.P.] reflects the scope of the human right (the problem of scope)… . The second aspect of "relativity" reflects the protection accorded to a human right ("the problem of protection"). It is the product of the constitutional relationship between a constitutional human right and its violation… . The main difference between these two aspects – and hence also between the two kinds of balance – is that the first aspect establishes the scope of the constitutional right. The second aspect does not affect the scope of the right but rather the degree of protection accorded to it.'

In constitutional discourse, the examination of the relativity of the constitutional right in two stages – the scope of the right and the degree to which it is protected – has been dubbed "the two-stage doctrine." This doctrine has been developed in the case law in various contexts.

An example of the application of the two-stage doctrine appears in CrimA 4424/98 Silgado v. State of Israel [85], at pp. 551-2, per Justice Strasberg-Cohen:

'According to the principles that we follow, the constitutionality of a statutory provision is examined in two main stages: in the first of them, the interpreter of the law examines whether the human right anchored in the Basic Law was indeed violated by the statutory provision under constitutional examination. Only if he concludes that this is the case will he proceed to the second stage, at which the question of whether the offending legislation satisfies the requirements of the limitation clause in the Basic Law is examined' (see Barak, Constitutional Interpretation, at pp. 473-4).

The two-stage doctrine has been developed and analyzed in several other case-law rulings: Adalah Legal Center for Rights of Arab Minority v. Minister of the Interior [49], per President Barak, at paras. 41, 52 and 53, and per Deputy President Cheshin, at paras. 34 and 37; Shinui – the Center Party v. Chairman of the Central Elections Committee [16], per President Barak, at paras. 8 and 9; CrimA 2831/95 Alba v. State of Israel [86], at pp 288-289, per President Barak; Movement for Quality Government in Israel v. Knesset [14]. On the distinction between the scope of the constitutional right and the degree of its protection, see also HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [87], at p. 538). The scope of the right is determined in accordance with the interpretation of the wording of the right and its purpose: see e.g. Mateh Harov v. Israel Police [32], at para. 13 (per President Barak) in which it was held that not all aspects of freedom of speech are included in the ambit of the constitutional right to human dignity, and one cannot read into the right more than it can carry. The scope of the right to freedom of speech as a constitutional right that is derived from human dignity must be determined in keeping with the particular meaning that must be attributed to human dignity (see also HCJ 326/00 Municipality of Holon v. N.M.C. Music Ltd. [88], at pp. 664-5; Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], in which the justices expressed doubt as to whether pornographic expression is included in the freedom of speech).

Regarding the two-stage doctrine in Canada, see Irwin Toy Ltd. v. Quebec (1989) 1 S.C.R. 927; R. v. Keegstra (1990) 3 S.C.R. 697; R.M Elliott, "The Supreme Court of Canada and Section 1: The Erosion of the Common Front", 12 Queen's L.J. 340 (1987). Regarding the doctrine in South Africa, see: Woolman & Botha, Constitutional Law of South Africa, 2nd ed. Ch. 34 (hereinafter: Woolman & Botha).

There is a reciprocal relationship between the two aspects of the "relativity” of a human right. The first aspect establishes the contours of the right, and defines the borders of its natural reach. The second aspect is based on these borders and it examines the circumstances in which a violation of the constitutional right exists, and those in which the violation is permitted in order to allow for the realization of conflicting rights and values. This examination establishes the scope of protection accorded to the constitutional right, which does not always follow its contours. A matter situated beyond the borders of the constitutional right anyway cannot be the subject of a “violation” of the right in the constitutional sense, and it is extrinsic to the constitutional protection.

At its first stage, the two-stage doctrine of constitutional examination requires analysis of whether the claim of a violation involves a matter falling within the parameters of the constitutional right. Only if the answer is affirmative is it necessary to conduct a constitutional examination at the second stage, and to clarify whether there was a “violation” of a constitutional right; if there was, the balancing formula in the limitation clause, which answers the question of whether the violation of the constitutional right was justified and permitted, must be invoked. This examination of the limitation clause establishes the protected scope of the constitutional right in circumstances of conflicting values. There may be a certain overlap of the considerations relevant to the first and second stages of the constitutional examination.

9. In my view, our concern is with the first stage of the examination of the "relativity" of the basic right of freedom of political expression, and does not reach the second stage of the constitutional examination, which relates to the nature of the violation of the basic right. The reason for this, according to my approach, is that the petitioner failed to substantiate its claim that its right to freedom of political expression in the public media includes the right to realize that freedom in paid advertisements. The scope of the right to freedom of political expression in the public media does not extend to this particular claim of right, for the reasons that will be elucidated below. This being the case, I believe that the petition should be denied outside the gates of the limitation clause, without entering them. Hence, a discussion of the constitutionality of the Rules against the background of the limitation clause is altogether irrelevant here.

Determination of the scope of the constitutional right

10. The scope of a constitutional right is established by means of purposive constitutional interpretation, according to which the extent of the right is determined. This determination is an interpretative act based on the underlying purpose of the right and the nature of the goals that it is intended to realize (United Bank Mizrahi Ltd v. Prime Minister [21], at para. 10, per President Barak). Purposive interpretation answers the question of what matters are included within the parameters of the constitutional right, and what matters are external to it. This is an examination of the intrinsic nature of the constitutional right and of the matters it includes. Any conduct falling within the bounds of the constitutional right enjoys constitutional status. Conduct external to those parameters does not (Barak, Constitutional Interpretation, at pp. 371-2, 373; Kahane v. Managing Committee [54], at p. 270; Universal City Studios Inc. v. Films and Plays Censorship Board [19], at p. 33 {242}). The scope of the right is determined in its interpretation. The interpretation is constitutional, effected in accordance with the constitutional purpose, and with a broad view of the values of the system.

11. The constitutional purpose is inferred from the language, the history and the fundamental principles of the system (President Barak, United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15], at para. 86 ff.). Every right must be assigned the scope that realizes its purpose. It is not the linguistic borders that determine the scope of the right but its purpose (Barak, Constitutional Interpretation, at p. 376).

In their text, Woolman and Botha address the need to define the scope of the constitutional right utilizing interpretive tools that rely on the value-related purpose of the right, as opposed to a literal interpretation of the scope of the right. They reject the determination of the scope of a right in accordance with the literal interpretative approach, which relies on a literal definition of the right, and endorse the approach of value-based interpretation, for a number of reasons: first, the constitution should be interpreted according to its logic and the values underlying it. Its ambit should not extend to activities that were not designated for protection within the constitutional right, and the aforementioned value-related approach is intended to filter out those kinds of activities and exclude them from the constitutional framework. Secondly, a more rigid purposive approach to the interpretation of the scope of the constitutional right at the first stage of the constitutional analysis commits the state to a higher degree of persuasion in justifying the violation of the constitutional rights at the second stage of the examination; and thirdly, the value-related interpretation would have a welcome effect in reducing the burden of litigation and in decreasing the number of applications to court for the exercise of judicial review.

The scope of the constitutional right – content and manner of realization

12. In determining the scope of the constitutional right, a distinction must be drawn between the borders of the content of the right and the means of realizing the right. One aspect examines the question of the contents of the constitutional right. The second aspect is concerned with the modes of constitutionally realizing the constitutional right. The aspect dealing with the modes of realizing the right is also relevant in determining its borders, for it poses the question of whether every possible means of realizing the right is part of the constitutional right, or whether there are means of realizing rights that are not naturally built into the scope of the constitutional right.

In defining the scope of the constitutional right, therefore, both the contents of the right and the means of realizing the right, which are interwoven, are examined.

The constitutional right to freedom of speech

13. Freedom of speech is one of the most important basic freedoms of a person in Israel. It is a central value without which a free society cannot exist. Freedom of speech comprises a complex of aspects that relate to both society and the individual. One aspect, directed at society, is that freedom of speech is the bedrock of the workings of a democratic regime, based upon the free flow of opinions, ideas and beliefs. Freedom of speech is, indeed, the life-blood of democracy. Without it, a regime of free government based on free choice cannot be established. Another aspect of freedom of speech in this context is designed to bring about the full and complete dissemination of knowledge and information, which is critical for the formulation of an opinion and a position in a democratic regime, and to thereby enable engagement with truth and falsehood. In its other aspect, directed at the individual, freedom of speech is intended to enable a person to express himself and to develop his personality and individuality in an open and free society that accepts, examines, criticizes, and contends with a wealth of human expressions, opinions, ideas, beliefs, styles, tastes and lifestyles. Freedom of expression embraces all walks of life – philosophy, culture, art, policy and the economy, religion and ways of life. It is reflected in all the experiences to which a man is exposed in the course of his life.

Freedom of political expression

The contents

14. Freedom of speech is a broad concept that spans a large array of subjects and areas. In the aspect relating to the democratic process, special normative significance attaches to freedom of political speech among the broad variety of categories of expression in the many realms of life. A democracy without freedom of political expression loses its life force and vitality, paving the way for a regime of secrecy, operating far from the eyes of the individual and far from the public eye as well. Without freedom of political expression, freedom of speech in other areas of life also disappears; culture and human creativity are suppressed, philosophy and thought frozen, and human progress arrested. Along with these, the individual's ability to develop his talents and to realize his individuality disappears. The flow of knowledge and information concerning the actions of the government, which is a critical tool for public criticism of the regime, is interrupted. Hence the exceptional, widespread and broad protection accorded to the freedom of political expression, among the whole range of types and forms of free speech in a democratic regime.

Means of realization

15. Freedom of speech in general in Israel is reflected in diverse avenues of expression – in the printed media, on radio and television, in print, in words, in photographed expression, in a range of media of expression. In a free regime, the channels of expression, including political expression, are broad and varied. Written, broadcast and photographic communication play a central role in the realization of freedom of speech in a democratic society. Indeed – "Freedom of access to the media is, in fact, a condition for realizing freedom of speech, which without access to the media is liable to be stripped of any content and real importance" (Daphne Barak-Erez, "The Individual's Access to the Media – Balance of Interests in the Area of Freedom of Speech", 12 Tel Aviv Law Review 183 (1987), at p. 184). Israeli law recognizes the right of access to the media (s. 47 of the Second Authority Law; s. 4 of the Broadcasting Authority Law; Cohen v. Israel Bar Association [52], at pp. 537-538, and D.B.C. v. Committee for Cable Broadcasts [9]; HCJ 10182/03 Education for Peace v. Broadcasting Authority, at para. 7 of Justice Hayut's judgment). The right of access to the media means ensuring a broad scope for the full and varied expression of the opinions and ideas prevailing in society. The aforementioned right of access also incorporates the doctrine of fairness, by virtue of which the media bodies in Israel are obliged to fairly and faithfully present the full spectrum of prevalent public opinions, while achieving the proper balance between them (Novik v. Second Authority for Television [51]).

16. These two aspects of freedom of speech in the media – the right of access to the communication media and the doctrine of fairness – merge into one principle, which is that of the effectiveness of expression (Cohen v. Israel Bar Association [52], at pp. 547-548). Derived from the state's obligation to protect the rights specified in Basic Law: Human Dignity and Liberty is its duty to protect the effectiveness of freedom of speech by achieving a proper balance in the presentation of the expression in all its forms. Indeed, "[i]t is incumbent upon the democratic regime to monitor the use of the media rigorously, to prevent upsetting the vital balance in the marketplace of ideas and public expression. This applies to the freedom of access and the right of access to the media and to the contents of the broadcasts" (Documentary Creators Forum v. President of the State [56], at pp. 515). (On the approach whereby the protection of constitutional freedom of speech may also necessitate active state interference, see: Jerome Baron, "Access to the Press – A New First Amendment Right" 80 Harv. L. Rev. 1641, 1642-3 (1967)).

17. Political expression is particularly important in the public-state media channels, the role of which is to reflect the diversity of political-social expression in all its forms and quality, in the broadest, most open and most balanced manner, as required in a society based on the unfettered flow of views and information. The question before us is whether the constitutional right to freedom of political expression extends to the right to political expression in paid advertisements. Does this special form of political expression form part of the constitutional right to freedom of speech in the public media, and is it included among the constitutional means for its realization? Does restriction of this form of expression constitute a constitutional "violation", the justifiability of which must be examined in accordance with the limitation clause?

Political expression in paid advertisements – part of the constitutional right to freedom of expression?

18.  The constitutional right to freedom of expression is, in its essence, the freedom to express opinions and ideas unhindered. This means that it is essentially a negative right, at the core of which lies the power and the legal capacity to prevent a violation and constriction of the right to expression, in the broad sense of the concept. The constitutional right to freedom of speech, in its pure sense, does not impose a correlative constitutional duty upon the state to make various forms of expression available to the citizen. Its obligation is to refrain from interfering with the forms of expression that the citizen chooses to employ. In a modern state, however, the borders between positive and negative constitutional rights are often blurred, and in the area of freedom of speech situations may arise in which the state is also required to take positive action in order to enable the exercise of this freedom by the citizens. The area of the modern communication media may be a good example of this.

19. The existence of a constitutional right does not necessarily mean that every possible means of realizing it must be included within the parameters of the right. When the realization of an individual's right is not dependent upon the authority's cooperation, the question arises whether every possible means of individual realization of the right is included within the bounds of the constitutional right. This question is examined by means of purposive interpretation, which looks for the purposes and goals underlying the right and the means of realizing it. When the means of realization of a right depends upon the active cooperation of the public authority, the question becomes more complex: the examination then required is whether the particular means imposes a constitutional duty on the authority to enable the individual to realize the right, or even, under certain circumstances, obligates the authority to take action in that respect. In certain circumstances, purposive interpretation may yield the conclusion that the means of realizing the freedom of speech chosen by the individual, requiring cooperation on the authority's part, is not included within the scope of the constitutional right, and is extrinsic to it. Here, a claim of a violation of right occasioned by the authority's refusal to enable the realization of the right in that particular manner does not mandate constitutional consideration of the nature of the violation, because the normative conduct of the authority is extrinsic rather than intrinsic to the constitutional right. This applies to the case before us, for the following reasons:

20.  First, in examining the scope of the right to freedom of expression in the communications media and the means of its realization, a broad view of the freedom of political expression in the media authorities is required, above and beyond the narrow perspective that focuses on paid advertising. Under the existing legal system, freedom of speech in all its variations, including freedom of political expression, is broadly and fully protected in the context of the functions and obligations imposed on the authorities in the relevant legislation. They must ensure this freedom of expression, and secure a proper internal balance between the diverse aspects of social expression. This obligation of the authorities, which also applies to the provision of full and balanced political expression in the general lineup of programs, is integral to the doctrine of "fairness", which by virtue of statute and case-law is anchored at the basis of the actions of these bodies. The duty of balance and fairness binding the media authorities is designed to provide a full response to the right of expression of the state populace in the framework of the general schedule of programs they broadcast. If they fail to discharge this duty, they can be obligated to do so by way of judicial review of administrative actions.

21.  Secondly, paid advertising in the media authorities, which is the object of the disputed Rules, is not part of the general lineup of programs, which is intended to provide a full response to freedom of speech, including freedom of political expression, in the different fields. The advertising track is an ancillary tool, created and designed purely to serve the fiscal objectives of the media authorities as a means to trim budgetary deficits, in order to enable the media authorities to fulfill their duties and provide a proper and balanced service to the population within the general lineup of programs. In terms of its purpose and objective this track is not intended to promote freedom of expression in any particular area, the framework for realization of which exists in the general lineup of programs. Moreover, according to the principles of customary law, in the absence of explicit authorization in the relevant statutes the media authorities have no authority to introduce and permit paid advertising, in that the track of advertisements is "alien" to the primary roles for which the authorities were established by law.

22. The essence of the constitutional right of freedom of speech is that no statutory source is necessary to grant it or to provide a basis for it. It exists inherently by virtue of its normative, constitutional status. A law is required in order to limit the constitutional right, and not in order to grant it (Zamir, Administrative Authority, vol. 1 at pp. 50-51 (hereinafter: Administrative Authority); Dovrin v. Prisons Authority [20], at para. 16). In the absence of special legislation, the media authorities would not have been competent to establish paid advertising tracks. This is an indication that the broadcast of paid advertisements is not an avenue for the realization of freedom of speech, which has a constitutional, normative status, and the prevention of which is a violation of a constitutional right.

23. Furthermore, even after the regulation of the paid advertisements track by statute, its introduction by the authority is optional. Should it wish – it may introduce it. Otherwise it may cancel it. It cannot be assumed that the right of freedom of speech includes a vested right to demand of the authority, as a constitutional claim of right, that it operate a paid advertising track  and that it allocate a platform for any particular expression by way  of this particular means. It may be presumed that were the authority to decide to cancel its operation of the advertising track, we would be hard put to find a legal source obligating it to change its decision. According to its purpose, therefore, the advertising track does not constitute an avenue of expression. Regulating this track for the purpose of achieving a financial objective does not engender a right to use it as a means of political expression, and it is difficult to regard the prevention of such expression as a violation of the constitutional right to freedom of speech.

24. Thirdly, and deriving from the two other reasons, within the framework of the constitutional right to freedom of speech a person is not entitled to realize freedom of political expression vis-à-vis a media authority specifically by means of a paid advertisement, which requires a positive action on the authority's part, assuming that the system guarantees freedom of political expression in the general lineup of programs designed for that purpose. In the context of the programs, the media authorities are permitted to regulate the range of contents of expression, including political expression, in the various tracks designed to reflect that range in a balanced and fair manner. There is no vested right to demand of the authority, as part of the constitutional right to freedom of speech, that it provide a platform for political expression through a track designated for a different purpose. Thus, for example, just as a person has no right to demand that a political expression be broadcast on a music channel of the Broadcasting Authority, neither can he demand this on the sports or culture channel. This is the case a fortiori with respect to the track of paid advertisements, which from the outset is not part of the general lineup of programs, and the entire purpose of which is to raise  funding rather than to serve as a platform for any particular form of expression, and which also requires statutory authorization to allow it to operate.

25. Fourthly, from a value-based perspective, the Rules preventing political expression in paid advertisements also bar the purchase of air time for the expression of socially controversial ideological messages. In doing so they prevent a distortion of the requirement of balance and fairness in the general lineup of programs, the purpose of which is to grant a platform for expression in the free marketplace of ideas and opinions in a manner that is not dependent on the financial standing of the opinion-holder.

In view of all the above, regulation of the broadcast of paid advertisements in the Rules that prevents political expression in that framework does not amount to a constitutional violation of a constitutional right.

I will now elaborate on these lines of reasoning.

Freedom of speech in the broadcasts of the media authorities and the doctrine of "fairness"

26. The laws that apply to the media authorities for our purposes guarantee, as a fundamental principle, freedom of speech in broadcasts, and proper balance in this medium of expression.

The Broadcasting Authority Law states that the Authority will maintain the broadcasts as a state service (s. 2), and that one of its functions is to "broadcast educational, entertainment, and informational programs in the fields of policy, society, economy and industry, culture, science, and the arts," with a view, inter alia, to "reflect the life, struggle, creativity, and achievements of the state" (s. 3(1)(a) of the Law).

The Second Authority Law defines the functions and powers of the Authority including, inter alia, "the broadcast and supervision of programs in the fields of learning, education, entertainment and information, on subjects of politics, society, economics, culture, science, art and sports" (s. 5(a) of the Law). In the framework of its functions, the Authority must act to "foster good citizenship, and strengthen the values of democracy and humanism…" (s. 5(b)(2)), and "to give expression to the cultural diversity of Israeli society and to the different points of view prevalent among the public" (s. 5(b)(6)), and also "to broadcast reliable, fair, and balanced information" (s. 5(b)(7) of the Law)).

27. The requirement of balance and fairness in giving expression to the diversity of viewpoints among the public applies to the media authorities, and it was established as a statutory duty incumbent upon them.

Section 4 of the Broadcasting Authority Law states as follows:

'Ensuring reliable broadcasts

The Authority will ensure that the programs provide suitable expression of different approaches and opinions current among the public, and that reliable information shall be broadcast.'

S. 47 of the Second Authority Law establishes the duty of balancing as follows:

Providing the opportunity to respond

(a) The franchisee shall ensure that in programs on current affairs, the contents of which are of public significance, suitable expression shall be given to the various views prevailing amongst the public.

(b) The Council will make rules with respect to providing those who are, or who are liable to be, directly harmed by the broadcasts with an opportunity to respond in a manner fitting the circumstances.'

Section 46(c) of the Law prohibits the franchisee from expressing his own personal views in the broadcasts, or those of his managers or interested parties.

28. These statutory provisions bind the media authorities in the framework of their duty to provide a platform for the variety of opinions and viewpoints prevalent among the Israeli public, while ensuring a balanced and fair approach. The media authorities are also obliged to broadcast reliable information. They must guarantee the free flow of ideas and opinions of all shades and types, without requiring a special fee, except for general fees intended to finance the broadcasting enterprise as a whole. The media authorities must ensure equality in their implementation of freedom of speech. Within their obligations of balance and fairness in broadcasts, the media authorities are entitled to regulate the programming schedule, and to that end they may establish different channels, each designated for particular areas of expression in accordance with the different subjects that the media authority presents in its broadcasts. This brings about the formation of a general lineup of programs comprising tracks devoted to matters of policy and politics, economics and the economy; another track for culture and music, a sports channel etc. Assuming that an internal balance in the range of different subjects broadcast is maintained and that the media enables broad and fair expression, it is difficult to find a basis for the assumption that there is a right to demand the broadcast of political messages in the paid service advertisements track as part of the realization of the constitutional right to freedom of political expression in the media. This is true a fortiori for a demand that relates to a secondary track, of a commercial nature, which is not part of the general lineup of programs, which is basically intended to serve as an auxiliary funding tool to cover the Authority's budget, and which was not meant to serve as a platform for free speech.

29. The statutory framework, which guarantees fair and balanced programming, assumes that freedom of speech, including freedom of political expression, is regulated in the context of the lineup of programs of the media authorities by virtue of their statutory obligations. The statutory obligations of fairness and balance in the media are joined by the "doctrine of fairness" – accepted in the media of many of the Western states – that has become part of settled case law in Israel. This doctrine, which bases the duty of the media entities to preserve balance and fairness on the presentation of a variety of ideas and opinions in a free society, has struck deep roots in the Israeli normative system, and is now firmly anchored in both statutory law and settled case law (for an extensive analysis on this subject, see para. 40 of Justice Naor's judgment).

A claim that the obligations of fairness and balance have been violated may constitute grounds for judicial review, on the administrative level, of the manner in which the media authorities exercise their powers within the parameters of public law. Since our assumption is that complete freedom of speech is guaranteed within the context of the general lineup of programs, which regulates the different forms of expression in the different tracks, no foundation was laid for recognition of a right to political expression in a paid advertisement in a commercial track that from the outset was not intended for that purpose, and the prevention of expression in that track should not be regarded as a constitutional violation.

30. From the above it emerges that our assumption must be that freedom of political speech finds its full expression within the context of the general broadcasts alignment of the media authorities, which are required to provide it with a platform, and are obligated to ensure a fair balance of all its varieties, representing the entire spectrum of Israeli society. The violation of these duties by the media authorities may provide grounds for an administrative claim for the exercise of judicial review over the operations of the Media Authority in that particular area.

The assumption that there exists full freedom of political expression in the broadcasts of the media authorities, and that there exists a duty of fairness to which they are subject in regulating that expression, lies at the heart of the approach according to which paid political advertising is not one of the constitutional means available to a person in order to realize his recognized right of freedom of political expression.

The nature of the paid advertisements track

31. The status and the position of the paid advertisements track of the media authorities must be analyzed from the broad perspective of the general lineup of programs of these authorities, and not as an organ detached from the entire system. The particular character of the paid advertisements track, its establishment, its legal foundation, and its overall goals, reinforce the conclusion that its existence does not grant any person the right to demand realization of political expression by way of paid advertisements as part of the constitutional realization of his right to freedom of speech. It follows that the Rules prohibiting political expression in paid advertisements establish a behavioral norm that is outside the "constitutional arena" involving freedom of speech, and not inside it. As such, the claim of violation of freedom of speech in view of the said prohibition is not on a constitutional level, but rather, if at all, on an administrative level, in the realm of one of the recognized grounds for judicial review.

32. Paid advertising, which is the subject of the Rules in dispute, is not an integral part of the programming setup of the media authorities, within which they are required to provide a platform for political expression. The paid advertisements track of the two media authorities is an extra-professional, auxiliary tool, which is not part of their statutory functions and obligations. It is an optional matter, subject to the discretion of the media authority, which may or may not use it, as it wishes. Its entire purpose is to serve as a financial tool for increasing the budgetary income of the media bodies and enabling them to function efficiently in discharging the tasks and duties and imposed upon them. It is not intended to serve as a platform for any particular category of expression, including political expression. Incidental to achieving the monetary goal, and in order to realize it, various bodies – generally commercial – are permitted to relay their messages, without such expression, per se, constituting a purpose of the advertising track. My colleague, Justice Naor, discussed this particular feature of advertisements at length (para. 18 of her judgment).

33. Being extrinsic to the programs framework, the paid advertisements track is not bound by the obligation of balance and fairness that binds the authority as part of its professional duties. In that it is external to the obligations of the authority, and because, in terms of its purpose, it is not intended to reflect the messages of any particular kind of expression, the operation of this track is not subject to the general duty binding the authorities in the context of general broadcasts, to give expression to the range of opinions and trends in Israeli society. Since the advertising track was not, from the outset, intended to provide a platform for the expression of ideological messages, the authorities are entitled to regulate the contents of advertisements in a manner that realizes the funding objectives of advertising in optimal fashion, without violating any duty of balancing and fairness that binds them in relation to programs, which relates to the level of their contents and ideas. The authorities' position in this regard is that paid advertisements, as a funding tool, may legitimately be restricted to matters that are purely commercial and neutral in terms of their social-ideological contents.

34. Not only does the prohibition on extending paid advertising to matters that are publically controversial not violate the freedom of political-ideological expression, but it actually prevents the wealthy from gaining control over opinions and public information in the state. Limiting the advertising track to matters of a commercial-neutral nature actually promotes freedom of expression, rather than conflicting with it. It dovetails in with the functions of the media authorities and the duty of fairness and balance that binds them. This is the background to understanding the underlying rationale of the arrangements governing paid advertising tracks, and their designation for matters which are essentially commercial and neutral (s. 25A of the Broadcasting Authority Law and s. 7(2) of the Broadcasting Authority Rules; s. 81 of the Second Authority Law, and s. 5 of the Second Authority Rules).

35. Furthermore, from a legal perspective, the operation of a paid advertisements track by the media authorities requires special statutory authorization, without which they have neither the power nor the authority to operate this track, in that it is extra-professional vis-à-vis the classic functions of these authorities. Indeed, authorization for the broadcast of advertisements was a later addition to the Broadcasting Authority Law, by way of s. 25A, in 1993. Prior to this amendment, it was legally problematic for the media authorities to operate a track for paid advertisements in the absence of specific statutory authorization. The legal position adopted by the Attorney General and the court was that without special statutory authorization, the media authorities had neither the power nor the authority to broadcast a paid advertisement (Explanatory Notes to the Broadcasting Authority (Amendment No. 8) Bill, 5752-1992, HH. 2114, at p. 220). This was the background to the enactment of the provision in s. 25A of the Law, which authorized the Broadcasting Authority to operate this track. (Regarding the limitations that apply to paid advertisements without special statutory authorization, see also Osem v. Broadcasting Authority [2], at para. 6; Reshet Communications v. Broadcasting Authority [3], at pp. 808-890; Daily Newspaper Association v. Minister of Education [68], and HCJ 3424/90 Daily Newspaper Journalists Association v. Minister of Education [89]). These decisions clearly indicate that specific authorizing legislation is required in order to enable the media authority to operate a track for paid advertising.

Can it be said that as part of the constitutional right to freedom of political expression, a person has the right to demand a platform for expression specifically within paid advertisements, when this activity is not an integral part of the classic functions of the media authority, and when the media authority requires specific statutory authorization to carry it out, and has discretion to decide whether to do so, depending upon the circumstances in accordance with its funding requirements?

36. In this context it should be remembered that a constitutional right does not require statutory expression. It exists by virtue of the values of the constitutional system and by virtue of the Basic Law; even without being reflected in a regular law, it exists by virtue of the constitutional norm it embodies. Indeed –

'When a person has a right, and certainly when he has a constitutional right, a public authority does not need statutory authorization in order to uphold and respect that right. The opposite is true: it requires statutory authorization to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it must satisfy the tests of the limitation clause as a condition for its validity and operation' (Dovrin v. Prisons Authority [20], at para. 16 of my judgment).

(See also in HCJ 1/49 Bejerno v. Minister of Police [90], at pp. 80, 82). It is the violation of a human right that requires an authorizing law that seeks to legitimate the violation (Zamir, Administrative Law, at p. 50). In the absence of statutory authorization to violate the right, the administrative authority oversteps its competence and its authority.

37. In the present case, the administrative authority requires special statutory authorization to enable it to operate a track for paid advertising, for the legal starting point is that without special authorization it cannot operate such a track. This assumption involves a further assumption – that there is no constitutional right to realize the freedom of political expression in paid advertising. Since a person does not have a primary constitutional right to express his messages, irrespective of their contents, in paid advertisements, special statutory authorization is required to vest competence and power in the authorities to operate such a track. Absent that explicit authorization, as stated, the authority would not be able to perform that activity. It follows that the right to freedom of political expression in the media does not encompass expression in paid advertising, and were it not for the special authorization, the authority would not have been permitted or competent to operate that track. This structure of rights and authority also explains why freedom of political expression for paid advertising is not part of the freedom of political expression that is constitutionally protected.

38. Moreover, even assuming the existence of statutory authority for paid advertisements, the authority is an optional one, which the media authority has the discretion to exercise, to ignore, or even to revoke. Since this track is designed for funding purposes, its use is circumstance-dependent, and it is entirely a function of the financial position of the authority. Had the authority not found itself in financial straits, and had it not been granted statutory authorization to operate a paid advertising track, it may reasonably be assumed that it could not have been compelled to operate that kind of track to allow for paid political expression as part of the basic right to freedom of speech. It may further be assumed that in the absence of statutory authorization for paid advertising, a petition seeking to compel the authority to broadcast a paid political advertisement would have been denied. Furthermore, once there is no longer a financial need, the media authority would be entitled to discontinue the use of the advertising track, or even to bring about the repeal of the statutory authorization for paid advertising. It is doubtful whether such repeal would constitute grounds for a claim of violation of the constitutional right to freedom of speech. This is because realization of the right to expression in the media in various areas, including the political-ideological area, is not dependent upon the advertising broadcasts. As such, the regulation of this track and its designation for matters that are commercial and neutral in nature does not constitute a violation of a constitutional means of realizing freedom of political expression. Realization of the freedom of political expression in a paid advertisements track is not part of the right to freedom of expression in the media, and it is not part of the constitutional right that warrants constitutional protection. Consequently, regulation of the paid advertisements track and its designation for particular kinds of messages that are commercial or neutral in nature, and which do not include matters that are politically or ideologically controversial, do not constitute a constitutional violation of the freedom of political expression.

39. Furthermore, from a comprehensive perspective it can be said that limiting advertisements to commercial broadcasts and announcements of a neutral character promotes, rather than violates, freedom of political expression in the broad sense. Precisely by reason of its cardinal, vital importance to the democratic process, political expression should not be a commercial commodity, and to the extent that it is, by its very nature it distorts free public discourse. It may also distort the duty of balance and fairness that binds the media authorities in relation to broadcasts in general. When the wealthy person purchases a public information platform in the media by way of a paid advertisement, while the person of lesser means is unable to purchase broadcasting time in order to relay his views, the inevitable result is a disruption of the required balance in the presentation of ideas and opinions in the ideological arena. This inequality in power of political expression, which derives from the funding capacity of the wealthy party, is a serious violation of the principle of equality and fairness in the media, and it may severely distort the appropriate point of balance in social-political expression that is guaranteed in the general lineup of programs. It was not by chance that the Broadcasting Authorities imposed prohibitions on paid advertising of political and ideological programs. They were motivated by the desire to promote the idea of substantive freedom of political expression, and by their concern for equality in the means of its realization, and not the opposite. The concern for substantive realization of political-ideological expression and balance in the means of its regulation provides a substantive, value-based reinforcement for restrictions established by the Rules regarding paid advertisements of publicly controversial messages. This point was made by Baroness Hale of Richmond in the matter of Regina (Animal Defenders International) v. Secretary of State for Culture, Media and Sport (2008) 2 WLR 781 UKHL 15, handed down in March of this year in the English House of Lords, and cited in the judgment of my colleague, Justice Naor, in her comments on the harm involved in paid political advertisements, where she writes, inter alia:

'So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality.'

And elsewhere she clarifies:

'… we do not want our Government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. "Within the sphere of democratic politics, we confront each other as moral equals"… . We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.'

40. In her article, Prof. Aditi Bagchi points out the dangers to freedom of speech that are likely to issue from private parties who acquire control over the means of expression and public information. The dangers looming from this direction are no less than those which the government itself may place in the way of freedom of speech. Therefore, according to this view, in certain cases the state is justified, and possibly even duty-bound, to intervene and take measures to increase freedom of speech, while limiting the dangers of the distortion of freedom of speech that can be caused by private bodies:

'[W]e should not blindly emphasize the dangers posed by state action at the expense of those posed by certain types of private action   Random insults by individual private actors are not likely to affect the political identity of those insulted. But restrictive choices by mass media that influence large numbers of people and claim to respond to the views of the public do pose a substantial threat to those excluded from their forums. This is not to say that these media must affirm all viewpoints, but the rules governing access – rules affirmatively enacted by the government – should ensure that each citizen can consider herself a participant in public discussion.'

And therefore –

'[W]hen private actors wield disproportionate power over public discourse, the state should ensure that all citizens retain the access necessary for their voices or views to count' (Aditi Bagchi, "Deliberative Autonomy and Legitimate State Purpose Under the First Amendment", 68 Albany L. Rev. 815 (2005) 819, 861-962).

41. Restricting the broadcast of paid advertisements to commercial and neutral matters does not jeopardize the balance required for the realization of freedom of political-ideological expression in society. Expanding the broadcasts to include this kind of expression is liable to destroy and fundamentally distort the fairness required of the media, which necessitates providing a platform of expression for the different opinions prevailing in a society, with no dependence on or connection to money and the financial capacity of the opinion holders.

In Summary           

42. Our concern here is with determining the contours of the constitutional right to freedom of political expression and with the question of whether these contours include the right to express a political message in paid advertisements facilitated by the public media authorities. This places us at the first of the two stages of constitutional analysis. Delineating the scope of the constitutional right should answer the question of whether the Rules preventing paid advertisements of political matters violate the constitutional right to freedom of political expression in that medium. This question is answered according to purposive interpretation of the right to political expression and the constitutional means of realizing that right. Purposive interpretation is based on an examination of the values underpinning the right, and not on the basis of the literal scope of the right.

43. From the above analysis my conclusion is that the scope of the right to freedom of political expression, however broad, does not, in terms of its purpose, extend to the right to realize that expression by way of a paid advertisement in the public media. Freedom of political expression in Israel is guaranteed in the framework of the duty of balance and fairness in the general lineup of programs operated by the authorities. It does not extend to the entire advertising track, which from its inception was not intended as a platform for expression, but rather, was introduced for a budgetary-financial purpose. The existence of this track is, from the outset, dependent upon the existence of special statutory authorization granted to the authority for the purpose of its operation, which is dependent entirely upon the will and the financial requirements of the authority. Restricting advertisements to matters that do not arouse public controversy promotes, rather than contradicts, the function served by the media authorities in the protection of freedom of political expression, and their mission to preserve the balance and fairness of socio-political messages in the broadcasts, independent of the finances and the economic ability of the opinion holder. As such, regulation of the advertising track in this manner does not violate a constitutional right, and it does not, therefore, give rise to the need for a constitutional examination of the alleged violation. Consequently, there are no grounds for examining the applicability of the limitation clause, with its various conditions, in our case. We therefore stop at the first stage of the constitutional examination, without crossing the threshold of the second stage. The relativity of the right to freedom of political expression in the public media leaves political expression in paid advertisements outside its borders.

General Comment

44. To complete the picture, I wish make a number of observations.

The normative constitutional system in Israel is young, and it is undergoing a process of gradual development towards its complete formation. At this stage of its development it is especially important to attribute adequate weight to the examination of the relativity of the constitutional right in accordance with the two-stage doctrine, and in so doing, to relate to the natural scope of the right, prior to considering its relativity in terms of the second aspect, which concerns the constitutionality of the violation according to the conditions of the limitation clause. The comprehensive approach whereby almost every matter that is connected literally to the constitutional right falls within the parameters of the right itself rapidly leads the constitutional discussion into the second stage, at which the constitutionality of the violation is analyzed in accordance with the limitation clause. This approach is liable to entail both a theoretical and a practical difficulty. On the theoretical level, it obscures the two-stage doctrine required in the constitutional discourse. On the practical level, it may dilute constitutional rights, and weaken their protection against violation. It is only natural that the more that essentially marginal matters, situated on or outside the borders of the constitutional right, are treated as constitutional matters, the weaker becomes the need to provide effective protection against the violation of the constitutional right, and the more blurred becomes the distinction between the important and the unimportant. Such a process is liable to impoverish the constitutional discourse, diluting its intensity and vitality. It seems to me that the constitutional discourse should focus on the core of basic rights and on the core of the protection they require against violation. As the constitutional rights are developed, care must be taken to define their appropriate borders, to prevent them from being interpreted as all-inclusive and from absorbing matters that do not properly belong within their borders, all within the framework of the constitutional purpose.

45. Delineating appropriate borders for the scope of the basic human rights is likely to reinforce the rights rather than weaken them. It can enrich constitutional discourse and focus it on the substantive protection required for the core of human rights. Delineating the limits of constitutional rights by borders defined according to the constitutional purpose enhances their constitutional protection, and is not detrimental to them. In the words of Deputy President Cheshin in Adalah Legal Center v. Minister of the Interior [49] (para. 41):

'Stretching basic rights in every direction – up, down and to the sides – while referring the interests that are capable of affecting their boundaries to the limitation clause, is liable to have a detrimental effect on constitutional debate, and this is liable to lead eventually to a reduction in the constitutional protection of human rights.'

See also in Bank Mizrahi v. Migdal [15], at pp. 470-471{286}, the opinion of Justice Zamir, who warns against rigid determinations as to what constitutes "property" and what constitutes a "violation of property", based on the concern that "the more the scope of property as a constitutional right is widened, the more it is to be feared that the force of the protection of this right will be weakened." Comments in a similar vein were made by Hogg in his article, "Interpreting the Charter Rights: Generosity and Justification", 28 Osgood Hall L.J. (1990) 817, 819. See also Peter W. Hogg, Constitutional Law of Canada, 5th ed. Vol. 2 (2005), at para. 3.83:  

'There is a close relationship between the standard of justification required under s. 1 and the scope of the guaranteed rights. If the courts give to the guaranteed rights a broad interpretation that extends beyond their purpose, it is inevitable that the court will relax the standard of justification under s. 1 in order to uphold legislation limiting the extended right. For example, if the guarantee of freedom of expression in s. 2(b) were held to protect perjury, fraud, deception and conspiracy – all forms of expression in an extended sense – it would be foolish to require a legislative body to satisfy a high standard of justification in order to regulate or prohibit such obviously harmful behavior.

… Each right should be so interpreted as not to reach behavior that is outside the purpose of the right – behavior that is not worthy of constitutional protection… .'

It could be argued that in terms of the result, there is no difference between the approaches:

'It may well be that it makes little difference in result whether the courts opt for a stringent standard of justification coupled with a purposive interpretation of rights, or for a relaxed standard of justification coupled with a broad interpretation of rights.'

However, as Hogg explains, tremendous importance attaches to this question in terms of the scope of judicial review.

'[I]t certainly makes a great deal of difference to the scope of judicial review. If the rights are broad, and the standard of justification is low, then many more charter challenges will come before the courts, and will fall to be determined under s. 1. Since the standard of justification under s. 1 would be low, it would be difficult to devise meaningful constraints on the process of judicial review. The result would be that judicial review would become even more pervasive, even more policy-laden, and even more unpredictable than it is now. In my view, therefore, the courts should adhere to the strict standard of justification prescribed by Oakes, and should give a purposive (rather than a generous) interpretation to the guaranteed rights. That approach will help to stem the wasteful floods of litigation, to limit the occasions when courts have to review the policy choices of legislative bodies and to introduce meaningful rules to the process of Charter review.'

For additional opinions in the legal literature that support defining the scope of constitutional rights as a means of fortifying them and of preventing their dilution, see: Yves De Montigny, "The Difficult Relationship between Freedom of Expression and its Reasonable Limits", 55(1) Law & Contemp. Prob. 35 ; V. Blasi, "The Pathlogical Perspective and the First Amendment", 85 Colum. L. Rev. 449, 479 (1985); Sidney R. Peck, "An Analytical Framework for the Application of the Canadian Charter of Rights and Freedoms", 25 Osgoode Hall L.J. 1 1987. See also Bradley W. Miller, "Justifications and Rights Limitations" http://ssrn.com/abstract=1084468, who supports interpreting the scope of constitutional rights strictly at the first stage of the constitutional examination, inter alia to prevent a devaluation of the rights and a weakening of the constitutional examination at the second stage, which focuses on reviewing the degree of justification for the violation of the right according to the constitutional balancing formula.

A different approach is taken by President Barak, according to whom the main restrictions on constitutional rights should be imposed at the second stage of the constitutional examination, rather than the first stage, which is concerned with defining the scope of the right. According to his approach –

'The starting point should assume a generous definition. The restriction – which might take into account the situation of the case on the periphery of the right or at its core – should be considered within the framework of applying the limitation clause. The balance between the rights of the individual and the public interest or between rights inter se should be made within the framework of the limitation clause' (per President Barak in Adalah Legal Center v. Minister of the Interior [49], at para. 102).

 For a critique of the aforementioned approach of Prof. Hogg, see per President Barak in Bank Mizrahi v. Migdal [15], at pp. 462-3{246-247 }.

46. On the basis of all the above, it cannot be said that the petitioner's constitutional right was violated as a result of the refusal of the authorities, within the framework of the Rules, to broadcast a paid advertisement involving an expression whose content was political-ideological.

Other possible grounds for challenging the Rules

47. Quite another question is whether the manner of regulation of paid advertisements in rules that permit commercial advertisements and bar advertisements of a political-ideological character provides the petitioner with constitutional cause based on the violation of equality between commercial bodies and political bodies, or with cause under administrative law, such as unreasonableness, irrelevant considerations, discrimination, etc. The petitioner did not make any claims to that effect and none were considered in the course of the hearing. As such we need not consider them. I would nevertheless like to relate to the aspect of equality as a possible constitutional claim in the circumstances of this case, which is also connected to the claim of discrimination on the administrative level.

Violation of equality

48.  The petitioner focused on the argument that its right to freedom of political expression was violated by the prohibition that the Rules imposed on the publication of such expression in paid advertisements. I attempted to show why the constitutional right was not violated in a manner that justified constitutional adjudication in accordance with the limitation clause.

For the sake of completion I would add that a claim of violation of equality might possibly have been raised on the constitutional level, its thrust being that the Rules in our case discriminate unlawfully between those expressing themselves commercially, who are permitted to advertise in service broadcasts, and those expressing themselves politically, to whom this channel of expression is blocked. Could it be said that under these circumstances there has been a violation of the constitutional right to equality between the purveyors of different messages, who seek to advertise their messages for payment?

49. Equality is an established foundation of the Israeli legal system. It is a value that lies at the foundation of a society's existence, and a guarantee for a person's development and self-realization. It is essential for the establishment of a democratic regime: Adalah Legal Center v. Minister of the Interior [49]; HCJ 4112/99 Adalah Legal Center v. Tel-Aviv Municipality [91], at p. 415; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [92], at p. 332; HCJ 7111/95 Center for Local Government v. Knesset [93], at p. 503.

50. Nevertheless, the value of equality was not included as a basic right in the Basic Law, and the question has therefore arisen in the past as to whether the right to equality can be classified as a constitutional right that derives from the right to human dignity, and in that capacity granted constitutional protection by virtue of Basic Law: Human Dignity and Liberty.

Israeli case law is divided over whether the right to equality can be derived from the right to dignity. According to some, the right to equality is included in Basic Law: Human Dignity and Liberty as an "unnamed right" (Justice Or in HCJ 5394/92 Huppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [94], at pp. 360-363; Justice Mazza in Israel Women's Network v. Minister of Transport [36], at pp. 521-523, and see all the citations in s. 39 of Adalah Legal Center v. Minister of the Interior [49]). There were some who adopted a restrictive approach in applying the basic right to dignity to the right to equality (Justice Zamir in HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [95], at pp. 205-206 and his comments in Center of Local Government v. Knesset [93], at pp. 510-511). Others sought to restrict constitutional recognition of the right to equality to cases in which the violation of equality amounted to humiliation of another person, in which case, according to this approach, there was an overlap between the right to equality and the core of the right to human dignity (Miller v. Minister of Defense [11], at pp. 146-147 see also HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [96], at pp. 47-48).

51. Ultimately, the case law adopted an "intermediate approach", according to which "human dignity" is not limited to damage to the core of human dignity, but neither does it encompass every human right that can be derived from human dignity. It includes all those rights that are linked to human dignity (whether at its core or at its periphery) by close, significant ties (as per President Barak in Movement for Quality of Government v. Knesset [14], at para. 33). The right to human dignity thus includes those aspects of equality that guarantee protection of human dignity from violation, and that are closely related to it. Human dignity thus extends to those situations in which a violation of equality is inextricably linked to human dignity and to a violation thereof. In determining the scope of the constitutional right to dignity, consideration must be given to the violation of equality as a factor in delineating the contours of the right. This approach was also adopted in later case-law (see HCJ 2223/04 Levy v. State of Israel [97]; 9722/04 Polgat Jeans Ltd. v. Government of Israel [98]; HCJ 8487/03 IDF Invalids Organization v. Minister of Defence [99]; HCJ 11956/05 Suhad Bishara v. Ministry of Construction and Housing [100]).

52. Do the Rules in the present case, which permit paid advertisements in commercial matters but bar advertisements of a political-ideological character, violate equality as a constitutional right? The obvious answer to this question is in the negative, for in the circumstances of this case, even if there is a violation of equality, it is not a violation that is closely linked to human dignity, and as such we find ourselves outside the constitutional purview of Basic Law: Human Dignity and Liberty.

Our assumption for this purpose is that political expression and its messages are regulated by the general lineup of programs as part of the authorities' obligation to ensure balance and fairness in their operation. This stems both from the Broadcasting Authority Law and the Second Authority Law, and from the basic principles of the system. The paid advertisements track was not originally intended to serve as a platform for expression, and it was introduced to serve a financial-economic purpose of the media authorities. Given our assumption that freedom of political expression is maintained and protected, and that the paid advertising track was not intended for the realization of freedom of speech, it follows that the violation of equality is not closely linked to human dignity, and there is therefore no violation of the constitutional right to dignity, in the context of the right to equality.

53. Even if the issue is not the violation of a constitutional right, one ought nonetheless to examine whether there could be a claim of discrimination on the administrative level, as opposed to the constitutional level, that justifies consideration.

Substantive equality is defined as like treatment of equals, and different treatment of those who are different (HCJ 10076/02 Rozenbaum v. Prison Authority Commissioner [101], per President Barak, at para. 11). In order for there to be a violation of equality, it must be proved that there are groups between which there is identity or equivalence in relevant features, and which, despite their similarity, are treated differently (HCJFH 4191/97 Rekanat v. National Labor Court [102], at p. 330, per President Barak).

54. In the case at hand, as far as paid advertising is concerned, there is a substantive difference between the two relevant groups involved – a difference that explains and justifies the contents of the Rules, which permit commercial advertisements of a neutral nature, and prohibit advertisements of a political or ideological nature. The conception underlying the distinction between the two groups is value-based, deriving from the understanding that political-ideological-social expression in the public-national communications media should not be affected by the financial capacity of the opinion-holder, and that allowing political expression to be bought for money not only fails to promote the marketplace of opinions and ideas in a free society, but actually disrupts it, by letting money talk. Permitting paid political advertising means allowing the power to disseminate information on social, political and ideological matters to be purchased. This conflicts with the basic conception whereby free discourse and expression should be available equally to all people, irrespective of their financial abilities – a conception which furthers the democratic process and does not thwart it.

55. Commercial advertisements and other neutral broadcasts for which payment is made do not influence the marketplace of ideas and opinions in the social sphere, and do not distort the free flow of political-ideological expression in the general lineup of programs of the public media, which is not dependent upon financial resources. Opening the track of paid advertising to political expression may well disrupt the existing balance in the open marketplace of opinions and ideas and distort public discourse in view of the concern that financial magnates could assume control of this broadcasting track in the media. This explains the substantive difference between the two groups that are relevant in our case, and justifies the distinction made by the Rules in relating to each group. This distinction between the two groups is particularly valid in view of the fact that the matter involves public media authorities, which operate as statutory corporations by virtue of laws regulating their public activity. This is especially significant in relation to the Broadcasting Authority, which operates its schedule of programs as a statutory state service (s. 2 of the Law).

Political expression is given an extensive platform in the context of the programs themselves, without special payment. Commercial and neutral expression was allocated a paid advertisements track, which does not affect or distort public discourse through the monetary purchase of the power to disseminate information. It is difficult to argue that this approach, with its particular distinctions, provides grounds for a claim of inequality and unlawful discrimination, in either the constitutional or the administrative realm, that warrants judicial intervention.

Conclusion

56. In view of all the above, my view is that it was not proved that any of the petitioner's constitutional rights was violated, be it a violation of freedom of speech or a constitutional violation of the right to equality. Nor would there appear to be any administrative cause of action based on discrimination, which, had it existed, may have warranted judicial intervention in the actions of the authorities on the administrative level.

Therefore, and based on the aforementioned reasons, I concur with the conclusion proposed in the judgment of Justice Naor, whereby the petition should be denied on all counts.

.

Justice A. Grunis

I agree that the Rules should not be declared invalid [-as stated in the opinion of my colleague Justice M. Naor. In doing so, there is no need to to take a stand on the relation between freedom of political expression and human dignity.

I have studied the opinion of my colleague Justice Procaccia. I accept her fundamental approach regarding the determination of the boundaries of a constitutional right. I concur with her statements (in para. 6(6) of her opinion) that “[a]n overly-broad conception of the scope of a constitutional right, exceeding that of the purpose it serves, may lead to a dilution of the constitutional rights and to their devaluation” (see also para. 2 of my opinion in Adalah Legal Center  v. Minister of the Interior [49]).  Nevertheless, there is no dispute that there was a violation of freedom of speech in the case before us. I will therefore refrain from expressing a position regarding the approach of Justice Procaccia as far as freedom of speech is concerned. Nor do I think it necessary to adopt a position regarding the relationship between the actual existence of the right and the means of expressing it in the circumstances of this case.

 

 

Justice S. Joubran

I concur with the opinion of my colleague Justice M. Naor, and with the additional comments of my colleague Justice E.E. Levy

1.    First, I will point out that in view of our conclusion, I accept as a starting point – purely for purposes of this hearing – the assumption that the Rules under discussion contain a violation of freedom of expression as a protected basic right. This assumption was accepted by the litigants in this hearing; as such I will not relate to the analysis of my colleague, Justice Procaccia, and prefer to leave that subject for future consideration.

2.    As explained in the opinion of my colleague Justice M. Naor, to enable political expressions on controversial  matters to be broadcast in the framework of paid advertisements will, in practice, spell the demise of the fairness doctrine in Israel.  Concededly, this doctrine applies only to the “regular” framework of broadcasts, and if political advertising is not possible in the framework of broadcast advertisements, the doctrine will not apply to them. On the other hand, opening the  advertising track to broadcasts of political expression will, inevitably, empty the fairness doctrine of any content. It is clear that despite the fact that the air time allotted for advertisements is quite brief in relation to the regular programs, the other features of advertisements -  including the possibility of frequent repetition of a particular message, freedom in formulating the contents of the message, and the very fact of this being a dedicated track for the relaying of messages intended to influence -  increases the weight attaching to them (in this regard the scholar Marshall McLuhan already pointed out that “the medium is the message”). In the public, media-oriented environment of our times, as pointed out by Justice E. E. Levy, there is a serious concern that granting the access requested in the petition will flood the advertising track with political broadcasts of all types, and in doing so divert the central focus of political discourse from “regular” programs to advertising programs. It is clear that all this would directly affect the application of the fairness doctrine, and in fact lead to its revocation.

3.  It is for these reasons that I concur with Justice Naor’s ruling that there is nothing wrong with the fact that the arrangement preventing the broadcast of political expressions in the framework of advertisements is not explicitly anchored in primary legislation. I accept her ruling that this arrangement actually relies upon the general fairness doctrine, and is a direct product of it. In my view, it is sufficient that the fairness doctrine is well anchored in primary legislation to satisfy the requirement of “explicit authorization”.

4. To be precise: the only way of preventing the revocation of the general fairness doctrine, should the petition be granted on its merits, would be to make it directly applicable to advertisements through the creation of a supervisory regime over these broadcasts as well.  However, even assuming that creating such supervision is possible, it is unclear why the petitioner and similar entities would benefit from such an arrangement, and why it would ameliorate the violation of freedom of expression.  It should be remembered that the possibility of being heard, subject to the laws of the fairness, is already available to the petitioner in the framework of the regular programs, without payment. The petitioner contends that in the current situation, entities with unique political views are not given sufficient exposure in the framework of regular programs. However, as mentioned by Justice Naor, the solution to this problem must be found in the existing framework, through recourse to the fairness doctrine itself, and if necessary, by use of administrative processes, as mentioned by Justice Procaccia.

5.  Moreover, opening the advertising track to the broadcast of political expressions would not necessarily solve the problem that the petitioner describes.   On the one hand, the creation of a rigid regulatory regime for oversight of the broadcast of “advertising” political material would deprive this track of its uniqueness, because the main difference between this track and the regular programs would be the component of payment for broadcasting content. However, as stated, the component of payment is itself problematic; the drawbacks of this course of action would therefore appear to outnumber its advantages – in view of the fact that the very regime that allegedly harms the petitioner in the framework of regular programs would harm him again in the framework of advertising broadcasts.

On the other hand, the creation of a more lenient supervisory regime would create a situation in which "money talks", given that broadcasting time is limited by its very nature. In that situation, one form of exclusion would be replaced by another, and here too, opinion holders supported by more limited means would be in an inferior position to their more established competitors.

6.    I wish to clarify that these comments do not imply that the fairness doctrine is a sacred principle from which there can be no diversion. Like any other socio-legal conception it has its drawbacks, and it may even involve a violation of protected basic rights. However, even were it to be claimed that the drawbacks of this conception exceed its advantages, this would not, in my view, lead to its invalidation on the grounds of contradicting Basic Law: Human Dignity and Liberty. On this matter I share the view of my colleague President D. Beinisch, that due to its complexity and tremendous sensitivity, the subject requires thorough study and consideration, and should be dealt with by legislation, even though I disagree with her conclusion on the matter.  Under the circumstances, as stated, I do not find that the current arrangement lacks explicit statutory authorization.  At the same time, I do not find that we have the ability or the possibility of deciding whether the fairness doctrine itself is good or bad, or at least, whether to allow it to be emptied of content.

Petition denied, by majority opinion, as per the judgment of Justice M. Naor.

 

18 Av 5768.

20 August 2008.

 

 

PPA 4463/94

Avi Hanania Golan

v

Prisons Service

 

The Supreme Court

[25 August 1996]

Before Justices E. Mazza, M. Cheshin, D. Dorner

 

Appeal with leave on the judgment of the Tel-Aviv–Jaffa District Court (Justice A. Even-Ari) on 15 July 1994 in MP 142/94.

 

Facts: The appellant asked the respondent for permission to publish articles about prison life in a local newspaper. The respondent refused. The appellant filed a petition in the District Court against this refusal, but his petition was rejected. Leave was given to appeal the District Court’s decision to the Supreme Court.

 

Held: (Majority opinion — Justices E. Mazza, D. Dorner) The respondent has a duty to uphold human rights, and it must make reasonable efforts and devote reasonable resources to do this.

(Minority opinion — Justice M. Cheshin) The respondent’s argument that it is not its task to censor newspaper articles is reasonable, and in view of the character of the appellant and his behaviour in the past, the respondent cannot reasonably be expected to rely on the appellant’s undertaking to restrict himself to writing only about himself. The likelihood that allowing the appellant his desire will lead to infractions of prison discipline is not remote. In view of the very difficult task faced by the prison authorities, they should be allowed a broad discretion in deciding questions of prison order and discipline.

 

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

 

Basic Laws cited:

Basic Law: Freedom of Occupation, s. 4.

Basic Law: Human Dignity and Liberty, ss. 2, 4, 8.

 

Statutes cited:

Knesset Elections Law (Amendment no. 17), 5746-1986.

Prisons Ordinance [New Version], 5732-1971, ss. 1, 42, 43, 47, 56, 56(41), 62A, 71-72F, 131A, 132.

 

Regulations cited:

Prisons Regulations, 5738-1978, rr. 18, 19, 20, 24A, 24B, 25-34, 33, 49, chap. 5.

 

Israeli Supreme Court cases cited:

[1]      HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[2]      CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[3]      HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[4]      PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[5]      HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[6]      HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[7]      CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

[8]      CrimApp 7223/95 — unreported.

[9]      HCJ 540/84 Yosef v. Governor of Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[10]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[11]    CA 105/92 Re'em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

[12]    HCJ 243/62 Israel Filming Studios Ltd v. Geri [1962] IsrSC 16 2407l IsrSJ 4 208.

[13]    CA 723/74 HaAretz Newspaper Publishing Ltd v. Israel Electric Company Ltd [1977] IsrSC 31(2) 281; IsrSJ 5 30.

[14]    HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[15]    HCJ 6218/93 Cohen v. Israel Bar Association [1995] IsrSC 49(2) 529.

[16]    HCJ 215/59 Geller v. Minister of Interior [1959] IsrSC 13 1703.

[17]    HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

[18]    HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[19]    HCJ 96/80 Almalabi v. Prisons Service [1980] IsrSC 34(3) 25.

[20]    HCJ 157/75 — unreported.

[21]    HCJ 454/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[22]    CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[23]    HCJ 881/78 Mutzlach v. Damon Prison Commander [1979] IsrSC 33(1) 139.

[24]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[25]    HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

[26]    HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

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

[28]    HCJ 4712/96 Meretz – Israel Democratic Party v. Jerusalem District Commissioner of Police [1996] IsrSC 50(2) 822.

[29]    HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[30]    HCJ 7111/95 Local Government Centre v. The Knesset [1996] IsrSC 50(3) 485.

[31]    HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [1994] IsrSC 48(2) 1.

[32]    HCJ 5118/95 Meir Simon Advertising, Marketing and Public Relations Ltd v. Second Television and Radio Authority [1995] IsrSC 49(5) 751.

[33]    HCJ 399/95 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

 

Magistrates Court cases cited:

[34]    CrimC (TA) 7036/92 — unreported.

 

American cases cited:

[35]    Procunier v. Martinez 416 U.S. 396 (1974).

[36]    Coffin v. Reichard 143 F. 2d 443 (1944).

[37]    Brown v. Peyton 437 F. 2d 1228 (1971).

[38]    Pell v. Procunier 417 U.S. 817 (1974).

[39]    Jones v. North Carolina Prisoners’ Union 433 U.S. 119 (1977).

[40]    Bell v. Wolfish 441 U.S. 520 (1979).

[41]    Turner v. Safley 482 U.S. 78 (1987).

[42]    Thornburgh v. Abbot 109 S. Ct. 1874 (1989).

[43]    Milwaukee Pub. Co. v. Burleson 255 U.S. 407 (1921).

[44]    Nolan v. Fitzpatrick 451 F. 2d 545(1971).

 

Jewish law sources cited:

[45]       II Kings 4, 8-10.

 

For the appellant — D. Yakir.

For the respondent — Y. Shefer, Senior Assistant to the State Attorney.

 

 

JUDGMENT

 

 

Justice E. Mazza

This is an appeal with leave on the judgment of the Tel-Aviv-Jaffa District Court (Justice A. Even-Ari), in which a prisoner’s petition filed by the appellant (a prisoner at Ashmoret Prison) against the refusal of the respondent (the Prisons Service) to allow him to publish a personal column or articles written by him in the local newspaper Mid-Netanya was denied.

Basic background

2. The appellant is a prisoner currently serving terms of imprisonment to which he was sentenced after he was convicted in two trials: in the first trial the appellant was convicted of the offences of fraud, forgery, impersonation and escape from lawful custody. For these offences, he was sentenced (at the end of 1988) to six years imprisonment and was also given a suspended sentence. This was the fourth substantial term of imprisonment to which the appellant was sentenced; he has a string of past convictions for many offences of the same kind. After the appellant began to serve this term of imprisonment, the appellant escaped from lawful custody, and while he was outside the prison, he proceeded to commit additional offences of fraud. When he was caught, he was brought to trial once again and was convicted of escaping from lawful custody and of the other offences that he committed during the period of the escape. For his conviction on these offences, he was sentenced to an additional term of imprisonment and the suspended sentences were activated. The total term of imprisonment that the appellant was sentenced to serve, under the two sentences, amounts to ten and a half years, starting on 18 November 1988. The appellant served his first year of imprisonment at Ashkelon Prison. Afterwards, he was transferred to Ashmoret Prison, and since then he has been imprisoned there. Because of activity in which he was involved in the past, the appellant was classified as a prisoner in need of maximum protection. Therefore he has been imprisoned, throughout his imprisonment, with a few prisoners of this type, in conditions of isolation from all the ordinary prisoners.

3.    In 1989, while he was a prisoner at Ashkelon Prison, the appellant sent several articles that he wrote to a local newspaper Mikol Makom, which is published in Ashdod. In these he described prison life. The articles were published, and the owner of the local paper (the management of the newspaper Yediot Aharonot) even made a payment to the appellant as the author. In January 1994, the appellant asked the respondent to allow him to publish in the local newspaper Mid-Netanya a personal column, or a series of articles, about life at Ashmoret Prison. His request was refused. The appellant filed a petition against the refusal in the District Court, under section 62A of the Prisons Ordinance [New Version], 5732-1971. But the District Court saw no reason to intervene in the respondent’s decision, and it denied the petition. Now we have before us an appeal, which was filed after leave was duly given.

Disputes as to questions of fact

4.    Two of the appellant’s contentions, in his petition before the District Court, raised a factual dispute. The District Court held that the appellant did not prove either of the two contentions, but the court did not ascribe much importance to this finding; in any event, it is clear that it was not because of the appellant’s failure to prove either of the said contentions that the court decided to deny his petition. I think it advisable to remove these disputes from my path at the outset, since in my opinion too they are unimportant for the purpose of the decision.

5.    The first dispute concerned the question whether, for the publication of his articles in the local newspaper Mikol Makom (while he was still a prisoner at Ashkelon Prison), the appellant obtained permission from the respondent. The appellant argued that Mr Johnny Tester, who was spokesman of the Prisons Service at the relevant time, gave him permission to send articles for publication in this local newspaper. However, shortly afterwards, without any reason being given for this, the permission was revoked, and then he was compelled to stop sending additional articles. The respondent, which denies this contention, based its position on the fact that in the appellant’s personal file at the Prisons Service no documentation was found on the subject of granting the alleged permission. The Court gave the appellant time to file an affidavit in support of his aforesaid contention, but notwithstanding the time that was given him for this purpose, the appellant did not file any affidavit. The District Court concluded from this omission that the appellant had not proved his contention.

I wonder whether, in the circumstances of the case, the decision with regard to this contention should have been based on the appellant’s failure to file an affidavit in support thereof. Did not the appellant name the person at the Prisons Service who, according to him, gave him (and later revoked) the permission; I do not understand what prevented the respondent from ascertaining what this person had to say on the matter. But for the purpose of the proceedings, I will assume that the trial court was correct in its conclusion that the appellant did not prove his contention. What does this imply? In circumstances different from those in our case, I would indeed have inclined to attach some importance to this conclusion. Admittedly, as a rule it is correct to presume that a prisoner, who takes the law into his own hands and acts without permission from the Prisons Service, in a matter which, under the law applying to prisoners, requires permission to be granted, is likely to be found unworthy of receiving the permission, even if according to the ordinary criteria he ought to have been given the permission he seeks. But this is not the case with regard to the appellant’s request. The respondent’s refusal to give the appellant the permission he recently requested was not based on the reason that several years ago (in 1989) the appellant took the law into his own hands, in that he sent articles for publication in the local newspaper Mikol Makom without obtaining permission. The respondent did not even claim that the publication of those articles escaped its attention. In any event, from correspondence between the appellant and the editor of local newspaper Mikol Makom, which was filed in the District Court, it appears that when the appellant was told, by a representative of the respondent, that he was not entitled to send additional articles for publication in the local newspaper, the appellant immediately desisted.

6.    The second factual dispute between the parties concerns the question whether the local newspaper Mid-Netanya has any interest in publishing articles written by the appellant. The appellant’s contention was that recently, before he submitted his request to the respondent, he enquired and found that the local newspaper would be prepared to publish his articles. But the respondent claimed that it had not received any request from any newspaper that was supposedly prepared to publish articles written by the appellant. To prove his contention, the appellant summoned, as a witness on his behalf, the representative of the editor of the local newspaper. This journalist testified that she did not know the appellant. Notwithstanding, she confirmed that about three months earlier the appellant wrote to her with an offer of publishing articles about prison life. When she asked the editor of the newspaper as to her position, the editor advised her to interview the appellant, for the purpose of finding out about him before making a decision whether to publish his articles. According to her, she asked the director of the prison to allow her to interview the appellant. First she was told that ‘the matter was difficult’ and afterwards that the appellant had filed a petition and that, therefore, she should wait. Finally she was summoned to the court to testify, before she succeeded in holding the desired interview. On the main issue, she said that the editor of the newspaper treats the appellant like any new reporter offering material for publication.

Prima facie this testimony implies that the appellant did not sufficiently prove his contention that the editor of the local newspaper Mid-Netanya was indeed prepared to publish his articles. However, an affidavit filed by the respondent, given by its spokesman, obscured the issue. The affidavit stated that this journalist (the witness for the appellant) had already met the appellant in the prison, without stating in the affidavit when she visited, and whether this was before or after her appearance in the court. The affidavit also alleged against the witness that she received permission to visit the appellant and that she used the visit to interview him, without obtaining permission for this as required by the procedure regulating the conditions of meetings between journalists and prisoners. But whichever is the case, the question in dispute is unimportant. The decision as to the right of the appellant to send his writings for publication in a newspaper does not depend at all on whether the newspaper is interested or prepared to publish the material; moreover, it has certainly been proved that the local newspaper under discussion was prepared in principle to examine and decide whether the appellant’s articles merited publication.

The main disputes and the decision in the District Court

7.       In his petition to the District Court, the appellant mainly based his position on the right of freedom of speech. The appellant argued that this basic right is shared also by someone who is a prisoner, and even he (while he is a prisoner) is entitled to realize it. In addition, the appellant relied also on his right of freedom of occupation. In this respect, he argued that his imprisonment in protective custody denies him the opportunity, which is available to other prisoners, of working and taking part in rehabilitation programmes. According to him, the possibility of writing and publishing his articles will improve his condition from various perspectives. In this way, he can give expression to his feelings and escape from the anguish of the remoteness and the isolation. Moreover, with the income that will be paid to him in return for his articles he will also be able to improve somewhat his standard of living in the prison.

8.    The respondent, in its response to the petition, did not expressly deny the appellant’s contention that the right of freedom of speech is shared, in principle, also by prisoners. Notwithstanding, it based its case on its stated policy that as a rule contact should not be allowed between prisoners and journalists. In its view, it is possible to deviate from this rule only in rare cases where there is a manifest public interest in permitting such contact, or when the contact occurs within the framework of press tours initiated by the Prisons Service. On the question whether the appellant has the right of freedom of occupation, the respondent chose to address the matter on a specific level only. The appellant, it argued, cannot be allowed to engage in journalism. Such an occupation, which involves an external employer, can be allowed only within the framework of the rehabilitation plans designed for prisoners. The appellant, as a prisoner requiring protection, does not meet the criteria that determine the degree of suitability for rehabilitation; it necessarily follows that it is impossible to allow him to engage in work, apart from work carried out in full within the prison.

The respondent further argued that the appellant is a persistent offender and therefore cannot be trusted to give a faithful account in his articles of what happens inside the prison. In this context, it was stated that on the two occasions when he succeeded in making contact with journalists, the appellant abused these contacts. First, in 1987, after he escaped from a previous term of imprisonment, the appellant was interviewed by the newspaper Yediot Aharonot. In this interview, which was published in the newspaper under the headline ‘Gangsters run the prison’, the appellant gave false descriptions about what allegedly happened in the prison. On another occasion, the appellant telephoned various journalists from the prison and gave them unfounded reports about the preferential treatment of the Prisons Service authorities to the prisoner Ahmed Yassin; the appellant did this even though he did not know this prisoner at all and never met him. As a result of the report, many journalists contacted the spokesman of the Prisons Service and the governor of the relevant prison and asked them to comment on the information in their possession. As the Prisons Service discovered afterwards, it was the appellant who made contact with the journalists and gave them the false report. In view of this experience, the respondent argued, there are grounds for concern that the appellant — wittingly or even unwittingly — will cause harm by his articles to the Prisons Service, the safety of other prisoners and also his own safety, and the reputation of prison warders and other staff. Moreover, giving the appellant a higher profile, because of his publications in the media, will give him a special status vis-à-vis the prison warders and other prison staff. These, fearing that they will be harmed by him, will be deterred from carrying out their duties and exercising their authority towards him. The authority of those in charge will be diminished, discipline will become lax and the running of the prison will be disrupted. Furthermore, the appellant, who is classified as a prisoner in need of protection, is guarded carefully. By becoming prominent among the prisoners, as a result of his access to publications in the media, he may increase the degree of personal risk to which he is exposed.

The appellant tried to calm the respondent’s fears. He therefore gave notice that he undertook not to write about anyone other than himself, but to speak in his articles only about his personal life in the prison. He also declared that he was aware and agreed that all his articles would be scrutinized by the respondent before they were sent to the editor of the newspaper, and that the respondent would be entitled to disqualify any article whose content, in his opinion, might disrupt the running of the prison, the safety of the prison warders or the prisoners or the reputation of any of them. The respondent’s reply to this was that the task of examining articles was outside the scope of his duties, and that doing this was, from his viewpoint, totally impossible.

9.    In deciding the petition on its merits, the learned judge considered two conflicting interests: the right of the appellant, as a prisoner, to freedom of speech, against the need to maintain order and security in the prison. The trial judge did not address the broader issue, namely whether the stated policy of the respondent in refusing prisoners contact with the media and speaking to the media, is a policy that reflects a proper balance between the two aforesaid interests. For the judge it was sufficient to determine that in the case of the appellant there was nothing wrong in the respondent’s decision. It would appear that the judge thought (although he did not say this expressly) that it was not reasonable to require the respondent to check the appellant’s articles in order to ascertain that their content did not arouse any fear of harm to the running of the prison, discipline, security and additional values. This led, so it seems, to the finding that ‘giving [the appellant] the right of free access to the media would allow him to acquire considerable power’ (emphasis supplied). Later, referring to the judgment of the Magistrates’ Court in the most recent of the appellant’s trials, in which the appellant’s uncontrollable criminal inclination was described, the judge also found that ‘giving a person like the [appellant] the opportunity of acquiring such power will have serious ramifications on the running of the prison’. In the circumstances of the case — the judge concluded — the decision not to allow the appellant to have contact with the newspapers is a reasonable decision.

The arguments in the appeal

10. Learned counsel for the appellant argued before us that the respondent’s refusal to permit the appellant to publish his writings in a local newspaper that is prepared to publish the work is a violation of the appellant’s freedom of speech and his freedom of occupation, and it violates his human dignity. These basic liberties, which are enshrined in the Basic Law: Human Dignity and Liberty, belong to the appellant even when he is a prisoner. Restricting them is permitted only to the extent that is required by the penalty of imprisonment, or according to the accepted rules for imposing such restrictions. The freedom of speech of a prisoner, like the freedom of speech of a free citizen, can be restricted only when there is an almost certain danger of real harm to public welfare or security. In its all-embracing fear that the appellant — wittingly or unwittingly — will publish remarks that will harm the running of the prison and the welfare of the prison warders and the prisoners, the respondent does not show an almost certain danger of such harm, and it does not even comply with less strict tests, such as a real fear or a reasonable possibility of such harm. The respondent’s desire to prevent the publication of criticism of the Prisons Service, or prison conditions, does not justify imposing a prior prohibition of any speech on these subjects. Even the concern for harm to the reputation of a prison warder, or a prisoner, does not justify imposing such a prohibition. This is particularly so in our case, in view of the appellant’s consent to restrict his writings solely to his impressions and experiences of prison life; his undertaking not to refer in his articles, personally, to any of the prison staff or prisoners; and his consent, ab initio, that the respondent may, at its sole discretion, not send to their destination any articles that breach any of these conditions. Counsel for the appellant also argued that, in the circumstances of the case, the appellant should be allowed to exercise also his right of freedom of occupation. Admittedly, as a rule, it is true that the imprisonment of a person prevents him from exercising his right to this freedom in the ordinary sense. However, the appellant merely asks to be allowed to send his writings for publication, whereas the work of writing will be carried out inside the prison. Therefore it is argued that the fact that the appellant is a prisoner requiring protection, or unsuited for rehabilitation programmes that are the only framework in which prisoners are able to work outside the prison, should not have any influence on the considerations leading to the decision on his request.

11. Counsel for the respondent argued that a prison sentence not only denies a person his freedom of movement and thereby restricts his ability to realize his right to personal liberty, but it also prevents him from being able to exercise other basic liberties that he has. Somewhat differently from its position before the trial court, the respondent conceded before us that the fact of imprisonment, in itself, does not deprive the prisoner of those basic liberties that he has, when the imprisonment does not necessitate his being deprived of them. Notwithstanding, it argued that the ability of a prisoner to realize these and other liberties should be restricted to the degree required in order to enable the respondent to carry out the duties imposed on it vis-à-vis the public: to protect the safety and security of all prisoners, to maintain order, discipline and security in the prisons; and to ensure the welfare and security of the staff and prison warders serving in the prisons. The appellant’s desire to publish articles in a newspaper is indeed based on his right to freedom of speech, but recognizing the appellant’s right to do this involves a danger of harm to the running of the prisons, the safety and security of other prisoners and the safety and security of staff and prison warders. Although the respondent recognizes the right of the appellant to express in writing his impressions from his stay in the prison, it regards it as its duty to prevent him from publishing these. Granting the appellant’s request will give him, vis-à-vis both prisoners and warders, a status of a ‘journalist’, and the great power embodied in such a special status may disrupt the discipline that must be maintained in the prison. There is also a fear that the appellant will write and publish things that may incite the prison population, cause disputes between prisoners, or endanger the safety or the reputation of prison warders and other prison staff.

Counsel for the respondent further argues that the appellant may exercise his right to correspond with addressees outside the prison only within the framework of the arrangements set out in the special law for the correspondence of prisoners — in other words, within the framework of the stipulated quota of letters to which he is entitled under section 47 of the Prisons Ordinance [New Version] (i.e., one every two months), the appellant may send letters also to various newspapers. The appellant is also entitled, like every prisoner, to put his claims in writing (against prison conditions) in applying to various official bodies: the courts, members of the Knesset and the State Comptroller. The respondent does concede that it is no longer the practice to enforce the permitted quota of prisoners’ letters, and that in practice they are permitted to write more than the quota (something which under regulation 19 of the Prisons Regulations, 5738-1978, constitutes one of the benefits that the director of the prison is authorized to allow some or all prisoners). But with regard to the appellant, who wishes to publish articles about prison life, the respondent intends to exercise its authority to the full. Under regulation 33 of the Prisons Regulations, the respondent is authorized to open and examine every item of mail sent by a prisoner and to prevent it being sent to its destination if it is found to contain information that is likely to harm prison security or discipline, or that makes it possible to identify a person, whether a prisoner or a warder, in circumstances in which such information may harm that person or the running of the prison. The respondent says that it is its intention to examine the appellant’s mail and it intends not to allow the sending of letters (or articles to newspapers) that include harmful information. Counsel for the respondent did clarify in his arguments that the respondent’s fears were aroused by the intention of the appellant to send articles to the newspapers about prison life; in other words, had the appellant asked for permission to send articles that he wrote to the newspaper on other subjects, it is most likely that the respondent would have seen no reason to deny him this.

The respondent further argues that even the appellant’s reliance on freedom of occupation cannot give him a right to receive the desired permit. The violation of freedom of occupation is necessitated by his very imprisonment and the conditions of his imprisonment. As a prisoner, the appellant can ask to be employed, but only within the framework of the accepted procedures for the employment of prisoners of his category. Publishing a regular column or articles in a newspaper, in return for payment, constitutes, de facto, working for payment outside the prison. The appellant is not entitled to claim for himself such a freedom of occupation; what is more, the appellant does not meet the suitability requirements for rehabilitation programmes, and it is only within the framework of these that prisoners may be allowed to work outside the prison.

A prisoner’s human rights

12. It is established law in Israel that basic human rights ‘survive’ even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law. As Justice Elon said in one case:

‘It is a major rule of ours that each one of a person’s human rights, as a human being, is retained by him even when he is under arrest or imprisoned, and the fact of imprisonment alone cannot deprive him of any right unless this is necessitated by, and derives from, the loss of his freedom of movement, or when there is an express provision of law to this effect…’ (HCJ 337/84 Hukma v. Minister of Interior [1], at p. 832).

See also the decision in CrimApp 3734/94 State of Israel v. Azazmi [2], at p. 81, also given by Vice-President Elon.

The basic assumption is that the human rights ‘package’ of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is ‘inherent’ to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law. Take the basic human right not to suffer physical harm without one’s consent, which was discussed by Justice Barak in HCJ 355/79 Katlan v. Prisons Service [3], at p. 298:

‘The right to physical integrity and human dignity is also a right of a person under arrest and a prisoner. Prison walls do not separate the prisoner from human dignity. Prison life naturally requires a violation of many liberties enjoyed by the free man… but prison life does not require someone under arrest to be denied his right to physical integrity and protection against a violation of his human dignity. A person under arrest is denied freedom; he is not deprived of his humanity. Performing an enema on a person under arrest without his consent and not for medical reasons violates his physical integrity, tramples his privacy and violates his dignity as a human being… therefore, in order that the prison authorities may perform an enema without the consent of the arrested person, and thereby justify the criminal offence and civil tort of assault, they must point to a provision of statute that allows them to do this.’

But the existence of a power is insufficient. As with any administrative decision, the decision of the authority in charge of prisoners must be reasonable and based on relevant considerations and logical reasons. In other words, even when an express provision of statute gives the authority to violate a human right of a prisoner, the authority may not make use of its power before it examines the matter and is persuaded that, in the circumstances of the particular case, there are real reasons that justify depriving a prisoner of his right or restricting it. Take a person’s human right to choose the type of medical treatment that the person thinks appropriate. This is a natural right that derives from the basic human right of a person to protect his physical and mental integrity and well-being. A person is not denied this right as a result of imprisonment; a violation of this right by the authority in charge of the prisons is possible and permissible only on the basis of an express provision of law and the existence of reasons that justify the violation. As Justice Elon said in PPA 4/82 State of Israel v. Tamir [4], at p. 206:

‘This basic right of a person to his physical and mental integrity and well-being and to choose the medical treatment that he thinks appropriate for preserving them is retained by a person even when he is under arrest or in prison, and the mere fact of imprisonment does not deprive him of any right unless this is necessitated by the actual loss of his freedom of movement, or when there is an express provision of law to this effect. Consequently, when the prison authorities wish to deny the person under arrest or the prisoner of this right, they have the burden of proving and justifying that denying this right is for good reasons and is based on law’ (emphasis supplied).

It is not superfluous to emphasize that suspending a prisoner’s ability to exercise any of his other liberties (except for his right to freedom of movement) is always relative, not absolute. This rule applies not only to those liberties that the prisoner can exercise without necessarily having freedom of movement, but also to those liberties that he can exercise only with this freedom. What is the significance of a prisoner also retaining a right of the latter kind? The significance is that the prisoner has an opportunity to argue that, within the framework of the restrictions required by the imprisonment, he should be allowed to exercise, if only in part, this right too. As an example, let us again consider the right of a person to choose the type of medical treatment he thinks appropriate. Even a prisoner has this right, and by virtue thereof he may prefer to receive medical advice and treatment other than those offered to him by the Prisons Service. But the imprisonment suspends his ability to realize this right, since he does not have freedom of movement. It follows that in practice, and as a rule, the prisoner will indeed be compelled to be satisfied with the medical treatment given to prisoners in the prison. However, suspending his ability to exercise the right of choice that he has is not absolute, but relative; in appropriate circumstances, his request, that he be allowed to exercise his right, is likely to be treated sympathetically. This is the case, for example, when the treatment requested by him is of a type that can be given to the prisoner even inside the prison, and there are no objective reasons that justify refusing him this (see State of Israel v. Tamir [4], at p. 213).

13. In determining the extent of the protection given to the human rights of a prisoner, we must take into account, in addition to the considerations concerning general or special interests, also considerations concerning the imprisonment and the duties imposed on the Prisons Service: the needs of guarding all the prisoners; maintaining order and discipline in the prisons; protecting the rights and safety of other prisoners; the education and rehabilitation needs of prisoners; protecting the safety and the rights of staff and prison warders in charge of running the prisons, and protecting the safety of the prisoners imprisoned in them. The extent of protection of a prisoner’s human rights derives from the necessary balance between the right and other interests, of the individual or the public, which in the circumstances of the case must be taken into account. The premise is that the right deserves protection and should be respected. Denying the right, restricting it or violating it are permitted only on the basis of objective reasons that have a basis in law. ‘The greater the right that is violated, the greater the reasons required to justify this violation’ (per Justice Elon in State of Israel v. Tamir [4], at p. 212). With regard to several basic human needs, which prisoners require, the tendency is not to permit any violation, and these needs include ‘not only the actual right of the prisoner to food, drink and sleep, but also minimal civilized human arrangements as to the manner of providing these needs’ (per Justice Elon in HCJ 114/86 Weil v. State of Israel [5], at p. 492); see also what was said in State of Israel v. Azazmi [2], at p. 82). Everyone agrees that ‘a person in Israel, who has been imprisoned (or arrested lawfully), has the right to be imprisoned in conditions that allow civilized human life’ (per Vice-President H. Cohn in HCJ 221/80 Darwish v. Prisons Service [6], at p. 538); only ‘very serious reasons’ (in the words of Justice Y. Kahan, ibid., at p. 542), such as the need to prevent a real danger to human life, may justify any deviation from the right to prison conditions that are considered essential. This is what happened in Darwish v. Prisons Service [6]: the decision of the Prisons Service that security prisoners should not be given beds but only improved mattresses was explained on account of the fear that they would dismantle the beds and use parts of them to harm warders and other prisoners. When it was ascertained that the fear was a real one and was based on past experience, the majority opinion saw no cause to intervene in the correctness of the decision. Notwithstanding, they ordered an investigation to be made for the purpose of ‘improving, in so far as possible, the quality of the sleeping arrangements of those prisoners whom the Prisons Service was compelled to deprive of their beds’ (per Justice Elon, ibid., at p. 546).

It follows that in determining the extent of the protection given to the human rights of the prisoner, the nature of the violated right is important, and ‘classifying the right according to the aforesaid criterion depends, to a considerable extent, on the attitude of society as to the character and fundamental nature of that right’ (per Justice Elon in Weil v. State of Israel [5], at p. 492). The premise is that a prisoner is entitled to the protection of all of his human rights; a violation of a prisoner’s human right, by the authority in charge of the prison, is lawful only if it complies with the authority test and the test of the proper balance between it and the legitimate interests entrusted to the authority. However, the more important and central the right being violated, the greater the weight it will be given within the framework of the balance between it and the conflicting interests of the authority. This approach has always guided our decisions. Today, after human rights in Israel have been enshrined in Basic Laws that have a super-legislative constitutional status, we have a greater duty to ensure, even more than in the past, that the human rights of prisoners are respected. Recognition of the constitutional status of human rights requires their practical application in their living conditions. Recognition of their role in ensuring this must guide all the organs of government. The courts have, in this context, a central role. As President Shamgar said in CA 5942/92 A v. B [7], at p. 842:

‘The constitutional message does not focus on the declaration of the existence of a basic right, but on the essence, degree and content of the realization of the right de facto.

Human dignity will not be guaranteed by speaking of it but by giving a real and tangible expression to its protection. In this, an important role is played by the courts that in their decisions must ensure de facto protection of human dignity, of equality, which is one of the elements of human dignity, and the protection of those persons who are unable to protect their dignity without the help of the courts.’

We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation (see CrimApp 7223/95 [8], per Justice Or). Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights. The remarks of Justice Barak in HCJ 540/84 Yosef v. Governor of Central Prison in Judaea and Samaria [9] are apt in this regard:

‘Indeed, imprisonment by its very nature necessitates a loss of freedom, but it cannot by its very nature justify a violation of human dignity. It is possible to have imprisonment that maintains the human dignity of the prisoner. The prison walls should not separate the prisoner from humanity… a prison may not become a concentration camp, and a prisoner’s cell may not become a cage. Notwithstanding all the difficulties involved, a civilized society must preserve a minimum human standard for prison conditions. It would be inhuman of us not to ensure a human standard for prisoners in our society. The objectives of criminal sentences cannot be achieved by violating the dignity and humanity of the prisoner.’

            Freedom of speech of a prisoner

14. Freedom of speech is numbered among the basic liberties in Israel. Recognition of the status of freedom of speech as a basic right was established in Israel long before the enactment of the Basic Law: Human Dignity and Liberty. In HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [10], Justice Agranat gave freedom of speech the honorary title of a ‘supreme right’ (ibid., at p. 878 {97}). Since this important ruling was given, the ‘freedom of speech is an integral part of our legal ethos’ (per Justice Barak in CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [11], at p. 201). The source from which this recognition sprang was case-law: it is one of the ‘basic rights that are “unwritten”, but which derive directly from the character of our State as a democratic State that aspires to freedom’ (per Justice Landau in HCJ 243/62 Israel Filming Studios Ltd v. Geri [12], at p. 2415 {216}). Later, however, Justice Shamgar emphasized that the character of freedom of speech ‘as one of the constitutional basic rights gives it a supreme status in law’ (CA 723/74 HaAretz Newspaper Publishing Ltd v. Israel Electric Co. Ltd [13], at p. 295 {243}). The Basic Law: Human Dignity and Liberty enshrined the case-law recognition of the constitutional status of freedom of speech. An express opinion to this effect was stated by Vice-President Barak in HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner [14] (see his remarks at p. 468 {336}); the same, I think, can be seen in the opinion of President Shamgar in HCJ 6218/93 Cohen v. Israel Bar Association [15]. This, with respect, is also my opinion. Admittedly, the Basic Law: Human Dignity and Liberty does not mention freedom of speech, nor does it define it expressly as a basic right. But this is immaterial: even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?

15. The constitutional basic right of freedom of speech is not taken away from someone when he is imprisoned; a prisoner has it even in his prison cell. As Justice Marshall rightly said (in Procunier v. Martinez (1974) [35], at p. 422): ‘A prisoner does not shed such basic First Amendment rights at the prison gate’. Notwithstanding, it is clear that imprisonment very significantly restricts the ability of the prisoner to exercise his freedom of speech, and the freedom of speech given to him is, in practice, much more restricted than the freedom of speech of a free citizen. Some of the restrictions on a prisoner’s freedom of speech are ‘inherent’ to the imprisonment. Exercising the right of freedom of speech is largely dependent on freedom of movement. Imprisonment distances the prisoner from the society in which he lived. Thus, he is deprived of the possibility of hearing and being heard by those persons or circles with whom he wishes to be in contact in order to exercise his freedom of speech. As a result of the imprisonment, he is also deprived of additional avenues of expression which he could have chosen and developed had he not been imprisoned. The prisoner has no protection against this restriction of his ability to realize in full his freedom of speech. The imprisonment to which he has been sentenced is intended to achieve sentencing objectives: to protect society from him, to deter him from further criminal acts, to reform him and rehabilitate him, and to deter also potential criminals. His removal from society, which results also in a reduction in the prisoner’s ability to realize his right of freedom of speech, is one of the main purposes of the imprisonment; moreover, this distancing is often essential also for achieving its rehabilitative objectives.

But the prisoner’s ability to exercise his freedom of speech is subject also to restrictions whose purpose is to further other unique interests, which are concerned with the proper management of the prisons: achieving the purposes of the imprisonment, maintaining security, order and discipline in the prison, protecting the safety of the prisoners and protecting the safety of prison staff and warders, etc.. These interests are also a part of imprisonment and derive from it, and protecting these also requires imposing restrictions on prisoners’ freedom of speech. These restrictions, which are the product of a deliberate decision of the authority in charge of managing the prisons, make further inroads on the prisoner’s (eroded) freedom of speech; these, to a larger extent than that required by his imprisonment and his loss of freedom of movement, change the normal balance to his detriment. Consider: the ‘normal’ protection of freedom of speech derives, of course, from the balance between the basic right of the individual to exercise this freedom and interests that are essential to society, such as national security and public safety, and other general and important values that the State is required to protect (see A. Barak, ‘Freedom of Speech and its Restrictions’, 40 Hapraklit (1991-92) 5, 13 et seq.); it should also be recalled that, in view of the importance and centrality of freedom of speech, the tendency is usually only to restrict it on the basis of a probability on the level of ‘near certainty’ that exercising the right may cause real harm to an essential interest of the State and the public. A violation of freedom of speech, which properly upholds this balance, is considered and accepted as permissible. This rule, which applies to all citizens, applies obviously also to prisoners. But the freedom of speech of prisoners suffers in two more ways; this is because in determining the extent of the protection of the prisoner’s right to freedom of speech we take into account — in addition to the normal protected interests — not only those restrictions that are a direct consequence of the actual imprisonment and the loss of freedom of movement, but also restrictions intended to further special interests involved in the proper management of the prisons. The additional restrictions imposed on prisoners’ freedom of speech are intended to assist the authorities in charge of the prisons in achieving these goals. The key question, in any decision in this matter, is, what are the proper limits of these restrictions? The question is merely a question of the proper balance between conflicting legitimate interests. How is this balance to be made? It is obvious that applying the norm in this field, as in any other field, is a matter for a decision based on judicial discretion. But what are the criteria for exercising discretion? And when will we say that a restriction on the freedom of speech of a prisoner is ‘reasonable’ in that it satisfies the balancing test?

A comparative perspective

16. The case-law of the United States Supreme Court has formulated, in this matter, several guidelines. Let us consider, in brief, the main points. Some of these may be of assistance to us.

The premise in American law — just like the accepted approach in Israel — is that prisoners, too, enjoy all constitutional rights; if the violation imposed on the constitutional right of a prisoner is unlawful, the prisoner is entitled, like any ‘normal’ citizen, to protection of his right. This was stated in one case as follows:

‘A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law. While the law does take his liberty and imposes a duty of servitude and observance of discipline for his regulation and that of other prisoners, it does not deny his right to personal security against unlawful invasion’ (Coffin v. Reichard (1944) [36], at p. 445).

This conceptual approach has guided the courts also with regard to the issue of prisoners’ freedom of speech. But in the field of implementation, various approaches have appeared, some stricter and other more lenient. The strict approach has recognized a wide variety of interests that may establish a justification for imposing restrictions on this freedom. A concise summary of such interests, which apparently represents the stricter approach, can be found in the judgment of the Court of Appeals in Brown v. Peyton (1971) [37]. In that case, Justice Winter said, at p. 1231:

‘… in the case of prisoners incarcerated under lawful process, there are state interests to justify repression or restriction of First Amendment rights beyond the interests which might justify restrictions upon unincarcerated citizens. Prison officials have to confine dangerous men in unpleasant circumstances. They must protect the public at large, prison employees, and also other prisoners, who are almost totally dependent on the prison for their well being. Prison authorities have a legitimate interest in the rehabilitation of prisoners, and may legitimately restrict freedoms in order to further this interest, where a coherent, consistently-applied program of rehabilitation exists. Furthermore, many restrictions on First Amendment rights are undoubtedly justifiable as part of the punitive regimen of a prison: confinement itself, for example, prevents unlimited communication with the outside world but is permissible in order to punish and deter crime; additional restrictions may be imposed as part of the system of punishing misbehavior within prison. Finally, the state has an interest in reducing the burden and expense of administration. It may, for example, place reasonable restrictions on the number of publications received by each inmate in order to limit the burden of examining incoming materials. But the fact that interests of these sorts frequently arise does not excuse the necessity of a showing that they exist in particular cases.’

In several later cases, the United States Supreme Court examined the question whether regulations or administrative rules, which impose restrictions on prisoners’ freedom of speech, pass the test of constitutionality; in a few of these judgments, several criteria for deciding cases were established. In Procunier v. Martinez [35], which considered the constitutionality of censoring correspondence between prisoners and parties outside the prison, two conditions were laid down for permitting the violation: first, that the violation is necessary for furthering an important and substantial interest of the State, which is unrelated to the restriction of the freedom of speech; and second, that the extent of the violation of freedom of speech does not exceed the degree required to further the purpose for which it was imposed. In the words of Justice Powell, at pp. 413-414:

‘Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or the practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above.’

The case of Pell v. Procunier (1974) [38], which was considered soon after Procunier v. Martinez [35], examined the constitutionality of the prohibition imposed on prisoners against being interviewed by the media. In this case, the court recognized the existence of additional grounds for permitting the violation of prisoners’ freedom of speech. The rule set out stated that —

‘A prison inmate retains those First Amendment rights that are not inconsistent with his status as prisoner or with the legitimate penological objectives of the corrections system, and here the restrictions on inmates’ free speech rights must be balanced against the State’s legitimate interest in confining prisoners to deter crime, to protect society by quarantining criminal offenders for a period during which rehabilitative procedures can be applied, and to maintain the internal security of penal institutions’ (ibid., at pp. 817-818).

What can be seen from a comparison of the two tests, in brief, is the following: according to each of the approaches a proper balance is required between the freedom of speech and the conflicting protected interest. The difference between them lies in the definition of the nature of the protected interests: are considerations of security, order and discipline or the rehabilitation of the prisoners the only ones that constitute ‘an important or substantial governmental interest’, which are capable of justifying imposing restrictions on the freedom of speech of a prisoner, or are interests arising from all the penological and criminal rehabilitation needs or involved in the needs of the proper management of the prisons (‘legitimate penological objectives of the corrections system’) capable of justifying imposing such restrictions? This issue was considered once again in Jones v. North Carolina Prisoners’ Union (1977) [39], which concerned the constitutionality of the prohibition imposed on meetings of the ‘Prisoners’ Union’, prisoners joining this union and correspondence between them and it; and in Bell v. Wolfish (1979) [40], which concerned the restriction of the right of prisoners to receive hard-cover books if these were not sent to them directly by the publisher or the book club.

The decision as to the proper test was given in Turner v. Safley (1987) [41], in which it was held (per Justice O’Connor) that the test of the constitutionality of the violation of a prisoner’s freedom of speech is whether it is ‘reasonably related to legitimate penological interests’ (see ibid., at p. 89). Relying on a synthesis of the previous case-law, this judgment delineated four main criteria, by means of which the constitutionality of the violation of a prisoner’s human right should be examined (see ibid., at pp. 89-92). For the sake of brevity, I will satisfy myself by quoting the brief synopsis of the remarks from the book of J. W. Palmer, Constitutional Rights of Prisoners (Cincinnati, 4th ed., 1991), at p. 37:

‘… (a) whether there is a “valid, rational connection” between the regulation and a legitimate and neutral government interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; (b) whether there are alternative means of exercising the asserted constitutional rights that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials’ expertise; (c) whether and the extent to which accommodation of the asserted right will have impact on prison staff, on inmates’ liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to corrections officials; and (d) whether the regulation represents an ‘exaggerated response’ to prison concerns, the existence of a ready alternative that fully accommodates the prisoner’s rights at de minimis costs to valid penological interests being evidence of unreasonableness.’

The ‘rational connection’ test between the restriction imposed on the freedom of speech and legitimate goals in the field of the treatment of offenders and the proper administration of the prisons, which was delineated in Turner v. Safley [41], was adopted by the court in additional judgments (see, mainly, Justice Blackmun’s opinion in Thornburgh v. Abbot (1989) [42], in which it was held that a practice authorizing the prison authorities not to deliver to prisoners publications that were received for them, if they thought that the publications endangered the security of the prison, prima facie stood up to the constitutionality test.

The prisoner’s freedom of speech and the problems faced by the authorities

17. The penalty of imprisonment, which exists in Israel, and the method in which imprisonment is carried out de facto, are different from the ‘corrections system’ practised in the United States. But among the problems that concern the authorities in charge of the treatment of prisoners and the management of the prisons, in Israel and in the United States, there are also quite a few similar issues. There is no difficulty in determining that maintaining order and discipline in the prisons constitutes a legitimate interest of every State. This is certainly also the case in Israel. In so far as something is indeed required to prevent a danger to order and discipline in the prisons, this is sufficient to serve as a ground for restricting the freedom of speech of (some or all) prisoners. Also the need to rehabilitate prisoners — where the success of a rehabilitation programme depends on this — may prima facie justify imposing a similar restriction. With regard to all of these, we can find support, inter alia, in the ruling given in Procunier v. Martinez [35]. But I am prepared to accept that not only maintaining order and discipline in the prisons, but also other considerations deriving from the needs of ‘proper management’, in its wider sense, may sometimes justify imposing certain restrictions. Assuming this premise, and adapting the other elements accordingly, we can avail ourselves also of the criteria established in Turner v. Safley [41]. In this spirit, we can summarize that in order to justify a violation of a prisoner’s freedom of speech (and any other basic right), it is insufficient to show the existence of a conflicting interest that justifies a violation, nor even the existence of a regulation that permits a violation of the right, but it must also be shown that between the provision that allows the violation and the conflicting interest — on account of which it is proposed to violate the right — there is a logical connection and objective proximity. Remoteness or vagueness of the connection are a sign that the violation is unjustified. We must also consider specific questions of balance and proportion: does the extent of the violation of the right exceed the degree necessary for achieving the legitimate purpose that requires the violation? Does the provision that causes the violation leave the prisoner with alternative ways of enjoying his right, or what remains of it? Can the Prisons Service, by adopting reasonable steps within the framework of its limited resources, avoid or reduce the violation? The answer to each of these questions is likely to influence the decision on the question whether the statutory arrangement that allows the violation reflects a correct and proper balance.

Notwithstanding, it is important to emphasize that these rules are only guidelines. They are based on certain assumptions with regard to all the ethical questions that underlie them. They do not determine the weight that should be given to each of the conflicting interests. They do not determine the balancing point at which we should draw the line distinguishing between a permissible violation and a prohibited violation of a prisoner’s human right. The definition of the balancing point is not a matter for a technical decision, but for a judicial decision. This determination is the result of a value decision, based on considerations of social policy. Within the framework of its decision, the court is called upon to determine the relative weight of each of the conflicting interests and to mark the proper balancing point between them. The weight of the conflicting interests is not constant, and even the balance between them is liable to change. What was once correct and accepted is not necessarily correct now as well; and not everything that is acceptable to us and accords with our outlook is likely to be accepted and correct in a decade or two. We can illustrate this with an example from the past. Consider the right of prisoners to participate in elections for the Knesset. A petition to enable prisoners to exercise this important basic right was brought before the court at the end of the 1950s, but was denied on the ground that ‘it is inconceivable that this should be possible from a practical viewpoint, in view of the number of persons in the prisons, and the police forces that will be required for an operation of this kind…’ (HCJ 215/59 Geller v. Minister of Interior [16], at p. 1704). But another petition on the same issue, which was filed approximately twenty years later, resulted in a reversal. Admittedly, even on this occasion the court could not see a practical possibility of granting the relief sought by the petitioners; but this time it decided and clarified that the legislator and the authorities in charge of implementation should prepare themselves at an early date, from a statutory and administrative viewpoint, in order to enable prisoners and arrestees to exercise their right to vote (Hukma v. Minister of Interior [1]). And so, as a result of this judgment, the Knesset Elections Law (Amendment No.17), 5746-1986, was enacted, and this provides an arrangement that enables prisoners and persons under arrest to exercise their right to vote. This is a clear example of a change in ethical approach, which changed the relative weight of the conflicting interests and delineated a new balancing point between them (see the remarks of Justice Elon in Weil v. State of Israel [5], at pp. 492-493).

18. When balancing a basic right of a prisoner against a conflicting interest of the Prisons Service, the proper relative weight should be given to both side of the equation. The greater and the more important the right, the greater and more important must be the opposing interest that is required to overcome it. But the conflict is not always or necessarily symmetrical. Sometimes it will transpire that upholding the right of the prisoner is also beneficial to the public interest. Once again, consider the ability of prisoners to exercise their right to vote. No-one disputes that that this ability realizes an important part of freedom of speech. But the exercise of this right by the prisoner also furthers the goal of rehabilitation, from which not only the prisoner is likely to benefit, but also society. As Justice Elon said in State of Israel v. Tamir [4], at p. 212:

‘Not violating the rights of the prisoner, which he had before he was deprived of his freedom of movement, is in the interests of the prisoner, in order to preserve, in so far as possible, the connection between him and free society, from which he came and from which he is temporarily separated, by the prison walls; it is also in the interests of society, in order to further, in so far as possible, the rehabilitation of the prisoner and thereby to facilitate his return and reintegration into society, of which, even while he is in prison, he is a part.’

It need not be said that the rehabilitation of prisoners is also one of the legitimate interests entrusted to the Prisons Service. It follows that protecting the ability of the prisoner to exercise his right is not always or necessarily in direct conflict with these interests. But let us not ignore the main point: the main significance in recognizing the ability of the prisoner to exercise his right of choice lies in preserving the basic value of human dignity.

19. Let us return to basic principles. Protecting the freedom of speech, as part of human dignity, is the main guarantee for safeguarding the individual’s intellectual freedom. Within the framework of freedom of speech, man realizes his desires and aspirations that are part of his nature and that reflect his intellectual freedom: to be educated and acquire knowledge, to be involved in communal life, to hear the opinions of others and express his own views. Imprisonment denies the individual his freedom of movement, thereby imposing a serious restriction, not merely on his basic right to personal liberty, but on the practical ability to realize his intellectual freedom as he sees fit. Admittedly, imprisonment has no access to the inner sanctum of intellectual freedom — the ability of the prisoner to think, believe, and preserve his humanity. However, as we have already said (in paragraph 15 above), the ability of the prisoner to exercise his right to freedom of speech is far more restricted and limited than the ability of the free citizen. The (restricted) freedom of speech enjoyed by the prisoner should therefore be given the widest protection possible.

This approach is clearly reflected in case-law. Consider HCJ 144/74 Livneh v. Prisons Service [17]. In that case, the court set aside the decision of the prison governor not to allow (the petitioner in that case) to bring into the prison the writings of Marx, Engels, Lenin and Mao Tse-Tung. The governor based his decision on the fear that bringing these books into the prison would incite political arguments between the prisoners. In setting aside this ground, Justice H. Cohn said:

‘We commend the prison governor for being continually mindful of keeping the peace inside the prison. But it has never been said that in order to “keep the peace” he may prevent arguments between the prisoners, and this includes political arguments; as long as discipline and order are maintained in the prison, the prisoners may argue among themselves on any subject that they choose; and if discipline and order are breached, those who commit the breach will have to answer for their breach, but they should not have to answer for the subject of their argument’ (ibid., at p. 689).

Further on, at p. 690, he added:

‘The prison governor has not been given authority to prohibit bringing books into the prison in order that he may choose, according to his taste, what a certain prisoner ought to read and what he ought not to read.’

It is still clear and obvious that the Prisons service has the power to prevent bringing books into the prison. What then is the criterion for deciding when he may exercise this power? This issue was answered by the court in HCJ 543/76 Frankel v. Prisons Service [18]. This petition challenged a decision of the prison governor not to allow two books to be brought in. The court saw no reason to interfere with the decision with regard to one of the books, which was found to contain inciting material. This was not the case with regard to the second book. The decision to forbid this book also was set aside. Vice-President Justice Landau, explained the distinction, and to establish the test he availed himself of the decision of the court in Livneh v. Prisons Service [17], which set aside a decision of the prison governor not to allow the writings of Marx, Engels, Lenin and Mao Tse-Tung to be brought into the prison. The following are the remarks of Justice Landau in Frankel v. Prisons Service [18], at p. 209:

‘Indeed, these writings urge revolution, but reading them does not amount to a near-certain danger to the peace that this court determined as the criterion in the leading decision of Justice Agranat in HCJ 73/53, Kol HaAm v. Minister of Interior. This test can also guide the governors of the prisons with regard to the inflammatory character of literary material. But what was said there about keeping the peace in general should be translated here into a test of keeping the peace, order and discipline inside the prisons, with the special problems with which the prisons administrators must contend’ (emphasis supplied).

In Frankel v. Prisons Service [18], as stated, the court saw no grounds for intervention in the decision of the prison governor not to allow a book with inflammatory material to be brought into the prison. ‘In the tense conditions that prevail in the prison’ — the judgment says, at page 209 — ‘a spark is sometimes sufficient to ignite passions to the point of a violent outburst, and words written in “black and white”, more than the spoken words of cellmates, have their own power of persuasion that can lead to the enflaming of passions’. Once the book was found to contain inflammatory material, the court thought that the prison governor had broad discretion to act within the framework of his authority. It should be said that also in other cases where the court decided not to intervene in decisions that harmed the education or entertainment needs of prisoners, the decision was based on the recognition of the existence of security considerations. Thus, for example, in HCJ 96/80 Almalabi v. Prisons Service [19], no fault was found with a decision of the Prisons Service to prohibit prisoners convicted of security offences from having transistor radios. The reasoning underlying this decision was that a transistor radio in the possession of a prisoner convicted of a security offence could be used for transmitting broadcasts and messages that could lead to a breach of order and security inside the prison. The court saw no reason to intervene in the correctness of this consideration.

It follows that the prison authorities have the means that can impose restrictions on some possible expressions of intellectual freedom, but they are allowed to do this, usually and mainly, when there is a near certainty of real harm to public safety, or real harm to keeping the peace, order and discipline inside the prison. It is admittedly possible that, in the process of weighing up the matter, weight will also be given to other interests, which do not derive from security considerations or the need to maintain order and discipline, but which are concerned with the need for proper administration of the prisons in the broad sense (such as administrational efficiency, economy of resources, etc.). But taking into account the importance and centrality of freedom of speech, the relative weight of these additional interests is not great. In general, these alone will be insufficient to deny the right, and they may be considered only in determining the degree to which the prisoner will be allowed to exercise his right.

It need not be said that even when an authority has a solid reason for restricting the freedom of speech of a prisoner — i.e., when there is a real likelihood that the speech will harm public safety or endanger order and discipline in the prison — the authorities must still comply with the proportionality test, and may not violate the right of the prisoner more than is necessary to forestall the risk. The authority must remember that a violation of the freedom of speech of a prisoner is always a further violation, and it is particularly enjoined to resist the temptation of exercising its power unnecessarily or to an unnecessary degree. When it considers making use of this power, the person in authority in the Prisons Service would do well to be mindful of the remarks of Justice H. Cohn in Livneh v. Prisons Service [17], at p. 690:

‘… many evils, which are necessarily involved in prison life, are added to the loss of liberty. But let us not add to the necessary evils, which cannot be prevented, restrictions and violations that are unnecessary and unjustified. The powers given to prison governors to maintain order and discipline must be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without real justification.’

Freedom of speech in writing and publication

20. Writing is one of the more basic forms of speech. As Justice Holmes said:

‘… the use of mail is almost as much a part of free speech as the right to use our tongues… ’ (Milwaukee Pub. Co. v. Burleson (1921) [43], at p. 437).

Naturally, prisoners also have the right to express themselves in writing. The most common form is in the correspondence that the prisoner is entitled to have with his relations and friends. Our case-law has not yet considered the question of the right of a prisoner to express himself in the written media. But I see no reason to distinguish between this form of expression and other modes of expression available to the prisoner. The accepted criteria for restricting the freedom of speech of a prisoner are also appropriate for this form of expression. Note than I am not addressing the question whether prisoners should be allowed free and uncensored access to the media. Nor am I addressing the question whether the media should be allowed free and uncensored access to prisoners. I am considering only one possible channel of all the possible channels of communication between prisoners and the media: the right of the prisoner to send from the prison to a newspaper editor (or another branch of the media) a letter or an article intended for publication, when the prisoner does this in the same way and within the framework of the same restrictions subject to which he is allowed to send other letters.

We should point out that in the United States there is no doubt as to the right of the prisoner to write to the newspapers and even to write critically of the prison authorities and prison conditions. Moreover, the accepted approach there is that criticism of a prisoner about his prison conditions not only upholds the right of the prisoner to express himself publicly (through the media) about a matter that concerns him, but also the right of the public to know about what happens in State prisons, since what happens in the prisons is not open for inspection, and because of the natural tendency of the authorities that administer the prisons to hide from the public even their good intentions to improve the conditions that prevail there. A statement of this approach can be found in the remarks of the Court of Appeals in Nolan v. Fitzpatrick (1971) [44], at pp. 547-548:

‘We need not adopt the broad principle that a prisoner retains all First Amendment rights to conclude, as we do, that he retains the right to send letters to the press concerning prison matters. In so concluding, we rely primarily on the fact that the condition of our prisons is an important matter of public policy as to which prisoners are, with their wardens, peculiarly interested and peculiarly knowledgeable. The argument that the prisoner has the right to communicate his grievances to the press and, through the press, to the public is thus buttressed by the invisibility of prisons to the press and the public: the prisoners’ right to speak is enhanced by the right of the public to hear. This does not depend upon a determination that wardens are unsympathetic to the need to improve prison conditions. But even a warden who pushes aggressively for reforms or larger appropriations within his department and before appropriate officials and legislative committees may understandably not feel it prudent to push for more public laundering of institutional linen.’

The court was aware of the argument that publishing the letters of prisoners in newspapers, when the letters contained particularly harsh criticism of prison conditions, was liable to stir up passions among the prison population and create a near-certain danger of a violent outburst and a breach of prison security. In its response to this argument, the court went so far as to say that the way to deal with such an extreme danger was to prohibit bringing into the prison the issue of the newspaper that contains the dangerous publication, and not by refusing ab initio to send it for publication. As the court said, at p. 549:

‘The most that can reasonably be said is that, depending upon conditions in the prison when the letter or news story based on it returns to the prison, some particularly inflammatory letters may create a “clear and present danger” of violence or breach of security. In that extreme case, prison officials can cope with the situation by refusing to admit the dangerous issue of the newspaper to the prison rather than by refusing to mail the letter at the first instance.’

The authority may not censor a letter of a prisoner because its contents are uncomplimentary to the prison authorities, or even contain factually inaccurate information. This, it will be remembered, was discussed by the court in Procunier v. Martinez [35], at p. 413:

‘Prison officials may not censor prisoner correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements.’

Also in Pell v. Procunier [38] the court considered the broad right of a prisoner to send letters to the media. In Pell v. Procunier [38], the court found no defect of unconstitutionality in the regulation prohibiting prisoners from conducting face-to-face media interviews, but the prohibition was recognized as reasonable in view of the opportunity available to prisoners to write to the media, a method that was less burdensome than allowing newspaper journalists into the prison (see ibid., at p. 424).

Furthermore, counsel for the appellant argued that, according to the practice in force in Canada, prisoners are allowed to publish their writings in the press. As proof of this contention, he presented to us a series of eight items, written by a prisoner, which were published over a period of approximately two months in The Globe and Mail, which is published in Toronto. The contents of the articles (entitled ‘Life in Prison’) are a harsh criticism of the rehabilitation policy of the authority in charge of administering the prisons and of the effect of this policy on the lives of prisoners.

From the general to the specific

21. The appellant wishes to exercise his right of freedom of speech by publishing his writings in a local newspaper distributed in Netanya. The respondent, the Prisons Service, opposes the application. Do the considerations, upon which the respondent relies in its opposition, reveal a justification for preventing the appellant from publishing his articles in the newspaper? I believe that the answer to this question is no. Let us first say that the appellant admits that the respondent has the authority to hold back and not to send any article to its destination, if its publication (in the respondent’s opinion) may harm the running of the prison, the security of the prison warders or prisoners, or even the reputation of any of them. Moreover, in order to satisfy the respondent in this regard, the appellant undertook not to say anything in his articles about any member of the prison staff, warders and prisoners, but to focus solely on a description of his life and experiences. In these circumstances, we are not required to decide that the appellant’s freedom of speech gives him a right to write in the press about the running of the prison and the life of prisoners as he sees fit. We are also not required to consider the question whether the interest embodied in the public’s right to know about prison conditions and what happens inside the prisons justifies restricting the authority and power of the respondent not to send a letter or article of a prisoner for publication merely for the reason that it contains criticism of prison conditions or of the Prisons Service. These questions deal with related issues from the field of freedom of speech: does the public’s right to know about what is happening in the prisons justify reducing the restrictions placed on the freedom of speech of prisoners? Does upholding the public’s right imply that the media should be given freer access to prisons and the possibility of communicating with the prisoners? These questions, which are significant in themselves, do not arise in this case and can therefore be left undecided. In order to decide the appeal, we may assume that the respondent has full authority not to send an article to a newspaper, if it believes that its publication may harm public security, the running and discipline of the prison and even the reputation of prison staff, a warder or a prisoner. The appellant has agreed to these assumptions, thereby defining the question that requires our decision in his appeal.

22. What, then, is the nature of the respondent’s opposition? Why does it interest him whether the appellant is allowed to send articles to the local newspaper, in the same way that he may send letters to whomsoever he wishes, and to describe in his articles (in the way that he can and is entitled to do in his letters) his life and experiences in the prison?

The respondent’s position is complex. On the one hand, it does not question the right of the appellant to write letters to the newspaper; and if the newspaper decides to do so, it can publish the appellant’s letters in the form of articles; however, the respondent says that the appellant is entitled to do this only within the framework of the quota of letters to which he is entitled under section 47 of the Prisons Ordinance [New Version] (i.e., sending one letter every two months). On the other hand, the respondent admits that as a rule it no longer enforces the quota of letters that prisoners may send. But it intends to enforce this with regard to the appellant. Its reason for this distinction is that in his writings the appellant intends to describe his life in the prison. Were it not for this, the respondent candidly says, it would see no reason to treat the appellant more strictly with regard to the quota of letters. According to the respondent, if the appellant wishes to write about general matters, it can and is prepared to treat him more liberally. In other words, the main reason for refusing the appellant’s request to be allowed to send his writings to the newspaper is not the writing itself, but the content of the writing. The respondent’s position is based on the fear that publication of articles on prison life will undermine the running of the prisons, cause a breach of discipline and endanger the safety and security of the staff and warders. The respondent sees reason for concern that the publication of articles about the appellant’s life in the prison will result in him being regarded by prison warders and prisoners as having the status of a journalist. Thus he would acquire power not enjoyed by other prisoners. This phenomenon would undermine discipline. It also believes that there is a fear that the appellant’s articles would stir up the prisoners and cause strife between them and the prison staff or amongst themselves. The appellant’s argument that the respondent can allay all these concerns by virtue of its authority to censor and disqualify written material that the prisoners send from the prison is dismissed by the respondent with the response that the task of examining the articles falls outside its duties and that doing this is, from its point of view, wholly impossible.

23. I cannot accept the respondent’s position. Had it based its position solely on the provisions of section 47 of the Prisons Ordinance [New Version], which determines the quota of letters that a prisoner is allowed, we would be required to interpret this provision in order to examine whether the prisoner’s right to correspond with the media is also limited to the same miniscule quota stipulated in the section (sending one letter every two months). However, the respondent admitted that the letter quota of prisoners is no longer strictly enforced. Already in HCJ 157/75 [20] it was stated that the respondent no longer acts de facto in accordance with the provisions of section 47, but ‘allows prisoners to write one letter every two weeks’. If the respondent does not even enforce this quota, it can only be commended for this. But the respondent cannot be allowed to make the argument that it does not enforce the letter quota for most prisoners, but it intends to enforce it vis-à-vis the appellant, and this not necessarily because of the appellant’s desire and request to send articles that he writes to a newspaper editor, but merely because he intends to devote his articles to describing his life in the prison. There is nothing improper in the subject of the letters; and if the appellant does indeed abide by his declaration that he will devote his articles merely to his own life and experiences and will not write about specific prison officials or prisoners, it is difficult to see how publication of his remarks can arouse a fear of undermining the running and discipline of the prison, the reputation of the staff or any prisoner. However, the respondent does not trust the appellant to keep his promise to act as he undertakes and declares he will act. I have no difficulty in understanding this. The respondent is neither expected nor required to rely upon the appellant’s word. It has clear authority — and no-one in this case disputes the validity of its authority — to examine and censor the appellant’s articles, and if it discovers that the contents of a particular article pose a danger, on the level of near certainty, to order or discipline, it can withhold the article and prevent it from being sent. The respondent says that this task falls outside its duties and that in practice it cannot perform it. I do not believe that the respondent may make the argument that examining the articles falls outside the scope of its duties, since the authority given to it under regulation 33 of the Prisons Regulations — ‘to open and examine any letter and any other document of a prisoner’ — shows that its duties include also the examination of such articles. Therefore I cannot agree with the learned judge that granting the application of the appellant will give him ‘free access to the media’, thereby ‘enabling him to acquire considerable power’. Subjecting the letters to the prior censorship of the respondent rules out the possibility that the appellant will have free access to any branch of the media. Under such conditions, there is no real basis for concern that the appellant will be able to ‘acquire power’.

24. I could, perhaps, have understood the respondent’s position had it been satisfied with the argument that a limit should be placed on the length or number of the articles that the appellant should be allowed to send to the newspaper. It is not for nothing that the respondent says that there it sees no practical possibility of examining the articles. This is simply because, in view of the many and burdensome tasks that the Prisons Service is required to carry out, the means available to it for censoring the letters of prisoners are not unlimited. It is also conceivable that sending an article intended for publication in a newspaper may justify, from the respondent’s viewpoint, more detailed consideration that that devoted to the ordinary letter. The need to examine long articles, or to do so on a frequent basis, is likely to be difficult for those concerned, and if the burden becomes too heavy, their ability to carry out their other duties properly will be affected. This difficulty raises a common problem: often the authorities face the difficult of finding the resources required by it in order to comply with its duty to uphold basic human rights. But even when the argument is expressly made, it is not usually given much weight. Not long ago I had the opportunity of addressing this question (in HCJ 4541/94 Miller v. Minister of Defence [21], at p. 113 {197}):

‘I do not think that I need to dwell on these additional reasons, which have in common the unsurprising revelation that the absorption of women will necessitate the investment of additional financial resources. This is not because no approximate valuation of the size of the additional investment required was appended to this argument; nor even because budgetary considerations, in themselves, are unimportant; but because the relative weight of such considerations, in making an executive decision, is measured and determined when balanced against other considerations (see HCJ 3627/92 Israel Fruit Growers Organization Ltd v. Government of Israel, at pp. 391-392, and the references cited there). In any event, when we are concerned with a claim to exercise a basic right — and such is the case before us — the relative weight of the budgetary considerations cannot be great, since:

“The rhetoric of human rights must be founded on a reality that sets these rights on the top level of the scale of national priorities. The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden” (Barak, in his book supra, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 528).

See also: P. W. Hogg, Constitutional Law of Canada, Toronto, 3rd ed., 1992, at p. 873.’

These remarks are also relevant in this case. The respondent — like every organ of government — has a duty to uphold basic human rights. It must take this duty into account when allocating and distributing its financial resources. Indeed, to tell the truth, I do not expect that in carrying out its duty, in the case of the appellant, the respondent will encounter any practical difficulties. The writings of the appellant that were originally published in the local newspaper Mikol Makom have been submitted to us. It transpires that all of the appellant’s writings were brief, written in simple language, and dealt with everyday matters of prison life. If the writings of the appellant from now on are similar in format to his earlier articles, the respondent will not need great resources or efforts in order to carry out all the examinations required. Even the quantity of the anticipated articles need be no cause for concern. In any event, the respondent has the power to limit the quantity; had it proposed, in these proceedings, that the appellant should be limited to writing one article a week, I would have seen no reason to disagree with the reasonableness of its proposal.

Freedom of occupation

25. I have reached the conclusion that the appeal should be allowed, on the basis of the appellant’s contention that the respondent’s decision unlawfully violates his freedom of speech. This makes it unnecessary to consider in detail the additional contention of the appellant that the respondent’s decision also violates its right of freedom of occupation. However, although it is not needed for reaching a decision, I feel I should say that even in this respect the respondent’s position did not satisfy me. As a rule, within the limitations necessitated by imprisonment, even a prisoner enjoys the basic right of freedom of occupation, and the restrictions imposed on his right must comply with the conditions of the limitations clause in section 4 of the Basic Law: Freedom of Occupation (see: A. Barak, Interpretation in Law, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 600). The respondent’s response, it will be recalled, was that the appellant — as a prisoner requiring protection and for that reason prevented from participating in a rehabilitation program and working outside the prison — cannot be allowed to engage in writing for a newspaper, since such an occupation involves an ‘external employer’. I fear that this answer misses the point. The appellant did not ask to be allowed to take part in regular work outside the prison, nor did he ask to be allowed to leave the prison for the sake of his work, like prisoners who are engaged in work within the framework of the rehabilitation programmes. His request was to be allowed to act as a ‘freelance writer’ and to send the articles that he will write inside the prison precincts to the editor of the newspaper. Activity of this kind is similar to a hobby that a prisoner is allowed to enjoy in his free time or in his cell. It is not part of the system of the ordinary activities of prisoners, which the respondent is required to administer, and the rules governing the occupations of the prisoners do not apply to it.

26. If my opinion is accepted, the appeal will be allowed, the judgment of the District Court will be set aside, and the appellant will be granted the relief sought.

 

 

Justice M. Cheshin

I have read with interest the profound and comprehensive opinion of my colleague, Justice Mazza. My colleague has discussed the subject in all its aspects, and has explored every horizon. My colleague has written a kind of Magna Carta of the Israeli prisoner, and this bill of rights includes both basic principles and also rules and doctrines implied by the basic principles. I agree with every word of my colleague, in so far as they serve as a foundation. Notwithstanding, I have difficulty agreeing with the conclusions that my colleague wishes to deduce from the basic principles, which are principles we all accept. Since I do not disagree with colleague as to the infrastructure, I shall not elaborate on the basic principles but I shall concentrate my remarks on applying those basic principles to this case.

The question

2.    The question requiring a decision in this case is very simple: does a prisoner have the right to be a newspaper correspondent, and to write for a newspaper a regular weekly column about everyday life in the prison where he is imprisoned? Does the prisoner have the right to be a journalist, and to send regular and frequent articles about the prison where he is imprisoned to a newspaper — or newspapers? The appellant claims that a prisoner has this right, whereas the respondents reject the appellant’s argument that he has the right. Let us emphasize and clarify from the outset: the question is not whether a prisoner has — or does not have — the right to engage in the profession of journalism while he is in prison. The respondents expressly stated before us that they do not dispute the right in principle of a journalist, who is a prisoner, to send articles to a large-circulation newspaper. This would be the case, for example, were we speaking of articles about cooking or gardening, or articles about art, the Bible or literature. But the appellant is not interested in any of these. He has set his heart on writing particularly about prison life — and only about prison life — and the respondents strongly oppose this. The appellant claims he has a constitutional right. The respondents, for their part, deny he has a right, and they argue that writing for a newspaper, as the appellant requests, might undermine proper prison order and discipline. We must decide between these opposing interests.

On the constitutional rights of a prisoner

3.    When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison. See and compare, for instance, Katlan v. Prisons Service [3]; Darwish v. Prisons Service [6]; Yosef v. Governor of Central Prison in Judaea and Samaria [9]; Weil v. State of Israel [5]. Where an official unjustifiably violates the dignity of a prisoner — his dignity as a human being — the Court must speak out succinctly and clearly. This is human dignity, in the simple and ordinary sense of the concept.

Moreover, a prisoner is entitled to ‘conditions that allow civilized human life’ (per Vice-President H. Cohn in Darwish v. Prisons Service [6], at p. 539): food to eat, water to drink, clothes to wear, a bed to sleep in, fresh air to breathe, and sky to look at. By way of poetic analogy, let us recall the ‘small attic’ prepared and made for the prophet Elishah by that ‘great woman’, which contained ‘a bed and a table and a chair and a lamp’ (II Kings 4, 8-10 [45]). But other rights enjoyed by a free man must naturally be restricted inside the prison. When someone enters a prison, he loses his freedom; this needs no explanation. But a person does not only lose his freedom thereby, but also other rights, rights that naturally accompany freedom — that accompany it and are secondary to it. Thus, for example, there is the rigid and inflexible daily schedule of a prisoner, whether with regard to hours of sleep, whether with regard to hours of work and rest, whether with regard to eating times and whether with regard to everything that he is allowed to do inside the prison. This is also the case with the inability of a prisoner to continue to engage in his ordinary profession. The same is true of a prisoner’s contacts with the world outside the prison, such as telephone calls or correspondence, and this is so, for example, with regard to family visits to the prison.

4.    All these rights — these and others besides — are reduced automatically when a person enters a prison. The need to ensure the regular running of a prison, including security and order, neither allows nor facilitates recognition of the rights of a prisoner as though he were a free man. A main and basic consideration in the proper and regular administration of a prison is the supreme need to maintain security inside it, to protect the safety of the persons in its precincts — both prisoners and warders — and ensuring strict order and discipline. Below we shall call all of these ‘order and discipline’. The way to accomplish all these objectives naturally implies a clear hierarchy of authority — and persons in authority — and strict obedience to orders given during the daily routine. On a smaller scale, prisons may be compared to an army or police force, but the strictness of order and discipline must be more rigid in the prisons, if only because of the segment of the population in them: a population of persons who have broken the law — some of whom are hardened and tough criminals — a population in which many are embittered and believe that society has done them an injustice and discriminated against them, aggressive and violent persons, persons with low anger thresholds and devoid of any motivation whatsoever to help others or to be helped by others. When we consider this prison population, it will become clear to us that the work of prison warders and administrators is work of the utmost difficulty. We will also realize —and this is directly relevant to this case — that order and discipline are the material of which a prison is built. Without order and discipline, in the broad sense of these concepts — which can only mean strict order and discipline — a prison cannot be run and the whole system will suffer the consequences.

Indeed, a reading of the Prisons Ordinance [New Version] and the Prisons Regulations (below we will refer to these as the Ordinance and the Regulations, respectively), shows us — as we already knew — that order and discipline are the essence of prison administration. The Ordinance and Regulations abound with provisions concerning order and disciple, and we shall mention, by way of example, only a few provisions. The first provision is that of section 56 of the Ordinance, which deals in its 41 subsections with ‘prison offences’. In closing, section 56(41) says the following:

‘Prison Offences

56. A prisoner who does one of the following has committed a prison offence:

(1) …

(41) Any act, behaviour, disorder or neglect that harm good order or discipline, even if they are not set out in the previous paragraphs.’

The second provision we shall mention is that of section 132 of the Ordinance, concerning the authority of the responsible Minister to enact regulations:

‘Minister’s Regulations

132. ...

(1)        ...

(17) Any other matter, with regard to which this Ordinance states that it is possible to enact regulations, and any other matter that must be regulated for the sake of the effective implementation of this Ordinance, the welfare and efficiency of prison warders, the proper administration of prisons and their discipline and the safe custody of prisoners inside the prison precincts and when they are working outside the prison precincts.’

This is also the case with regard to other provisions in the Ordinance and the Regulations, such as the provision of Regulation 18, which says:

‘Purpose of order

18. Order and discipline shall be maintained in the prison strictly, while paying attention to maintaining security and a proper routine.’

This is followed by the provision of regulation 20:

‘Use of reasonable force

20. A prison warder may use all reasonable means, including the use of force, to maintain good order, for the protection of a warder or prisoner and to prevent the escape of a prisoner.’

5.    Before we examine the actual case before us, let us begin by saying that the contacts of a prisoner with the world outside the prison are subject to an express and detailed arrangement in the Ordinance and the Regulations. The broad rule in the Ordinance and the Regulations is that a prisoner does not have an inherent right to be in contact with persons outside the prison, except in so far as the Ordinance and the Regulations give him this right. Thus, for example, section 42 of the Ordinance provides:

‘Prohibition of transfer

42. A person shall not transfer a prohibited object to a prisoner, nor shall he transfer a prohibited object to another person from a prisoner or on his behalf.’

The definition of a ‘prohibited object’ (in section 1 of the Ordinance) is:

‘An object that this Ordinance or the Regulations do not allow to be brought into a prison, to be removed from a prison or to be in the possession of a prisoner.’

In other words: prima facie, a prisoner does not have a right to correspond with persons outside the prison, unless he has an express right to do so. A prisoner is unlike a free person in this respect: a free person may maintain contact with others, unless he is forbidden to do so, whereas a prisoner may not have contact with others who are outside the prison, unless he is permitted to do so. Such is the loss of liberty and such are the implications of this loss. Section 43 of the Ordinance further provides:

‘Prohibition against placing

43. A person shall not place a prohibited object so that it comes into the possession of a prisoner, or the possession of another person on behalf of a prisoner, or by transfer from prisoner to prisoner.’

As to the actual question in our case, section 47 of the Ordinance provides and instructs us:

‘Convicted prisoner

47. (a) A convicted prisoner may be allowed to write a first letter when he is admitted to the prison.

(b) At the end of the first three months of his imprisonment, and thereafter — every two months, he may be allowed visits from friends within the sight and hearing of a prison warder, and he may be allowed to write and receive a letter.’

A convicted prisoner is therefore entitled to send a letter every two months. In practice, the prison authorities are lenient with prisoners, and they allow them to send letters once every two weeks. But the principle remains: the rule is a prohibition against contact with the outside world, and the exception is a relaxation of the prohibition in so far as the Ordinance and the internal procedures allow, at the discretion of the prison authorities. This is true of correspondence and it is true of visits to the prison. See, for example, chapter 5 of the Regulations on the subject of ‘Visits and letters’, which includes regulations 25 to 34.

6.    In order to clarify our remarks and so that they may not be misconstrued, let us add the following: a person, every person, carries his constitutional rights in his knapsack, and wherever he goes, his rights go also. Even when he enters the prison as a prisoner a person is not stripped of his constitutional rights, and his rights remain in his knapsack. Notwithstanding, the constitutional rights of a person inside a prison are not like his constitutional rights outside the prison. The force of the constitutional rights inside the prison is not like their force outside the prison, for the reason that inside the prison they must contend with interests that are weightier and stronger than the corresponding interests outside the prison. The constitutional rights may be compared to a beam of light travelling freely through space, which is the constitutional right in its pure form. While it is travelling freely through space in this way, the beam of light encounters a screen that lies as an obstacle in its path. As it passes through the screen, the intensity of the beam of light becomes weaker, and its intensity after the screen is not as it was before the screen. If the beam of light is freedom of speech, the question is to what extent is it weakened when it tries to penetrate the prison walls. Prison walls are the screen, and the screen is: provisions of statute and regulations, the scope of discretion given to the prison authorities, and in addition to all these — the special status of a prison as a prison. All of these were discussed by Vice-President Justice Landau in Frankel v. Prisons Service [18] (see below, in paragraph 9), from which we can learn and understand.

The status that the appellant wishes to acquire for himself

7.    The respondents strongly object to the appellant’s request that he be allowed to be a journalist who writes regularly (a weekly column) about prison life, and they base their denial of his request on reasons of order and discipline. The respondents’ fear is that the appellant’s writing may undermine the proper order and discipline in the prison — order and discipline that are the sine qua non of the proper running of the prison — and this is why they refused the request. The atmosphere in the prison is naturally tense and crowded. This everyone knows, and the respondents fear that by means of his occupation as a journalist continually reporting to the world about what is done in the prison, the appellant is likely to acquire for himself a special status inside the prison — a status whose very existence will undermine all proper order and discipline. Indeed, in this context of a breach of order and discipline the special status that the appellant is likely to acquire arises in several different relationships. Let us examine this matter closely.

8.    First, it arises in the relationship between the appellant and prison warders and staff. All of these will know and understand that, by having a regular channel of communication from the prison to the world outside the prison, the appellant gains excessive power, and this excessive power in itself will give the appellant an elevated status in his relationship with the prison warders and staff. What warder will agree to his being vilified in a newspaper? What warder will not wish to be mentioned favourably in a newspaper? Will it not be merely natural and human for the prison warders to seek to gain access to the appellant and to try to flatter him, each in his own way? And if this is the case, will we be surprised if we find that, within a short time, the appellant — merely because he is a journalist with a weekly column in a newspaper — enjoys privileges that others do not have?

Second, it arises in the relationship between the prison warders inter se. Not only will the prison warders try to give the appellant better treatment, even if only so that he is kindly disposed to them, but through the appellant they may try to settle scores with one another. Thus, for example, one warder may whisper a secret in the appellant’s ear with regard to another warder — a secret that may be true or may be false — if only so that the appellant may publish it in the newspaper. Is this not likely to lead to unnecessary tension among the prison warders?

Third, by virtue of his new privileged status in the prison, various pieces of information will naturally be revealed to the appellant — information that would not have been revealed to him had it not been for the status that he has acquired. It need not be said that this information will give the appellant power whose significance cannot be overstated, in this case not by publishing the information but by refraining from publishing it, in return for receiving various benefits. After all, we know that there are some who make their living from information that they disclose to the public, and there are others who make their living from information that they do not disclose to the public.

Fourth, the appellant will acquire a special status among the prisoners — those who are his friends and those who are not — and one does not need much imagination to understand why this will occur. What we said about the prison warders — in their relationship with the appellant and their relationship with one another — applies to the prisoners a hundredfold.

It would appear that all these scenarios that may occur in the prison are not remote probabilities. They are likely to happen and not imaginary. And if they materialize — even in part — all proper order and discipline in the prison will be undermined, as has happened in the past. Thus, in Pell v. Procunier [38] a regulation (no. 415.071) was made that forbade journalists interviewing specific prisoners. The regulation says:

‘… press and other media interviews with specific individual inmates will not be permitted’ (ibid., at p. 819).

Prisoners and journalists attacked this regulation, claiming that it was unconstitutional. In the course of the hearing, it transpired that, before the regulation was enacted, journalists were allowed to interview prisoners as they wished, and this led to a phenomenon whereby certain prisoners became ‘public figures’, and thereby gained considerable influence over their fellow prisoners. This status, which those prisoners acquired, led to serious infractions of prison discipline, and eventually these infractions of discipline deteriorated until there was an attempted escape from the prison, in which three warders and two prisoners were killed. In order to prevent a repetition of the phenomenon, the competent authorities decided to enact the regulation. Let us cite the remarks of the court itself (ibid., at pp. 831-832):

‘Prior to the promulgation of § 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish…

In practice, it was found that the policy in effect prior to the promulgation of § 415.071 had resulted in press attention being concentrated on a relatively small number of inmates who, as a result, became virtual “public figures” within the prison society and gained a disproportionate degree of notoriety and influence among their fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institution’s ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971, “during an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and on August 23, sec.415.071 was adopted to mitigate the problem.” 364 F. Supp., at 198.’

If it happened there, why can it not happened here too? Who can say that the prison authorities are merely imagining this? Indeed, the possibility is not remote, for if the appellant’s plan succeeds, everyone — warders and prisoners alike — will seek him out, and the prison will hang on his every word. Even if all of this does not happen, some of it will probably come to pass.

On balancing rights and interests

9.    There are two interests struggling for supremacy: on one side, the prisoner’s interest in sending articles to a newspaper about everyday life in the prison, and on the other, the interest of the prison authorities in maintaining order and discipline, which may, in their opinion, be undermined if the appellant has his way. In this context, we should cite the remarks of Vice-President Justice Landau in Frankel v. Prisons Service [18]. Vice-President Landau cites the rule in Kol HaAm v. Minister of Interior [10] — per Justice Agranat — and the test of ‘near certain danger to public safety’ laid down. He goes on to make the following remarks about the type of prison population, the tension that prevails inside the prison, and the discretion that should be given to the prison authorities:

‘This test can also guide the governors of the prisons with regard to the inflammatory character of literary material. But what was said there about keeping the peace in general should be translated here into a test of keeping the peace, order and discipline inside the prisons, with the special problems with which the prisons administrators must contend. They are not dealing with persons who are free but with persons imprisoned in conditions that create great tension, which make it necessary to adopt effective measures to ensure order and discipline. Alongside this grave responsibility placed on the prison governor, the court must leave him proper discretion when exercising his powers under the law. As for bringing inflammatory written material into the prison, in the tense conditions that prevail in the prison, a spark is sometimes sufficient to ignite passions to the point of a violent outburst, and words written in “black and white”, more than the spoken words of cellmates, have their own power of persuasion that can lead to the enflaming of passions. Notwithstanding, the prison governor can take into account the composition of the prison population in the prison run by him, and what the governor of one prison, where dangerous criminals are imprisoned, may prohibit, the governor of another prison, where prisoners are held in more liberal conditions, may permit’ (ibid., at p. 209).

See also Almalabi v. Prisons Service [19], at p. 27.

To these remarks let us say that we agree wholeheartedly. Let us apply the remarks which Vice-President Landau made with regard to bringing ‘inflammatory written material’ inside the prison to the special status that the appellant will acquire for himself if he is allowed, as he asks, to be a journalist with a weekly column who writes about prison life Can we say that a decision of someone who has the heavy burden of running a prison falls outside the zone of reasonableness? The answer, in our opinion, is a definite no.

The following are the remarks of Justice Elon in Hukma v. Minister of Interior [1], at p. 833:

‘… when a person who has been arrested or a prisoner have a right, the person with the right is entitled to enjoy his right and to demand the possibility of exercising the right, as long as exercising the right does not conflict with the duty of the prison authorities to deprive him of his freedom of movement and what derives from this duty, i.e., maintaining security rules and order in the prison. For this right is no stronger that any other basic right, which is not absolute but relative, and it is upheld and protected by finding the proper balance between the various legitimate interests of the two individuals or of the individual and the public, interests which are all enshrined and protected in the law…’

See also: Weil v. State of Israel [5], at pp. 490-491; State of Israel v. Azazmi [2], at pp. 81 et seq..

10. The work of the Prisons Service involves many difficulties, and in the words of Vice-President Justice Landau in Frankel v. Prisons Service [18], they must contend with special problems that present themselves to them. In this context, it is appropriate to cite the remarks of the United States Supreme Court about the ‘Herculean obstacles’ facing the staff of the Prisons Service. In Procunier v. Martinez [35], Justice Powell described the work of prison warders in the following manner (at pp. 404-405):

‘Traditionally, federal courts have adopted a broad hands-off attitude towards problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of the government. For all these reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.’

Of course, this difficult work of the staff of the prison authorities does not justify ignoring the constitutional rights of prisoners. But in finding the proper balance between conflicting considerations, we should remember how difficult the task is and how heavy is the burden that the staff of the Prisons Service endure every day and every hour.

11. My colleague, Justice Mazza, mentions the ‘near certainty’ formula — the formula accepted by us since Kol HaAm v. Minister of Interior [10] — and he seeks to apply it to also to this case (see, for example, his remarks in paragraphs 15 and 19 of his opinion). We do not intend to argue with this premise. It is entirely acceptable to us and we accept it into our heart like a cherished child. But at the same time let us realize and understand that the status of an individual — and the status of the authorities vis-à-vis the individual — outside the prison is not the same as the status of an individual, and the status of the authorities vis-à-vis the individual inside a prison. Taking matters to the extreme, we can say that an everyday demonstration — in a town or village — is not like a demonstration of prisoners inside a prison. Is there anyone who would conceive it possible to allow a demonstration of prisoners in a prison? The analogy to our case is self-evident. Vice-President Justice Landau already discussed it in Frankel v. Prisons Service [18] (see paragraph 9, supra) when he pointed out the charged atmosphere that normally prevails in a prison — and we too will say: the question is not a question of finding the right formula for the discretion of the authorities. The heart of the matter is in realizing and understanding that what happens inside a prison is not the same as what happens outside it, and vice versa.

12. Of course, the harm done to a prisoner may not be disproportionate; there must be a correlation between the anticipated evil and the attempt to prevent it. In the words of Justice Elon in State of Israel v. Tamir [4], at p. 212:

‘… When the prison authorities wish to violate one of the rights of a prisoner, for reasons of balancing one of the prisoner’s rights against the duty of the authorities to deprive him of freedom of movement and to protect the needs of security and the prison, they shall decide upon such a violation unless they have a reasonable explanation and justification for it, for reasons of public security and prison order, which they are liable to maintain, and the extent and degree of the violation shall not be greater than what is absolutely essential on account of these reasons.

…

The greater the right that is violated, the greater the reasons required to justify this violation.’

Moreover, we have been commanded this also in the Basic Law: Human Dignity and Liberty, in section 8 (and also in section 4 of the Basic Law: Freedom of Occupation): we are required to examine whether the violation of someone’s right befits the values of the State of Israel, is intended for a proper purpose, and does so to an extent that is not excessive. See also: CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [22], per President Shamgar, at pp. 342-349, and per Vice-President Barak, at pp. 434-441. However, it seems to us that the respondents’ decision not to allow the appellant to publish a weekly column satisfies all these minimum requirements, both in principle and in view of the character of the appellant.

The appellant wishes to write about his ‘personal life’; the appellant consents to censorship of his articles

13. The appellant argues that the respondents’ fears are unfounded and the weekly column he wishes to publish in the newspaper presents no danger. How is this so? First of all, he claims that he wishes to write a column about his life in the prison, and he promises ‘to write only about his personal life’ (paragraph 9 of the application for leave to appeal). As the record of the trial court says:

‘I agree that my articles may be censored. I undertake that in my correspondence with the press, I will speak only of my personal life.’

In other words, the appellant does not intend to write about anyone else, but only about himself. If that is so, and if that remains the case, why are the respondents concerned?

This argument is no argument, especially when it is made by the appellant himself.

14. First of all, the appellant himself presented his right to write a weekly column to a newspaper as a constitutional right vested in him by law. Even my colleague, Justice Mazza, raised the appellant’s case to the highest level, and from this highest level we will learn the nature of the rights of a prisoner. But if we are dealing with a right of this kind, of what significance is it whether the appellant undertakes or does not undertake to write about one subject and not to write about another subject? If the appellant has a vested supreme right, as he claims, his undertaking is totally irrelevant. Indeed, just as the appellant claims to have a supreme right, so too the respondents claim to have a supreme duty which was imposed on them by statute. If the appellant has a supreme right, it will not be the respondents who determine its scope, but at the same time neither will the appellant determine its scope by means of a supposed ‘undertaking’, made by him, that he will write about this and not write about that. The undertaking of the appellant to restrict his writing to a specific subject cannot therefore be of any significance.

Second, I find the appellant’s argument that he intends to write about ‘his personal life’ problematic, if only for the reason that we do not know what his ‘personal life’ is. Does he intend to search the depths of his soul and write of his ‘thoughts’ — in the style of Marcel Proust — or does his ‘personal life’ also include the prison staff and the prisoners around him — the warders and prisoners who after years and years in prison have become part of his ‘personal life’? Indeed, the concept ‘personal life’ is a very broad term and we cannot know what it contains and what it does not contain.

15. The appellant goes on to ask the respondents: what cause do you have for concern because of a newspaper column that I will publish? After all, I agree that you may examine all the articles that I want to send to the newspaper beforehand. What is more, I agree that you will be entitled to disqualify any articles or parts of articles that may, in your opinion, harm the security, order and discipline in the prisons. If so, what concerns can the respondents have? This rebutting argument was accepted by my colleague, Justice Mazza. As he says (in paragraph 21 of his opinion):

‘… the appellant admits that the respondent has the authority to hold back and not to send any article to its destination, if its publication (in the respondent’s opinion) may harm the running of the prison, the security of the prison warders or prisoners, or even the reputation of any of them. Moreover, in order to satisfy the respondent in this regard, the appellant undertook not to say anything in his articles about any member of the prison staff, warders and prisoners, but to focus solely on a description of his life and experiences.’

And further on:

‘In order to decide the appeal, we may assume that the respondent has full authority not to send an article to a newspaper, if it believes that its publication may harm public security, the running and discipline of the prison and even the reputation of prison staff, a warder or a prisoner. The appellant has agreed to these assumptions, thereby defining the question that requires our decision in his appeal.’

Moreover (in paragraph 23:

‘… and if the appellant does indeed abide by his declaration that he will devote his articles merely to his own life and experiences and will not write about specific prison officials or prisoners, it is difficult to see how publication of his remarks can arouse a fear of undermining the running and discipline of the prison, the reputation of the staff or any prisoner.’

We see that the appellant has undertaken to write only about his ‘personal life’, and he agrees that if he does not abide by his undertaking, then the respondents are entitled not to send a particular article or a part of a particular article to its destination, the newspaper.

Reading this, I wonder: does the appellant really intend to make an agreement with the respondents, an agreement in which he undertakes to do certain things — and only those things — while at the same time he ‘concedes’ the authority of the respondents to censor the articles that he will write if he does not abide by what he undertook not to write? For my part, this set of reciprocal obligations that the appellant and the respondents are each supposed to undertake is totally unacceptable. We are concerned with liberties, rights and duties under the law, and this ‘agreement’ that the appellant alleges — an agreement between a prisoner and the authorities — should not be allowed.

Whatever the case, I accept the respondents’ reply that it is not their task to occupy themselves on a permanent basis in examining the appellant’s articles: they were not trained to do this, they have no facilities for this purpose, and they are not employed for this purpose by the Prisons Service. They were trained to be prison warders and not to be reviewers of manuscripts in a book-publishing house. It is indeed true that the respondents were given a power (under regulation 33 of the Regulations): ‘to open and examine any letter and any other document of a prisoner’, but this power was not originally intended for reviewing a regular column in a newspaper about prison. The power is concerned with letters that the prisoner writes to his family and friends, and the inspection is intended to erase a line or a word, here or there, when a prisoner tries to abuse his right to correspond with persons outside of prison, such as, for example, in order to smuggle drugs or weapons into the prison. But this power of review was not intended for a permanent review of the kind that the appellant wants to impose on the Prisons Service. Everyone will agree that inspecting a newspaper article is not the same as inspecting an ordinary letter that a prisoner writes to his wife. We should also mention that in HCJ 157/75 [20], the court approved a decision of the prison administrators to restrict the length of letters sent by prisoners to two pages only.

16. Moreover, the appellant promised to write only about his ‘private life’, but as we have seen above, this concept of ‘private life’ is fertile ground for disputes that will without doubt sprout in the future. The appellant’s ‘undertaking’ to write only about his ‘private life’ is of no help to him, and in any event, the ‘inspection’ of his writings cannot be of any avail on the scale required.

Indeed, if the appellant is given what he wants, it will not be long before the courts will be compelled to consider — on frequent occasions — the question why and for what reason a certain article was banned, or why a certain passage was deleted from a particular article. That time is not only not remote; it has already arrived. For we see that, alongside the appellant’s arguments in the appeal that he intends to write only about his ‘personal life’ in the prison, we find that he adds the following:

‘23. The respondent’s main consideration, which can be seen throughout the affidavit, is its desire to prevent the publication of criticism that the appellant wishes to utter, namely censorship because of the content of the speech, which is improper.

24. Even the consideration of possible harm to the reputation of members of staff is improper. The reputation of prison staff is no better than the reputation of other persons that may be harmed. They too have the opportunity of suing for any insult to them if it is necessary, but this does not constitute a reason that justifies prohibiting the speech ab initio.’

What is the meaning of this argument of the appellant and how are these remarks consistent with his intention to write only about his ‘private life’? It follows that the ‘private life’ of the appellant includes, apparently, everything surrounding it, including prison warders and prisoners, and if they find themselves injured by the articles that are published in the personal column, they are welcome to go and ask for relief in the court.

The truth is revealed. The appellant intends to serve, in theory and in practice, as an ‘internal auditor’ of the prison — a kind of revisor-general — and within the framework of his weekly column, he will not refrain from writing about anything that, in his opinion, is part of his ‘personal life’. If, then, we do not know what the appellant intends to write, we will not be surprised to find that the personnel of the Prisons Service fear that the appellant’s column in the newspaper may lead to a breach of security, order and discipline. Incidentally, we should mention that under the law in force in England, prisoners are forbidden to mention explicitly the names of prison warders and prisoners. As stated in 37 Halsbury, The Laws of England, London 4th ed., by Lord Hailsham, 752-753, paragraph 1145 (subtitled ‘prisons’):

‘General correspondence may not contain any of the following matters:

(1) ...

…

(12) material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it (a) is for publication in return for payment (unless the inmate is unconvicted)… (d) refers to individual inmates or members of staff in such a way that they might be identified;

…’

If all this were not sufficient, let us also mention that, in his oral pleadings before us, Advocate Yakir also argued on behalf of the appellant that it is not the Prisons Service’s job to ‘censor falsehoods’, and it would be ‘improper’ if ‘false information’ were deleted from articles that the appellant intends to send to his newspaper. The public ought to decide — the public, rather than the Prisons Service (see also the remarks of my colleague, Justice Mazza, in paragraph 20 of his decision). After all this, does the appellant continue to argue seriously that he is prepared to accept prior inspection of his articles? I think not.

17. Moreover, the appellant’s deeds — shortly before the proceedings and during the proceedings — cast considerable doubt on his declarations and his good faith. In order not to elaborate on a description — the matter is lengthy and wearisome — let us cite some of the remarks of the trial court in this respect. The following were the remarks of Justice Even-Ari in his decision refusing the appellant’s application:

‘… An inspection of the interview that was published in Yediot Aharonot on 20 November 1989 shows that prima facie the petitioner has indeed added insult to injury — not only has he escaped from lawful custody and returned to his life of crime, but he also besmirches the Prisons Service in an interview entitled “The gangsters run the prison”.

… Later in the proceedings, it became clear that the petitioner telephoned various journalists and distributed various information about what supposedly was happening in the prison, and the spokesman of the Prisons Service was required to respond to the various enquiries of journalists, all of which while the petition was sub judice.

… It transpires that the petitioner is interested in a prisoner called “Ahmed Yassin”. He does not know him at all and has never met him, but he asks for the intervention of the media in his case and even in the petition that is sub judice before this court (see exhibit B).

Prima facie it would seem that the petitioner is still trying to make headlines — and he is spreading stories about a security prisoner whose case is very sensitive. Prima facie this is a sensitive case where unauthorized involvement may result in serious consequences. This constitutes irrefutable evidence of the irresponsible approach of the petitioner and prima facie strengthens the position that the petitioner should not be allowed the right of free access to the various branches of the media…

… The newspaper interview that was published in Yediot Aharonot shows the petitioner’s method in approaching the press. The respondent’s decision to prevent the petitioner having access to this media channel is prima facie reasonable and logical. This consideration is a normative one, intended to prevent unrest inside the prison.

… It is clear to us that giving the petitioner the right of free access to the media will allow him to acquire great power, and allowing a person like the petitioner (for a description of the petitioner’s character, see CrimC (TA) 7036/92 [34]) to acquire such power will have serious implications for the running of the prison. Therefore I think that denying the right to contact the press, in the circumstances brought before us, is reasonable.’ (parentheses supplied).

See a more detailed consideration of the matter in paragraph 7 of the opinion of my colleague, Justice Mazza. With regard to what was said by the Magistrate Court about the appellant, Justice Even-Ari was referring to the remarks of Justice E. Beckenstein concerning the appellant, that: ‘I have no doubt that we are dealing with an accused who, even if he is currently serving a prison sentence for offences of the same kind, uses every minute of prison leave given to him in order to commit more offences, for it is in his blood.’ Why then should the respondents put faith in the appellant?

18. In view of all this, taking into account the offences for which the appellant is serving his sentence in the prison, it is hardly surprising that the respondents are not prepared to accept the appellant’s statements at face value. We should remember that the appellant is currently serving a prison sentence of ten and a half years for offences involving fraud, forgery, impersonation and escaping from lawful custody. The appellant has a terrible criminal record. He has many convictions for offences of the same kind, and he has previously served three prison sentences. Some of the offences for which he is serving his current sentence were committed when he escaped from lawful custody. What more can one expect of the respondents?

19. In this context we should add that the appellant — like any prisoner — is entitled to write to the court, Government ministers, members of the Knesset and the State Comptroller (the Public Complaints Commissioner). He may write whatever he pleases, and no-one will restrain him. Moreover, the prisons have an internal review system and this too is open to the appellant, just as it is for any other prisoner. See, for example, sections 71-72F and section 131A of the Ordinance and regulations 24A and 24B of the Regulations. Similarly, the appellant is permitted to write to the newspapers (‘letters to the editor’) — within the framework of the quota of letters that he is entitled to send — naturally with certain restrictions that are required because he is a prisoner in prison. In other words, the respondents are not intending to cut the appellant off from the world, to hold him incommunicado. They merely object to the weekly column that he wants to write, and they have explained in detail their concerns.

On Israeli and American case-law

20. My colleague reviews at length and in detail case-law made in Israel and the United States, and he wishes to learn from them in our case. As for me, I have not found in this case-law any authority that supports my colleague’s approach. With regard to Israeli case-law, I have not found even one case that resembles this one. All the judgments concern a violation of human dignity — ‘dignity’ in its plain sense — or cases where the court was required to consider whether the discretion of the prison authorities was reasonable or unreasonable in the circumstances of each particular case. Wherever it was found that the respondents’ discretion was unreasonable, the Court granted the petition. With regard to human dignity, let us mention Katlan v. Prisons Service [3] (performing an enema on a person under arrest); Darwish v. Prisons Service [6] (denying beds to prisoners, for fear that they would use them to do harm; the petition was denied by a majority); Yosef v. Governor of Central Prison in Judaea and Samaria [9] (harsh prison conditions violating human dignity); Weil v. State of Israel [5] (the right of a prisoner to intimacy with his spouse); State of Israel v. Azazmi [2] (harsh prison conditions violating human dignity). One is led to ask: can the rights in these cases be compared to the ‘right’ of a prisoner to write a weekly column in a newspaper?

As to cases in which the court found that the discretion of the prison authorities was unreasonable: for example, in Livneh v. Prisons Service [17], the governor of the prison refused to allow the petitioner to bring various books into the prison, on the ground that these were likely to lead to incitement. With regard to the framework for the discretion of the prison governor, the court held that:

‘… no-one disputes that under regulation 44 of the Prisons Regulations, 5727-1977 [today regulation 49 of the Regulations], a prisoner is not entitled to bring books into the prison, unless the prison governor allows them to be brought into the prison. It follows that the governor is given discretion to allow or to forbid bringing a certain book into the prison; this Court will not interfere with his discretion, as long as he exercised it in good faith and in a reasonable manner’ (square parentheses supplied).

On the merits, the court thought that the prison governor did not act reasonably, and it therefore held the governor liable to grant the petitioner’s request.

In Frankel v. Prisons Service [18], supra, the petitioner was not allowed to bring two books into the prison. At the end of the hearing, the petition was granted with respect to one book and denied with respect to another. Again, the court only considered the reasonableness of the prison governor’s discretion. The same is true of all the other cases, in some of which the petitioners were found to be justified and in some of which no justification was found for intervention in the discretion of the respondents, all of which according to the usual and proper criterion of the reasonableness of the discretion; see, for example, HCJ 157/75 [20] (the Prisons Service is entitled to restrict the length of outgoing letters); HCJ 881/78 Mutzlach v. Damon Prison Commander [23] (not providing compulsory education for prisoners); Almalabi v. Prisons Service [19] (the prohibition against a prisoner having possession of a transistor radio); State of Israel v. Tamir [4] (supplying drugs to a prisoner on a prescription of a doctor who is not working for the Prisons Service).

With regard to the case-law that my colleague cited from the United States, I think that it contains nothing that changes the general picture. The basic considerations are known to all, and I do not find that the Prisons Service has departed from the general guidelines laid down by the courts in the United States (even if those guidelines were to bind them). This is especially so when the courts in the United States are not unanimous. Moreover, where prisons are the issue, I think that we should caution ourselves against drawing analogies from other legal systems, as long as we do not know that the sociological and psychological background there and here are identical, or at least very similar. In the final analysis, the legal norm reflects — at least in part — a given social position, and we should be careful not to draw analogies in matters that are not universally the same.

The Basic Law: Human Dignity and Liberty and freedom of speech; the Basic Law: Freedom of Occupation

21. My colleague, Justice Mazza, holds that the Basic Law: Human Dignity and Liberty ‘enshrined the case-law recognition of the constitutional status of freedom of speech’ (paragraph 14 of his opinion). How is this so? The Basic Law does not mention freedom of speech by name or by implication. ‘This is immaterial’, says my colleague:

‘Even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?’ (ibid).

I will not enter into an argument with my colleague over this possible interpretation of the Basic Law: Human Dignity and Liberty, but at the same time I will not deny that there are other possible interpretations. The question does not allow of a simple solution, and the answer does not present itself to us as if of its own accord. The subject incorporates not only the meaning of the concept of ‘human dignity’ in its linguistic, moral, political, historical and philosophical senses, but also — or should we say, mainly — the meaning of the concept in the special context of the Basic Law: Human Dignity and Liberty. This special context — which is bound up with the relationship between the organs of the State — can also directly affect the sphere of influence of ‘human dignity’. In our case, we have not considered the whole picture, or even part of it, and I will caution myself against hasty decisions and obiter dicta on issues so important and far-reaching as the question of the interpretation of the concept of ‘human dignity’.

22. Finally, the appellant claims he has a right of freedom of occupation — a right which he argues is given to him by the Basic Law: Freedom of Occupation. This argument was cast into the air of the court as if it were self-evident, and without counsel for the appellant trying to establish it on firm ground. Moreover, the right to freedom of occupation — like a person’s right to freedom of speech, and in fact any other right — is a right that must contend with other interests that oppose it and seek to reduce it. The interests that are capable of overriding freedom of speech in this case are the very same interests that can lead to a restriction of the right of freedom of occupation as well. In any event, our case lies in the valley between the freedom of speech and freedom of occupation, but its centre of gravity lies in the freedom of speech. We have dealt with this at length and we will say no more.

23. Were my opinion to be accepted, we would deny the appeal.

 

 

Justice D. Dorner

1. I agree with the opinion of my colleague, Justice Mazza.

My colleague examined the wider issues. He showed that prisoners are also entitled to freedom of speech, and that a violation of this right — as with the other basic rights to which prisoners are entitled — ‘is lawful only if it complies with the authority test and the test of the proper balance between it and the legitimate interests entrusted to the authority’ (see paragraph 13 of his opinion). My colleague discussed the principles involved in making the balance, and he reached the conclusion that in our case the violation of the appellant’s freedom of speech is unlawful.

My colleague, Justice Cheshin, agrees with the principles outlined by Justice Mazza, but his conclusion is that the concern of the respondent — the Prisons Service — that publication of the appellant’s articles is likely to harm prison discipline overrides the appellant’s basic right to freedom of speech, and that in order to dispel this fear the respondent need not trouble to read the articles, as the appellant suggested, in order to disqualify only those articles whose publication is expected to result in real harm to prison order and discipline.

2.    In my opinion, the test of rhetoric about basic human rights, including basic rights retained by prisoners, lies in the willingness of society to pay a price in order to uphold them. I discussed this in one case:

‘A basic right, by its very nature, requires society to pay a price. Where no price is paid for the exercising of an interest, there is no significance in enshrining it as a right, and certainly not as a constitutional basic right…

… in our democratic regime, which recognizes individual liberty as a basic right, society waives, to a certain extent, the possible protection of public safety’ (CrimFH 2316/95 Ganimat v. State of Israel [24], at p. 645).

In our case, if a certain amount of trouble that may be caused to the prison authorities is sufficient to deprive a prisoner of his right to freedom of speech, there is no meaning to the declaration that a prisoner retains this basic right.

3.    Admittedly, no-one disputes that in a conflict between the freedom of speech and prison order and discipline, the right of the prisoner to freedom of speech yields. However, the status of freedom of speech as a basic right means that a violation thereof is permitted when it befits the values of the State of Israel, is for a proper purpose and is to an extent that is not excessive. Compare section 8 of the Basic Law: Human Dignity and Liberty (hereafter also — the Basic Law); the remarks of Vice-President Barak in HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [25], at p. 760 {488}, and what I wrote in Miller v. Minister of Defence [21], at p. 138 {231}.

4.    In our case, no one disputes that the respondent has the authority to restrict the freedom of speech of prisoners, and that maintaining discipline in the prison is a proper purpose for exercising his authority. Notwithstanding, a violation of a prisoner’s freedom of speech will not be permitted unless it is to an extent that is not excessive for maintaining discipline in the prison.

5.    This rule of proportionality is complex, and includes several elements. See, for instance, HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [26], at pp. 435-436; HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [27], in the opinion of Vice-President Barak. In our case, the following requirements are particularly relevant:

First, a violation of freedom of speech will be permitted, as a rule, only when there exists a probability on the level of near certainty that allowing the speech will lead to a real and serious violation of order and discipline in the prison. This test is implied by the preferred status of the freedom of speech, since in conflicts between competing rights it has the status of a ‘supreme right’ (per President Agranat in Kol HaAm v. Minister of Interior [10], at p. 878 {97}).

This test applies also to the freedom of speech of prisoners. See the remarks of Vice-President Landau in Frankel v. Prisons Service [18], at p. 209. This is also the position of my colleague, Justice Mazza (see paragraphs 15 and 19 of his opinion), and even my colleague, Justice Cheshin, agrees with this (see paragraph 11 of his opinion).

The near certainty test is not mere words. It reflects the price that society is prepared to pay in order to realize the freedom of speech of the prisoner, for the practical significance is that the possibility of a violation which is not on the level of near certainty or an anticipated violation which is small rather than real and serious will not give rise to a sufficient ground for a violation of the prisoner’s freedom of speech.

The court addressed this issue in Livneh v. Prisons Service [17], at p. 689. In that case a prisoner was not permitted to bring certain books into the prison, on the ground that reading them might prompt political arguments between the prisoners, which would lead to unrest, thereby disrupting prison discipline. The prisoner’s petition was granted. Justice H. Cohn wrote as follows:

‘… But it has never been said that in order to “keep the peace” he [the prison governor] may prevent arguments between the prisoners, and this includes political arguments; as long as discipline and order are maintained in the prison, the prisoners may argue among themselves on any subject that they choose; and if discipline and order are breached, those who commit the breach will have to answer for their breach, but they should not have to answer for the subject of their argument’ (square parentheses supplied).

Second, denying the freedom of speech is contingent on it being impossible with a reasonable effort to allay or reduce the fear of a disruption to prison discipline, by means that do not involve a violation of freedom of speech or that violate it only minimally. See what I wrote in HCJ 4712/96 Meretz – Israel Democratic Party v. Jerusalem District Commissioner of Police [28]. In this matter, a mere financial outlay or burden entailed in these efforts cannot, if they are reasonable, justify a violation of a basic right. See the remarks of Justice Mazza in Miller v. Minister of Defence [21], at pp. 113-114 {197-198}.

Third, the burden of proof, both with regard to the likelihood of a violation of prison discipline and its seriousness and with regard to the impossibility of removing or reducing this fear with a reasonable effort rests with the authority. See what I wrote in Miller v. Minister of Defence [21], at pp. 135-136 {209}.

6.    It should be emphasized that criticism of detention conditions, even if the authority considers them to be incorrect, is not in itself a ground for violating freedom of speech. Care must be taken that maintaining discipline in the prison does not become a cloak for silencing a prisoner so that the public do not become aware of prison conditions, which prisoners certainly do not need to learn from the newspaper. It is well known that the Prisons Service does not refrain from contact with the press through the spokesman of the Service or senior employees of the Service. The prisons also conduct planned press visits as part of the public relations of the Service, which wants to present itself at its best. In these circumstances, preventing a prisoner from expressing any criticism he may have is unfair, and may even harm the public, which is entitled to be exposed to the entire ‘marketplace of ideas’. The remarks of Justice Shamgar in CA 723/74 [13], at p. 298, are relevant in this context:

‘The existence of basic rights is not disputed when matters run smoothly and the various authorities merit compliments only. The true test of freedom of speech occurs when confronted with forceful and unpleasant criticism.’

7.    My colleague, Justice Mazza, also relied on the Basic Law: Human Dignity and Liberty. In his view, even without an express provision the freedom of speech is included in the right of human dignity, within the meaning thereof in sections 2 and 4 of the Basic Law. See section 14 of his opinion.

I agree that a violation of a prisoner’s freedom of speech because he is a prisoner violates human dignity within the meaning thereof in the Basic Law. It is another question whether freedom of speech in general is protected by the Basic Law. This question is a part of the broader question whether human rights that are not expressly mentioned in the Basic Law can or should be incorporated into the Basic Law by interpreting the word ‘dignity’, thereby opening the door to judicial review of statutes that violate these rights. This question is not at all simple. See I. Zamir, Administrative Power, Nevo, 1996, at pp. 112-113.

In case-law various approaches have been expressed in this regard in obiter dicta. See, for instance, the remarks of Justice Mazza in HCJ 453/94 Israel Women’s Network v. Government of Israel [29], at p. 522 {448} on the one hand, and the remarks of Justice Zamir, ibid., at pp. 535-536 {467-468} on the other; and what I wrote in Miller v. Minister of Defence [21], at pp. 131-133 {223-225}.

The question of freedom of speech has also been considered in case-law. Justice Zamir’s reservation in Israel Women’s Network v. Government of Israel [29] also referred to freedom of speech. By contrast, an opinion has been expressed that ‘today it is possible to deduce freedom of speech from the protection conferred on human dignity and liberty in the Basic Law: Human Dignity and Liberty’ (per Justice Barak in CA 105/92 [11], at p. 201; see also Y. Karp ‘Some Questions on Human Dignity according to the Basic Law: Human Dignity and Liberty’, 25 Mishpatim (1985), 129, 144).

8.    Freedom of speech is a central basic human right and I do not believe that in Israel it can be regarded as being part of the right to dignity. Indeed, the Israeli legislator did not intend to incorporate the freedom of speech in the right of dignity. Quite the reverse.

Knesset Member Rubinstein, who sought to promote the enshrining of basic rights in Basic Laws by enacting Basic Laws with regard to those rights for which it was possible to obtain national consensus, proposed several Basic Laws, each of which referred to different rights. Inter alia, alongside the draft Basic Law: Human Dignity and Liberty, he submitted a draft Basic Law: Freedom of Speech (Divrei HaKnesset (Knesset Proceedings) 121, 1991, at p. 3748). At the Knesset debate on this draft, Justice Minister Dan Meridor said:

‘If there is one central principle of democracy that is no less important, and possibly more important, than election mechanisms and other mechanisms, it is the freedom of speech. A state which has regular elections, and which has many other characteristics that are similar to a democracy, but which does not have freedom of speech, is not a democracy. A state which does not have freedom of the press is not a democracy. Consequently, this is one of the most significant basic rights that characterize a free society’ (ibid., at pp. 3732-3733).

In the year 5754 (1993-1994), the Constitution, Law and Justice Committee of the Knesset submitted the draft Basic Law: Freedom of Speech and Assembly to the Knesset three times. The first two drafts were not approved on first reading, whereas the third draft was approved on first reading but was not submitted for a second reading.

Apparently, the national consensus required for enshrining freedom of speech in a Basic Law had not yet been reached, and the draft Basic Law: Freedom of Speech has not been enacted until today. In such circumstances, it seems doubtful to me whether it is possible, or at any rate appropriate, to confer super-legislative status on freedom of speech generally, by incorporating it in the right of dignity. In this matter I wrote, with respect to the principle of general equality, the following:

‘Admittedly, the significance of the draft versions — which reveal the intentions of the members of the Knesset who enacted the Law — decreases with the passage of time since the legislation was passed, and the occurrence of political, social or legal changes that may justify a deviation from these intentions. But only a few years have passed since the enactment of the Basic Law, and prima facie the Basic Law should not be construed in a way that conflicts with its purpose as can be seen from the draft versions’ (Miller v. Minister of Defence [21], at p. 132 {223}).

See also, Y. Karp ‘The Basic Law: Human Dignity and Liberty — A Biography of Power Struggles’, 1 Mishpat Umimshal (1992), 323, 338.

Nonetheless, there are cases where a violation of an individual’s freedom of speech constitutes a violation of his right of dignity, within the meaning of the Basic Law: Human Dignity and Liberty. When denying freedom of speech humiliates the individual and violates his dignity as a human being, there is no reasonable way of interpreting the right of dignity prescribed in the Basic Law so that this humiliation is not deemed to violate it. See and compare the remarks of Justice Zamir in HCJ 7111/95 Local Government Centre v. The Knesset [30], at pp. 496-497; and what I wrote in Miller v. Minister of Defence [21], at pp. 131-133 {223-225}, where I referred to the distinction between the principle of general equality and the prohibition of discrimination against groups.

However, not every violation of freedom of speech involves humiliation. For instance, it has been held that freedom of speech also includes freedom of commercial expression. See HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [31]; HCJ 5118/95 Meir Simon Advertising, Marketing and Public Relations Ltd v. Second Television and Radio Authority [32]. Notwithstanding, a violation of freedom of commercial expression, for example by banning an advertisement, does not usually involve humiliation, and is therefore not a violation of the right of dignity within the meaning thereof in the Basic Law. The disqualification of a newspaper item, as distinct from a literary work or an opinion, also does not usually violate human dignity. In this matter, there are grounds for examining what is the main reason underlying the principle of freedom of speech in the context of the specific speech under consideration. It is well-known that, alongside the importance of freedom of speech for human self-realization — a violation of which is a violation of human dignity — it is also required for uncovering the truth, upholding the democratic process and safeguarding social stability. See HCJ 399/85 Kahana v. Broadcasting Authority Governing Board [33], at pp. 270-277, and the sources cited there. With all the respect due to the social reasons that underlie freedom of speech, these are not necessarily derived from human dignity. An act that violates freedom of speech shall be deemed to violate the right of human dignity, within the meaning of the Basic Law: Human Dignity and Liberty, only if it clearly violates the ‘personal’ basis for freedom of speech, as distinct from the social reasons underlying it.

The ‘silencing’ of a prisoner by his warders because he is a prisoner violates his dignity. Prisoners, in the words of Justice Haim Cohn, ‘are considered by the public as devoid of dignity, as though their criminal acts show that they chose to exchange their dignity for disgrace’ (H. H. Cohn, ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’, Hapraklit - Jubilee Volume, Israel Bar Association, 1994, 9, 33). What underlies the denial of freedom of speech to a prisoner is the assumption that because he is a criminal he is devoid of dignity — an inferior person. Such a denial therefore violates the basic right enshrined in the Basic Law: Human Dignity and Liberty.

10. From the general, let us return to the specific: in our case, the authority has not complied with even one of the requirements I listed above (in paragraph 5) concerning proportionality. As stated, the main concern raised by the respondent is that the status of the appellant as a ‘journalist’ will give him the power to praise or criticize the prison warders, and as a result he will obtain preferential treatment to which he is not entitled, he will sow discord among members of the staff and cause unrest among the prisoners, thereby compromising prison discipline. This concern may, apparently, be allayed or significantly reduced by preventing the mentioning of names of prison warders in the articles. As stated, the appellant has gone further and is prepared to submit his articles to the respondent’s censorship. The respondent’s refusal to devote the time required for this censorship is inconsistent with his duty to make a proper effort in order to prevent a violation of a basic human right. Unlike my colleague, Justice Cheshin, I do not think that —

‘… it is not their [the prison authorities’] task to occupy themselves on a permanent basis in examining the appellant’s articles: they were not trained to do this, they have no facilities for this purpose, and they are not employed for this purpose by the Prisons Service. They were trained to be prison warders and not to be reviewers of manuscripts in a book publishing house’ (paragraph 15 of his opinion —square parentheses supplied).

In my opinion, it is a clear duty of government authorities in the State of Israel to do what is necessary to safeguard basic human rights. This is certainly the case with regard to the duty of prison warders to ensure that the basic rights of the prisoners under their authority are upheld, while minimizing violations of prison order and discipline. This role is no less important than any other role imposed on the Prisons Service, and it must ensure that the warders are trained to carry it out, just as it ensures that they are trained to carry out their other tasks. In our case, there is even an explicit provision — regulation 33 of the Regulations — which requires the respondent to carry out its role in balancing between the safeguarding of prisoners’ freedom of speech and the need to maintain prison order and discipline.

Moreover, the fact that in 1989 the appellant published articles about his life in prison without the respondent showing that this publication resulted in a disruption of prison order and discipline, indicates that the respondent’s fear, which is based on speculation only, does not have a sufficient basis. Most certainly we cannot conclude from past experience that there is a near certainty that publishing the appellant’s articles will significantly and seriously disrupt prison discipline.

I therefore agree with the opinion of my colleague, Justice Mazza, that the appeal should be allowed.

 

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

10 Elul 5756.

25 August 1996.

 

 

HCJ 8035/07

HCJ 8146/07

 

 

Petitioners in HCJ 8035/07:

1.  Ronen Eliahu

2.  Erez Hindi

3.  Lemon Grass Tel Mond

4.  City Thai Ltd.

5.  Patai Lemon Grass Ramat Aviv Restaurant Ltd.

6.  Romy Ron Ltd.

7.  Honey and Cinnamon Lemon Grass Ltd.

8.  Ginger – Lemon Grass Ltd.

9.  Sheli veShel Michal Ltd.

10. Rafi Michaeli

11. Dror Kakon

12. I.S.R. Lemon Grass

13. Dov Swirsky

14. Glatt Peking Ltd.

15. Rafi levy

16. The Red Asian Restaurant (2003) Ltd.

 

Petitioners in HCJ 8146/07:

1.  Israeli Ethnic Restaurant Association

2.  Peking Restaurant, Lahak Debi Dining and Events Ltd.

3.  Yakuza Sushi Roll Restaurant Ltd.

4.  Korusin (Malha) Restaurant, Ginossar Ethnic Ltd.

5.  Lychee – We Are Different Food Restaurant Ltd.

 

v.

 

Respondents in HCJ 8035/07:

1.  Government of Israel

2.  Ministry of Industry, Trade and Employment

3.  Director of the Support Unit in the Ministry of Industry, Trade and Employment

Respondents in HCJ 8146/07:

1.  Government of Israel

2.  Minister of Industry, Trade and Employment

3.  Minister of the Interior

 

 

 

The Supreme Court sitting as the High Court of Justice

[23 January 2008]

 

Before Justices E.E. Levy, S. Joubran, Y. Elon

 

Petition for an Order Nisi

 

Israel Supreme Court cases cited:

[1]     HCJ 5626/97 Lerner v. Director General of the Employment Service (1997) (unreported).

[2]     HCJ 2836/98 Lerner v. Director General of the Employment Service. Minister of  Labour and Welfare (1998) (unreported).

[3] HCJ 9647/02 Ben David v. Minister of the Interior (2003) (unreported).

[4]  HCJ 3445/05 SushiMai Ltd. v. Ministry of Industry, Trade and Employment (2005) (unreported).

[5]  CJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673.

[6]  HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel (2006) (not yet reported).

[7]  HCJ 3872/93 Mitral Ltd. v. Prime Minister [1993] IsrSC 57(5) 485.

[8]  HCJ 9723/01 Levy v. Director of the Department of Industry and Services for Issuing Permits to Foreign Workers [2003] IsrSC 57(2) 87.

[9]  CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSc 49(4) 221.

[10] HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[11] HCJ 4947/03 Beer Sheba Municipality v. Government of Israel (2006) (not yet reported).

[12] HCJ 4593/05 United Mizrahi Bank v. Prime Minister (2006) (not yet reported).

[13] HCJ 956/06 Association of Banks in Israel v. Minister of Communications (2007) (not yet reported).

[14] HCJ 5496/97 Mardi v. Minister of Agriculture [2001] IsrSC 55(4) 540.

[15] CA 4912/91 Talmi v. State of Israel [1993] IsrSC 48(1) 581.

[16] LCA 7678/98 Benefits Officer v. Doctori (2005) (not yet reported).

[15] HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94.

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

[17] CA 10078/03 Shatil v. State of Israel (2007) (not yet reported).

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

[19] HCJ 4638/07 Al-Aqsa Al-Mubarak Co. Ltd. v. Israel Electrical Corp. (2007) (not yet reported).

[20] CA Angel v. Bodesky [1992] IsrSC 46(4) 434.

[21] CA 1639/01 Kibbutz Ma'ayan Zvi v. Krishov [2004] IsrSC 58(5) 215.

[22] HCJ 366/03 Commitment to Peace and Social Justice Association v. Minister of Finance (2005) (not yet reported).

[23] HCJ 4769/90 Zidane v. Minister of Employment and Welfare [1993] IsrSC 47(2) 147.

[24] CA 524/98 State of Israel v. Zion Insurance Co. Ltd. [1998] IsrSC 52(2) 145.

[25] HCJ 6962/03 Media Most Co. Ltd. v. Cable and Satellite Broadcasting Council [2004] IsrSC 59(3) 14.

[26] HCJ 4542/02 "Kav La'Oved" Association v. State of Israel (2006) (not yet reported).

[27] AAA 1347/07 Gorong v. Minister of the Interior (2007) (not yet reported).

[28] HCJ 10843/04 Helpline for Foreign Workers v. State of Israel (2007) (not yet reported).

 

For the petitioners in HCJ 8035/07 – D. Holz-Leczner

For the petitioners in HCJ 8146/07 – R. Jarac; S. Luria Hai-Am

For the respondents – M. Zuk

 

JUDGMENT

 

Justice E.E. Levy

1.  The petitions before us concern the decision in principle of the Government to reduce the number of non-Israeli employees in the ethnic restaurant branch (various types of Asian restaurants).  This policy was formulated more than a decade ago, and it has been the issue in several petitions filed in this Court (HCJ 5626/97 Lerner v. Director General of the Employment Service [1]; HCJ 2836/98 Lerner v. Director General of the Employment Service, Minister of Labor and Welfare [2]; HCJ 9647/02 Ben David v. Minister of the Interior [3]; HCJ 3445/05 SushiMai Ltd. v. Ministry of Industry, Trade and Employment [4]).  At present, when the Government is taking concrete steps to implement the policy, it has once again been laid on the doorstep of this Court.

2.  The petitioners, the owners of dining establishments, object to a string of decisions that were made between the years 2004-2007 in which, at the first stage, the number of permits for employing foreign chefs in ethnic and mixed restaurants was reduced, and later, the granting of a permit became conditional upon payment of a high wage to the worker, reflecting the expertise for which the restaurant sought to employ him. In 2009, it was decided that in this branch, it will be permitted to employ only foreign experts, i.e. workers with special skills, whose monthly wage will not be less than twice the national average wage – a sum which today is equal to 15,000 NIS (Government decision no. 2445 of 15 August 2004; no. 3021 of 6 January 2005; no. 4099 of 9 August 2005; no. 4617 of 29 December 2005; no. 446 of 12 September 2006 and no. 1205 of 15 February 2007).

Needless to say, this wage rate is several times the rate currently paid to migrant workers in this branch. It is no wonder, therefore, that these government decisions outraged the restaurateurs, and they were joined in their protest by others, including the Minister of Tourism and senior officials in his office, the Mayor of Jerusalem, the Chairman of the Knesset Finance Committee, members of the Knesset Economic Committee and other public officials. They all explained how much damage these decisions would cause, not only to the ethnic restaurant branch but to the entire Israeli economy.  When their efforts failed and the Government persisted in its position, the petitioners sought the intervention of this Court, asking that we direct that the previously prevailing situation be restored, at least until they are able to recruit Israeli workers to replace those who are presently employed.

The Petitions

3.  The petitioners estimate that the number of migrant workers required for the approximately 250 oriental restaurants operating in Israel today is 1,400.  Without these workers, so it is claimed, these restaurants cannot exist: these workers are at the heart of the restaurants and they alone have the necessary expertise, as it were from the womb, in the preparation of the food that is served.  The petitioners add that the government decisions inflict a mortal wound on the restaurateurs' freedom of occupation, and that although all agree that increasing the rate of employment of Israelis is a worthy cause, the measures that have been adopted to advance this cause are not proportionate.  First, there is no connection between the cessation of employment of migrant workers and opening up of the branch to Israelis.  Significant efforts have been invested by the Ethnic Restaurant Association, in conjunction with the Ministry of Industry, Trade and Employment, to train Israeli workers in the art of oriental cooking, but they have all been in vain. Israelis, even those who are involved in the culinary field, refuse to touch this work.  The petitioners do, it is true, mention that in recent months, the Ministry of Industry – which is responsible for the training of replacement personnel – has been running a trial program to train some one hundred Israelis to work in the branch, but it will be many months before this program bears fruit, if at all.

The petitioners further argue that the ethnic restaurants in Israel provide a livelihood for thousands of local workers, including suppliers, service providers, agricultural workers and food manufacturers, and they make a real contribution to the tourism sector, which provides employment for many more Israelis. According to an expert opinion written by financial consultants and attached to petition HCJ 8146/07, in recent years the number of Israelis employed in the ethnic restaurant branch has increased at a significantly higher rate than the average rate of growth in other branches of the economy (P/26).  Collapse of the branch as a result of government decisions will therefore entail damage that greatly outweighs the benefit gained by reducing the number of migrant workers.  This is even more the case in view of the fact that the non-Israeli workers in the branch constitute only a minute proportion – no more than one percent – of all the foreign workers in the economy; moreover, in other branches the Government – surprisingly – has increased the numbers due to a shortage of workers. Even if the branch is not destroyed, the petitioners are concerned that the financial burden on their businesses will lead to a price increase and harm the population at large, and particularly the weak sectors, who will no longer be able to afford to eat in those restaurants.  Furthermore, they argue, the ability of the public to enjoy the varied food culture available at present, in which the oriental restaurants play an ever-growing part, will be diminished.

The third argument of the petitioners is that it is possible to achieve the same objective by less harmful means, for example, by requiring them to employ a given number of Israelis for every foreign worker. In concrete terms, it was argued that the government edicts are arbitrary with respect both to the number of permits allocated and to the rate of pay that was fixed, and they were not preceded by consultations or discussions with people in the restaurant business.  Why a non-Israeli chef should earn twice the average national wage is a puzzle to the petitioners.  In fixing this wage, they complain, the Government did not draw a distinction between experts in the different branches of industry and services.  The result, devoid of logic in their view, is that a foreign expert in the culinary field will earn an identical wage to that of his counterparts in the fields of medicine or engineering for example, in a manner that deviates significantly from the norm in the restaurant business.

The petitioners supported their petitions with the reports of several investigative committees that were set up by governments over the past decade; these committees recognized the special nature of the branch of ethnic restaurants and the importance of distinguishing it from other branches in which foreign workers are employed (Yankowitz Committee Report of 10 March 1996; Ben-Zvi Committee Report of 14 January 1998; Buchris Committee Report of 16 July 2001; Tal Committee Report of October 2002).  Their position is also supported by the expert opinion of chef Israel Aharoni, which was attached to the petition in HCJ 8146/07, and which explained the complexity of the training required in oriental cookery and the importance of the continued employment of foreign chefs, even if Israelis learn the trade, due to the special nature of the ethnic kitchen and the working methods employed therein. Finally, the petitioners attached expert opinions from accountants who wrote that setting the wage of expert workers at a rate that is twice the average national wage will cause financial losses to a number of restaurants (P/24, P/25).

Discussion

4.  "Freedom of occupation is the freedom to employ or not to employ", stated Justice D. Dorner in CJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [5]  (at p. 682), following Aharon Barak, who wrote at greater length: "A law that imposes an obligation to employ violates freedom of occupation.  A law that requires not to employ violates freedom of occupation" (Interpretation of Law 3, 597 (1994). See also Ran Hirschl, "Israel's 'Constitutional Revolution': The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order", 46 Am. J. Comp. L.  427, 440 (1998)).  Nevertheless, in HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel [6], this Court chose not to decide on the question of violation of the freedom of occupation of an employer who is restricted in the employment of foreign workers (per Justice A. Procaccia, para. 21).

This is the basic issue in the case at hand, and in providing a normative answer to it, two aspects of restriction of employment must be considered.  The first is that aspect within the parameters of which the employment of foreign workers whose knowledge or skills are vital for the operation of the businesses in Israel is prohibited – whether absolutely or by a substantial reduction of the number of permits issued.  These workers, as such, are not different from any other resource that is vital for the business, and the restriction of which threatens to negate the employer's ability to operate it (cf. HCJ 3872/93 Mitral Ltd.. v. Prime Minister [7], at p. 505).  And what is the restriction of a businessman's ability to obtain the resources necessary for operating his business, if not a violation of his freedom of occupation? 

'The policy of employment of foreign workers, with all the restrictions that apply by virtue thereof, must take into consideration, inter alia, the basic right of a person to freedom of occupation, and the possible violation of this right where his business requires the employment of foreign workers for whom it is difficult, or impossible, to find replacements amongst local workers …. In the implementation of its general policy, the competent authority ought to consider, inter alia, the occupational requirement of the individual, [and] the extent to which his business is liable to suffer if he is not permitted to employ a foreign worker' (per Justice A. Procaccia in HCJ 9723/01 Levy v. Director of the Department of Industry and Services for Issuing Permits to Foreign Workers [8], at pp. 93, 95).

Another dimension of the restriction of employment draws upon the economic aspect of the right to freedom of employment.  This right, where it involves a commercial enterprise in which a person wishes to engage, also relates to the ability to engage in it under conditions of economic profitability.  A person who proves that he is no longer able to run a profitable business due to a governmental restriction has lifted the burden of proving that his freedom of occupation has been violated.  The criterion ought to be objective, and it should examine whether a reasonable business owner could continue operating a business of a particular type at an acceptable level, despite the additional costs incurred as a result of the legal restriction. Relevant here are rules that restrict the employer's freedom of occupation in that they fix the wage conditions applicable to his workers, including those wages that raise his wage bill in a manner that  forces him to reduce the number of workers.  Indeed, "the question of whether the decision of the authority constitutes a violation of freedom of occupation must be examined materially and not formally.  Freedom of occupation is [also] violated when the decision of the authorities indirectly affects the realization of freedom of occupation in practice" (Lam v. Director General of the Ministry of Education, Culture and Sport [5], at pp. 681, 693).  At the same time, however, we will recall that the State is not under an obligation to create conditions of economic profitability, but only to refrain from actions that counteract such conditions.

Harming the Economic Interest of the Entrepreneur

5. The economic aspect of freedom of occupation extends even beyond the bounds of this right, for it involves financial interests of the person who claims to have been injured.  The owner of a business, even if he is unable to prove that his freedom of occupation has been denied, may be harmed by the very fact that his business has become more expensive.  What shall we call such harm? Does it amount to the restriction of a constitutional right to property, or is it positioned at a lower normative level?  Does this additional cost, which in some aspects resembles costs that are incurred by virtue of the tax laws, bite into the property of the businessman?  In the overall accounting, does it take something away from him?  And to whom does this additional sum that must be paid "belong"?  These are difficult and complicated questions. They involve different conceptions of the right to property.  They confront a nuclear concept of the term "property" with a wider understanding of it.  They raise the question of whether regulatory aspects of the actions of an administrative authority, upon the existence of which the ability of the businessman to realize his economic interest is largely dependent, violate his constitutional right.  They deal with the relationship between the owner of a business and his environment (Charles A. Reich, "The New Property", 73 Yale L.J.  733, 772 (1964)); Yoseph M. Edrey, "Constitutional and Normative Obstacles for the New Tax Legislation" 8 Taxes vol. 6 (1994) a20, 25; Joshua Weisman, "Constitutional Protection of Property: 42 Hapraklit 258, 267 (1995); Aharon Yoran, "The Extent of Constitutional Protection of Property and Judicial Intervention in Economic Legislation" 28 Mishpatim 443, 447 (1997); Eyal Gross, "Property Rights as Constitutional Rights and Basic Law: Human Dignity and Liberty" 21 Iyunei Mishpat 405, 410, 438 (1998); Gregory S. Alexander, "The Social-Obligation Norm in American Property Law", 94(4) Cornell L. Rev. 745 (May, 2009) and refs. therein).

Not for nothing did this Court refrain from ruling on issues such as these, when they arose in the past.  "Does protection of property", asked Justice I. Zamir rhetorically, "also extend to restrictions on employment contracts, such as a provision concerning the minimum wage?" (CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 470.  See also President A. Barak, ibid. at p. 431; HCJ 4562/92 Zandberg v. Broadcasting Authority [10], at p. 816; HCJ 4947/03 Beer Sheba Municipality v. Government of Israel [11], per Justice D. Beinisch, at paras. 7-8; HCJ 4593/05 United Mizrahi Bank v. Prime Minister [12], per President A. Barak, at para. 9); HCJ 956/06 Association of Banks in Israel v. Minister of Communications [13], per Justice E. Hayut, at para. 7). Indeed, the question of the damage to property and the extent of its protection requires extensive examination, and necessitates in-depth consideration of legal questions, both theoretical and practical, that are not simple.

However, even if the allegedly injured party did not succeed in lifting the burden of proof, the matter will not be at an end if he showed, instead, that a protected legal interest of his – even one of lesser import than a constitutional basic right – was violated.  When I say "protected interest" I am referring to an interest that would justify the transfer of the burden of proof onto the shoulders of the State to show that the violation was lawful.  An anchoring link is required, which would change a "regular" interest into one that gives rise to a claim vis-à-vis the authority.  This link could lie, inter alia, in a statutory act that confers a right – one that does not enjoy constitutional status – by means of an administrative action in which the person's interest is guaranteed, or through a person's reliance on existing government policy or legitimate expectations in light thereof. In the words of Justice Zamir:

'Protection is generally granted to vested rights.  In certain circumstances, however, the interest of reliance or the need to fulfill legitimate expectations also justify the granting of protection to an interest that does not amount to a right in the accepted sense or to an interest that has not yet crystallized into such a right' (HCJ 5496/97 Mardi v. Minister of Agriculture [14], at p. 552.  See also CA 4912/91 Talmi v. State of Israel [15], at p. 625; LCA 7678/98 Benefits Officer v. Doctori [16], per Justice A. Procaccia, at para. 20).

Judicial Review

6.   When a governmental action violates a right or a protected interest, recourse to administrative law to examine the constitutionality of that action is justified. This involves an examination of the purpose of the action and the extent of the harm that it causes, and use is made of tools that originate in the criteria of the limitation clause in the Basic Laws (HCJ 4541/94 Miller v. Minister of Defense [15], at p. 138). These tools render the review of administrative actions more precise, and facilitate the judicial decision-making process   (HCJ 3648/97 Stamka v. Minister of the Interior [16], at p. 777; CA 10078/03 Shatil v. State of Israel [17], at para. 22 of my judgment).  Their efficacy, as well as the need to invest the process of judicial review in all its aspects of the administrative enterprise with a systematic and consistent character, justify their application both when a constitutional right is affected, and when a right or a protected interest which have a lesser normative status are affected (HCJ 5016/96 Horev v. Minister of Transport [18], at p. 43; HCJ 4638/07 Al-Aqsa Al-Mubarak Co. Ltd. v. Israel Electrical Corp. [19], per Justice U. Fogelman, at para. 8).

Even though identical tools are used for the examination, the distinction between violating a constitutional right and a value of a lower status finds expression in the contents that are revealed by application of these tools.  I am referring mainly to the third criterion of proportionality, i.e. the "narrow" criterion, that places on one side of the scales the benefit of the administrative action and on the other, the damage, in all its aspects.  Clearly, where the right that has been violated is a constitutional right, the other side – counterbalancing the violation – must be more heavily weighted.

Assessment of the harm and determination of constitutionality require both a factual and a normative basis.  We refer to the facts particularly at the stage of identifying the violation, in determining its magnitude and in examining proportionality.  Most of the factual issues can only be resolved on the basis of information submitted by the parties to the court and proved in their evidence, since the judicial body is generally lacking independent tools with which to establish facts (CA Angel v. Bodesky [20], at p. 437; CA 1639/01 Kibbutz Ma'ayan Zvi v. Krishov [21], at p. 273; Barak supra, at p. 479). At first, the burden of submitting the information is borne by the petitioner, who is claiming a violation of a right.  If he is successful, the burden moves onto the shoulders of the administrative authority, which must show that the violation is lawful (United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 428, per President Barak; HCJ 366/03 Commitment to Peace and Social Justice Association v. Minister of Finance [22], paras. 10, 18 of my judgment). The factual examination need not necessarily reflect hindsight.  A well-founded expectation that a factual development will eventuate is sufficient.  However, the person making a claim about a situation that has not yet occurred bears the burden, which at times is not light, of showing a real chance that his expectations will be realized.

7. The normative aspect expresses itself primarily in the requirement of a proper purpose for the administrative act and in the test of "narrow proportionality" mentioned above.  In investigating this aspect we must follow the dictates of logic and morality and the public consensus; we must identify the fundamental elements of the regime and of the prevailing social order; and we must locate and develop concepts of the good on which they are based.  The advantage of the High Court of Justice here lies in the fact that it is an external body that is not involved in the administrative act; in its freedom from the political partisanship which is dominated primarily by passing trends; in the analytical tools which the law makes available to it,   and in the special role reserved for it in advancing the basic principles of justice and morality, mandated by its name and by the judicial tradition that developed in the court from the early days of the State.  At the same time, as a body that is scrupulous in maintaining the separation of powers in the substantive sense, the Court will take care not to put itself in the shoes of the administrative authority in determining appropriate policy and implementing it, even if it believes that it would be better to adopt a different policy.  "The application of powers vested in the court", wrote President M. Shamgar, "should be properly exercised in a way that refrains from turning the Court into a body that actively shapes the economic policy that it deems to be correct or preferable"  (United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 331 [emphasis in original]; see also HCJ 4769/90 Zidane v. Minister of Employment and Welfare [23], at p. 172; CA 524/98 State of Israel v. Zion Insurance Co. Ltd. [24], at p. 151; HCJ 6962/03 Media Most Co. Ltd. v. Cable and Satellite Broadcasting Council [25], at p. 30). Indeed, the court does not, and does not purport to engage in determining practical policy.  The point of departure for judicial review is that insofar as the court is asked to deal with questions of policy, it will refrain from doing so.  As stated in the specific context of the issue with which we are concerned:

'Tackling the issue of foreign workers is complex.  It involves taking into consideration a wide range of interests.  It involves taking into consideration the foreign workers themselves, their employers, and the needs of the Israeli economy and Israeli society as a whole.  It gives rise to difficult professional, economic and social questions that require responses on different planes.  In these circumstances, the intervention of the court in the selection of measures by the administrative authority for dealing with the issue confronting it will be narrow and limited' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 14).

Armed with all the above, I am now able to examine the arrangement that is the subject of this case.

Employment of Chefs from Overseas in the Field of Ethnic Restaurants

8.  The phenomenon of migrant workers has a significant impact on the Israeli economy and on the employment market in general.  Even those who support the phenomenon cannot deny the complex problems to which it gives rise, some of which are interconnected.  Several of them have been dealt with in past judgments of this court (HCJ 4542/02 "Kav La'Oved" Association v. State of Israel [26]; AAA 1347/07 Gorong v. Minister of the Interior [27]; HCJ 10843/04 Helpline for Foreign Workers v. State of Israel  [28]), and it will suffice to mention the detriment to the employment of Israeli workers, the rate of pay that is dragged downwards due to the effect of cheap labor, the negative treatment of the "foreign" worker – the few legal protections result in consistently decreasing his marketability – and the problems of the existence of a large sector that is not perceived to be an integral part of Israeli society, although it has lived and functioned within the society for many years.  After a long period in which governments in Israel ignored these problems, a policy for dealing with them began to take shape.  There will be those who argue with the degree of success of this policy, with the suitability of the measures that are adopted within its framework or with the conceptions on which it is based.  But it would seem that it is no longer possible to avoid the conclusion that without regulatory intervention, no response will be found for the whole set of problems as described, in that market forces alone are inadequate to provide a solution, as reality has proved time after time.  In order for this policy to succeed, it must take a comprehensive view of the issue.  This is no simple task that has been laid on the shoulders of the State, in view of the complexity of the problems, the myriad interests and interested parties that are involved, and the direct and indirect effects of any policy that will be adopted on the economy, on society and on the individual.

9.  Do the decisions that are the subject of this proceeding have an inordinately damaging effect on the protected interests of the individual, i.e. of the restaurateur who wishes to employ foreign chefs?  We are concerned, first and foremost, with the factual question.  The petitioners laid on our doorstep – as I mentioned above – evidence of a violation of their freedom of employment – a violation which according to them has already occurred and will become even more severe in future.  In my view, however, the material that was submitted does not constitute sufficient grounds for the existence of a violation of this constitutional right, in any of the aspects presented above.

First, it is clear that the government decisions do not prevent the restaurateurs from employing foreign workers.  Permits will be issued, even if their number will be lower than in the past and even if the cost involved in obtaining them is higher.  I have not found in the petitions, nor even in the oral pleadings, a claim that the number of permits for the employment of foreign experts in each restaurant is not in keeping with the required number of workers. The petitioners do not argue that even were they prepared to accept the pecuniary decree, the number of permits offered to them would not meet their employment needs.  Indeed, the Government does not wish to deny the restaurateurs the ability to benefit from the particular characteristics of those workers – which give them, at least at present, an advantage over the employment of Israelis, and I am referring to the knowledge, the skills, the work ethic and even to appearance and language.  On the contrary, in acknowledging that these workers have special characteristics that render them sought after in the local restaurant sector, the Government seeks to entrench their position such that on the one hand, a person who does not meet these special criteria will not be employed, and on the other, those who are employed will be suitably recompensed.  This policy, so it has already been ruled, attributes suitable weight to the interest of the employer in allocating permits for the employment of foreign workers (Polgat Jeans Ltd. v. Government of Israel [6], at para. 15).

The crux of the matter is, therefore, the economic profitability of employing those workers under the new conditions, and in practice - the relationship between the commercial advantages inherent in their employment and the cost to the employer.  There is no doubt that setting a wage rate at twice the national average greatly increases the latter component.  But will the effect on the benefit that the employment of those workers brings to the business be so drastic as to negate the profitability of the enterprise?  I cannot deduce this from the information that was submitted by the petitioners.  The expert opinions relating specifically to a limited number of restaurants – four out of two hundred and fifty (P/24) – which, it was argued, would face financial loss, do not suffice, nor does the general statement that this would be the fate of "many other restaurants" (P/25). What is required is specific data on the effect of the new policy on this branch, and the petitioners did not provide this.  More importantly, the expert opinions that were submitted relate to the existing system of management of the restaurants.  Nothing in the data that was presented indicates that it is not possible to operate an ethnic restaurant successfully, in a reasonable manner, even with the new rates of pay.

At the present time it is difficult to say whether implementation of the new policy will deprive the ethnic restaurants in Israel of their ability to exist as profitable enterprises or affect their special cultural character, or whether the petitioners will succeed in finding a solution for the problems that have arisen, particularly if the State provides some support.  The unknowns are numerous.  Is the wage that is currently paid to non-Israeli chefs reflective of their true market power?  Is the price level at the ethnic restaurants, and their number, in keeping with the demand for the service that they offer?  Will the new policy, along with the effort that is being invested in the training of Israelis in the art of ethnic cookery, lead to an opening up of the branch to Israeli labor?  Will the owners succeed in adapting themselves to the new regulatory policy?  These and other questions require solutions in real life.  I have not been offered even the beginning of a satisfactory answer to them, and therefore I cannot establish that the petitioners laid the grounds for a conclusion concerning a violation of their freedom of employment.  The same applies with respect to the question of a violation of a property right, which was not even mentioned in the petitioners' pleadings.  They did not base their petitions on this issue, and did not submit evidence to prove it.  What they omitted, the court will not complete in their stead.

10.  The foundation has not, therefore, been laid for determining that any of the constitutional rights of the petitioners has been violated.  Things are different with respect to the question of damage to a protected economic interest, the status of which is inferior to that of a constitutional right.  There is no doubt that even if the petitioners succeed in keeping their businesses operating under the new conditions, the direct effect of the new policy – the need to pay a wage that is higher than the norm and an increase in costs – will worsen their financial situation.  Indeed, the petitioners have no vested right to be permitted to employ workers at low wages, but a change in the policy that prevailed for many years, in the framework of which the wages of foreign workers were not dealt with, provides the required opening for putting the decisions to the tests of proper purpose and proportionality.

I have already discussed the proper nature of the purpose, and we are therefore left with the question of proportionality.  In my view, the State succeeded in showing that its decisions were compatible with the requirements of all three tests of proportionality.  First, at the present time and as long as reality has not proved otherwise, there is no basis for challenging the assumption concerning the existence of a rational connection between the policy that is implemented and the purpose that the government wishes to achieve. Support for the State position can be found not only in the dictates of common sense, but also in the data that was submitted by learned Counsel for the State, Adv. M. Zuk, which relates to what is happening in other branches in which foreign workers are employed.  The data indicates a clear connection between the change in the rate of employment of non-Israeli workers, and the change in the number of Israeli workers employed in the agricultural sector (para. 56 in the State's response) and in the construction sector (para. 55).  In the latter sector, the results of the government policy to limit the dimensions of employment migration, which led to a significant increase in the number of Israelis who were employed, was demonstrated (ibid.). The argument of the petitioners concerning the exclusive characteristics of the restaurant business is not devoid of logic, but they will have to back it up with factual data, which at present they do not have.

11.  On the matter of the alternative measure, I will mention again the combined aims of the government policy: to increase the number of Israelis employed; to narrow the gap between the value of labor of the employee – Israeli and non-Israeli – and between the rate of pay he receives, and to reduce the number of foreign workers who are not essential to the employer. I find it difficult to envisage any alternative to the solution adopted by the State that could achieve these aims.  The petitioners' proposal to employ a certain number of Israelis per each foreign worker does not meet the requirement, since it would appear that a fundamental element in achieving those aims is raising the status of the said field of employment.  In these circumstances, the foreign workers would continue to be employed at low rates of pay, similarly low pay would be offered to Israelis, and the latter will continue to shun this field of employment.  As for the rate of pay that was set, it would appear that any rate that was set would have been arbitrary to some extent, for in the nature of such things it is difficult to quantify precisely the value of the employment of foreign experts in each of the restaurants, as it is in relation to each of the other branches of labor.  The main thing, in my view, is that the rate which is set is acceptable and not obviously excessive.  Finally, I will say that the new arrangement has been implemented gradually, and it has not struck the petitioners like a thunderbolt out of the blue. In this way, undoubtedly, the detrimental effect on them has been reduced in a manner befitting the rationale underlying the second criterion of proportionality.

12.  As for the balance of benefit:  here, too, the petitioners are hindered by the absence of factual data which could indicate the extent of anticipated damage in all the areas that they claim.  At present, the basis has not been established for the claim whereby the policy that has been adopted will reduce the number of Israelis employed, because it will affect the leisure culture of the public, harm the tourist industry or widen the gap between the different classes in Israel.  All that has been placed on the side of the drawbacks is the added costs to the restaurateurs – an economic interest which prima facie, and from a normative aspect, does not counterbalance the potential benefit in realizing the government aims.  The balance that was struck is not without foundation.  It is not unreasonable.  Its source does not lie in some governmental caprice, but rather, in policy that was formulated after extensive investigation of the subject, and which is compatible with the economic and social agenda of the Government.  It does not, therefore, warrant judicial intervention.  How the balance of benefit will appear with the passage of time and as the results of the selected process become clear, only time will tell.  At the present point in time, the State has succeeded, in my opinion, in showing that this balance tilts in favor of its decisions, and with this it has fulfilled its obligation to demonstrate that the harm caused by these decisions does not exceed that which is required.

Damage to Other Protected Values

13.  I also find the claim of discrimination between employers, which is based on the different rules governing each of the branches requiring foreign workers, to be unsubstantiated at present.  This is a dual-pronged argument: first, that the policy of reducing the number of permits was not implemented in relation to other occupations, i.e. a similar norm should have been instituted not only in relation to restaurants but in all the branches that avail themselves of foreign workers; secondly, the determination in relation to the wage that must be paid is not sufficiently sensitive to the special characteristics of the branch of ethnic restaurants, which is to say that the branches should have been differentiated.  The reason for dismissing the claim of discrimination, in both its aspects, does not lie in this apparent contradiction, but in arguments touching upon the substance of the matter.

First, in relation to the number of permits:  It has already been ruled that each branch in the economy has its own needs, and each branch has a policy befitting its own context.

 'Policy relating to branches is directly influenced by the needs of the branch for personnel of different types, and it changes from branch to branch in accordance with the structure, the requirements and the particular problems of each.  This is a matter of different arrangements that are engendered by different requirements, and this does not give rise to a claim of discrimination' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 17).

Accordingly, it is possible to adopt a policy that distinguishes between the different branches on the basis of the degree of necessity of employing non-Israeli workers.  In the case before us, the Government decided that in the industrial and services sectors, insofar as there is a need for employing non-Israelis, it is experts that are required.  These, as I have already ruled, are available to the restaurateurs, as long as they fulfill the wage requirements.

As for the rate of pay: the argument of the petitioners is that "it is not possible to compare an expert oceanographer with an expert heart surgeon, architect, builder or expert ethnic chef" (para. 32 in HCJ 8035/07), which prima facie seems to be a seductive argument, but which in effect is worthless.  It must be recalled that the government decisions are not aimed at fixing a unified wage rate for immigrant workers.  Rather, they seek to set a minimum level below which employment of a non-Israeli will not be permitted, thus realizing the principle that requires that there be an advantage to hiring a foreign worker, other than his willingness to work for a low wage.  In order for the argument concerning discrimination to succeed, the petitioners would have had to show that in other branches, such as those specified above, the wage rate that was fixed was not effective in the realization of this principle. Not only did the petitioners not do so – once again the factual aspect of their petition was deficient – but it seems that in most of the occupations to which the argument relates, that principle is anyway realized by virtue of the special skills of the workers, to the extent that there is no longer a need to guarantee it by setting a particular wage rate. Justice Procaccia discussed this as well, writing as follows:

'In the industrial sector, the arrangement for issuing permits for the employment of foreign workers with special expertise is built on high wages.  In the fields of agriculture and construction, the arrangement is built on the employment of workers with regular skills.  This difference reflects on the level of wages paid to the workers' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 17).

At the same time, I will emphasize what seems to me to be obvious, i.e. that the declarations of the State concerning the common normative basis for its policy in each of the branches that have recourse to migrant workers, cannot remain on paper alone.  Wherever the State encounters difficulty in standing by its word and realizing the aims that served as its beacon in this matter – and I need only mention the discussion in the abovementioned case of Helpline for Foreign Workers v. State of Israel [28] – it will have difficulty in remaining convincing about its proper management of the whole issue.

14.  If I saw fit to dwell further on any of the arguments of the petitioners, it would be on the matter of the right of pleading, or what they call the "duty to consult" prior to the said decisions being taken.  As the petitioners themselves demonstrated, the formation of the present policy was preceded by a long process of investigation throughout which – as transpires from the appendices to the petitions – the petitioners expressed their position openly, by means of a serious lobby of public figures, with appearances in committees charged with the subject and in letters that were sent to the competent bodies. In these circumstances, there is no doubt that their position did not remain unheard, and it is as well-known as it need be to the decision-makers.  Thus the purpose underlying the right to plead has been realized.

I do not make light of the petitioners' concerns.  It is natural that a person looks out for his own interests. It is also natural that the owner of a business strives to maximize his profits.  But the Government – with a wide perspective – sought to provide a response to problems that extend beyond the particular concern of the petitioners, and the latter have not, as yet, succeeded in showing that they cannot adapt themselves to this policy, or that its disadvantages, overall, outweigh its advantages.  The burden of proof required for establishing grounds for judicial intervention has therefore not been lifted.

For this reason, I propose to my colleagues that we deny the petitions and cancel the interim order that was issued.  I further propose that we obligate the petitioners, in each of the petitions, to pay the respondents costs in the amount of 20,000 NIS.

 

Justice S. Joubran

I agree.

 

Justice Y. Elon

I agree.

 

Decided as per the judgment of Justice E. E. Levy.

 

16 Iyyar 5768

21 May 2008

 

 

Crim.A. 126/62

 

           

ARYEH DISSENCHICK AND SHAUL HON

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal  Appeal

[February 20, 1963]

Before Sussman J., Landau J. and Berinson J.

 

 

Courts - Contempt of court - newspaper report on pending criminal trial - Courts Law, 1957, sec. 41(a)

 

The trial of one Rafael Blitz for murder stretched over a number of days. On the second day. a newspaper (of which the first appellant was the editor and the second appellant the responsible journalist) published a report which indicated that in answer to the charge defence counsel had pleaded not guilty before the accused could say anything. In the body of the article it was reported that before trial the accused had in fact admitted his guilt to a journalist, although it was noted that such admission not having been made in court was not binding. The appellants were charged with contempt of court and were convicted and fined. The appeal was against both conviction and sentence.

 

Held. Although the jury system does not exist in Israel, no one may try to prejudice the court, composed of professional judges, in a matter being heard by it. It was not necessary that the court should in fact have been influenced by a publication but enough that it or witnesses in the case might be. Freedom of expression is not absolute. It may not offend against the right to a fair trial and certainly not introduce matter not actually before the court. During the trial itself, only the bona fide publication of what was said or transpired in open court is permitted.

 

Israel cases referred to:

 

1.         H.C. 14/51 : Attorney-General v Z. Rotam and others (1951) 5 P.D. 1017.

2.     H.C. 73/53 : "Kol Ha'am" Co. Ltd. v Minister of the Interior (1953) 7 P.D. 871; S.J., vol I, 90.

3.     H.C. 243/62 : Israel Film Studios Ltd. v Levi Geri and others (1962) 16 P.D. 2407: S.J. vol IV, 208.

4.         Cr.A. 24/50 : Avraham Gorali v Attorney-General (1951) 5 P.D. 1145.

5.         C.A. 36/62 : Israel Ozri v Y. Galed and others (1962) 16 P.D. 1553; S.J., vol IV, 347.

 

English cases referred to:

 

6.         Hunt v Clarke (1889) 61 L.T. 343.

7.         R. v Duffy (1960) 2 Q.B. 188; (1960) 2 All.E.R. 891.

8.         Delbert-Evans v Davies & Watson (1945) 2 All.E.R. 167.

9.         R. v Clarke (1910) 103 L.T. 636.

10.       Re D.O. Dyce Sombre (1849) 41 E.R. 1207.

11.       R. v Gray (1900) 2 Q.B. 36.

12.       R. v Davies (1945) 1 K.B. 435.

 

Australian case referred tb:

 

13.       Ex parte Senkovitch (1910) S.R.N.S.W. 738.

 

Canadian case referred to:

 

14.       R. v Willis & Pople (1913) 23 W.L.R. 702.

 

American cases referred to:

 

15.       Pennekamp and others v State of Florida 328 U.S. 331 (1946).

16.       Bridges v State of California 159 A.L.R. 1346 (1941).

17.       Patterson v State of Colorado 205 U.S. 454 (1907).

18.       Schenk v U.S. 249 U.S. 47 (1919).

19.       Cantwell and others v State of Connecticut 310 U.S. 296 (1940).

20.       Abrams and others v U.S. 250 U.S. 616 (1919).

21.       Schaefer v U.S. 251 U.S. 466 (1920).

 

S. Levin for the appellants.

G. Bach, Deputy State Attorney, for the respondent.

 

SUSSMAN J.             The trial of Rafael Blitz, charged with murder under sec. 214(d) of the Criminal Code Ordinance, 1936, opened in the District Court on 5 November 1958. The hearing was adjourned to the following day but was not then concluded. The case continued to be heard on 9 November, 1 December and 3 December 1958. Judgment was given on 12 January 1959. When on 5 November 1958 Blitz was asked whether he admitted or denied the charge, he replied (according to the judge's notes) "I deny the charge."

 

2. On 6 November, 1958, the second day of the trial, the newspaper Ma'ariv carried a report by the second appellant, together with a picture of Blitz. The report bore the following caption: "BLITZ (TOMMY) ASKED - DEFENCE COUNSEL REPLIES" and beneath it "I DON'T ADMIT IT." The report began

 

"Rafael ("Tommy") Blitz had only to say three words yesterday when asked by the judges whether he admitted murdering Engineer Fiatelli near to the Zafon Cinema. Blitz stood tensely upright, open-mouthed - but before he could reply to the question, his counsel answered for him 'I don't admit it'."

 

This passage was emphasised by being printed in bold type. The report went on to say (in ordinary type)

 

"Blitz's gaze quickly turned from the judge to counsel. For a moment heavy silence reigned. Apart from Blitz himself, no one could know whether the negative answer was the one he had prepared to utter. Earlier, before the case began, he had given another answer to a question from a journalist. But that answer was not binding because it had not been given to the judges who judge a person on the evidence put to them. Since counsel's answer was decisive, the trial of Blitz therefore began."

 

3. The two appellants were charged under sec. 41 of the Courts Law, 1957, for writing and publishing this report, the second appellant as the writer and the first appellant as editor of the newspaper. They were convicted and fined IL. 200 each. They now appeal by leave of the District Court against judgment and sentence.

 

4. Sec. 41(a) of the Courts Law provides:

 

"A person shall not publish anything concerning a matter pending in any court if the publication is calculated to influence the course or outcome of the trial; however, this prohibition shall not apply to the bona fide publication of a report of anything that has been said, or has occurred, in an open session of the court."

 

            The District Court (per Judge Harpazi) found that the description of Blitz's behaviour in court along with the wonder of the writer as to what Blitz would have replied had counsel not intervened and said "I don't admit it", were protected by the end of see. 41(b), being a bona fide description of what occurred in an open session of the court. But the District Court found the two appellants guilty of an offence under see. 41 for that part of the report which stated that before trial Blitz had given a journalist an answer other than "I don't admit it." The court held that this information was calculated to influence the outcome of the trial both because of its effect on the judges who sat and heard the case against Blitz, and more seriously because of its effect on witnesses who had been summoned in the trial.

           

5. Mr. Levin for the appellants argued before us that the different answer of which the report spoke need not necessarily have been "I admit it". There was a variety of possible answers by a person standing criminal trial when asked whether he denies or admits the offence, such as "I admit the facts but not the offence".

 

            In my view this argument is groundless. The words in the report "Blitz had only to say three words yesterday," against the background of the headline of four words "I don't admit it", by themselves indicate that the three word answer Blitz "should" have given was "I admit it". Even if that is not so, the writer goes on to say that the trial began as a result of the fact that counsel's reply is decisive ("the trial ... therefore began") and "that answer (of Blitz himself to a journalist) was not binding." The emphasis on the causal connection between counsel's reply and commencement of the trial, in contrast to Blitz's own answer which would have made the trial superfluous had it been binding, shows clearly to the reader that the non-binding answer was "I admit it."

           

6. The second argument of appellants' counsel was that nothing in the report was calculated to affect the outcome of the trial. Mr. Levin directed us to the leading judgment of Witkon J. in Attorney-General v Rotam, (1) particularly to the observation in paragraph 16, and he

 emphasised the fact on which Witkon J. (in paragraph 13) and Agranat J. (at p. 1052) dwelt, that in this country where trial is before professional judges, the possible influence of newspaper publication is far less than it is in other countries where the facts are determined by a jury. Since I have reached the conclusion that the District Court was right in its decision that the report was likely to influence the witnesses, and thus also the outcome of the trial, 1 shall only derate brief words to this argument.

 

            I also think that our mode of trial which generally does not involve lay participation - I am not concerned with exceptional procedures such as in the municipal courts or rent tribunals - warrants a more liberal approach to publications touching pending court cases. The professional judge is accustomed to sift the grain in accordance with the law of evidence and to set out his reasons in writing. He is not likely to be affected by a publication to the same extent as a juryman who returns to the court room with the general answer of "guilty" or "not guilty", the reasons for which remain locked within his breast. Although the public may properly presume that a professional judge can largely rid himself of the influence of what he reads in the newspapers, it is not free, even as regards the judge, from the obligation not to try and create prejudice about a matter pending in court. There is no justification for the illusion that the judiciary is a precision machine which will produce the right factual conclusion in exchange for and required by the admissible evidence supplied to it. It is important to recall here what Justice Frankfurter said in Pennekamp v Florida (15) at p. 1042:

           

"Judges are also human, and we know better than did our forebears how powerful is the pull of the unconscious and how treacherous the rational process."

 

To weigh the evidence, to determine the credibility of witnesses, their powers of observation and their memory are among the most difficult of judicial tasks. They are more difficult than deciding the law, with our law faculties and teachers to instruct a person in the wisdom of the law before he becomes a judge. No one can teach the work of elucidating and establishing the facts. Each one of us learns that from his experience during his lifetime.

 

7. I shall therefore assume that the appellants are right in saying that the report was unlikely to influence the judges who sat in the case, that reading it the judges could avert their minds from it as they normally do from inadmissible evidence. Before I pass to the matter of the possible influence on witnesses, I must deal with a preliminary argument put by appellants' counsel. The hearing of Blitz's case began, as I have said, on 5 November 1958 and continued on the morning of 6 November, before the newspaper came out. Blitz had already admitted to the police ... that he had been at the scene of the crime and had even fired shots. At the trial, however, his counsel urged that also the police had fired shots when pursuing Blitz; it is possible therefore that Fiatelli was killed not by Blitz's shots but by one fired by the police. The question was, whose shot caused Fiatelli's death. In this regard, Mr. Levin argues the evidence of the prosecution was completely in by the time the paper came out at noon on 6 November.

 

            I cannot accept this argument. Blitz's trial did not end until 12 January 1959. Even after 6 November 1958 evidence was being taken. Whether or not the publication amounts to an offence does not depend whether it in fact influenced the outcome of the trial. Under see. 41 it is sufficient that it "is calculated to influence", that it could influence. That is the law not only in England: Hunt v Clarke (6), but also in the U.S.A. where the courts, in consequence of the First and Fourteenth Amendments (free speech and due process), tend to construe restrictively the rules of contempt of court: see Frankfurter J. in Bridges v California (16) at p. 1371.

           

            Generally it cannot even be said whether a publication has really influenced matters, and for this reason alone the guilt of the publisher is not to be made dependent on the outcome of the trial. The possibility of such influence is enough to cause injury to the integrity of judicial hearings and render doubtful whether justice has been done. The decision in a trial must rest on the foundation of the evidence adduced and taken openly. A trial influenced by invalid "external" hidden factors is not a judicial trial.

           

            In Patterson v Colorado (17) Justice Holmes dealt with the question of whether a newspaper publication proclaiming a witness a liar should be treated as contempt of court. I will return to the observations of the Justice in another connection. Here I am content to quote one sentence of his which explains the idea of the prohibition embodied in our see. 41:

           

            "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court; and not by any outside influence, whether by public talk or public print."

 

            Furthermore, even after the appearance of the newspaper evidence was taken to prove that it was Blitz's bullet which caused Fiatelli's death, after Counsel had previously suggested the possibility of Fiatelli having been shot by a policeman. Inspector Zelinger who happened to be at the scene of the murder testified at the trial that he heard "about six shots" ... He was cross-examined by counsel for the defence and asked whether he was armed. He answered, no. He also denied that on leaving the cinema he fired warning shots. On 9 November 1958 the prosecution called three witnesses ... to controvert the argument of the defence, as above. Blitz admitted in the box to firing five shots. According to Zelinger's evidence there was only one other shot that might have killed. Defence counsel based his argument in summation on this fact: "Is there another possibility that one of the policemen who was on the spot wanted to harm Blitz." Hence the danger of adverse influence had not yet passed when the newspaper came out on 6 November.

           

8. As regards the question whether publication of the report was "calculated to influence the outcome of the trial" as provided in see. 41, Mr. Levin suggested putting the matter to the "clear and present danger" test, first adopted by this court in the "Kol Ha'am" case (2). His argument was that it is not enough that publication is likely to influence the outcome of the trial but that what is required is the probability that immediate damage will be caused.

 

            I find no foundation in the argument. In "Kol Ha'am" the question before the Court was in what circumstances the Minister of the Interior may exercise his powers under sec. 19(2)(a) of the Press Ordinance to suspend the publication of a newspaper. Sec. 19(2)(a) conditions that power on the publication of matter "likely to endanger the public peace." Agranat J. speaking for the Court, set a number of different grounds. One of them was the term "likely" used by the legislator, which is synonymous with "probable" or "that may reasonably be expected" (at p. 188). Another was the need to balance freedom of speech - and freedom of the press which is only a projection of that - as a fundamental right in a democratic regime against the duty of the government to safeguard public security, in face of which the right of the citizen may retreat only in exceptional cases; such exceptional cases are those in which "a clear and present danger" of a breach of the peace is manifested, according to Justice Holmes in the well-known case of Schenck v U.S. (18). Employing the same test, this Court recently decided whether the Film Censorship Board had lawfully used its power to forbid the exhibition of a film (Israel Film Studios Ltd. v Geri (3)).

 

9. I would think that this test is not appropriate in the case before us. There what was involved was the restriction of a right in the interest of public necessity, here it is the reconciliation of an interest which the public is concerned in preserving with another with which it is equally concerned. The invasion of freedom of speech because of the danger of a breach of public order, which is a sore evil only to be effected to the extent that it is essential, is unlike delimiting that freedom in order to do justice. The public interest in justice being done is no less a value than its interest in maintaining freedom of speech. In balancing the two, it is no less wrong to repress the one than it is to repress the other. In the one case future publication is prevented because of a "faulty" report published in the past, when future publication may well be faultless. In the other case, punishment is imposed for an offence committed by a past publication. In Attorney-General v Rotam (1) Agranat J. (at p. 1054) and Witkon J.(at p. 1029) drew attention to the fact that the U.S. Supreme Court applies the said test also to contempt of court, and in view of such authority the question calls for more basic examination.

 

10. The leading case in which the Court laid down "the clear and present danger" principle as a guide in determining whether a publication amounts to contempt of court was Bridges v California (16). Justice Black at the beginning of his judgment (speaking for the majority of five justices) stressed that the offence charged against the appellant was undefined by enacted law and that he was found guilty on the basis of a common law rule which in view of the trial court remained over from the time of British rule. Justice Black continued (at p. 1355):

 

"It is to be noted at once that we have no direction by the legislature of California that publications outside the court room which comment upon a pending case in a specified manner should be punishable. As we said in Cantwell v Connecticut (19), such 'declaration of the State's policy would weigh heavily in any challenge of the law as infringing constitutional limitations.' But as we also said there, the problem is different where 'the judgment is based on a common law concept of the most general and undefined nature'."

 

            I am not stating anything new in observing that freedom of expression is not an absolute right but is likely to come into conflict with other rights, and in such a conflict, there are occasions when the latter will prevail. As was said in Gorali v Attorney-General (4): "Everyone has the right of freedom of speech and freedom of expression, but exercise of the right is subject to restriction by law."

           

            Freedom of expression is not freedom to ridicule or licence to defame a person and commit an offence under sec. 202 of the Criminal Code Ordinance, 1936, or to do the injurious acts mentioned in see. 16 of the Civil Wrongs Ordinance, 1944: Ozri v Galed (5), neither can it justify the commission of any other wrong. In the present case, we are dealing with the charge of an offence against a Law recently enacted by the Knesset, that is, the matter has come before us, as Justice Black put it in Bridges (16) "encased in the armor wrought by prior legislative deliberation."

           

            The first question which presents itself when treating of a contemporary enactment is what is the situation involved. I cannot attach decisive importance to the fact that the offence of contempt of court emerged under absolute monarchy under which contempt of court is considered to be equivalent to contempt of the monarch himself. (See Nelles & King, "Contempt by Publication in the United States", (1928) 28 Col.L.R. 401, 525). We are not concerned here with a charge of offending the honour of the judges who heard the case and for this reason I shall not dwell on the question in what circumstances a publication of such a kind should be punishable. We are concerned with the publication of the admission of a crime uttered in the presence of a journalist, concealed by a denial in court of the charge. That constitutes interference with a case pending in court, an equivalent to passing the hearing of the charge from the court properly dealing with it to the public at large, invited to adjudicate on it according to information presented in a newspaper. A free democratic regime is also entitled to safeguard the integrity of judicial hearings, otherwise freedom and anarchy become synonymous. By literally prohibiting publication which "is calculated to influence the course or outcome of the trial", the Knesset has said that no one shall publish anything capable of influencing the course of a pending case. The term "calculated to " means only that the publication becomes "a special publication", as stated in the marginal title of see. 41, if it is of sufficiency to influence the case.

 

11. The course normally taken to establish the significance of some legal prohibition is to ask what is the mischief which it is sought to suppress. That is the key to correct interpretation. In the present case the answer is that the Law is intended to avoid, inter alia, the presentation of matters touching upon a case then being conducted which were not raised before the court dealing with it.

 

            Justice Holmes who coined the phrase "clear and present danger" in Schenck (18) died in 1935 and was not a member of the court that sat in Bridges (16) in 1941. But what he himself said in Patterson v Colorado (17) in 1907 can here be cited in support:

           

"A publication likely to reach the eyes of the jury, declaring a witness in a pending case a perjurer, would be none the less a contempt that it was true. It would tend to obstruct the administration of justice, because even a correct conclusion is not to be reached or helped in that way, if our system of trials is to be maintained ... What is true with reference to a jury is true also with reference to a court."

 

12.       The notion of freedom of expression or "free trade in ideas" as was said in Abrams v U.S. (20) is based on the consideration that in the course of expressing views without limit or restriction "the power of the thought" will eventually succeed "to get itself accepted in the competition of the market." Hence, to circumscribe competition is only justified in exceptional instances.

 

            Yet the doing of justice is no less important than freedom of expression and, as has already been explained, a fair judicial hearing necessitates that one should disregard the thoughts that have currency in the street. The facts are determined in court not by the competition in the market of views but by the evidence adduced in court in accordance with the law. Where the notion of "free trade in ideas" itself does not obtain with reference to a matter being judicially heard, why should the right of freedom of expression be honoured to the extent of it becoming a clear and present danger as it trespasses on to an area not its own and concerns itself with matters in which silence is best? (See Frankfurter). in Bridges (16) at p. 1367).

 

            Publicly to mention things concerning a case is restricted neither before the case opens nor after it is closed. Only during the hearing itself is a kind of moratorium placed upon public debate. The public may know what was said and what occurred in the court room, again without restriction under see. 41. But what public interest is served by publication of information that some defendant admitted a crime to a journalist? That is only liable to increase tension and satisfy sensation-seeking. Freedom of the press does not exist for this purpose. I have said that freedom of expression is not freedom to ridicule a person. I now add that neither is it freedom to trespass on the courts and deal with a person's guilt.

           

13. It is not superfluous to note that Agranat J. raised the question of the American test in Attorney-General v Rocam (1) in the special context of sec. 4 of the Contempt of Court Ordinance, and he emphasised the fact that notwithstanding the criminal nature of the act, the court did not deal with it under normal criminal procedure. The hearing was "summary". Being required "to show cause" the accused did not have the traditional right to remain silent and the court itself, and not only the Attorney-General, could commence proceedings. The said sec. 4 has been repealed and replaced by sec. 41 of the Courts Law, 1957, under which the proceedings follow the normal pattern; the accused is not required to show cause and the court does not act of its own motion. Even the term "contempt of Court" has been entirely abandoned.

 

14. Mr. Levin for the appellants relied on R. v Duffy (7) where Lord Parker posed the question whether a real risk had been created and not only a remote possibility of prejudicing a fair trial. I also agree that "a remote possibility" is not enough, since if the possibility of prejudice is too remote, then the publication is not "calculated to influence", it does not possess a sufficiency of influence on the trial. In Duffy a newspaper published an article about a man who was sentenced to five years' imprisonment on a charge of assault. Notwithstanding conviction, the case was still pending on account of an appeal having been lodged. Apart from the fact that the appearance of the defendant did not please the writer, the article itself only mentioned one thing, that a year before a detective had pointed a finger at him in a public house and had said that he would end up in the dock. What influence could that have had on the judgment of the Court of Appeal?

 

            Appellants' counsel here stressed the reservations of the court in Duffy as to the observations in Delbert-Evans v Davies (8) about the need to avoid publications which embarrassed the judge. I see no need to enter into the dispute between the judges in these cases, since I have already said that I shall deal with the matter before us on the basis that the judges were not influenced here but I take liberty to point out that Delbert-Evans was approved by Justice Frankfurter in Pennekamp. (15).

           

15. What difference is there between "clear and present danger" and "sufficiency" of influence as to the outcome of a trial? To clarify the difference, only some points of difference need be noted. The test of "clear and present danger", it was said in "Kol Ha'am" (2), is that of "probability". In Abrams (20) Justice Holmes spoke of "imminent threat", and in Schaefer (21) Justice Brandeis said (at 266) that "the test to be applied ... is not the remote or possible effect." For sec. 41 as well "remote effect" is not enough but "possible effect" is, since it is one whether the publication operated to influence the trial or only could so influence. The influence on the outcome of the trial need only be a reasonable possibility and not "probable" or "imminent."

 

16. Was the article which was published calculated to influence the outcome of the trial? I agree with the District Court that it involved a reasonable possibility of influencing witnesses. The central question in Blitz's trial, as will be recalled, was whether some person in addition to Blitz had fired a shot, and if so, whose shot killed Fiatelli? All are agreed that the. identification of a person is an inexhaustible source of error, error which has led to tragic instances of perversion of justice: see Wigmore, The Principles of Judicial Proof, (2nd ed.) paragraph 206, and the examples at paragraph 209. The appellants added to the difficulty. For a witness who was not certain whether Blitz had hit the victim, the latter's admission was likely to strengthen his belief that Blitz had done so. A witness who thought otherwise might be deterred from giving evidence in favour of Blitz, after reading that the latter was ready to confess the crime. I said that the appellants added to the difficulty of giving evidence since a person appearing as a witness can only testify to what he believed he saw or heard and the process of impressions which create in a man's mind the belief that he saw or heard something is at times very complex. In this regard, Wigmore says at paragraph 206

 

"Belief is purely mental ... thence the approximation of our belief to a correct representation of the actual fact will depend upon how fully the data for that fact have entered into the mental formation of our belief."

 

And a little later, in paragraph 207:

 

"Suppose that a man has lost a valuable scarf pin. His wife suggests that a particular servant, whose reputation does not stand too high, has stolen it. When he afterwards recalls the loss, the chances are that he will confuse the fact with the conjecture attached to it, and say that he remembers that this particular servant did steal the pin."

 

            In R. v Clarke (9) the court decided that publication of the confession of a murderer in prison before trial was a contempt of court. A fortiori is it so in the case before us. Blitz had denied the charge and the publication only served to add unnecessary tension to the trial and to show that his denial was not true. It is the right of an accused person to deny the charge. He is presumed to be innocent until his guilt is proved. The publication by the appellants tended to prejudice that right and it was only made to reduce the force of the denial of the charge, thereby affecting the defence adversely.

           

            In conclusion, I would like to add one thing. I am astonished why the police in this as in other instances allowed a journalist to interview the defendant. When a case is pending, nothing that may influence it is to be published. What reason is there for the police to enable the defendant at this stage to have contact with someone whose job is to gather and publish news? A journalist has no interest in news that may not be published. Conversation with a person charged with a serious crime can arouse a feeling of sensation, but there is no benefit to the public in such an interview and it is better that it should not take place.

           

            I have found no basis for the appeal against sentence. I would dismiss the appeal.

           

BERINSON J.            I concur with everything said in the judgment of my learned colleague. I only wish to add something to the brief remarks about the possible influence upon judges of the newspaper publication of matters affecting a trial being heard by them.

 

I agree entirely with the District Court judges that what the appellants published was calculated to influence the course of the trial going on at the time against the defendant Blitz, not only as regards the witnesses but also as regards the judges who sat.           

 

Every defendant has a right to an unimputably fair trial. unaffected whilst it is pending in court by anything not lawfully part of the trial, It is vital that the trial of a person should be conducted and decided on the foundation solely of evidence and argument presented in court in the manner laid down by the law and not influenced by matter from without which has not passed through the crucible of the tests current in the courts and directed to ensuring a fair trial of the defendant, including full capacity to defend himself. In Patterson v Colorado Justice Holmes said:

           

"...if our system of trial is to be maintained. The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. What is true with reference to a jury is true also with reference to a court."

 

            As my learned friend explained, the information published by the appellants cannot be understood otherwise than that the defendant here admitted his guilt to the journalist before standing trial. It is difficult to imagine anything more serious than the publication in the course of a trial that a person has confessed his guilt outside court. I accept the view of the District Court judges that publication of such information, even if only by clear hint, is always calculated to influence the course or outcome of the trial. Even if done without evil intent to influence the judges or witnesses, the character of the publication and its possible harm of the defendant's interests is unchanged. What is decisive is not the intent but the act and its possible consequence.

           

            Sec. 41(a) of the Courts Law defines the limit of publication with regard to a matter pending in court. It is formulated as a general prohibition of any publication which "is calculated to influence the course or outcome of the trial" and it only excludes "the bona fide publication of a report of anything that has been said, or has occurred, in an open session of the court." Accordingly, anything said or occurring outside court, calculated to influence the trial, is prohibited from publication. Journalists and newspaper proprietors who presume to publish such things cannot plead that it was done in the public interest. The Law lays down what is prohibited and what is allowed in publication from the viewpoint of the public interest, and once the legislature has spoken every plea that the public interest requires otherwise is debarred.

           

            Should a person penetrate the private domain of a judge in order to whisper to him things affecting the guilt or innocence of a person standing criminal trial before him, is that person free of wrong doing? Will he not be punished for an attempt to influence unproperly the judge and the outcome of the trial? I would think-so, as emerges clearly from the remarks of Lord Cottenham over a century ago in Dyne Sombre (10):

           

"Every private communication to a judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a cause calculated, if tolerated, to diverb the course of justice, and is considered, and ought more frequently than it is to be treated as, what it really is, a high contempt of court."

 

            In this respect, the right of a newspaper is no greater than that of any other person in the country (R. v Gray (11)). On the contrary. A newspaper fulfils a public task and information published in it is normally entitled to the trust of the public which usually attaches importance to newspaper publications. A newspaper which publishes a report that a person has in it more conferred is a crime outside court inculcates belief in that person's guilt in the mind of every reader, including a judge. Willingly or not, he can be influenced consciously or subconsciously. The words of Humphreys J. in R. v Davies (12) at p. 443, that "It is a fallacy to say or to assume that the ... judge is a person who cannot be affected by outside information", express a simple and well-known truth. A judge is but a human being and we cannot penetrate the recesses of his soul and affirm that he has indeed succeeded in freeing himself entirely from things he has come across which have penetrated his mind even unknowingly. The judge's task of conducting a just trial is a difficult and delicate matter even when everything is as it should be. Be the judge as cautious and as strong as he can, things should not be made even more difficult for him by irresponsible publication of matters which it is not his concern to know.  In this regard, the observations of the District Court Judges, themselves judges of long standing, capacity and experience, are worthy to be recalled:

 

"An effort is required of a judge, even when he is used and trained to do so, to rid his mind of outside information which reaches him not in the course of the regular trial, and that is likely to be felt at least when the judge has to decide his stand regarding the credibility of witnesses."

 

Further on in their judgment they go on to say:

 

"And if it be asked, what about those instances in which a judge reads (as often occurs...) of the confession of the accused which is subsequently disqualified as evidence, or in which, after admitting the charge in open court, the accused applies for and obtains leave to withdraw his admission - indeed such instances are not to be welcomed: they are liable to exert an undesirable influence but there is no possibility of avoiding them since these possibilities exist only to prevent new serious dangers.

 

            Freedom of expression does not embrace the right to set at naught the usual assurances for the conduct of an unimputably fair trial. The press is free to deal generally with everything touching the judges and the courts, even to level criticism at them so as to enlighten the public about the problems involved in judicial matters in this country. Judges as human beings, said Justice Frankfurter, or courts as institutions are not entitled to great immunity from criticism than are other persons or institutions: Bridges (16) at p. 259. That refers to criticism of a general nature that does not impinge upon a particular case as long as it is going on in court. This limitation was repeatedly emphasised by Justice Frankfurter in his judgment. Interference in the course of a trial by publication of matter which may impress its mark on those who take part in the trial as judges, witnesses, experts and the like is liable to destroy the character of our legal system, requiring as it does that a defendant's fate shall be decided solely upon the evidence properly adduced in court in the manner fixed by the law and not by any outside influence.

 

            Justice Frankfurter in Bridges (16), after referring to the notion advanced by Justice Holmes in Abrams (20) that a trial is not "free trade in ideas" and that the best test to adopt in court is not "the power of the thought to get itself accepted in the competition of the market", goes on to explain it at greater length (at 203):

           

"A court is a forum with strictly defined limits for discussion. It is circumscribed in the range of its inquiry and in its methods by the Constitution, by laws, and by age-old traditions. Its judges are restrained in their freedom of expression by historic compulsions resting on no other officials of government. They are so circumscribed precisely because judges have in their keeping the enforcement of rights and the protection of liberties which, according to the wisdom of the ages, can only be enforced and protected by observing such methods and traditions."

 

            The problem here is how to achieve a proper balance between protection of freedom of expression on the one side and the maintenance of a just trial on the other. In other words, what is the right place of each in the hierarchy of primary social and public values vital for the existence of true and free democracy. The District Court Judges put their mind to the problem and I think we can be satisfied by citing the incisive observations of Judge Harpazi with which the other two judges who sat agreed and which also reflect my own view of the matter:

           

"The problem with which we are dealing here is not a new problem nor peculiar to this century. It occurs wherever there are courts, wherever people seek to ensure fair and just trial on the one hand and newspapers exist on the other. The problem arises and has at times been considered by the courts of the two great countries where a democratic political regime exists and where the legal system is similar to our own: Great Britain and the United States of America. I see no need to cite here precedents from these two countries but it is common knowledge that in Britain jealous watch is kept against publications concerning matters sub judice, whilst in America the press is far freer in publishing such matters. Were it for me to decide which is desirable, I would choose the British approach and avoid loosening the rein, the end of which is "trial by the press" before a person is adjudged by the court.

 

            Our approach, however, has been laid down by the Israeli legislature, having regard to the fact that severity was prescribed (in Britain) at a time when most cases were decided by a jury. Thus I think that in sec. 41 of the Courts Law the Israeli legislature followed the British approach.

           

            I do not overlook the fact that freedom of the press is affected, which is not only the right of individuals and public groups to free expression but also embraces a vital concern of the public generally. But I think that no one in this country, including pressmen themselves, would urge the right of the press to influence the course and outcome of a trial. When a person stands trial, his fate must be decreed by the court in the courtroom closed to any voice or influence from outside. The right and the task of the press is to inform the public what has occurred in court and it may thereafter also criticize what the Court has done, but it may not interfere in the course of the trial."

           

            The case of R. v Clarke (9) is similar to the one before us. There also information was published in a newspaper of the confession of a person suspected of murder, after being detained in Canada under a warrant of arrest issued in England. The editor of the London "Daily Chronicle", in which the information was published, was charged with contempt of court and convicted. Darling J. speaking for Court had the following to say (at p. 637):

           

"It is most important that the administration of justice in this country should not be hampered as it is hampered in some other countries, and it is not enlarging the jurisdiction of this court - it is refusing to narrow the jurisdiction of this court - when we say that we are determined while we are here to do nothing to substitute in this country trial by newspaper for trial by jury; and those who attempt to introduce that system in this country, even in its first beginnings, must be prepared to suffer for it."

 

See also the like judgments in Canada, R. v Willis and Pople (14) and in Australia, Ex parte Senkovitch (13) set out in the English and Empire Digest, vol. 16, p. 20, nos. 169 p. & q.

 

            To the credit of Israeli newspapers it may be said that in general they proceed with restraint and moderation with regard to anything concerning pending cases and with respect and esteem for the judge. But precisely for this reason it is proper that in the present case, the first of its kind to come before this Court under sec. 41 of the Courts Law, 1957, we should make patent our views and say clearly that the courts of this country will not tolerate the interference of newspapers in pending cases, which may stultify the doing of justice. So that newspapers should know what to expect when an attempt is made to reproduce among us trial by newspaper; the courts must repress any tendency in that direction in its infancy, before it acquires any place or hold in our judicial and social life.

           

LANDAU J.               I concur in the judgment of my friend Sussman J., as well as in the additional observations of Berinson J. as to the dangers which lurk in trial by newspaper. I take liberty to repeat what I said in the same spirit in Ozri v Galed (5):

 

"The advice to be given to newspapers is to abstain from running after sensations in the preliminary publication of court proceedings which are to be conducted in the future and to be satisfied with exact and "dry" reports of these proceedings themselves when taken, without adding details not mentioned in court. Newspapers will thereby safeguard themselves from mishap in this connection as well as take an important step towards raising their professional standard and clear the atmosphere darkened by a multiplicity of publications which tend to injure the good repute of the individual" (at p. 1560).

 

These observations apply even more cogently to anything published about a pending trial which is calculated to prejudice its fair conduct.

 

            Appeal dismissed.

            Judgment given on February 20, 1963.

HCJ 2481/93

Yosef Dayan

v.

1. Yehuda Wilk – Jerusalem District Commissioner

2.       Rabbi Ovadya Yosef

3.       Dr Meira Sarel and Professor Shalom

4.       Shoshana Eitan

5.       Ricka Barsela

6.       Oren Sheindel

 

The Supreme Court sitting as the High Court of Justice

[9 February 1994]

Before Vice-President A. Barak and Justices S. Levin, E. Goldberg

 

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

 

Facts: The petitioner applied for a permit to hold an assembly directly outside the home of Rabbi Ovadya Yosef, spiritual leader of the Shas political party. The District Commissioner of Police refused the permit, because it would violate the rights of privacy of the rabbi, his family and his neighbours.

 

Held: It is necessary to balance the petitioner’s right to freedom of assembly against the right of privacy of the public figure, his family and his neighbours. According to Vice-President Barak, these rights are of equal importance: in principle there is a right to hold an assembly outside the private home of a public figure, but this right must not materially intrude on the right of privacy of the public figure and his neighbours. When the home is used to some extent also for public activity, then slightly less protection will be given to the right of privacy of the public figure in his home than in a case where the home is not used for public activity. According to Justice S. Levin, the right of privacy of the public figure in his home is of greater importance than the right to hold an assembly outside that home. According to Justice Goldberg, an assembly outside the private home of a public figure should only be allowed when he conducts all or most of his public activity from home.

In the present case, Vice-President Barak and Justice Goldberg would have granted the petition and allowed the petitioner to hold an assembly outside the home of Rabbi Ovadya Yosef, if the petitioner had agreed to restrictions of time, place and manner. The petitioner, however, refused to agree to any restrictions.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 3, 7, 7(a), 8.

Penal Law, 5737-1977, s. 226.

Police Ordinance [New Version], 5731-1971, ss. 83, 84, 84(a), 85.

Protection of Privacy Law, 5741-1981, ss. 2(1), 4, 5, 18, 19.

 

Israeli Supreme Court cases cited:

[1]      HCJ 3080/92 – unreported.

[2]      HCJ 148/79 Saar v. Minister of Interior [1980] IsrSC 34(2) 169.

[3]      FH 16/61 Companies Registrar v. Kardosh [1962] IsrSC 16(2) 1209; IsrSJ 4 7.

[4]      HCJ 953/87 Poraz v. Mayor of Tel Aviv–Jaffa [1988] IsrSC 42(2) 309.

[5]      FH 9/77 Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [1978] IsrSC 32(3) 337.

[6]      CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [1991] IsrSC 45(4) 529.

[7]      HCJ 693/91 Efrat v. Director of Population Registrar [1993] IsrSC 47(1) 749.

[8]      HCJ 153/83 Levy v. Southern District Commander [1984] IsrSC 38(3) 393; IsrSJ 7 109.

[9]      HCJ 243/62 Israel Filming Studios Ltd v. Geri [1962] IsrSC 16 2407; IsrSJ 4 208.

[10]    HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [1989] IsrSC 43(2) 22; IsrSJ 10 229.

[11]    MApp 82/83 State of Israel v. Alia [1983] IsrSC 37(2) 738.

[12]    HCJ 3815/90 Gilat v. Minister of Police [1991] IsrSC 45(3) 414.

[13]    FH 13/60 Attorney-General v. Matana [1962] IsrSC 16 430; IsrSJ 4 112.

[14]    EA 2/84 Neiman v. Chairman of Central Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

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

[16]    FH 9/83 Appeals Court Martial v. Vaknin [1988] IsrSC 42(3) 837.

[17]    HCJ 109/70 Coptic Orthodox Mutran of Jerusalem v. Minister of Police [1971] IsrSC 25(1) 225.

[18]      HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

[19]    HCJ 73/53 Kol HaAm Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[20]    CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840.

[23]    HCJ 399/85 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

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

[23]    CrimA 126/62 Disenchik v. Attorney-General [1963] IsrSC 17 169; IsrSJ 5 152.

[24]    HCJ 869/92 Zvilli v. Chairman of Central Elections Committee for Thirteenth Knesset [1992] IsrSC 46(2) 692.

[25]    HCJ 456/73 – unreported.

[26]    HCJ 991/91 David Pasternak Ltd v. Minister of Building and Housing [1991] IsrSC 45(5) 50.

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

[28]    CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [1963] IsrSC 17 1319; IsrSJ 5 120.

[29]    CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.

[30]    CA 670/79 HaAretz Newspaper Publishing Ltd v. Mizrahi [1987] IsrSC 40(2) 169.

 

Israel Magistrates Court cases cited:

[31]    CrimC (Jer.) 4300/81 – (unreported).

 

Australian cases cited:

[32]    Australian National Airways Pty Ltd v. The Commonwealth (1945) 71 C.L.R. 29.

 

American cases cited:

[33]    Rowan v. Post Office Dept. 397 U.S. 728 (1970).

[34]    City of Wauwatosa v. King 182 N.W.2d 530 (1971).

[35]    Public Utilities Comm’n v. Pollack 343 U.S. 451 (1952).

[36]    Martin v. Struthers 319 U.S. 141 (1943).

[37]    Gregory v. Chicago 394 U.S. 111 (1969).

[38]    Carey v. Brown 447 U.S. 455 (1980).

[39]    Cox v. Louisiana 379 U.S. 536 (1965).

[40]    Pruneyard Shopping Centre v. Robins 447 U.S. 74 (1980).

[41]    United Electrical, R. & M. Workers v. Baldwin 67 F. Supp. 235 (1946).

[42]    Cohen v. California 403 U.S. 15 (1971).

[43]    Frisby v. Schultz 487 U.S. 77 (1988).

[44]    Kovacs v. Cooper 336 U.S. 77 (1949).

 

English cases cited:

[45]    Minister of Home Affairs v. Fisher [1979] 3 All ER 21 (PC).

[46]    Francis v. Chief of Police [1973] 2 All ER 251 (PC).

 

German cases cited:

[47]    Ovg. Koblenz, Beschl v. 24.5.86 7B 36/86.

 

Indian cases cited:

[48]    Indulal v. State (1963) 50 A.I.R. Gujarat 259.

 

Canadian cases cited:

[49]    R. v. Big M. Drug Mart Ltd [1985] 1 S.C.R. 295.

[50]    Committee for the Commonwealth of Canada v. Canada [1991] 1 S.C.R. 139.

[51]    Cheema v. Ross (1991) 82 D.L.R. (4th) 213.

 

For the first respondent — N. Arad, Director of High Court of Justice Department at State Attorney’s Office.

For respondents 2-6 — Y. Bar Sela.

 

 

 

JUDGMENT

 

 

Vice-President A. Barak

A asks the competent authority in the police force for a permit to hold an assembly. He wants to hold it, together with others, on the pavement outside the apartment of B (in a cooperative house). B is a public figure. His apartment is also used for public purposes. B opposes the granting of the permit. The neighbours also oppose it. What is the scope of discretion of the competent authority in the police force in such circumstances? This is the question before us.

The facts

1.    Rabbi Ovadya Yosef is a spiritual leader. He is the president of the Council of Torah Scholars. This council is the supreme body of the Shas movement. This movement is a political party represented in the Knesset. It is a member of the coalition. Rabbi Yosef lives, together with his wife, in a cooperative house in a residential neighbourhood in Jerusalem (36 Jabotinsky Street). Rabbi Yosef has an office elsewhere (Hizkiyahu HaMelech Street). Persons interested in meeting Rabbi Yosef must arrange such meetings in advance with the rabbi’s office. Rabbi Yosef’s family lives in his private apartment. The rabbi does not regularly hold meetings in his home about matters relating to his public activities. Nonetheless, he receives visits from persons in government at his apartment, such as the Prime Minister, cabinet-ministers, deputy-ministers and members of the Knesset. The frequency of the visits of deputy-ministers and members of the Knesset from the Shas party is four to five visits a month. The Minister of the Interior (a Shas representative) usually visits Rabbi Yosef once a week. The Council of Torah Scholars does not meet in the rabbi’s house.

2.    The petitioner applied to hold an assembly (on 6 May 1993) outside Rabbi Ovadya Yosef’s apartment. He wants to ‘protest the continued participation of Shas in the Government’. He expects two hundred and fifty participants. He wants to use a stage and two loudspeakers. The assembly is to last two hours (19.00-21.00). The demonstrators are to meet at Wingate Square (near the rabbi’s house) and disperse there. On 2 May 1993, the petitioner applied to the Jerusalem District Commissioner of the Israel Police Force to receive a licence for the assembly. Clarifications requested from the petitioner indicated that the demonstrators intend ‘to approach Rabbi Ovadya Yosef’s house with signs and loudspeakers, to erect a stage and protest against the rabbi and the Shas party’. In communications with the petitioner, it was suggested that he hold the assembly in the plaza of the Van Leer Institute (an aerial distance of two hundred meters). This is situated nearby. The petitioner rejected the suggestion.

3.    The Jerusalem District Commissioner (on 4 May 1993) denied the petitioner’s request. The reason was the ‘ruling held by the Supreme Court with regard to a demonstration involving an intrusion into the private domain of a public figure and a harassment in his private life’. The petition before us was filed against this decision. We issued on that day a show cause order as requested. We ordered that Rabbi Ovadya Yosef should be joined as an additional respondent in the petition. We fixed the hearing for 12 May 1993, in view of the statement of the petitioner that he wanted to hold the meeting on a new date. At the beginning of the hearing (on 12 May 1993), we discovered that the service of the court papers on Rabbi Ovadya Yosef was not done properly. We postponed the continued hearing of the petition to a new date, after proper performance of service. We granted an application of residents (the applicants in HCJApp 2593/93) to be joined as additional respondents in the petition. Several days later (on 18 May 1993), we held a hearing on the petition itself. We heard the arguments of the parties. The attorney of Rabbi Ovadya Yosef was asked to submit, within a week, a list of the frequency of the visits of persons in Government to the rabbi’s house during the last month. The parties were given leave to submit further arguments in writing.

The petitioner’s position

4.    According to the petitioner, the police’s position deprives him of his basic right to freedom of speech. The purpose of the assembly is to draw public attention —

‘to the protest of Sefardim (Jews of oriental origin) against the direction in which the rabbi was going. We approach the head of the pyramid in order to influence him, for his opinions influence others.’

The petitioner further claims that the police are discriminating against him. In the past, a permit was given to hold an assembly opposite the private residence of the Prime Minister (in Ramat-Aviv), and opposite the apartments of Supreme Court justices. According to the petitioner, Rabbi Ovadya Yosef carries out his political activity mainly from his apartment. The rabbi is ‘a figure standing at the head of a political movement, and his movement is involved in an acute political controversy among the Israeli public, and it is therefore inconceivable that he is immune to public criticism.’

The position of the police

5.    The position of the Jerusalem District Commissioner is mainly based on the consideration about the intrusion into the private life of a public figure and harassing him in his private life. The first respondent (hereafter — ‘the respondent’) relies on a guideline of the Attorney-General that ‘a permit to hold a demonstration directed against a public figure may be refused if it is to be near his private residence, as distinct from his place of work…’ (Attorney-General’s guideline no. 21.566, (‘freedom of assembly’), s. 12(e)). In the respondent’s opinion, the significance of holding the assembly and its immediate effect is a disturbance, harassment and intrusion into the private life of the rabbi, his family members and his neighbours. In these circumstances, the right of the petitioner and his friends to demonstrate must yield to the right of the rabbi, the members of his family and his neighbours not to be harassed in their private lives. In her arguments before us, Mrs Arad, arguing for the respondent, pointed out that the freedom of speech does not include the freedom to force another person to listen to that speech. A demonstration whose purpose is to put pressure on a specific person should not be permitted in the name of freedom of speech. Within the framework of the considerations for granting a permit, the District Commissioner must take into account the right of privacy of the rabbi and his family. He must also take into account the fact that the demonstration will cause a nuisance. Mrs Arad further argued that the petitioner wants to hold an assembly on public land, but at the entrance to a person’s house, literally adjacent to his private premises. This is likely to constitute a real nuisance to him and intrude upon his privacy. The consideration of preventing an intrusion on privacy is a relevant factor that must be considered. The rabbi and members of his household may become involuntary ‘prisoners’, in that they will be a captive audience; among the District Commissioner’s considerations, he must take into account the reasonable balance required in realizing the right of free speech against the right to privacy. In this respect, the fact that the rabbi has public standing is insufficient to justify an intrusion on his privacy. This right is currently protected both in the Protection of Privacy Law, 5741-1981, and the Basic Law: Human Dignity and Liberty, and with regard to the petitioner’s freedom of speech, this can be exercised at some distance from the door of the rabbi’s house, without undermining the purpose of the assembly and the message that it carries to the public.

6.    In his reply, the District Commissioner pointed out that when he refused to grant the permit, he assumed that it referred to the home of Rabbi Ovadya Yosef. He did not imagine that a claim might be made that the rabbi’s apartment is also used as an office. A claim to this effect was never made by the petitioner during the contacts with him. Nonetheless, when the claim was raised, it was also investigated. The attorney of Rabbi Ovadya Yosef explained the actual situation, and in view of this explanation there is no justification for intruding on the privacy of the rabbi and the members of his household. Neither is there any discrimination, for in similar circumstances applications to hold demonstrations outside the private homes of public officials were refused.

7.    In his affidavit of reply, the District Commissioner mentioned another consideration. It is impossible to hold an assembly on the plaza at the intersection of Jabotinsky Street and Marcus Street. The crossroad is a ‘traffic island’, approximately twenty metres in diameter, at an intersection of four main roads. The plaza is covered with decorative plants and grass and there is no access to pedestrians. It was not designed for holding assemblies, erecting platforms, for meetings or for gatherings. An assembly as requested should not be held at the intersection of Jabotinsky Street and Marcus Street since there is no suitable physical location for this. The assembly can be held nearby. Nonetheless, the District Commissioner points out that ‘the most important reason given for refusing the request was in essence the applicants’ demand that the assembly had to take place outside the home of Rabbi Ovadya Yosef.’

8.    The respondent rejects the claims of discrimination. He points out that in the past a petition was filed against his decision not to allow a demonstration or a disturbance to be held outside the homes of judges. The petition was dismissed in limine (HCJ 3080/92 [1]). Similarly approval was not given in the past to hold demonstrations outside the private home of the Prime Minister, where he lives in Ramat-Aviv.

The position of Rabbi Ovadya Yosef

9.    Rabbi Ovadya Yosef supported the District Commissioner’s position. His attorney pointed out that ‘the rabbi’s apartment is not used as his office, even though, in the course of his daily affairs, important visitors and guests whom the rabbi cannot receive in his office come to the rabbi’s apartment, and the apartment essentially serves as his home where the rabbi spends most of the day and night in study.’ In a statement on behalf of the rabbi, it was also pointed out that —

‘More than the rabbi suffers from the ongoing harm to his ability to enjoy his private apartment, the rabbi’s wife, who is unwell, suffers greatly from the disturbances which include, inter alia, people shouting at her when she goes out and comes in, and banging on the door of the apartment late at night. In addition to this there is the suffering of the neighbours.’

It should also be noted that ‘the congregating of many dozens of people and speeches made with loudspeakers, would constitute a serious and real disturbance to the rabbi’s household and to all the neighbours.’ ‘Both the rabbi and his neighbours who live in the building are entitled to lead their private lives without disturbance and without any disruption of their lifestyle. The rabbi and the members of his household are entitled to leave and enter their home freely, to pass along the pavements adjoining their home, and not to be exposed to fears and injuries.’

The neighbours’ position

10. Respondents 3-6 are neighbours of Rabbi Ovadya Yosef. They are residents in the building where his apartment is situated. They wish to support the decision of the District Commissioner. They point out that ‘for some time a kind of mini-demonstration has been held next to the building in the form of a protest vigil. This phenomenon has recurred from time to time over a period of years.’ They add:

‘The most recent protest vigil began several weeks ago. At first it was right in front of the building next to the entrance to the house. The participants in the vigil brought chairs and tables and signs, and they sat around the tables, eating, drinking and talking. In addition, one car or more always accompanied the group, and this contained equipment and supplies. The police surrounded the demonstrators with protective barriers, and on the police barriers the participants hung up protest signs against the Prime Minister, Rabbi Ovadya Yosef, Minister Deri and other similar signs. After a while, and apparently as a result of complaints made by neighbours, the police moved the protest vigil from the front of the building to the side of the building, on the pavement next to the plaza adjacent to the building.’

The neighbours emphasize that the protest vigil has caused an intolerable disturbance to the residents of the building and it has disrupted the lives of the residents of the building. This was the background for the fundamental position of the neighbours. They recognize the importance of freedom of speech. It has the same status as a person’s right to enjoy his privacy and his freedom to enjoy his own home and property without interference. The petitioner can realize his freedom of speech at some distance from the respondents’ house. Among its considerations, the police must take into account the neighbours’ right to privacy, enjoyment of their apartments and quiet living. Just as a property right warrants protection, the right to privacy and enjoyment of property also warrants protection. The neighbours have no other remedy. Applying to the civil court will not help them. An injunction against the organizers is ineffective, for others will come to demonstrate. A civil court can examine the question of nuisance, but not the legality of the permit. The neighbours have the standing to turn to the police and oppose the granting of a permit to the petitioner. From this standing derives their right also to apply to the court against a decision to grant a permit. ‘Just as a person can apply to this honourable court for the right to demonstrate, the door of the honourable court must also be open to anyone in Israel whose privacy is being invaded.’

The normative framework

11. The normative premise is enshrined in s. 84 of the Police Ordinance [New Version], 5731-1971 (hereafter — ‘the Police Ordinance’). This provision provides that the district commissioner of police may determine — whether in general or in a specific instance — that holding an assembly or a procession requires a licence. This decision depends upon whether the district commissioner of police thinks this is necessary in order ‘to maintain public security or public order’. On the basis of this provision, district commissioners of police have issued general notices whereby anyone who wishes to organize or conduct a procession or an assembly out of doors must obtain a permit (see HCJ 148/79 Saar v. Minister of Interior [2], at p. 173). Under this provision, anyone wishing to organize or hold an assembly (which under s. 83 of the Police Ordinance means a gathering of fifty or more persons for the purpose of hearing a speech or lecture) or a procession  (which means, under the definition in s. 83 of the Police Ordinance is a march or assembly in which 50 or more persons are to walk together) must apply to the district commissioner of police for a licence. The Police Ordinance provides that the officer in charge may grant the licence, refuse it, or grant it subject to conditions (s. 85 of the Police Ordinance). The Police Ordinance does not establish the scope of the discretion given to the officer in charge (see D. Libai, ‘The Right to Assemble and Demonstrate in Israel’, 2 Iyunei Mishpat, 1973, 54, at p. 58). This means that the officer in charge must exercise his discretion within the framework of the purpose for which he was given the authority (see FH 16/61 Companies Registrar v. Kardosh [3]). This purpose includes a specific purpose and a general purpose (see HCJ 953/87 Poraz v. Mayor of Tel-Aviv–Jaffa [4] at p. 326). The specific purpose is enshrined in the Police Ordinance, and it concerns maintaining security and public order. The general purpose concerns protecting and promoting fundamental values, such as the freedom of speech, freedom of movement, property rights and the right of privacy. Justice Shamgar discussed this, saying:

‘… the recognition of basic freedoms as a substantial part of the Israeli legal system leads also to the conclusion that the basic freedoms are, both in name and in purpose, a part of the law, i.e., as basic rules that guide and formulate ways of thinking and legal interpretation, and influence these by their character and their purpose’ (FH 9/77 Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [5], at p. 359).

I too discussed this in one case, where I said:

‘… the constitutional premise is the existence and protection of basic rights in a democratic regime. The assumption is that the legislature (parliament or a delegated authority), when passing legislation, wishes to maintain and protect basic rights. It follows that the purpose of all legislation is to maintain and protect basic rights and not to harm them’ (CA 524/88, Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [6], at p. 56).

And in another case I said:

‘The basic principles of the system and basic human rights determine the purpose of legislation. The presumption is that the purpose of legislation is to realize the principles of the system, and to promote human rights in it. These principles constitute a kind of “normative umbrella” that extends over all legislation… they permeate into all legislation and constitute its purpose’ (HCJ 693/91 Efrat v. Director of the Population Registrar at the Ministry of Interior [7], at p. 763.

We will consider these purposes and the relationship between them.

The right to hold an assembly or a procession

12. Holding an assembly, procession or picket is one of the basic human rights in Israel (Saar v. Minister of Interior [2]; HCJ 153/83 Levy v. Southern District Commissioner of Police [8]). This right ‘is recognized, alongside the freedom of speech or as deriving therefrom, as belonging to those freedoms which shape the character of the Government in Israel as a democratic government’ (ibid., at p. 398). ‘Through this freedom, means of expression are granted to those who do not have access to political or commercial avenues of expression. For this reason our legal system, like the legal systems of other enlightened democracies, accepts that the right of demonstration and assembly has a recognized place in the hall of basic human rights’ (D. Kretzmer, ‘Allocating Resources to Protect Demonstrations: The Israeli Approach’, Freedom of Expression and the Charter, ed. D. Scheiderman, 1991, 424). In the past, this right was recognized in case-law, and it was one of those ‘basic rights that are “unwritten”, but which derive directly from the character of the State as a freedom-loving democracy.’ (Justice Landau in HCJ 243/62 Israel Filming Studios Ltd v. Geri [9], at p. 2415 {216}). It appears that now this right can be derived from the Basic Law: Human Dignity and Liberty, which provides a statutory constitutional basis for the human right to dignity and liberty. The freedom to express oneself — in words alone or by expressive actions — is a major expression of human dignity and liberty. Indeed, ‘the freedom of demonstration and assembly has a broad ideological basis, at the centre of which is the recognition of the worth of the human being, his dignity, the freedom given to him to develop his personality, and the desire to maintain a democratic form of Government’ (Levy v. Southern District Commissioner of Police [8], at p. 398 {114}).

13. In analyzing the constitutional right we did not distinguish between an assembly, a procession or a picket. All three are characterized by the fact that the speaker has a physical presence at the place of the expression. Nonetheless, Israeli law distinguishes between these forms of expression. Thus, for example, a permit is required for holding an  ‘assembly’ or a ‘procession’, but a permit is not required for a picket (see CrimC (Jer.) 4300/81 [31] and Kretzmer, ‘Demonstrations and the Law’, 19 Isr. L. Rev. 1984, 47). This derives from the special arrangements in the Police Ordinance. As we have seen, the Ordinance requires a licence for holding an assembly or a procession. Assembly is defined in s. 83 as follows:

‘ “assembly” – fifty or more persons who have congregated in order to hear a speech or lecture on a political issue or in order to discuss that issue.’

It follows that fifty or more persons holding a picket, without having ‘congregated in order to hear a speech’ does not constitute an assembly. The same is true of forty-nine or less persons who have congregated to hear a speech or lecture. ‘Procession’ is defined in s. 83 as follows:

‘ “procession” – fifty or more persons walking together, or who have congregated in order to walk together, from one place to another, whether they are actually moving or not, and whether they are organized in any specific form or not.’

It follows that fifty or more persons who have not congregated in order to walk together do not constitute a procession. The same applies to forty-nine or less persons who have congregated together to walk together. Other arrangements can be found in the Penal Law, 5737-1977, and in the Protection of Privacy Law. I will first analyse the constitutional rights in accordance with their inherent nature, without reference to these special definitions. Thereafter I will examine the influence of the said provisions, in so far as they are relevant to this case, on the realization of the constitutional rights.

14. An assembly, procession or picket are characterized inter alia by the fact that the participant in an assembly, procession or picket has a physical presence at the place of the expression (see Kretzmer, supra, Isr. L. Rev., at p. 51). This presence may naturally impair the interests and values of others. A procession through city roads is liable to impair the right of movement of those using the roads. An assembly or picket next to a house may impair the use and enjoyment derived by the residents of the building from the land in their possession. An assembly, procession or picket may harm public order. This ‘friction’ between the right of assembly, procession or picketing and other values and interests necessitates a balance between the conflicting rights, involving reciprocal concessions. We will address the nature of this balance below. It expresses the ‘relativity’ of the constitutional right. In this case, it should be emphasized that the restriction of the right of assembly, procession or holding a picket does not derive from the ‘inherent’ nature of the right, or its own innate insufficiency. The restriction of the right of assembly or procession or holding a picket is derived from considerations that are ‘external’ to the right itself, which derive from the existence of competing rights and conflicting interests. Indeed, we must distinguish between matters that are included within the inherent nature of a basic right (‘the extent of the right’) and the degree of recognition given to its inherent nature in a given context (‘the extent of the protection’): see HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [10], at p. 33 {244}, and also F. Schauer, Free Speech: A Philosophical Enquiry, Cambridge, 1982.).

Property rights and the right of privacy

15. An assembly, procession or picket are all liable to interfere with a person’s ability to use and enjoy his property. When the assembly or picket take place on a person’s property without his consent, they interfere with his property rights. The same applies to an assembly or picket that are supposed to take place in the streets of the city that are intended for assemblies, when they are held outside a person’s house or apartment. In such a case, the assembly or picket may interfere with the person’s ability to enjoy his property, namely the ability to escape into one’s own private property from the pressures of society and the inquisitive public eye. Property rights have been recognized by Israeli case-law as a constitutional right (see Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [6]; J. Weissman, Property Rights: General Part, The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, 1993, 37). In particular, the assembly, procession and picket interfere with a person’s right of privacy. This right is also a constitutional basic right (see MApp 82/83 State of Israel v. Alia [11], at p. 741, and cf. HCJ 3815/90 Gilat v. Minister of Police [12], at p. 424). These two basic rights — property rights and the right of privacy — were recognized as basic rights by the Basic Law: Human Dignity and Liberty. The Basic Law states: ‘One may not harm a person’s property’ (s. 3) and ‘Every person is entitled to privacy and confidentiality’ (s. 7(a)). For the purposes of petition before us, we do not need to set down the boundary between property rights and the right of privacy, or between them and other rights. Since the focus of the petition lies in the violation of the right of privacy, we will consider this issue, and reserve judgment on the question whether, in addition to the violation of the right of privacy, there is also a violation of the resident’s property rights.

16. Every person in Israel is ‘entitled to privacy’ (s. 7(a) of the Basic Law: Human Dignity and Liberty). The scope of this right is not entirely free of doubt. Much has been written about it (see, inter alia, R. Gavison, ‘Privacy and the Limits of the Law’, 89 Yale L.J., 1979-1980, 421). Now that it has a statutory constitutional basis, it must be interpreted from a ‘broad perspective’ (Justice Agranat in FH 13/60 Attorney-General v. Matana [13], at p. 442 {124}) ‘with the understanding that we are dealing with a provision that shapes our way of life… the issue is one of human experience, which must adapt itself to changing realities’ (EA 2/84 Neiman v. Chairman of Central Elections Committee for Eleventh Knesset [14], at p. 306 {157}). For this reason a constitutional provision must be construed ‘with a broad outlook, and not in a technical manner’ (HCJ 428/86 Barzilai v. Government of Israel [15], at p. 618 {100}). This is the source of the approach — accepted in enlightened democratic countries — that a constitutional provision should be interpreted ‘liberally’ (Justice Wilberforce in Minister of Home Affairs v. Fisher [45], at p. 25), with a substantive approach and not a ‘legalistic’ one (in the language of Judge Dickerson in R. v. Big M. Drug Mart Ltd [49]), with an objective approach and not a ‘technical’ or ‘pedantic’ one (in the language of Judge Dixon in Australian National Airways Pty. Ltd v. The Commonwealth (1945) [32], at p. 81). Against a background of such an approach, it can be held that the constitutional right of privacy includes, inter alia — but without any attempt to encompass all aspects of the right —a person’s right to lead the lifestyle he wishes inside the privacy of his home, without outside disturbance. A man’s home is his castle, and inside it he is entitled to be left to himself, to develop the autonomy of his own private will (see Rowan v. Post Office Dept. (1970) [33], at p. 736). In this respect, the right to privacy is, inter alia — in the language of Prof. Gavison — a restriction on the accessibility of others to the individual (see Gavison, in her article, supra, at p. 428). Indeed, in the tumult of life in modern society, a person’s right of privacy allows him to be on his own and with the cherished members of his family, and enables him to gather strength at home for the following day (see City of Wauwatosa v. King (1971) [34], at p. 537). The right of privacy is therefore intended to ensure that a person does not become a prisoner in his home, and is not compelled to expose himself at home to disturbances that he does not want. In this way, the right of privacy constitutes — in the language of Justice Douglas — the beginning of freedom (see Public Utilities Comm’n v. Pollack (1952) [35], at p. 467). Indeed, Warren and Brandeis referred — in their preliminary list on this matter — to a person’s right to be let alone as a right that is the ‘most comprehensive of rights and the right most valued by civilized man’ (S.D. Warren and L.D. Brandeis, ‘The Right to Privacy’, 4 Harv. L. Rev. 1890-1891, 193). Justice Frankfurter rightly said in the case of Martin v. Struthers (1943) [36], at p. 153, that:

‘….homes are sanctuaries from intrusions upon privacy and of opportunities for leading lives in health and safety.’

In a similar vein, Justice Black said that allowing every person to do as he wishes would ultimately lead to a situation where:

‘…homes, the sacred retreat to which families repair for their privacy and their daily way of living, would have to have their doors thrown open to all who desired to convert the occupants to new views, new morals, and a new way of life. Men and women who hold public office would be compelled, simply because they did hold public office, to lose the comforts and privacy of an unpicketed home. I believe that our Constitution, written for the ages, to endure except as changed in the manner it provides, did not create a Government with such monumental weaknesses’ (Gregory v. Chicago (1969) [37], at p. 125).

Justice Brennan made similar remarks in Carey v. Brown (1980) [38], at p. 471, where he stated:

‘Preserving the sanctity of the home, the one retreat to which men and woman can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual “to be let alone” in the privacy of the home, “sometimes the last citadel of the tired, the weary, and the sick”.’

Justice Shamgar gave an excellent description of this, when emphasizing that a picket outside or at the door of a person’s home, intrudes on his privacy, for it is liable to —

‘…deprive a person of his tranquillity, his feeling of personal security and the feeling that he can run his own life, without having his private affairs becoming a display for all, and hence the harassment and the resulting infringement of privacy’ (FH 9/83 Appeals Court Martial v. Vaknin [16], at p. 851).

So we see that the right of privacy draws the line between the individual and society. It defines the boundaries within which the individual is left to himself, for the development of his own individuality, without the interference of others (see T.I. Emerson, The System of Freedom of Expression, New York, 1970, 544). Indeed, just as the recognition of human dignity and liberty leads to the recognition of freedom of speech, assembly and demonstration, so the recognition of human dignity and liberty leads to the recognition of a person’s right to be free from unwanted speech. This was discussed by Prof. Black, who said:

‘The claim to freedom from unwanted speech rests on grounds of high policy and on convictions of human dignity closely similar if not identical with those classically brought forward in support of freedom of speech in the usual sense. Forced listening destroys and denies, practically and symbolically, that unfettered interplay and competition among ideas which is the assumed ambient of the communication freedoms’ (C.L. Black, ‘He cannot Choose but Hear: The Plight of the Captive Auditor,’ 53 Colum L. Rev. 1953, 961, 967).

Indeed, just as everything in human rights necessitates freedom of speech, there is nothing in human rights that necessitates the hearing of unwanted speech.

Freedom of movement

17. The right to hold an assembly, procession or picket may conflict with the right of the individual to move freely in the roads and streets. ‘Roads and streets were intended for walking and travelling’ (Saar v. Minister of Interior [2], at p. 177). Just as one person has a constitutional right to hold a procession through a city street, so another has a constitutional right to walk along a city street. This constitutional right exists independently, and it can also be derived from human dignity and liberty.

The public interest

18. Hitherto I have discussed human rights with regard to an assembly, procession or picket. Alongside these rights of the individual, there also exists the public interest (R. Pound, ‘A Survey of Social Interests,’ 57 Harv. L. Rev. 1943-44, 1). These are the interests of the public as such, which it demands as an organized entity. One cannot maintain an organized democratic society without maintaining the public interest in security, order and public peace. Admittedly, one cannot have democratic government merely on the basis of public order alone, but one cannot have democratic Government without public order. Public order is one of the basic values of the legal system (see HCJ 109/70 Coptic Orthodox Mutran of Jerusalem v. Minister of Police [17], at p. 246). The public interest includes public peace, the quiet and tranquillity of daily life, the personal security of a person in his home and in public places, and the proper relationships between individuals and between the individual and government. Indeed, the public interest also includes protection of the human rights of the individual. Without public order it is impossible to ensure human rights. Without order there is no freedom (see HCJ 14/86 Laor v. Film and Play Review Board [18], at p. 433). When a group of people want to hold an assembly, picket or procession in a city street, there is a public interest in maintaining order and security in the city streets, in ensuring the flow of traffic in the streets and in protecting property and privacy. Justice Brennan discussed this in Carey [38] at 471, saying:

‘The state’s interest in protecting the welfare, tranquility and privacy of the home is certainly of the highest order in a free and civilized society.’

It follows that there is a public interest in protecting the interest of the individual and it is the interest of the individual to protect the public interest. In a democratic society there is an inseverable link between order and freedom. How can we ensure the proper operation of this link? The answer that our legal system gives to this question lies in the need to balance interests and values when they conflict. The key lies in an attitude of ‘give and take’ and a balance of conflicting values. Human rights are not ‘absolute’. They are ‘relative’. The public interest wishes to ensure proper ‘subsistence areas’ for the relative nature of the right. We will now turn to this matter.

Balancing between conflicting interests

19. As we have seen, the District Commissioner of Police has discretion in granting a licence for an assembly or a procession. This discretion is exercised within the framework of the purpose of the Police Ordinance. This purpose includes the realization of the specific and general aims underlying the Ordinance. As we have seen, these purposes include safeguarding the constitutional right to hold an assembly and a procession, safeguarding the constitutional right to property, privacy and freedom of movement and safeguarding the public interest. No difficulty arises when all the values and interests that must be taken into account point in the same direction. This is certainly the case when there is a request to hold an assembly in the desert, far from any town. The individual exercises his right without harming anyone. The public interest is realized in its entirety. But in the vast majority of cases the individual does not want to hold an assembly in the desert. The individual wants to hold an assembly in the busy streets of the city, or on the quiet promenades of a residential neighbourhood. He wants to convey a message to others by means of a physical presence, and thereby he is likely to injure the rights of others and the public interest. Indeed, giving the protection of the law to the right of assembly and procession to the fullest extent will harm the right of property, the right of privacy and the freedom of movement, which also demand protection to the fullest extent. It necessarily harms the public interest. Therefore a constitutional process is required to restrict the protection given to constitutional rights, so that they are only protected to a partial extent. This restriction is based on the recognition that it is impossible to protect all of the rights to the fullest extent. The fullest protection of the right of A to hold an assembly cannot be reconciled with the fullest protection of the right of B who does not consent to the presence of A on his property (the property right), or who wishes not to be exposed to A’s speech (the right of privacy), or who desires to walk in precisely the same area where A wishes to hold the assembly (the freedom of movement). Indeed, complete protection of human rights contains an inherent contradiction, for human rights are not only directed against the Government, but they are also directed one against another. There exists between them a structure of connected vessels. Therefore an act of constitutional balancing is required (see HCJ 3080/92 [1]). By means of the constitutional balance, proper protection will be given to the various constitutional rights and the public interest in a manner that achieves constitutional harmony. Justice Agranat discussed this, when addressing the relationship between the freedom of speech and public peace:

‘… the right to freedom of speech is not an absolute and unlimited right, but a relative right, which can be restricted and supervised in view of the aim of upholding important socio-political interests that in certain conditions may be preferable to those protected by the realization of the principle of free speech. Delineating the limits of the use of the right of freedom of speech and of the press depends therefore on a process of placing the different values on the scales and, after weighing them, choosing those which, in the circumstances, must prevail (HCJ 73/53 Kol HaAm Ltd v. Minister of Interior [19], at p. 879 {99}).

Israeli law adopts a similar position with regard to the conflict between other constitutional human rights (such as the conflict between the freedom of speech and the right to reputation; see Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [5]; CA 214/89 Avneri v. Shapira [20]; the conflict between freedom of speech and freedom of movement; Saar v. Minister of Interior [2]). Similarly, Israeli law adopts this approach with regard to the conflict between human rights and the public interest (such as the conflict between the freedom of speech and public order; see HCJ 399/85 Kahana v. Broadcasting Authority Management Board [21]; freedom of movement and state security; see HCJ 448/85 Dahar v. Minister of Interior [22]; freedom of speech and judicial integrity; see CrimA 126/62 Disenchik v. Attorney-General [23]; freedom of speech and the public interest in election propaganda; see HCJ 869/92 Zvilli v. Chairman of Central Elections Committee for Thirteenth Knesset [24]; freedom of assembly and the public interest in the privacy of a public figure; HCJ 456/73 [25] and HCJ 3080/92 [1]).

Principled balance

20. The ideal balance between conflicting human rights — among themselves and between them and the public interest — should be a principled balance; cf. HCJ 991/91 David Pasternak Ltd v. Minister of Building and Housing [26], at p. 60. What characterizes a principled balance — as opposed to an ad hoc balance — is that a ‘rational principle’ (in the language of Justice Agranat in Kol HaAm v. Minister of Interior [19], at p. 881 {--}) is established that reflects ‘a criterion that expresses a principled guideline’, as distinct from a ‘chance, paternalistic criterion, the nature and direction of which cannot be anticipated’ (Justice Shamgar in Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [5], at p. 361). Indeed, the principled balance reflects a general legal norm, which establishes a constitutional principle that applies to all similar cases (see T.A. Aleinkoff, ‘Constitutional Law in the Age of Balancing’, 96 Yale L.J. 1986-87, 943, 948).

Different kinds of principled balancing

21. The principled balance cannot be expressed by one formula. I discussed this in one case, when I said:

‘The diversity of possible situations requires a diversity of balancing points. One cannot adopt a single criterion, which can solve all of the problems. The reason for this is that the conflicting interests are not always of the same normative level, and the difficulties raised by the conflict are of diverse kinds’ (Levy v. Southern District Commissioner of Police [8], at pp. 401-402 {117}).

In a similar vein, Vice-President Justice Ben-Porat said:

‘… the proper criterion is not fixed and standard for all types of cases… but a proper test must be adopted by considering the nature and importance of the competing principles in our way of thinking as to their relative priority and the degree of protection that we wish to give to every principle or interest’ (Dahar v. Minister of Interior [22], at p. 708).

Take the conflict between the freedom of assembly and procession and property rights. The balance between these two constitutional rights when one wants to hold the assembly or the procession on land belonging to the State or to public authorities is not the same as the balance when the assembly or procession are to be held on private property (see Levy v. Southern District Commissioner of Police [8], at p. 402 {117}). Moreover, even with respect to land owned by the State or public authorities, one must distinguish between different kinds of land according to their typical functions. There is therefore a basis for distinguishing between land that has been designated, by social tradition, for holding assemblies or processions (such as streets, roads or airports — see Committee for the Commonwealth of Canada v. Canada (1991) [50]) and land not designated for that purpose (such as Government offices). Between these two there are intermediate situations, such as State land which is used for courts and prisons (see Cox v. Louisiana (1965) [39], and also H. Kalven, ‘The Concept of the Public Forum: Cox v. Louisiana’ [1965] Sup. Ct. Rev. 1). Moreover, with regard to roads and streets, which belong to the State or to public authorities, roads and streets in busy city centres are not the same as roads and streets in residential areas. The same is true of private property. Private property which according to social tradition is the ‘castle’ of the individual (such as his apartment or house) is not the same as private property that according to social tradition is used by the public (such as a shopping centre: see Pruneyard Shopping Centre v. Robins (1980) [40]). Indeed, the balancing formulae vary in accordance with the conflicting values, and within the framework of a given set of values, in accordance with social aims and basic constitutional outlooks. We therefore distinguish between a ‘vertical balance’ and a ‘horizontal balance’. In the ‘vertical balance’, one value that conflicts with another value is superior to it. Nonetheless, this superiority is realized only if the requirements of the balancing formula are fulfilled with regard to the likelihood and extent of the harm to the superior value. Thus, for example, the public interest in public peace and public order prevail over the freedom of speech, provided that there is ‘near certainty’ that real damage will be caused to the public interest if the freedom of speech is not curtailed (see Universal City Studios Inc. v. Film and Play Review Board [10]). Similarly, the public interest in security will prevail over the freedom of movement outside the borders of the state, provided that there is a ‘genuine and serious fear’ of harm to security if the right to leave the country is realized (see Dahar v. Minister of Interior [22]). In the  ‘horizontal balance’ the two conflicting values have equal status. The balancing formula examines the degree of reciprocal concession of each of the rights. Thus, for example, the right of movement and the right to hold a procession are of equal status. The balancing formula will establish conditions relating to place, time and extent in order to allow the two rights to co-exist. Needless to say, these conditions of place, time and extent are liable to change in accordance with the nature of the ‘equal’ rights, the social purposes underlying them and basic constitutional perceptions.

Legislative balancing and judicial balancing

22. As we have seen, the balancing formulae determine the extent of the protection that the legal system gives to constitutional human rights, from which the ‘relativity’ of constitutional human rights is derived. For this reason they are so important. Occasionally it is the constitutive authority, or the legislature (in Israel — the Knesset) that establishes the balancing formula. Thus, for example, the Canadian Charter provides a list of human rights. Alongside these rights, there is a general provision (section 1) according to which these rights are subject:

‘… to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

In a similar vein, the Basic Law: Human Dignity and Liberty provides a list of human rights. Alongside these, there is a general balancing formula (‘a restriction clause’), whereby:

‘The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive.’ (s. 8).

In these situations, there is a statutory balancing formula and the court is required to interpret it and to give it specific content. Sometimes there is no statutory balancing formula. The law (whether legislation or case-law) recognizes human rights and the public interest, even in the absence of a statutory balancing formula. In such a situation, there is no alternative but to develop balancing formulae in case-law. This, for example, is the position in the United States. The First Amendment to the Constitution regarding freedom of speech, establishes this freedom in ‘absolute’ terms (‘Congress shall make no Law… abridging the freedom of speech’). Notwithstanding this, judicial balancing formulae have been established that have moderated the absolute freedom and have restricted the protection given to the freedom of speech, out of consideration for other values. The same is true in Germany. A number of constitutional human rights established in the Basic Law (the Grundgesetz) do not provide balancing formulae, and these have been determined by the courts (see D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Durham, 1989). A similar approach has been adopted in Israel. Alongside the statutory balancing formulae, case-law balancing formulae were established in the past (such as the test of ‘near certainty’: see Israel Filming Studios Ltd v. Geri [9]). This is the method that the courts must adopt in the future, when constitutional human rights established in the Basic Laws are in conflict with one another.

Balancing, ‘weight’ and the ‘enlightened public’

23. Before we proceed to the balance required in the case before us, it should be pointed out that the word ‘balancing’ is merely a metaphor. Behind this word lies a constitutional outlook that the various rights, values and interests do not have the same social importance. ‘Balancing’ between values and interests is merely an examination of the relative social importance of the different values and interests. I discussed this in one case, where I said:

‘These terms — balance, weight — are merely metaphors. They are based on the outlook that society does not regard all principles of equal importance, and that in the absence of statutory guidance, the court must assess the relative social importance of the different principles. Just as there is no man without a shadow, so there is no principle without weight. Determining the balance on the basis of weight means making a social assessment as to the relative importance of the different principles’ (Laor v. Film and Play Review Board [18], at p. 434).

Indeed, the determination of the ‘balance’ is a normative activity. It is intended to reflect the value society attributes to the values and interests within the values of society as a whole. This action is not done in accordance with the subjective attitudes of the judge. It is an expression of the objective attitudes of society. I discussed this in HCJ 6163/92 Eisenberg v. Minister of Building and Housing [27], at p. 265 {68}, where I said:

‘In determining “the relative social importance”, the court is a “faithful interpreter of the accepted attitudes of the enlightened public, in whose midst it dwells”… These are the attitudes enshrined in basic values and basic conceptions, and not in temporary, passing trends. They reflect the “social awareness of the people in whose midst the judges dwell”… They are an expression of “the national way of life”… They reflect “the nation’s vision and its basic credo”... They are not the product of judicial subjectivity. In attaching weight to the various considerations, the judge aims, to the best of his ability, for judicial objectivity. He does not reflect either his subjective values or his personal considerations. The judge reflects “the values of the State of Israel as a Jewish and democratic State.”…’

The criterion guiding normative judicial activity is the one established by Justice Landau, according to which the judge is obliged:

‘to be a faithful interpreter of the accepted attitudes of the enlightened public, in whose midst he dwells’ (CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [28], at p. 1335 {135}).

The judge must be familiar with the society in which he lives:

‘He must learn about the social consensus, the foundations and values that are common to members of society. He must absorb the legal ethos and the basic principles that make society a democratic society’ (Efrat v. Director of Population Register at Interior Ministry [7], at p. 780).

He must express ‘the conscience of the general public and the value beliefs of society with regard to appropriate and inappropriate behaviour…’ (CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [29], at p. 532). He must give expression to the basic beliefs of society. Against this background, we will now turn to the balancing required in the type of cases to which the case before us belongs.

An assembly, procession or picket outside the apartment of a public figure

24. The petitioner wants to hold an assembly outside the apartment of Rabbi Ovadya Yosef. This apartment is used by him and his family for their home. Nonetheless, persons in government visit him there. The apartment is located in an apartment building, in which there are several residents. The building is situated in a residential area. The District Commissioner of Police refused to give the petitioner a licence to hold the assembly. His main reason was the intrusion on the privacy of Rabbi Ovadya Yosef. He also gave a ‘traffic related’ reason, but it was emphasized that the ‘most important reason’ relates to the violation of the right of privacy. On the basis of this factual background, the focus must be on the relationship between the right of someone to hold an assembly with others outside the private residence of a public figure in a residential area and the right of the public figure and his neighbours to protect their privacy. There is no reason, within the framework of the petition before us, to discuss the ‘traffic related’ consideration and the relationship between the petitioner’s right to hold an assembly and the right of any person in the community to move freely on the road or the pavement upon where the assembly is supposed to take place, since this consideration was not the basis for the District Commissioner’s decision. Furthermore, the petitioner wishes to hold the assembly on the pavement or on the road. He does not want to enter the premises belonging to the individual. In these circumstances, we do not need to examine the relationship between the right of assembly and property rights (in the narrow sense). Finally, the permit requested a location outside an apartment which is used by the public figure mainly as his home. It is not a Government office, nor is it even an ‘official’ residence like the President’s House. A change in the designated use of the house changes the proper balance between the conflicting rights. The petition before us focuses on the relationship between the individual’s right to hold an assembly in a residential area and the right of a public figure and his neighbours not to have their privacy in their private apartments violated by the holding of the assembly, and the relationship between these two rights and the public interest in maintaining public order.

The right to hold an assembly, procession or picket next to the private house of a public figure

25. The constitutional premise is that every man has the right to hold an assembly, procession or picket. This right is not restricted only to Government or commercial centres of the city. In terms of its internal scope, the right extends even to holding an assembly, procession or picket in residential areas (see Comment, ‘Picketing the Homes of Public Officials’, 34 U. Chi. L. Rev., 1996-1997, 106). In discussing a picket in a residential area, the Supreme Court of the United States held, in the opinion of Justice Brennan:

‘There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighbourhoods, the Illinois statute regulates expressive conduct that falls within the first Amendment’s preserve’ (Carey [38], at p. 460).

In explaining this approach, another American court noted that the recognition of the right to hold a protest vigil next to the (private) home of an employer:

‘… brings home the fact that a man may leave his tools at his work but not his conscience or his relations with his fellow man’ (United Electrical, R & M Workers v. Baldwin (1946) [41], at p. 242).

Indeed, in view of the public reasons which underlie the right to hold an assembly, demonstration or picket, there is no substantive difference between an assembly, demonstration, or picket in a residential neighbourhood and an assembly, demonstration or picket in another area. The individual may also wish to express himself in a residential area. Sometimes it is precisely the residential neighbourhood that serves as an effective focal point for expressing that view. It creates the direct link between the petitioner and a public figure, which an assembly or procession in Government areas (such as the Government complex) or commercial areas do not create (see D.M. Taubman, ‘Picketers at the Doorstep’ 9 Harv. Civil Rights L. Rev., 1974, 95, 106). Prof. Kretzmer discussed this, noting that:

‘There are times when demonstrations outside the home of a public figure are the most effective way of communicating a view on a matter of public importance. In other cases such demonstrations may be the only really effective way of communicating that view to the public figure involved. The privacy interests of public figures should not override the expression interest involved in such demonstrations’ (Kretzmer, supra, Isr. L. Rev., at 120).

There is also no difference — from the viewpoint of the (inherent) scope of the right to hold an assembly, demonstration or picket — between an ‘official’ residence of a public figure (such as the President’s House or the Prime Minister’s House) and his ‘private’ home. Both of these are a focus for an assembly, demonstration or picket and the reasons that underlie the constitutional right to demonstrate, assemble or picket, exist for both of them.

The right of privacy of the public figure and his neighbours

26. ‘Every person has a right to privacy’ (s. 7(a) of the Basic Law: Human Dignity and Liberty). The public figure is also entitled to privacy. The fact that he is a public figure should not deprive him of the right to live within the privacy of his own home, on his own or with his family. It is precisely because of the public exposure involved in his position or office that he needs the quiet and tranquillity of his home, and the privacy is intended to give him these at the end of the day. Indeed, it is the right of public figures ‘to protect at least part of their lives from the media’ (Gavison, ‘Prohibition of Publication that Violates Privacy,’ Civil Rights in Israel, The Association for Civil Rights in Israel, ed. R. Gavison, 1982, 177, 200). In one case, the petitioner applied to hold an assembly outside the home of the Foreign Minister. The District Commissioner of Police refused the application. The petition to the Supreme Court was denied. The court said:

‘The freedom of assembly and the freedom of expression upon which the petitioner relied in his petition do not mean that permission is given to intrude on the privacy of a person holding public office and to harass him and the members of his family in their private lives in order to influence him, in this way, with regard to his public activity’ (HCJ 456/73 [25]).

In a similar vein, Prof. Kretzmer stated:

‘All persons, including public figures, are entitled to respect for the privacy of their homes’ (Kretzmer, supra, Isr. L. Rev., at 120).

The neighbours of the public figure are entitled to realize their right to privacy. The fact that nearby there lives a person holding public office should not deprive them of that right.

The public interest

27. The public interest in this case is mainly restricted to the realization of the right of assembly, procession and picket on the one hand and the right to privacy on the other hand. As we have seen, the public interest in the freedom of movement was not the basis for the decision in this case. Nor is there any fear of a disturbance of the peace. Indeed, we are concerned with the public interest in protecting the human rights to hold an assembly, procession and picket on the one hand and the privacy of the home on the other. The question is how we can protect, in a democratic society, both the freedom of assembly, procession and picketing and the right of privacy. The answer to this question lies in the necessity of balancing these two values. We will now turn to this balance.

The balance

28. The right to hold an assembly, procession or picket in the city streets and the right to the privacy of a person’s home are constitutional rights in Israel. They are cherished by Israeli democracy. They are rights of equal stature. Neither of them is preferable to the other. Justice Burger rightly pointed out in Rowan [33], at p. 736, ‘… the right of every person “to be let alone” must be placed in the scales with the right of others to communicate’. It follows from this equality that it is insufficient for there to be a near certainty of a substantial violation of one right in order to deny the other right. Even if it is proved that it is definitely certain that the freedom of assembly, demonstration or picketing will intrude on privacy, this is insufficient to justify denying that freedom. Similarly, even were it proven that it was definitely certain that the full exercise of the right to privacy would violate the right of assembly, procession or picket, denying the right to privacy would still not be justified. Indeed, we are not dealing with a  ‘vertical balance’ which looks for formulae of reasonable likelihood. We are concerned with two human rights of equal standing, and the balance between them must therefore find expression in a reciprocal waiver whereby each right must make a concession to the other in order to allow the coexistence of both. The protection of the law does not extend to either of the rights in its entirety. Each right suffers restrictions of time, place and manner in order to allow the substantive realization of the other right. Indeed, the proper balance between the freedom of speech and privacy is one of the foundations of a sound democratic regime. The balance required between the rights is a horizontal balance. We are dealing here — in the language of Justice Landau in Israel Electricity Co. Ltd v. HaAretz Newspaper Publishing Ltd [5], at p. 343 — ‘not with a “vertical” scale of a “supreme right” as opposed to a normal right’ but with a horizontal delineation of ‘rights of equal standing, without an aim of preferring one right as defined in legislation at the expense of another.’ At the heart of the horizontal balance is the recognition that both freedom of assembly, procession and picketing in the streets and privacy in homes are rights that are cherished by the democratic regime, but in a democratic society it is impossible to give protection to each of these rights to the fullest extent without harming the other right. Democracy therefore requires a reciprocal restriction of the extent of the protection given to each of the rights. This restriction must, in so far as possible, preserve the essence of each of the competing values (see L.H. Tribe, American Constitutional Law, Mineola, 2nd ed., 1988, 977). It must try, in so far as possible, to prevent a major violation of one right in upholding the other right. With regard to legislation that violates the freedom of speech in order to uphold the right to privacy, Justice Harlan said:

‘The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is… dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner’ (Cohen v. California (1971) [42], at p. 21).

The horizontal balance results in limitations of time, place and manner for realizing one of the rights in order to maintain the essence of the other right (see, Emerson, Toward a General Theory of the First Amendment, New York, 1966, 75). With regard to legislation restricting the freedom of assembly, procession and protest in order to uphold the right of privacy, Justice Brennan said:

‘The ordinance is subject to the well-settled time, place and manner test; the restriction must be content and viewpoint neutral, leave open ample alternative channels of communication, and be narrowly tailored to further a substantial governmental interest’ (Frisby v. Schultz [43] at 491).

For this reason, Justice Brennan — who was in the minority in that case — thought that legislation which absolutely prohibited picketing in a residential area violated the constitution and was void. On the other hand, legislation passes the constitutional test if it establishes arrangements governing place, time and manner. Justice Brennan wrote, at p. 494:

‘Thus, for example, the government could constitutionally regulate the number of residential pickers, the hours during which a residential picket may take place, or the noise level of such a picket. In short, substantial regulation is permitted to neutralize the intrusive or unduly coercive aspects of picketing around the home. But to say that picketing may be substantially regulated is not to say that it may be prohibited in its entirety. Once size, time, volume, and the like have been controlled to ensure that the picket is no longer intrusive or coercive, only the speech itself remains, conveyed perhaps by a lone, silent individual, walking back and forth with a sign.’

In fact, an assembly or a picket that is held on one occasion is not the same as repeated assemblies or pickets; an assembly or picket held in the morning or afternoon is not the same as an assembly or picket held during hours of rest; an assembly or picket with a large attendance is not the same as an assembly or picket with few participants; an assembly or picket that is supposed to be held over several hours is not the same as a short assembly or picket; an assembly where use is made of loudspeakers or other means of amplifying sound is not the same as one that is held quietly; an assembly held next to a private building is not the same as an assembly held at some distance from it; and an assembly held alongside pickets is not the same as an assembly held without picketing (see A. Kamin, ‘Residential Picketing and the First Amendment’, 61 Nw U. L. Rev, 1966-67, 177; R. E. Rigby, ‘Balancing Free Speech in a Public Forum v. Residential Privacy: Frisby v. Schultz’, 24 New Eng. L. Rev., 1989-90, 888).

Restrictions regarding time, place and manner

29. It follows that in Israel a person in entitled to hold an assembly or picket in a residential area. He is entitled to hold an assembly or picket next to the house of a public figure. Nonetheless, in the circumstances of holding the assembly or picket a proper balance must be guaranteed between a person’s right to hold an assembly or picket and the right of the public figure and his neighbours to their privacy in their apartments. This proper balance reflects the public interest, which the police must protect. Within the framework of the police’s statutory powers, it must ensure that the right of assembly of the one does not substantially intrude on the privacy rights of the other. For this purpose, the police may determine reasonable restrictions of time, place and manner. With regard to time, the police may determine that the assembly may not be held during hours of rest. It may also determine that the assembly will be held for a relatively short time. It may determine — on the basis of equality and without any reference to the substance of the message being conveyed at the demonstration — the frequency for holding demonstrations, so that the right of privacy of the public figure and his neighbours is not seriously violated. It may also take into account the frequency of holding assemblies or pickets in the past. With regard to place, the police can determine that the assembly will take place at a certain distance from the home of the public figure. It may determine that the assembly will not prevent free entry and exit to and from the building. With respect to manner, the police may restrict the number of participants. It may regulate the use of loudspeakers, including their volume and number (see Kovacs v. Cooper (1949) [44]; Francis v. Chief of Police (1973) [46]; Indulal v. State (1963) [48]; Cheema v. Ross (1991) [51]).

A private apartment used for public activity

30. The balances that I have discussed assume that the public figure does not use his private apartment for his public activity. In this situation, the public figure is entitled to the same measure of privacy as his neighbours. The balance may change if the private home of the public figure is also used for his public activity. The extreme case is that of an official residence (e.g., the President’s House or the Prime Minister’s House) which are situated at a distance from residential areas. This residence acts as a symbol of the office and here the public figure carries out both his public and private activity, without it being possible to distinguish them. Because of the unique nature of the official residence, it should generally be regarded as a public building (such as a Government office). The appropriate balance between the freedom of assembly, demonstration or picketing and the right to privacy will therefore in these circumstances tend in favour of the freedom of assembly, demonstration and picketing. An intermediate case is one where there is a basic distinction between the place of the public activity of the public figure and his home, even though the public figure carries out some public activity at his home. In this situation, the proper balance between the right to hold an assembly, procession or picket and the right of privacy must take account of this special situation. The extent of protection for the privacy of a public figure who keeps his public activity and his residential apartment separate is not the same as the extent of protection for privacy when the public figure carries out part of his public activity in his apartment (see: Carey [38], at p. 471; Frisby [43] at p. 479). The proper balance between the constitutional rights must reflect the special function of the home. It follows that the more the private home is used for public activity, the more the balance will tend in ‘favour’ of the freedom of assembly, procession or picketing.

31. It is a special case when the private home of a public figure is also used for a part of his public activity. Nonetheless, this apartment is situated in a residential building, where there live additional residents who are not involved in the public activity. How will the proper balance be made in such a case? It seems to me that, in making the proper balance, one must take account of the special aspects of this complex situation. On the one hand, there is no justification, in a democratic society, for substantially limiting the extent of protection for the privacy to which a ‘private’ resident is entitled, merely because his neighbour is a public figure. On the other hand, there is a justification in a democratic society for demanding some concession with regard to the privacy of a private resident because of the fact that his neighbour is a public figure. This is the ‘price’ that the private neighbour must pay for the public activity of his neighbour. It seems to me that the proper balance between the constitutional rights must take account of this complicated situation. One must therefore guarantee, within the framework of the proper balance, that the ‘private’ neighbour is given substantial protection for his privacy, even if this protection may be slightly less than the protection given to a resident whose neighbour is not a public figure.

From the general to the specific

32. Against the background of this normative framework we must examine the case before us. It seems to me that had the petitioner asked to hold a procession on one occasion — with the number of participants proposed by him — which would pass by the apartment of Rabbi Ovadya Yosef and his neighbours, there would be a basis for approving it, subject to restrictions of time and manner, taking account of the question whether such processions took place in the recent past and taking account of the transport factor. A procession passing by the house intrudes minimally on privacy and it upholds the proper balance between the relevant constitutional rights. Similarly, it appears to me that the petitioner would have been within his constitutional rights — in accordance with the proper balance between these and the rights of the residents of the building — if he had asked to hold a picket on one occasion with a small number of participants, standing silently with signs, without there having been such picketing in the past. Even here there would be justification for fixing restrictions of time and place. The petitioner may hold this picket without a police permit. He is entitled to police protection if he wants to hold this kind of picket (Levy v. Southern District Commissioner of Police [8]). It also seems to me that a picket held within the framework of the proper constitutional balance is a legal activity for the purpose of the Protection of Privacy Law (see ss. 18 and 19). It should be emphasized that with respect to the picket, there was a basis for taking account of the fact that in the recent past pickets have been held next to the house and the extent of the intrusion on privacy that these caused.

33. The petitioner does not want to hold a procession or a picket. His request is to hold a  ‘picketing assembly’. He wants approximately two hundred and fifty people to participate. He wants to use a stage and two loudspeakers. He wants to hold it for two hours (19.00-21.00). Had this assembly been an isolated event, without there having been pickets in the past, it might have been possible to approve it, subject to certain restrictions in terms of time (shortening the length of the assembly) and manner (foregoing the loudspeakers, reducing the number of participants). The problem is that the assembly requested comes against a background where pickets have been held next to the house for a long time. In these circumstances it was proper to consider the overall balance between the freedom of assembly of the petitioner and his friends and the intrusion on the privacy and the property of the residents of the building. Such an examination was not made by the police. It did not take account of the number of pickets that took place in the past, but it was satisfied with the intrusion on privacy as the sole reason for the refusal. In doing so, it acted albeit without discrimination and in accordance with its usual practice. Nonetheless, it did not accord sufficient weight to the freedom of assembly. We asked the petitioner whether he would be prepared to hold the assembly subject to the restrictions that would be placed on him with regard to the size of the assembly (less than two hundred and fifty persons) and with regard to additional factors of manner and time (such as use of loudspeakers, length of the assembly). The petitioner told us that from his viewpoint he was not prepared for any change at all, in the sense of ‘all or nothing’. In these circumstances, there is no point in returning the petition for reconsideration by the respondent, and it should be denied.

Supplementary remarks

34. Our premise in examining the petition before us was the discretion of the District Commissioner of Police. In order to examine this discretion, we needed to examine the relationship between the right to hold an assembly, procession or picket, on the one hand, and property rights and the right of privacy on the other. We established a formula for principled balancing in the relationship between one human right and another. This balancing formula was also sufficient for establishing the extent of the administrative discretion, for in the circumstances before us, there was no reason, in view of the positions of the parties, for taking account of additional considerations. Such considerations, had they existed (such as the fear of a disturbance, the traffic consideration), would have necessitated the establishment of additional balances. Indeed, the case before us is based on normative harmony. There is a complete internal balance between public law and private law. An individual’s right with respect to the Government (to hold an assembly) within the framework of public law is derived from the balance between that individual’s right (to hold an assembly) and another individual’s right (to protect his privacy) within the frameworks of both public and private law. Indeed, if the persons holding the assembly were sued by the persons entitled to privacy for committing a tort (such as private nuisance), the action would be dismissed, since the proper constitutional balance between the human rights determined the proper degree for reasonable use of land to which a person is entitled under the law of torts. Indeed, the various torts of private law — and its other remedies — are merely an expression of the proper balance between constitutional human rights. The source of constitutional human rights is in public law and balancing between them is constitutional. Nonetheless, they are afforded protection, inter alia, within the framework of private law, and in accordance with the doctrines accepted by private law. Reasonableness, fairness, proper behaviour, public policy and similar working concepts of private law are merely instruments of private law that express the constitutional balance between human rights. Note, moreover, that public law does not merely deal with the structure and powers of Government authorities. Public law (and the Basic Laws that reflect them) also deals with the various human rights, their interrelationship and their relationship to Government authority. It follows that one can consider the case before us from the perspective of public law towards private law (by means of the discretion given to a public authority), and one can consider the case before us from the perspective of private law towards public law (by means of torts). The difference in perspective does not change the balance. The law is consistent. But again, this is not always the case. Sometimes the public authority considers general factors of security, law and order and keeping the peace. In such cases, the balance between the various human rights may require one balancing formula, whereas the balance between the human right and the requirements of security, law and order and keeping the peace may require a different balancing formula. Thus, for example, sometimes the balancing formula between human rights that conflict with one another is horizontal, whereas the balance between human rights and considerations of security, law and order and keeping the peace is vertical.

The result is therefore that the petition is denied.

 

 

Justice S. Levin

1.    In HCJ 456/73 [25], this court held, in a short unreported decision, which was given in a petition to allow the petitioner to organize an assembly in the form of a demonstration next to the house of the Foreign Minister, that:

‘Under the Police Ordinance [New Version], 5731-1971, ss. 84 and 85, the police have discretion to grant the licence requested, to grant it with sureties or with conditions or restrictions, or to refuse it. It appears that the police believe that the freedom of assembly and the freedom of speech, on which the petitioner relies in his petition, do not amount to granting a permit to intrude upon the privacy of a person holding public office, and to harass him and the members of his family in their private lives, in order to influence him, in this way, with regard to his public activity. We found nothing wrong with this attitude.’

For that reason the petition was denied.

I rely on that decision, and had my esteemed colleague, the Vice-President, not written his monumental opinion, with his extensive erudition, in accordance with current practice, I would merely have denied the petition, as our predecessors did twenty years ago, without adding to, or subtracting from, the aforesaid; but since I cannot merely remain silent, I have found at least four reasons for supporting the aforesaid view: first, in my opinion a public figure has — no less than the average man, and perhaps even more so — the right to privacy in his home, and for me the saying ‘a man’s home is his castle’ is not merely theoretical and it applies also to public figures. An intrusion on privacy, under ss. 4 and 5 of the Protection of Privacy Law, is a tort and also a criminal offence. Within the framework of an ‘intrusion on privacy’, s. 2(1) of the said law also includes ‘sleuthing or shadowing a person, which may disturb him, or another harassment’; President Shamgar also discussed this in his judgment in Appeals Court Martial v. Vaknin [16], where he wrote, at p. 851, the following:

‘What is “another harassment”? It seems that this may include, for example, the usually acceptable act of walking behind another person wherever he goes, openly and closely and even in protest, which does not constitute trailing him secretly but following him openly. Picketing, by standing next to someone’s home or by his door, is similar to this. Such an act may deprive a person of his tranquillity, his feeling of personal safety and his feeling that he can conduct his life on his own, without his private affairs being on display for others, and therein lies the harassment in the act and the intrusion on privacy that derives from it.’

Second, there is a fear that permitting demonstrations next to the private home of public figures may dissuade potential public figures, who are qualified, from engaging in public activity, and there is even a fear that under the pressure of the demonstration, or under the pressure of the members of his family as a result of the demonstration, the public figure may change his opinion, not for objective reasons but merely to stop the harassments against him. Third, if we allow demonstrations outside the home of a public figure, we will make him, his family and his neighbours the ‘captive audience’ of the demonstrators, since they will be left with no choice but to listen to what they are saying, even if they do not wish to do so. Fourth, a public figure, no less than any other person, has the right — within the proper limits — to prevent the harm caused to him as a result of the demonstration within the framework of civil law (such as the commission of a tort of nuisance or trespass) and to prevent a criminal offence that is about to be committed against him and which derives from the breach of law and order.

2. Notwithstanding the right of privacy of the public figure in his home that is his castle, this court has recognized the freedom of demonstration: Saar v. Minister of Interior [2]; and even though this freedom is not expressly mentioned in the Basic Law: Human Dignity and Liberty (whereas property rights and the right of privacy and confidentiality are mentioned in ss. 3 and 7), I am prepared to assume, without deciding the matter, that the law does not compel us to prefer one basic right to the other merely because one is not mentioned expressly in the Basic Law whereas the other is mentioned.

Like my esteemed colleague, the Vice-President, I too will not refrain from making a balance between the competing rights, but in my opinion, in the circumstances that have been proved before us, the right of privacy prevails over the right of demonstration. Before explaining my approach in this matter, I would like to make several fundamental assumptions:

First, what is stated in our judgment does not relate to the freedom of demonstration next to the place of work of the public figure and the place of his public activity, with regard to which there are considerations that do not exist in the circumstances of the present case. Second, the decision whether to allow or not to allow an assembly or procession to be held is the duty of the District Commissioner of Police, who is obliged to consider, mainly (but not only) factors of ‘maintaining public safety or law and order’ (s. 84(a) of the Police Ordinance [New Version]). The decisions that the District Commissioner must make must naturally be made within a short time, and too complicated a burden of balancing should not be required of him, since he is not in the legal profession, and he will be unable to discharge it. Third, it is precisely for this reason that I believe that it is sufficient in our case to distinguish between the private home of the public figure and his place of work or the place of his public activity, and we should not incorporate in the balance equation the complicated case where we are dealing with a private home that is used, to some extent, also as a place for public activity. Fourth, in view of the aforesaid, I will assume that because of the minimal public activity of Rabbi Ovadya Yosef in his private apartment, we are merely dealing with the private apartment of the revered Rabbi.

3.    In my opinion, the right of privacy is of great value especially in an open society that tends more and more to interfere in the affairs of its citizens, whether through Government institutions or through the media, supported by the principle of the public’s right to know. In CA 670/79 HaAretz Newspaper Publishing Ltd v. Mizrahi [30], I considered the proper balance between the power of the media to publish incorrect facts about the individual and the right of the individual to his good name, and I held that there is no basis for the attitude that ‘in the prevailing circumstances it is necessary to disturb the delicate balance established in case-law by a greater restriction on the individual’s right to his reputation in favour of extending the power given to the press to publish incorrect facts about him’ (ibid., at p.200). In the case before us we must evaluate the balancing equation between the right of demonstration and the right of privacy, and what was stated above is even more applicable when speaking of a public figure; the acts of the public figure in his public activity, as well as in most areas of his overt private activity, are exposed to the public, and this is also proper in an open and democratic society; there is no doubt that a person who accepts public office exposes himself to a large extent to the watchful public eye. There is only one place whither he can escape from his day’s work at the end of his onerous public activity — to the bosom of his family, protected for a short time from the major external pressures to which he is subject, so that he may renew his strength for tomorrow. This is his private home. This home must be protected to the maximum extent that the law allows.

The extra protection granted to the right of privacy of the public figure in his private home as compared with other basic rights is nothing new and is accepted in other countries; see in Canada: the Cheema [51] case, where the court did not see any reason to distinguish between the rights of a public figure not to be excessively disturbed at his home and the rights of his neighbours not to have their rest disturbed; in the United States, see the Carey [38] judgment, at p. 2295, and especially the minority view of Justice Rehnquist, at p. 2296 et seq.; and the comment of Justice Black in the Gregory [37] case, at pp. 953-954, and also Frisby [43]. Kamin’s article, supra, at p. 182, says something with which I entirely agree:

‘In the Constitutional value scale, the quiet enjoyment and privacy of residential premises — even of the privately-owned homes of public officials — merits higher priority than freedom of speech.’

Kamin gives reasons for this opinion, at p. 228, that if such demonstrations are to be permitted:

‘All demonstrations at the homes of public officials will, of necessity, affect neighbors who are strangers to the political controversy. Does assumption of public office by a householder terminate the right of privacy for him, his family and his neighbors? The question has a pervasive significance in a democratic society. If losing the last redoubt of privacy and repose, if subjecting one’s family and neighbors to the constant harassment of sidewalk demonstrations is the price of holding public office, then the republic shall have lost the services of its ablest citizens.’

He sums up, at pp. 230-231:

‘Residential picketing is neither a primary nor a conventional way of communicating the existence of a grievance to a public officer. Rather, it is an instrument of achieving political results by oppressing and harassing the official and his family.’

In American law also, especially recently, there are signs of a trend that sees a need to balance the right of privacy and tranquillity against the right to demonstrate vertically; in other words, we are not talking of rights on an equal footing but of one right (privacy) that prevails over the other (freedom of demonstration), even when we are speaking of a quiet demonstration held outside the home of a public figure. It therefore appears that in the circumstances of the case before us, when the issue is one of holding a demonstration outside the home of a public figure who lives in the middle of a residential neighbourhood, American law would also have the result of prohibiting the holding of the demonstration.

In Germany: the judgment in the case of Ovg. Koblenz, Beschl v. 24.5.86 7B 36/86 [47] considered the question whether to permit or prohibit a demonstration intended to protest Government policy with regard to nuclear reactors, near the home of Chancellor Kohl’s home (a building used as the Chancellor’s home but where meetings and official events were occasionally held). The Supreme Court for administrative matters held that such a demonstration was prohibited since it violated the rights of the individual. It held that in the balance between the public interest (to hold a demonstration) and the individual interest (the right of the individual, his family and neighbours to enjoy their private property without disturbance), the interest of the individual prevails. The court even added that especially when a public figure is concerned, the importance of the right of privacy and property rights increases, for the public figure is constantly exposed to criticism and his private home is truly his castle, the only place where he can rest and recover from his public work.

If we add to the aforesaid also the interests of the family and the neighbours to prevent nuisance, and the possibility, which has been proved in this case, of holding the demonstration at some distance from the home of Rabbi Ovadya Yosef, I am satisfied that there is no sufficient reason for intervening in the discretion of the first respondent.

For these reasons I too, like my esteemed colleagues, thought on the day we gave our judgment that the petition should be denied.

 

Justice E. Goldberg

1.    An assembly, which is one of the basic freedoms in Israel, is embodied, even according to its definition in the Police Ordinance [New Version], in the simultaneous existence of two elements: the first element, which is the main one, is the actual physical presence of the demonstrators at the place of the assembly, and the second element is verbal expression on the part of those present on the subject of the assembly. The physical presence is not merely a means of making it possible to hear what is said at the assembly, but in itself it serves as a ‘medium’ for conveying the message which the assemblers wish to convey, and in this the assembly is different from other methods of expression. The presence attracts the attention of the public, arouses awareness of the subject of the assembly and emphasizes the extent of the support for it. This is in addition to the direct application inherent in the presence to whoever is the target of the assembly.

It can therefore be said that the demonstration is one of the effective ways in which those present at an assembly may express themselves, when direct access to the electronic media is not available to everyone, and an application to the written media is likely to be buried in the vast amount of information conveyed in them.

In this respect Prof. Kretzmer said in his article, supra, in Is. L. Rev., at p. 53:

‘The demonstration is a form of expression which exploits the “physical presence factor” in order to communicate a view likely to be lost if communicated in other ways. It is indeed true that the modern demonstration is very often geared towards the news media, and dependent on coverage therein for its success, but it is the unique “physical presence” factor that makes the view expressed “newsworthy”, and which therefore gains the demonstrators access to the media.’

It transpires from what we have said that real implementation of the freedom of speech by way of an assembly occurs when there is a link between the physical presence of the assemblers and the site of the assembly. Without an effective site, the assembly is ineffective.

2.    But the right of assembly, despite its great importance, is not absolute. Other interests and rights conflict with it and they may be harmed by it, albeit temporarily. This is the source of the need to balance between the right to hold an assembly next to the homes of public figures and the property rights and right of privacy of the public figures, members of their families and their neighbours.

Since we said that effectiveness of the site is the very essence of the assembly, the appropriate balance when considering the question whether to permit an assembly next to the home of a public figure lies, in my opinion, in whether there is or is not an alternative site for the assembly, an alternative where the effectiveness will be maintained and not materially impaired. If there is such an alternative, then the right of privacy and property rights will prevail, for the harm to these rights with then be excessive. This is in the spirit of the Basic Law: Human Dignity and Freedom, which protects property rights (s. 3) and the right of privacy (s. 7(a)), but alongside the protection lies the provision in section 8 that:

‘The rights under this Basic Law may only be violated by a law… and to an extent that is not excessive.

This ‘compromise’ position was adopted by the author of the article, supra, in U. Chi. L. Rev., at p. 140, who said:

‘The practice of residential picketing exerts “injuries” upon the home-owner public official, making of him and his family a captive audience and intruding into the enjoyment and privacy of their home. In weighing the benefits of the residential sites against the detriments, the argument for prohibition of residential picketing is strongest, since only by such prohibition can the homeowner’s interests be protected.

Undeniably, prohibition of residential picketing would work to the detriment of the picketer; he would lose a forum which affords him economy, publicity and effectiveness. These benefits are not completely lost; they can be largely approximated elsewhere. Thus prohibition, its detriments mitigated by the availability of other demonstration sites, offers the most tenable compromise.’

3.    This is the basis for the distinction between a case where an assembly next to the home of the public figure is the only effective site, and a case where there is an effective alternative site. In this context Prof. Kretzmer states:

‘There are times when demonstrations outside the home of a public figure are the most effective way of communicating a view on a matter of public importance. In other cases such demonstrations may be the only really effective way of communicating that view to the public figure involved. The privacy interests of public figures should not override the expression interest involved in such demonstrations’ (Kretzmer, supra, Isr. L. Rev., at 120).

4.    In my opinion, the home of a public figure should be regarded as the only effective site for holding an assembly only when he conducts all or most of his public activity there. In any other case, there is no reason that the site next to the office of the public figure should not be considered an effective alternative. In the first case, the assembly will be allowed outside the home of the public figure, albeit subject to proper restrictions of time, number of participants, holding the assembly and the frequency of assemblies at that site. In the other case, it will be prohibited.

5.    The circumstances in our case fall into the first category, and therefore I would have seen fit to grant the petition, had not the petitioner refused to hold the assembly with the restrictions required to limit the extent of the intrusion on privacy resulting from it.

The result is that the petition should be denied.

 

 

Petition denied.

9 February 1994.

 

 

            EA 2/84

EA 3/84

 

MOSHE NEIMAN ET AL.

v.

CHAIRMAN OF THE CENTRAL ELECTIONS COMMITTEE

   FOR THE ELEVENTH KNESSET

 

 

           

The Supreme Court Sitting as a Court of Election Appeals

[May 15, 1985]

Before Shamgar P., Ben-Porat D.P., Elon J., Barak J. and Bejski J.

 

 

           

Editor's synopsis -

            The Knesset Elections Law establishes a Central Elections Committee, to which are submitted the various proposed candidates lists that wish to participate in the Knesset elections. The Committee reviews the lists to ascertain that they conform to the requirements of the Law, approves such lists as comply and disqualifies any list that does not comply, supervises the conduct of the election campaign and the elections themselves, rules on various issues that arise during the campaign and during the elections and certifies the results of the voting. The Committee is comprised of representatives of the party lists that are represented in the outgoing Knesset. It is chaired by a Justice of the Supreme Court.

           

            The Central Elections Committee for the election of the eleventh Knesset disqualified two party lists. One was the "Kach" list, which it disqualified for the reason that it advocates racist and anti-democratic principles, that it openly supports terrorist acts, that it seeks to foment enmity and hatred between different segments of the population and that its goals and objectives negate the fundamentals of the democratic regime that prevails in the country.

           

            The Committee also disqualified the "Progressive List for Peace" from participating in the elections on the ground that it contained within it subversive elements and that certain key members of the list conducted themselves in a manner that identified with enemies of the State.

           

            Sitting in a panel of five Justices, the Supreme Court allowed these appeals and reversed the Committee's decisions. The lead opinion was written by the President of the court, Justice Shamgar. He held:

           

1.      There are no provisions in the statute concerning any limitations on the qualifications of a candidates list based on the list's beliefs and goals. Although the Yeredor case (see infra) established that the Committee could disqualify a list that sought to achieve the dissolution of the State, statutes and rulings that limit fundamental rights should be construed narrowly. One should not deduce from that precedent that there is room to expand the grounds for disqualifying a list to include less extreme circumstances.

 

2.      Applying the standards set forth in Yeredor to the "Kach" list, one must ask whether this is a body that seeks to prejudice the very existence of the State, whether the party group was declared - before its disqualification - to be an illegal organization, according to statute, or whether it was proved before the Committee or before a court that its goals include the total negation of the State. The distortions in its opinions, the outrage that they arouse and the desire to disassociate oneself from any approval of these ideas, even indirectly, are not sufficient legal grounds to disqualify the list once it has satisfied the statute's formal requirements.

 

3.      No evidence was presented to the Committee from which it might have concluded that the "Progressive List for Peace" meets the criteria of the Yeredor case. The Committee received a statement from the Defense Minister's spokesman to the effect that the Minister was convinced, on the evidence placed before him, that the list contained subversive elements. Although the information placed before a statutory authority need not meet the standards of evidence that apply in court, it is not sufficient that the Committee rely on information that is entirely in the hands of other parties. In this case, the Committee de facto delegated its authority to the Minister of Defense, and it had no right to do so. The classified nature of the information does not relieve a quasi-judicial body, such as the Committee, from its duty to examine the data itself and make up its own mind.

 

            The Deputy president of the court, Justice Ben-Porat, concurred in the decision on the ground that, in her view, the Elections Law does not empower the Committee to consider the question whether a list is worthy of participating in the elections. All the Committee is empowered to do is to examine whether the proposed list meets the formal requirements set forth in the Law. Justice Ben-Porat expressed her agreement with the opinion of the dissenting Justice in the Yeredor case.

           

            Justice Elon expressed the opinion that the Elections Law requires the Committee to approve a list once it determines that the list satisfies the requirements set forth in the statute. The Committee does not have any discretion to disqualify a list for other reasons. He supported the decision in the Yeredor case as based on a principle that stands above the ordinary canons of interpretation, namely, that the Law is given to live thereby, not to die thereby. Participation in the elections to the Knesset in order to destroy the State and the Knesset are self-contradictory. Society has a natural right to defend itself. But this is a onetime exception that cannot be applied to other grounds for disqualification of a list. He then surveyed the Jewish sources, in law and thought, that encourage intellectual freedom and the exchange of ideas. He rejected the "racist" ideas of the "Kach" list as contrary to Jewish values and to the Biblical conception that all persons are created in the image of God.

           

            Justice Barak was of the opinion that the Committee has discretion to disqualify a list if there is a danger that its approval might undermine the very existence of the State or its democratic character. The proper balance between values that conflict with each other is to be found in the degree of probability that the particular harm sought to be prevented will occur. Nothing in the platform of the "Progressive List for Peace" demonstrates that the list seeks to destroy the State or to injure its democratic character. The "Kach" list's ideas are contrary to the general ideals and to the Jewish values on which the State is founded. But, so long as it has not been proved that there is a reasonable possibility of injury to the State's existence or to its democratic character, the list must be approved.

           

            Justice Bejski distinguished between negation of the very existence of the State and injury to its democratic character. The necessity for judicial legislation in the case of the former does not justify extending the Yeredor ruling to the latter situation as well, especially when one considers the basically political nature of the issue. The Committee is a partisan political body. If it were given the power to disqualify a list on the ground that it undermines the democratic character of the regime, without statutory definitions and restraints, some lists might be disqualified for reasons of narrow partisan interests, as they happen to appear at a particular moment to a majority of the Committee. Based on the "reasonable possibility" test advocated by Justice Barak, the "Kach" list endangers the democratic character of the State. The reason it is not to be disqualified is that there is no legal authority to do so.

 

Note - In the elections to the eleventh Knesset, the "Progressive List for Peace" and the "Kach" list each gained one seat in the Knesset. The eleventh Knesset amended Basic Law: The Knesset, empowering the Elections Committee to disqualify a list if its actions or goals negate the establishment of the State of Israel as the state of the Jewish people, negate the democratic character of the State or incite to racism (section 7A). Based on the third alternative, the Central Elections Committee for the elections to the twelfth Knesset disqualified the "Kach" list from participating in the elections. The Committee rejected a challenge to the "Progressive List for Peace" that was based on the first alternative. The Supreme Court turned down appeals from both decisions (EA 1/88, Neiman et al. v. The Chairman of the Central Elections Committee for the Twelfth Knesset, P.D. 42(4) 177; E.A. 2/88, Ben Shalom et al. v. Central Elections Committee for the Twelfth Knesset, P.D. 43(4) 221).

 

 

Israel cases referred to:

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

[2] H.C. 253/64, Gharis v. Haifa District Commissioner 18P.D.(4)673.

[3] C.A. 723/74, "Ha-aretz" Newspaper v. Israel Electric Corporation 31P.D.(2)281.

[4] H.C. 75/76, Hilron Ltd. V. Fruit Marketing Council 24P.D.(3)645.

[5] H.C. 337/81, Mitrani v. Minister of Transport 37P.D.(3)337.

[6] H.C. 581/80, Amsalem v. Prison Service Commissioner 35P.D.(2)325.

[7] S.S.A. 1/66, Pascal v. Attorney-General 24P.D.(3)71.

[8] C.A. 292/66, Axelrod v. Yitzhakian and Counter-Appeal 24P.D.(4)387.

[9] H.C. 245/66, Bustenai v. Inspector General of Police 24P.D.(4)441.

[10] H.C. 1/49, Bejerano v. Minister of Police 2P.D.80; 3P.E.54.

[11] H.C. 74/51, Contractors Association v. Minister of Commerce and industry 5P.D. 1544.

[12] H.C. 517/72, Snowcrest (Israel) Ltd. v. Mayor of Bene Berak 27P.D.(1)632.

[13] H.C. 442/71, Lansky v. Minister of the Interior 26P.D.(2)337.

[14] H.C. 56/76, Berman v. Minister of Police 31P.D.(2)687.

[15] H.C. 272/74, Kefar Azar Moshav Ovdim Ltd. v. Minister of Labour 29P.D.(2)667.

[16] H.C. 13/80, "Noon" Preservatives Ltd. v. State of Israel - Ministry of Health 34P.D. (2)693.

[17] H.C. 214/52, Shohat v. Inspector General of Police 7P.D.987; 17P.E.60.

[18] H.C. 288/51, 33/52 Atzlean v. Commander and Governor of Galilee 9P.D.689;19P.E.90.

[19] H.C. 554/81, Baranse v. Commander of Central Command 36P.D.(4)247.

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

[21] F.H. 9/77, Israel Electric Corporation v. "Ha'aretz" Newspaper Ltd. 32P.D.(3)337.

[22] H.C. 141/82, Rubinstein v. Chairman of the Knesset 37P.D.(3)141; S.J. vol. VIII, supra p. 60.

[23] H.C. 246, 260/81, Agudat Derekh Eretz v. Broadcast Authority 35P.D.(4)1; S.J. vol. VIII, supra p. 21.

[24] H. C. 292/83, "Neemanei Har Habayit" Society v. Jerusalem Regional Police Commander 38P.D.(2)449.

[25] H.C. 153/83, Levi v. Southern District Police Commander 38P.D.(2)393; S.J.vol.VII,109.

[26] H.C. 73,83/57, "Kol Ha'am" et al. v. Minister of the Interior 7P.D.871; 13P.E.422; S.J.vol.I,90.

[27] H.C. 344/81, Negbi v. Central Elections Committee for the Tenth Knesset 35P.D.(4)837.

[28] C.A.2/77, Azugi v. Azugi 33P.D.(3)1.

[29] H.C. 188/63, Betzul v. Minister of the Interior 19P.D.(1)337. H.C. 188/63, Betzul v. Minister of the Interior 19P.D.(1)337.

[30] C.A. 32/81, Tzonen v. Stahl and Counter Appeal 37P.D.(2)761.

[31] H.C. 152/82, Alon v. Government of Israel 36P.D.(4)449.

[32] H.C. 234/84, "Hadashot" Ltd. v. Minister of Defence 35P.D.(2)477.

[33] F.H. 13/60, Attorney-General v. Matana, 16P.D.(1)430; S.J.vol.IV,122.

[34] Cr.A. 787,881/79, Mizrachi v. State of Israel and Counter-Appeal

35P.D.(4)421.

[35] Cr.A. 696/81, Azulai v. State of Israel 37P.D.(2)565.

[36] H.C. 163/57, Lubin v. TeI-Aviv-Jaffaa Municipality 12P.D.1043; 36P.E.227.

[37] H.C. 10/48, Zive v. Acting Officer in Charge of TeI Aviv Municipal Area 1P.D.85; 1P.E.33.

[38] H.C. 243/82, Zichroni v. Broadcast Authority Management Committee 37P.D.(1)757.

[39] Cr.A. 126/62, Dissenchik v. Attorney-General 17P.D.169; S.J.vol.V,152.

[40] H.C. 148/79, Sa'ar v. Minister of Interior and Police 34(2)P.D. (2)169.

[41] A.D.A. 1/80, Kahana v. Minister of Defence 35P.D.(2)253.

[42] C.A. 165/82, Kibbutz Hatzor v. Rehovot Tax Assessment Officer 39P.D.(2)70.

[43] H.C. 58/68, Shalit v. Minister of the Interior 23P.D.(2)477; S.J.Spec.Vol.(1962-1969)35.

[44] H.C. 29/62, Cohen v. Minister of Defence 16P.D.1023.

[45] H.C. 112/77, Vogel v. Broadcast Authority 31P.D.(3)657.

[46] H.C. 262/62, Peretz v. Kefar Shemaryhau Local Council 16P.D.2101.

[47] H.C. 241/60, Kardosh v. Registrar of Companies 15P.D.(3)1151; S.J. vol. IV, 7.

 

English case referred to:

[48] Rex v. Secretary of State for Home Affairs, Ex parte O'Brien (1923) 2 K.B.361 (C.A.).

 

American cases referred to:

[49] Woodby v. Immigration Service 385 U.S. 276 (1966).

[50] Yick Wo. v. Hopkins 118 U.S. 356 (1986).

[51] Williams v. Rhodes 393 U.S. 23 (1968).

[52] Anderson v. Celebrezze 103 S.Ct. 1564 (1983).

[53] Cousins v. Wigoda 419 U.S. 477 (1975).

[54] Dennis v. United States 341 U.S. 494; 71 S.Ct. 857; 95 L.Ed. 1137 (1951).

[55] Communist Party v. Control Board 367 U.S. 1 (1961).

[56] Yates v. United States 354 U.S. 298 (1957).

[57] Communications Assn. v. Douds 339 U.S. 382 (1950).

[58] Whitney v. California 274 U.S. 357; 47 S.Ct. 641 (1927).

[59] Youngstown Co. v. Sawyer 343 U.S. 579 (1952).

[60] McCulloch v. Maryland 17 U.S. 316 (1819).

[61] Gompers v. United States 233 U.S. 604 (1914).

[62] Terminiello v. Chicago 337 U.S. 1 (1949).

[63] United States v. Dennis 183 F. 2d 201 (1950).

[64] Reynolds v. Sims 377 U.S. 533 (1964).

[65] Abrams v. United States 250 U.S. 616 (1919).

[66] Board of Education v. Barnette 319 U.S. 624 (1943).

[67] Brandenburg v. Ohio 395 U.S. 444 (1969).

 

Jewish Law sources referred to:

            These references are not listed here, since they are given their full citation in the body of the case. On the Jewish law sources in general, see note under Abbreviations, supra, p. viii.

           

M. Schecter for the Appellant in E.A. 2/84;

zichrony, Feldman and Barad for the Appellant in E.A. 3/84;

R. Yarak, Director of High Court Matters, State Attorney's Office, for the Respondent.

 

 

JUDGMENT

 

            SHAMGAR P.: 1. On June 28, 1984 we decided to allow each of the two appeals, to set aside the decision of the Central Elections Committee for the Eleventh Knesset of June 17, 1984, with respect to the Kach list, and its decision of June 18, 1984, with respect to the Progressive List for Peace, and to confirm the two mentioned lists for the purpose of section 63 of the Knesset Elections Law (Consolidated Version), 1969.

 

            At the same time we added:

           

Without derogating from the substantive reasoning called for in these two appeals, we have decided that the court finds it unnecessary at this stage to take a position on the question whether it should adopt the majority or the dissenting opinion in Elections Appeal 1/65 (Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 19 P.D.(3) 365), since we have reached the conclusion, on the basis of the facts before us, that there was no room to refuse confirmation of the two appellant lists even according to the majority opinion in Elections Appeal 1/65 .

 

We turn now to the substantive reasoning itself.

 

            2. There were two decisions of the Central Elections Committee as to which we convened to hear the appeals of the parties. The first was given, as aforesaid, on June 17, 1984 with reference to the Kach list, and this is the notice that was sent to the list following the decision:

           

I hereby inform you that the Central Elections Committee for the Eleventh Knesset, at its meeting on June 17, 1984, refused to confirm your list, the Kach list, by majority opinion, on the ground that this list propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel, openly supports acts of terror, endeavours to kindle hatred and hostility between different sections of the population in Israel, seeks to violate religious sentiments and values of a sector of the state's citizens, and rejects in its objectives the basic foundations of the democratic regime in Israel.

 

Realisation of this list's principles would constitute a danger to the existence of the democratic regime in Israel and might also cause a breakdown of the public order.

 

            With respect to the Progressive List for Peace, the decision was given on June 18, 1984, and notice was delivered as follows:

           

I hereby inform you that the Central Elections Committee for the Eleventh Knesset, at its meeting on June 18, 1984, refused to confirm your list, the Progressive List for Peace, by majority opinion, on the ground that this list indeed harbours subversive elements and tendencies, and central persons in the list act in a manner identifying themselves with enemies of the state. The majority opinion rested on close scrutiny of all the verified information put before the Minister of Defence, and on the affidavit of General Avigdor Ben-Gal dated September 24, 1980. Likewise the opinion of the majority was reinforced by the statements made by representatives of the list to the Committee and to the Minister of Defence, as recorded in the minutes of June 8, 1984.

A majority of the Committee members was persuaded that this list advocates principles that endanger the integrity and existence of the State of Israel and the preservation of its unique character as a Jewish state in accordance with the founding principles of the state as expressed in the Declaration of Independence and the Law of Return.

 

            The notices were addressed to counsel for the respective lists and were signed by the Chairman of the Central Elections Committee, Justice Gavriel Bach .

           

            3. The basic statutory definition of the right to submit one's candidacy for election to the Knesset is to be found in section 6 of Basic Law: The Knesset, which provides as follows:

           

Every Israel national who on the day of the submission of a candidates list containing his name is twenty-one years of age or over, shall have the right to be elected to the Knesset unless a court has deprived him of that right by virtue of any Law or he has been sentenced to a penalty of actual imprisonment for a term of five years or more for an offence against the security of the State designated in that behalf by the Knesset Elections Law and five years have not yet passed since the day when he terminated his period of imprisonment.

 

            Section 7 of the same Basic Law lists the state functionaries who are precluded from candidacy for the Knesset because of holding such office.

           

            The procedure for approving lists of candidates is set forth in Chapter F of the Knesset Elections Law [Consolidated Version], section 56 of which deals with holders of office who may not be candidates, while section 56a lists the offences which may entail deprival of the right to be elected under section 6 of Basic Law: The Knesset. Section 57 prescribes the manner in which candidates lists are to be drawn up, signed and submitted. The other sections of the Chapter deal with representatives of the lists, a security deposit, designations and letters of candidates lists, and rectification of defects in drawing up a candidates list.

                

                 Section 63, titled "Approval of Candidates Lists", reads as follows:

 

A candidates list duly submitted, or rectified in accordance with the previous section, shall be approved by the Central Committee, which shall notify the representative of the list and his deputy of the approval not later than the 20th day before election day.

 

            Section 64 of the Law deals with appeals against a refusal to approve a candidates list, subsection (a) of which provides:

           

            Where the Central Committee refuses to approve a candidates list, either wholly or as to the name of one of the candidates or the designation or letter of the list, it shall, not later than 20 days before election day, notify its refusal to the representative of the list and his deputy, and they may, not later than 18 days before election day, appeal to the Supreme Court against such refusal.

 

            Certain changes concerning these time periods, set forth in sections 62, 63 and 64, applied to the elections to the 11th Knesset, as a result of the Eleventh Knesset Elections (Temporary Provisions) Law, 5744-1984, but these are of no concern here.

           

            So much for the text of the Law. It is clear that the statute says nothing about prohibiting or restricting candidates lists on the basis of the list's principles, its purposes and objectives, or the views of its members. In other words, the text of the pertinent legislation in effect on June 17 or 18, 1984 makes no express provision for the disqualification of a list on any of the grounds included in the notice of exclusion sent by the Central Elections Committee to each of the appellant lists.

           

            4. (a) The authority of the Central Elections Committee to refuse to confirm a list of candidates for the Knesset on grounds of the list's political objectives and character was discussed in this court for the first time in E.A. 1/65 [1] (the Yeredor case). There this court, by a majority opinion, dismissed the appeal of a candidates list (named the Socialists List) which wished to take part in the elections to the Knesset, but had been refused confirmation by the Central Elections Committee. According to the Committee's decision, as cited in the above mentioned appeal, the list was disqualified

           

            for the reason that this candidates list is an illegal association since its promoters negate the integrity and very existence of the State of Israel.

           

            (b) The underlying reasons for the decision of the Central Elections Committee to the Sixth Knesset came largely to the fore in the statement made by the Committee Chairman, Justice Moshe Landau, when summing up his opinion before the Committee members. He mentioned that the list was in fact identical, according to various tests, with the EI-Ard Group, an association that was declared illegal under regulation 84 of the Defence (Emergency) Regulations, 1945, after the Supreme Court had refused to intervene in the District Commissioner's refusal to register it as an amuta* noting that its objectives absolutely and conclusively negated the existence of the State of Israel in general, and its existence within its present borders, in particular (H.C. 213/ 64, Gharis v. Haifa District Commissioner [2]). The society's illegality was not in itself the principal reason for its disqualification by the Elections Committee; rather, the fact was emphasized that the illegality found expression in an endeavour to undermine the existence or integrity of the state. In E.A. 1/65 [1] the Chairman of the Elections Committee was cited as saying, inter alia (at p. 372):

 

            I find a vast difference, as East is separate from West, between a group of people which seeks to undermine the very existence of the state or, in any event, its territorial integrity, and a party that acknowledges the political entity of the state but wishes to alter its internal regime.

           

            He added that Basic Law: The Knesset, does not at all deal with the issue under consideration, but refers only to the personal disqualification of a candidate; however, he thought it permissible to read Basic Law: The Knesset and the Knesset Elections Law, 1959, together with the Cooperative Societies Law, and to read into the Knesset Elections Law an implied condition that an illegal organisation cannot be confirmed as a list. A list that is illegal in the sense that it is opposed to the very existence of the state cannot be confirmed, because the Knesset, which is the sovereign institution in the state and expresses the will of the people, cannot incorporate within it an element that negates the very existence of the state.

           

            (c) This court's decision in Yeredor [1] represented a majority opinion. Cohn J., dissenting, held that there was no statutory provision from which one could deduce the authority of the Central Elections Committee to refuse to confirm a list that has met all the formal conditions specified in chapter F of the Law, whatever the nature of the list's platform or objectives. In his opinion, the legislator's silence and the absence of any statutory provision allowing the disqualification of a candidates list on grounds of its character and platform, deprived the Elections Committee's decision of all legal effect and (it) contravened, in spirit, the principle of the rule of law. Therefore, the decision had to be set aside, and he so ruled.

           

            (d) The President (Agranat) and Sussman J. (representing the majority opinion) took the contrary view that the character of the candidates list was in polar opposition to the very purpose of the elections, because in essence and objective the list negated the existence of the state, and it wished to bring about the annihilation of the State of Israel. Agranat P. said (at pp. 385-386):

           

            Indeed, there can be no doubt - and this is clearly deduced from the statements made in the Declaration of the Establishment of the State - that Israel is not only a sovereign, independent and freedom-seeking state, characterized by a regime of the people's government, but it was also established as "a Jewish State in the Land of Israel", for the act of its establishment was effected first and foremost by virtue of "the natural and historic right of the Jewish people to live like any independent nation in its own sovereign state, and that act was a realization of the aspirations of generations towards the redemption of Israel.

 

At the present stage of the state's existence, I need hardly remark, these words express the nation's vision and credo and we are therefore obliged to bear them in mind "when we come to interpret and give meaning to the laws of the State" (H.C.73, 87/53 Kol Ha'am v. Minister of interior 7P.D. 871, 884). The import of that creed is that the matter of the continuity - or if you wish: "the perpetuity of the State of Israel is a fundamental constitutional fact", which no state authority, whether administrative, judicial or quasijudicial, may disclaim when exercising its power.

 

            The statements of the President and of his concurring colleague, Sussman J., recognise that in the normal course of affairs the Central Elections Committee does not have authority to refuse the confirmation of lists that meet the formal statutory requirements. But it happens - as in E.A. 1/65[1] - that extreme and exceptional constitutional factors converge to create a direct confrontation between the very grant of the right to compete in elections and the clear purpose of the elections, or - in more specific and precise terms - there arises a polar conflict between participation in the elections and the intention of the list to destroy the body, in the election of which it wishes to take part. In these circumstances, the committee is authorised to deny the right of participation in the elections, on the merits of the matter.

           

            In the opinion of Agranat P., the basic constitutional premise that the court must take into account in interpreting the laws of the state is that the State of Israel is an existent state, and that its continuity and perpetuity cannot be questioned. This interpretative approach has direct bearing on the problem that arises when one wishes to reconcile a statutory provision that establishes the governmental institution for which the elections are being held, and the negation of its existence advocated by candidates of a list that wishes to take part in the elections. The answer is that this question - whether or not to act for the liquidation of the state and negation of its sovereignty-cannot arise at all on the agenda of the Knesset, for its very presentation contradicts what Agranat P. called the will of the people residing in Zion and its vision and credo. The effect of all this is that a candidates list which denies that doctrine does not have any right, as a list, to take part in the elections for the house of representatives. A group of persons whose unconcealed political objective is not merely "to alter the internal constitutional regime of the state" but "to undermine its very existence", as emphasised by the chairman of the Central Elections Committee, cannot a priori have any right to take part in the process of formulating the will of the people, and cannot, therefore, present its candidacy in the Knesset elections.

 

            Sussman J. elaborated this point (at pp. 389-390):

           

..."An illegal purpose", in the present context does not mean a purpose that aspires to change the internal order of government. This order is not sacred, nor is its alteration a crime that entails punishment. Rather an "illegal purpose" in this context is a purpose that aims to destroy the state, to bring disaster upon the majority of its inhabitants for whom it was established, and to join forces with its enemies... Just as a man does not have to agree to be killed, so too a state does not have to agree to be destroyed and erased from the map. Its judges are not allowed to sit back idly in despair at the absence of a positive legal directive when a litigant asks them for assistance in order to bring an end to the state. Likewise no other state authority should serve as an instrument in the hands of those whose, perhaps sole, purpose is the annihilation of the state.

(Emphasis added - M.S.).

 

            It transpires that even the judges of the majority opinion in the Yeredor case [1] did not consider themselves authorised to fill the gap in the law, in its simple sense, so as to add reservations related to the objectives and character of a candidates list, of the kind that can be found in the elections laws of some countries. All that was decided in Yeredor was that even where the existing law contains no provision allowing disqualification of a list, one must avoid the extreme, substantive and logical contradiction that would allow those who seek an end to the existence of the state and its authorities, to compete in the Knesset elections. One should not deduce from this that the court considered the Elections Committee or itself competent to add to the law and to assume the authority to deny a list its rights, even when no such extreme background conditions operate, and even when such polar conflict between participation in elections and the wish to uproot that elected body's existence, does not arise. Here, the interpretative leap does not entail the lesser power. On the contrary, only an extreme situation permits a kind of judicial legislation that goes beyond the written text so as to fill a gap, because existential necessity, and certainly also constitutional logic, require that it be filled.

 

            The described limitation on the court's possible scope of action, which arises from the existing constitutional situation, therefore found expression also in the conclusion of Sussman J., that there was no identity between the legal situation in a different country - where an express constitutional provision allowing disqualification of a candidates list had been enacted - and our constitutional situation. He said (at p. 390):

           

            ...The German constitutional court, in discussing the question of the legality of a political party, spoke of a "fighting democracy" which does not open its doors to acts of subversion masquerading as legitimate parliamentary activity. As far as I am concerned, as regards Israel, I am satisfied with a "self-defending democracy", and we have the tools to protect the existence of the state even though we do not find them enumerated in the Elections Law.

 

            5. (a) In summary, it appears to have been the opinion of the dissenting judge, Cohn J., that this court does not, today, have any authority to refuse to confirm a candidates list that meets the formal requirements, whereas the judges of the majority opinion held that the court does indeed have such authority, but only with respect to a candidates list that negates the very existence of the state. Because of the importance of this reasoning in application to the instant issue, it should be elaborated further.

           

            (b) The remarks of Cohn J. as to the lack of authority to disqualify a list, regardless of its provocative character and nature, were clear-cut; in his view it was required and necessary that the legislature determine express provisions as to the disqualification of lists and that a particular body - be it the Central Elections Committee, or the Knesset itself, or the court - be vested with the authority to exclude from the Knesset "heretics of the kind who are traitors to the state and aid its enemies". However, the Central Elections Committee and the court may not assume such authority ex nihilo so as to add restrictions and limitations to the election laws. Thus (ibid. p. 379):

           

            In a state governed by the rule of law a person may not be deprived of any right, be he the most dangerous criminal and despicable traitor, except and only in accord with the law. Neither the Central Elections Committee nor this court legislate in this state; the Knesset is the legislative authority, and it empowers designated bodies, if it so wishes, to mete out treatment in accord with a man's conduct and the outcome of his actions. In the absence of such legislative authorization, neither common sense, necessity, love of country nor any other consideration whatever, justify taking the law into one's own hands and depriving another person of his right .

 

          Any measure that is contrary to law or is taken without lawful authority and is calculated to deprive a person of his civil rights, is invalid, in his opinion, and an Israel judge will not uphold it. He added (ibid. p. 382):

         

          There are states in which the security of the state, or the sanctity of the religion, or the achievements of the revolution and the dangers of the counter-revolution, and similar kinds of values, pardon any crime and atone for any action performed without authority and contrary to the law. Some of these states have invented for themselves a natural law which is superior to any legal norm and annuls it when necessary, in the sense that necessity knows no law. These are not the way of the State of Israel; its ways are those of the law, and the law issues from the Knesset or under its express authorization.

(On this aspect, cf. S. Guberman, "Israel's Supra-Constitution", 2 Israel L.R. 445 (1967), at 460.)

 

          Also the majority justices did not believe that the full range of the problem, in all its variations, potentially arising before the Central Elections Committee, could be solved comprehensively without recourse to express legislation. It is absolutely clear from their choice of language that the path they chose was dictated by the extreme nature of the case before them. One cannot deduce from their opinions that they found the constitutional state of affairs satisfactory or that the existing statutory arrangement might be left as it was, and that the solution of these problems - effected in some countries according to constitutional guidelines - be left to the Central Elections Committee, with the changing political coloration of its members, for them to contend with the issue from time to time, to the best of their understanding.

         

          To sharpen the perspective and to indicate additional problems stemming from the fact that the current law deals only with the formal qualifications of the candidates lists, one might mention here, for example, that a right of appeal to the Supreme Court is granted to a disqualified list alone, and if the Elections Committee had chosen to confirm a list of the kind disqualified in E.A. 1/65, there would be no right of appeal available to any other party or body wishing to challenge that decision. The right of appeal under the prevailing law exists only in case of refusal to confirm a list, and not in case of its confirmation.

         

          The approach taken by the majority in E.A. 1/65 [1] pays regard to the essence of fundamental constitutional concepts, but beyond that, and in light of what has already been said, it must be considered in its proper context: a given answer to a constitutional issue might be good and correct for the solution of an extreme, complex problem that arises at a given time, but it should not necessarily be considered a guideline - and certainly not a cure-all - for every additional constitutional complication that public authorities encounter. The conclusion that ought to have been drawn at the time, also from the majority opinion, is that one who seeks to test the qualifications of lists according to their substance and objectives, beyond mere formal criteria, must find for that purpose a legal foundation expressed in a legislative act; the power of the Elections Committee to act without express statutory provision can be exercised only in very exceptional cases, namely: with respect to a list that seeks the annihilation of the state. This should have been clear to anyone interested in the conferment of further powers, such as those found in the constitution of the present German Republic. Yet from 1965 until now there has been no legislative initiative in this respect, neither on the part of the executive branch nor, more important, on the part of the legislature, which normally itself takes the initiative in relation to the enactment of electoral laws (but see the bill for the Knesset Elections (Amendment No. 9) Law, 1968, introduced by Y.H. Klinghoffer, M.K.). Naturally, this is doubly significant in light of the limited scope of E.A. 1/65 [1] (in terms of the circumstances of its application), upon which the Central Elections Committee again sought to rely when making the two decisions which form the subject of the present appeals. Moreover, in addition to the clearly restrictive language of the judgment in E.A. 1/65 [1], there is the restrictive interpretative approach that accompanies any limitation of a fundamental constitutional right.

 

            Our frame of reference, as will be seen below, is that the right to take part in elections and to compete for the voter's ballot is a fundamental civil right, since it emanates from the doctrines of both civil equality and the freedom of expression. A statutory provision or judicial rule which seeks to limit a right is not given a broad sweeping interpretation; on the contrary, their proper interpretation is restrictive and strict (Ha'aretz v. Electricity Corporation [3], at p. 295; Hilron v. Council for Fruit Manufacture and Marketing [4], at p. 653).

           

            As stated in Ha'aretz [3]:

           

            Any statutory limitation on the scope and extent of such right shall be interpreted in a restrictive manner so as to give the said right maximum existence and not to limit it in any degree beyond the clear and express statutory language (H.C. 75/76, Hilron, at p. 653). The freedom of expression and a statutory provision that limits it are not of equal and identical status; to the extent that it is compatible with the written word, the existence of the right should at all times be preferred to a statutory provision designed to limit it. In summary, the standard which accords protection of the freedom of expression primary consideration when that right conflicts with another should find full expression not only when the legislature shapes the provisions of the statute but also in the interpretation of the statute and the application of its directives to circumstances in which its substance and operation are tested in practice .

           

            This is the case when weighing a principle that determines a fundamental right as against a statutory provision that limits it; likewise, a fortiori, when balancing a statutory provision that confers a fundamental right against the intention or wish to restrict it without express statutory authority thereto (cf. H.C. 337/81 [5]).

           

            Hence in accordance with our accepted practice in the interpretation of statutes, there is no room to widen the reach and form an expansive interpretation of the majority opinion in Yeredor [1] and attempt to derive therefrom what is not really there; that is, as if there were room for substantive extension of the inherent disqualificatory power vested in the Central Elections Committee, so that it applies also to cases in which the exceptional circumstances of Yeredor are not present.

           

            It should be clarified that we related to this court's ruling in Yeredor as a primary standard in the present case because the minutes of the deliberations before the Committee reveal that it intended to act within the framework of this court's earlier decision, and thought that it was indeed doing so. Thus, from a strictly formal point of view, we could have disposed of the matter conclusively by merely examining this approach of the Committee. However, in order to complete the picture and encompass the oretical aspects of the matter, it will be dealt with on the merits and independently of our earlier ruling, so as to allay any doubt as to whether there is room for extending the scope of the ruling in Yeredor, that is, whether there is room in the present case to add grounds for disqualification by sole virtue of a new ruling by this court, unsupported by any Knesset enactment. We shall discuss this matter separately, below.

           

            6. By adopting the criteria of the majority opinion in E.A. 1/65[1], we could immediately decide the matter before us. As appears from our decision of June 26, 1984, no facts were brought before the Central Elections Committee from which it could have concluded that either or both of the appellant lists were, as far as known and proven, of a character and identity found by the majority in Yeredor [1] to constitute grounds for disqualifying a list. The reasons for this conclusion differ for each of the lists.

           

            7. In applying the criteria of the majority opinion in E.A. 1/65[1] to the issue of approval of the Kach list, one must pose and be guided by questions corresponding to the rules adopted in that case:

              

(a) Are we dealing with an entity that seeks to undermine the very existence of the state?

(b) Was this entity regarded, prior to the deliberations of the Elections Committee, as a prohibited association or an organisation declared illegal, under one of the enabling enactments in this regard (chapter 8, title 2 of the Penal Law, 5737-1977; regulation 84 of the Defence (Emergency) Regulations; section 8 of the Prevention of Terrorism Ordinance, 5708-1948)?

(c) Was it proven to the Committee, or to us, that the goals of the list utterly negate the existence of the State of Israel? In the words of Sussman J., an illegal purpose does not mean a purpose that aspires merely to change the order of government. We should add that the distortion in the views expressed by the list and its spokespersons, or the opposition and even disgust which these arouse, and the desire to avoid any indirect affirmation of the list's very existence and the dissemination of its views - all of these are insufficient legal reason, in the present state of the law, for disqualifying the list. We shall later return to this aspect.

 

            In order to give the answer, matters should be assessed as they stand, according to their plain meaning and substance. There is no room for a forced description that would bring the facts artificially within the parameters of the Yeredor ruling. It is not enough to seize upon the expressions used by the court in Yeredor [1] in order to describe correctly the facts pertaining to the nature and activities of the Kach list. The repugnance aroused by the views and opinions expressed by a list does not permit the confusion of dissimilar elements, nor provide an opening for an expansive subjective interpretation that is unsuited to substantive judicial examination in general and constitutional inquiry in particular.

           

            Accordingly one cannot escape the conclusion that the answers to the three questions posed above, are in the negative, and it follows that by the criteria of the Yeredor ruling, there was no occasion to disqualify the Kach list.

           

            8. (a) As regards the Progressive List for Peace, the gist of the argument against it was that its leader should be regarded as a kind of reviver or continuer of the EI-Ard Movement, so that everything said and decided in respect of the Socialists List in Yeredor [1] applies also to it.

           

            (b) The composition of the Socialists List did not, in fact, coincide with the leadership of the EI-Ard movement, but it did reflect that movement, which was declared illegal and whose objects were defined as unlawful by this court, since some of those who headed it were also at the head of EI-Ard. The Socialists List comprised only ten candidates, and among them there were five, that is one half, who had been members of the illegal EI-Ard, which advocated the liquidation of the state. In the present case, on the other hand, we are dealing with a list of 120 candidates, only one of whom - the person at its head - belonged in the past to the EI-Ard movement. The head of the list, Advocate Miyaari, a past member of EI-Ard, contended that he did not regard the list as a continuation of that unlawful movement, and the mixed composition of the list of candidates appears, prima facie, to support this thesis. He further explained in his appearance before the Elections Committee that he no longer represents the views of EI-Ard and dissociates himself from the P.L.O. Covenant.

 

          Clearly, the mere denial of ideological association with a past entity cannot in itself amount to an irrebuttable presumption, juris et de jure that such is the case. Evidence could have been brought before the Committee in refutation of such denial and seeming to point to an opposite conclusion. In this regard two questions arise. First, what is the measure of proof, that is, what must be proven to the Central Elections Committee and upon whom lies the burden of proof? A second and separate question is, what is the decision-making process before the Committee, and to what extent can it avail itself of decisions of other authorities? The first matter concerns substance and quantity; the second concerns the manner of adducing evidence.

         

          How does this apply?

         

          The decision to disqualify a list lies with the Central Elections Committee, hence any ground for disqualification must be proved before it. That is to say, once a list has complied with the formal statutory requirements (a sufficient number of signatures in the required form, their submission to the Committee, etc.), it has fulfilled its obligation, and anyone attributing to the list a shortcoming, in its nature or objectives, bears the burden of proving so and convincing the Committee, which has the authority to decide the matter. It follows that if it was claimed that the Progressive List for Peace is a list seeking the liquidation of the state, like for example the EI-Ard movement, or the Socialists List which followed in its footsteps, and that it is nothing but the same old hostile and subversive movement in new garb, evidence to prove that thesis should have been brought before the Central Elections Committee.

         

          Material required to be brought before a statutory authority does not necessarily have to be submitted in the form of evidence admissible in a court of law and proven in the manner in which evidence is presented in court. An authority exercising discretion vested in it by law is not bound by the laws of evidence applicable in a court of law unless otherwise provided by statute (which is not the case here), and it may base its decisions on information that reaches it even if not given to proof in court proceedings where the law of evidence obtains (H.C. 581/80[6], at 328; S.S.A. 1/66[7], at 78). Thus a tribunal or other authority upon which a power of decision has been conferred by law, may base its decision on uncorroborated evidence when a court would require corroboration, or it may accept evidence not admissible in ordinary judicial proceedings (C.A. 292/66[8], at 391; H.C. 245/66[9], at 446; but cf. H.C. 1/49[10], at 84, where it was explained that mere rumour is not sufficient to found the authority's decision; and see also H.C. 74/51[11], at 1552, and H.C. 517/72[12], at 637). As we have said, the court will tend to set aside a decision grounded only on rumour or unsubstantiated surmise and conjecture, but if factual evidence is brought before the authority, upon which it can base its evaluation and decision - that is, material of such evidentiary value that reasonable people would find it a sufficient foundation for inferring the nature and activities of those concerned (see also H.C. 442/71[13]) - the court will not incline to interfere with the authority's conclusion. As was said in H.C. 442/71[13], not all hearsay testimony can have weight in the view of the authority, for example testimony which is nothing more than vague rumour. But the question of the weight and credibility of the testimony is a matter for the authority to decide, and no rules can be laid down in advance on how it must proceed, except that the testimony - having regard to the subject, the content and the witness - must be such that a reasonable person would regard it as possessing evidentiary value and rely upon it.

 

            A statutory authority is not dependent in its decision on a previous finding by a judicial body (H.C. 56/76[14], at 692), and the power of decision is vested in its hands. Once vested with such decisory authority, it does not discharge its duty if it bases its decision on weak or unconvincing evidence. In this connection I would not construe literally the general dicta sometimes found in the case law that it is enough, as it were, for a statutory authority to have before it some material (H.C. 272/74[15], at 672; H.C. 13/80[16], at 696). According to my understanding, the expression some material does not refer to bits and pieces of material, but to such as a reasonable person might find a basis for forming an opinion, a belief or a suspicion, as the case may be.

           

            H.C. 56/76[14] dealt with the question of denying existing rights, and there it was said that for the purpose of its decision the authority must have before it persuasive and credible evidence that leaves no room for doubt. I accept the implication of this dictum that with regard to the denial of existing rights - a fortiori fundamental rights - equivocal evidence will not suffice. As is the accepted situation in the United States, I think that the evidence required to persuade a statutory authority of a justification for denying a fundamental right must be clear, unequivocal and convincing (see Woodby v. Immigration Service (1966) [49], which concerned evidence before the administrative authority prior to issuing a deportation order; see also C.T. McCormick, On Evidence (St. Paul, 3rd ed., by E.W. Cleary and others, 1984) 1023).

           

            The more important the right, the greater the required weight and force of the evidence that is to serve as a basis for a decision in diminution of the right.

           

            Incidentally, I am not dealing here with the interesting question of the demarcation of power between a statutory authority and a court, so far as concerns the upholding of evidence and the line between law and fact (B. Schwartz and H.W.R. Wade, Legal Control of Government (Oxford, 1972) 226, 235; C. Harlow and R. Rawlings, Law and Administration (London, 1984) 311). That is to say, I am not dealing here with the issue of when a court should intervene on a question of fact, since that is not necessary in the present context.

           

            So much as regards the material that may serve as a basis for decision in the circumstances of this case. I now turn to the other question, the manner of reaching a decision.

           

            9. (a) As was stated in H.C. 214/52[17], the evidence should have been brought before the decision-making authority, that is, in the present case, before the Central Elections Committee. However, with respect to the Progressive List for Peace no evidence was actually presented to the Elections Committee upon which it could have concluded that the list suffered a blemish of the kind that founded the majority decision in Yeredor [1].

           

            (b) In the decision of the Elections Committee, the text of which was cited at the commencement of this judgment, it was maintained that this list -

           

...harbours subversive elements and tendencies, and central persons in the list act in a manner identifying themselves with enemies of the state.

 

That is the conclusion. Now as to the factual basis:

 

. .The majority opinion rested on close scrutiny of all the verified information put before the Minister of Defence and on the affidavit of General Avigdor Ben-Gal dated September 24, 1980. Likewise the majority opinion was reinforced by the statements made by representatives of the list to the Committee and to the Minister of Defence...

 

            The information placed before the Minister of Defence was not presented to the Elections Committee and did not come to its knowledge during the course of its deliberations. It received a notice from the spokesperson of the Minister of Defence, that -

           

...After a basic examination of all the verified information placed before him, including the oral declarations and arguments submitted by the list's representatives, the Minister of Defence is convinced that there are indeed subversive elements and tendencies among groups associated with the list and central persons on the list act by way of identification with the enemies of the State.

           

            The nature and details of the verified information before the Minister of Defence remained entirely unknown, not one iota thereof was put before the Committee, and the language of the notice as a whole was vague and ambiguous. Such a notice, which contains no factual details, does not constitute any kind of evidence.

           

            If "elements and tendencies" are present among the groups associated with the list, what is their weight in it? Does this refer to one out of the one hundred and twenty, or to ten of them? What are these "elements", that is, is the reference to groups of people or to programs or views? What is the practical meaning of the term "subversive"? And so on. After all, matters such as these lend themselves to varied evaluations and interpretations, and it is the Committee itself that must draw the conclusion according to its own best discretion. Moreover, as already said, abstract descriptions and generalised conclusions formulated to follow verbatim the observations of this Court in Yeredor [1], are not sufficient if not duly founded on facts brought to the attention of the Committee and considered by it on their merits.

           

            To summarize, since the material remained in the possession of the Minister of Defence or General Ben-Gal, as the case may be, the Committee did not have before it factual details upon which to ground its decision, but rested its decision on a discretion exercised by others on the basis of information brought before those others. We shall deal with this question more extensively later on.

           

            (c) At this point we may pause briefly to consider the manner in which the Committee arrived at its decision, and the limits of judicial review thereof. So far as concerns this court, the accepted view is that in reviewing the action of a statutory authority we examine, in general, whether the modes of deliberation were lawful, and whether the authority had before it material on which it could base its decision (H.C. 288/51, 33/52[18]; H.C. 554/81[19], at 251).

           

            This general observation may be broken down into elements. Lawful deliberation means, generally, that the principles of natural justice have not been violated; that the procedures prescribed by statute and applying to the authority, or set out in the regulations under which it functions, have been observed; that the decision was rendered by the competent person and that it was commensurate with the material jurisdiction of the decision-making authority; that the decision-making authority exercised its power in furtherance of its purpose; that no mistake of law occurred and that the decision was not tainted by fraud or influenced thereby; that the decision was made on the basis of supporting evidence, and, finally, that it was not contrary to law for some other reason. The exercise of a power in furtherance of that power's purpose means, in general, that no extraneous considerations were taken into account; that the authority did not overlook relevant information; that the power was exercised for the purpose for which it was granted; that the discretion was exercised by those empowered thereto, and that there is no room for concluding that the decision is marked by unreasonableness so extreme that no reasonable authority could have made it, or that the exercise of the power was simply arbitrary. This list, long though it may be, clearly does not purport to be exhaustive, and it may well be set out in a different order if compared with the other elements mentioned above.

 

            It was mentioned that the authority must act within the frame of the power vested in it. In the present case the limits of the power of the Committee were not defined by statute but by the precedents of this court, yet as far as the Committee is concerned, this cannot add to its powers. Once its powers have been lawfully defined, it is obliged to exercise them within its prescribed limits, and primarily according to objective standards (R.C. Austin, "Judicial Review of Subjective Discretion - At the Rubicon; Whither Now?" 28 Current Legal Prob (1975) 150, 152), just as it would do had its powers been delimited by statute. In the existing legal situation, the Committee has no power to spread its wings and lay down new limits to its powers, at its discretion and choice, nor may it now exercise its powers according to subjective tests.

           

            The guidelines for judicial review are to a large extent a reflection of the mode of procedure that is binding upon the authority whose functioning is under review. Among other things, the manner of exercising discretion was emphasised, but here the stress must be laid on a single point, that when speaking of a lawful decision based on material upon which a reasonable person might rely in coming to a decision, we mean a decision which results from examination and consideration on the part of the person authorised to decide. In this context it should be emphasised that it is not sufficient to rely exclusively on information that was only in the possession of other persons, or on conclusions reached by others according to information before another who is not the party authorised to decide under the statute.

           

            (d) The authority is the decision-making body, since in it alone did the legislature vest the power to decide the matter. The authority cannot delegate its decisory power to another unless expressly so authorised by the legislature, and in the absence of such authority it is obliged to reach its decision upon an independent examination of the facts. Applying the foregoing to the present case, our conclusion will be that the Elections Committee itself ought to have been satisfied on the facts before it that the candidates list was affected by a disqualifying feature. That, however, did not happen here. The indirect reliance upon information that was presented only before another agency, all or some of the details of which were not at all known to the Committee, signifies that the Elections Committee did not consider the matter and that it was not the Committee that disqualified the list on an independent and considered decision, but that it sought to rely on information unknown to it and available, if at all, only to another agency. Incidentally, the other agency mentioned did not purport to decide the matter, since the Minister of Defence decided nothing, not even a matter within the scope of his authority. In fact, the Committee thereby vested in the Minister of Defence, unbeknown to him and with no foundation in law, the power to disqualify a list of candidates. For it rested content with the fact that the material, the nature and details of which it had no knowledge, had been brought before an executive agency and had convinced the latter to draw the attention of the Committee to the matter in a general way without specifying the grounds for so doing. Such de facto delegation of powers lacks any basis in the Knesset Elections Law [Consolidated Version] or any other statute, and goes beyond all accepted constitutional and legal concepts. It entails, on the one hand, making the Minister of Defence the actual decider with respect to disqualification of a list for purposes of the election laws, for which there is no legal foundation, and on the other hand it strips the powers of the Elections Committee of all content.

 

            (e) Needless to add, the Committee could have regarded the submission of the material to the Minister of Defence as the initial ground for its own deliberation and inquiry, but at some stage the material should have come before it, since the Committee cannot discharge its function by having another, of whatever status, decide in its stead and thus in fact assume its power. Nor can the Committee unburden itself of the duty to exercise its discretion in the light of its own consideration of the material. A competent authority need not itself engage in gathering the facts, and it may pass this task on to others acting on its behalf, but at the final stage. before making its decision, the competent authority itself must consider the matter and draw its conclusions on the basis of the collected facts (H.C. 214/52[17], at 990; H.C. 297/82[20]).

           

            When the chairman of the Committee, Justice Bach, opened the deliberations of the Committee, he informed it that the Minister of Defence did not see fit to disclose to the Committee the factual details, but that it had been suggested to him to examine the material. The chairman rightly refused to do so, and explained that examination by him alone would still not resolve the legal problem, since in the absence of a statutory power to appoint someone (an individual or a subcommittee) to examine the material on its behalf, this suggestion would not provide the Committee itself with the information which is required to be before it for the purpose of its decision. I can only express my full agreement with these observations of Justice Bach.

           

            To summarize this point, the classification and secrecy of the evidentiary material do not exempt a quasi-judicial authority (such as the Elections Committee in its capacity in the present matter - E.A. 1/65[1], at 337) from fulfilling its duty to apprise itself of the facts and to decide the matter on its own, on the strength of tested information.

           

            The consideration whether or not to disclose material that is secret for reasons of state security, rests with the person so authorised by law, that is, in the present case, the Minister of Defence. This applies to proceedings before judicial instances (section 44 of the Evidence Ordinance [New Version], 1971), as well as quasi-judicial bodies empowered to take evidence (ibid. section 52) and any other authority. But if the Minister chooses not to disclose the material by reason of its secrecy - and as aforesaid, this power indeed rests with him - there remains before the Committee nothing but general statements in the nature of summary conclusions drawn by someone else, and that is not a sufficient discharge of its duty, as a quasi-judicial body, itself to consider and decide on the matter of disqualifying the list.

           

            The question often arises, whether an authority may be persuaded by and adopt the opinion of an expert, and the answer is affirmative, provided there comes before the authority, for the purpose of its decision, not simply the expert's final conclusion but also substantive material upon which he founded his opinion. The duty of an authority vested with defined powers to arrive at an independent decision on a matter entrusted to it for resolution, does not terminate even when experts have examined the matter. The Committee could have looked into the information gathered by the Defence authorities and availed itself of an accompanying opinion, but it was not free to forgo independent knowledge and inquiry and thereby rid itself of the duty of lawfully deciding.

           

            10. (a) The reference to the affidavit of General Ben-Gal of 1980 also does not alter the situation. In that affidavit General Ben-Gal explained his reasons for issuing administrative orders at the time, after having himself examined the material relating to Advocate Miyaari. But just as the Committee may not forgo a substantive decision based on information examined by itself and rely on information brought to the attention of the Minister of Defence alone, so too it could not rely merely on the fact that four years earlier General Ben-Gal had been convinced that there existed material concerning Advocate Miyaari which was sufficiently persuasive to require the latter's restriction for reasons of security, for one of the purposes enumerated in regulation 108 of the Defence (Emergency) Regulations.

…

           

            [Ed. - After reviewing the contents of General Ben-Gal's affidavit, Shamgar P. discounted the tendency and sufficiency of this evidence as a ground for disqualification of the List by the Elections Committee, even were it legally permitted to base its decision solely on another's accepted general opinion. The learned President then continued:]

 

            (d) The inquiry made by General Ben-Gal before giving his decision under regulation 110 of the Defence Regulations, well illustrates the proper course to be followed by a decision-making authority. The deponent was aware that he could not rest his decision on the evaluation of the police or the security service. Only after the particulars of the matter were brought before him and he examined them in detail did he decide, in 1980, to exercise his power under regulation 110 and to sign a restriction order.

           

            To sum up, it is the duty of the decision-making authority to examine the facts; others may gather them, classify and organise them - provided that the integrity and accuracy of the picture is not affected - and may even add their advice, recommendations and opinions, but the decision must rest on an independent consideration of the matter and not on that of others.

           

            (e) The affidavit of the person named "David", also presented to the High Court of Justice in 1980, does not add any detail which might have rendered the members the Committee aware of the factual ground and reason for their decision .

           

            (f) The representations made on behalf of the List before the Minister of Defence and the Committee, however much they aroused the objection of the Minister or the members of the Committee, do not in themselves, by their substance and content, display the nature or measure of proof required here. They were no more than expressions of a political view, already voiced inside and outside the Knesset without being regarded as a ground for any legal action, and they did not contain the elements impliedly attributed to them in the decision of the Elections Committee. As already noted, there must be a factual connection between the conclusions and their underlying grounds. What is more, the Committee regarded those representations as supportive of its conclusion, as stated in its decision, but what is the force of such support when essentially there is nothing to support?

           

            11. (a) If the security authorities possessed information, one wonders at its general concealment from the Committee, and why the Committee rested content with the laconic description in the notice of the Defence Minister's spokesperson.

           

            There is no point in laying down guidelines concerning matters that are unknown to this court, but one may assume that the security authorities also considered the possibility of distinguishing between a concise description of a given event, which could be brought to the knowledge of the Committee, and disclosure of personal identifying particulars which might seriously impair security. In any event, apart from the notice of the Minister, nothing but the affidavit of General Ben-Gal was submitted to the Committee, and that dealt with agitation and the organisation of demonstrations and strikes rather than subversive actions to liquidate the state.

 

            (b) It is possible that the inability or unwillingness of the security authorities to present material to the Committee pertaining to the security considerations that motivated their deliberations at the time of submission of the Knesset candidates lists, are a reflection of the fact that the Elections Committee - a broad body composed according to political criteria - is not the appropriate forum for dealing with such classified matters. That in itself cannot be a reason or justification for the Committee to base its decision on information which it has not seen or heard, and which is within the knowledge of only a few members of the executive branch who cannot share it with others. The failure of a statutory body to make its independent decision is, in this case, tantamount to a failure to decide properly, and ipso facto devoids its act of legality and validity.

           

            (c) Some of the Committee members relied for some reason on the fact that this court would examine the classified material that the Committee itself did not examine. As pointed out to them by the chairman, Justice Bach, this assumption had no legal foundation: this court examines the decision of the Committee, and it has no independent power to disqualify lists. It accordingly does not consider anything but the material that was before the Committee.

           

            12. To remove all doubt I will add that the foregoing is not necessarily to be regarded as a definitive conclusion that the apprehensions voiced in connection with the orientation of certain candidates on the List are baseless, and for the present purpose no such conclusion is required. As explained, the Committee's considerations were required to be based on clear, unequivocal and persuasive material - which a reasonable person would regard as indicative of a tendency of the kind defined in the majority opinion in Yeredor [1]. If such material existed, however, it was not brought before the Central Elections Committee. It follows that the Committee could not have applied to the List the legally required yardstick, as enunciated by this court in the past.

           

            This in itself would suffice for the appeal to be allowed, and we have indeed so decided.

           

            13. (a) Thus far we have analysed the factual and legal data on the basis of the statutory law and the rulings of this court in effect at the time of the hearing of these two appeals. However, as already noted, this matter should be examined from a further perspective - that of the separate question whether the rules governing disqualification of a list allow for expansion beyond what was laid down in Yeredor [1], and whether a legal basis could be found for the decisions of the Central Elections Committee - not on its understanding of the substantive prevailing law, but by broadening the judicial rule.

 

            (b) Any redefinition of the limits of the Elections Committee's authority and of the scope of the prohibitions against participation in the elections, has implications for the two lists concerned. That is so even though we have decided the case of the Progressive List for Peace not only upon analysis of the material demonstrating its objectives, tendencies and activities, but also, largely on ground of the process by which the decision was reached. Essentially the substantive problem is whether a list can be disqualified, in the case of Kach, on grounds of its non-adherence to principles of democracy, tolerance and morality accepted by a majority of the public, and on account of its hostility to a defined sector of the general population. In the case of the Progressive List for Peace, the question arises whether a list can be disqualified because of its members' attempt to establish political contacts for the purpose of talks with a hostile organisation or enemy states, while at the same time explicitly disavowing the objective of annihilating the State of Israel, which earlier was the ground for the decision regarding the participation of EI-Ard members in the elections. Also to be considered in this regard, is that the general prosecuting authorities did not regard those known contacts as a criminal offence and instituted no legal proceedings in that connection.

           

            (c) The character of the issue also dictates the method of its examination. The following matters will accordingly be examined: first, the nature of the right under discussion; second, the manner in which its boundaries are defined; third, the principled reasons that induced the court in Yeredor to delineate the boundaries as detailed above; and fourth, the possibility of altering these bounds, as indicated in paragraph (a).

           

            Before undertaking our detailed examination, there is need to further clarify the essential question before us, namely: whether the Central Elections Committee is competent to impose additional restrictions on the right to participate in the Knesset elections, beyond those expressly authorized in Basic Law: The Knesset, or in any other enactment.

           

            14. The yardsticks for testing the answers to the above questions should properly be grounded in constitutional principles. Thus Professor Ronald Dworkin's words are apt, when he writes: "Judicial decisions ..... even in hard cases ..... should be generated by principles not policy" ("Hard Cases", 88 Harv. L. Rev. (1974-75)1057,1060).

 

            As far as I am concerned, judicial decisions in constitutional matters should be rested, even in hard cases, on grounds of principle and not on reasons and motives of policy formed in accord with what appears to meet the needs of the hour and the sentiments of the majority.

           

            The adoption of a general guideline based on principles and not on occasional transient factors, wherever the need for judicial decision arises, as suggested by Professor Dworkin, is a separate matter that does not merit discussion here, and I, for one, do not consider myself bound by it. The reference here is to the standard to be adopted when discussing constitutional questions or legal problems that have constitutional implications. In such circumstances the choice of standard is not to be considered merely as a scholarly imperative or as a just and reasoned advice convincing on its own. Rather the choice dictated by adherence to legal principles inheres in the very nature of the subject. It stems from the need to formulate guiding principles for the functioning of a given political or social body adhering to the fundamental concepts that lend a special status to constitutional civil rights. One must bear in mind, inter alit, that when constitutional matters are under review, their import and implications have to be considered in the long term, and proper weight must be given to their impact on the political and social framework within which they operate. If these are subjugated to the needs of the hour and we adopt a casuistic approach in constitutional matters, particularly concerning the rights and freedom of the individual, we shall miss the mark and deal less than justly with the subject.

           

            15. What is the form and standing of a fundamental civil right in our law? The protection of individual rights derives from fundamental constitutional principles forming a substantive and integral part of the law applying in Israel. The integration of fundamental constitutional rights in our law takes various forms: recognition of the fundamental freedoms does not express itself only in abstract doctrines that guide the actions of governmental bodies, but also entails the formal and concrete conclusion that these freedoms constitute part of the substantive law, in accord with their name and designation. The legal status of a fundamental right within the abstract and theoretical system of rules was referred to in H.C. 337/81[5], at 355-356:

           

            Proper protection of the status of a given liberty is not achieved through mere declaration of its existence, although one should not fail to appreciate the didactic value of a declarative determination; such determination is an essential starting point in the process of moulding the right, in the course of which it gains concrete substance, and is likewise a starting point for introducing the legal principle that it embodies into extra-legal areas, such as the social or moral sphere. It should be added in this context that it is doubtful whether a given fundamental right can be viable without continuous, positive and reciprocal interaction between the legal and the socio-moral areas.

 

To recognise the existence of a fundamental right is to accord it a place as part of our substantive law. In other words, it is not merely a declarative principle representing beliefs and opinions, but is one of the fundamental components of the law in effect in Israel. In this respect it has already been said (in C.A. 723/74, at 294-295) :

 

The absence in the State of Israel of any single legislative enactment enjoying supreme protected status and embodying the constitutional principles, does not mean that we do not have statutory provisions of constitutional substance or that our legal system does not contain constitutional legal principles defining the fundamental human and civil rights. Our conception and view of the law in effect in Israel is that it encompasses fundamental rules as regards the existence and protection of personal liberties, even if the bill of Basic Law: Human and Civil Rights has not yet become law.

 

The bill of the new Basic Law is intended to formulate principles and delineate their scope, and its central function is to root them in a written statute so as to protect them against risks of temporal crises. It is designed to serve as a vehicle for the expression of values which will serve to educate the citizen, and to restrain in advance those who seek to infringe the limits of his rights. Yet already now the fundamental liberties are rooted...in our basic legal perspectives and are a substantive part of the law in effect in Israel.

 

            These legal principles influence the patterns of legal thought and interpretation, which are inspired by their force and direction (F.H. 9/77[21], at 359). Our legal rules relating to fundamental liberties thus serve as a connecting link between these liberties as mere abstract ideas and ordinary legal provisions, which are influenced in their content and language by recognition of the fundamental rights. For, together with the principled legal rules, some of the rights are also integrated in specific statutory provisions, which were influenced and have even been governed by them from the time of their formulation and throughout their existence and actual implementation (see, e.g., section 4 of Basic Law: The Knesset, and H.C. 141/82[22], at 156).

           

            The delineation of the rights in terms of the wording of the Law is the basic and primary footing upon which their actual protection depends; the very existence of a statute lends tangible expression as well as stability to the political regime and its prevailing fundamental concepts. The stability stems from the existence of a statutory norm embodying the standard against which the legality of the acts of governmental agencies is measured. Therefore, it is of special significance and weight that the constitutional principles defining the fundamental rights be given explicit expression in a legislative act and not merely remain in the realm of the oral or unwritten law. In this way it is ensured that the substance and scope of the rights will be defined in clear language, upon which the individual citizen can rest his demands and claims. Therein, among other things, lies the importance and value of a written constitution, whose absence in our system is conspicuous each time a constitutional issue arises for legal deliberation.

 

            The main expression of the rule of law is that it is not the rule of people - in accord with their unrestrained decisions, considerations and aspirations - but rests on the provisions of stable norms that are applied and binding in equal fashion. The definition of a right and even its inclusion in a statute are not conclusive of its effective protection, for they do not exhaust the existence of the right. The actual realisation of the rights is expressed in honoring them in their actual implementation, in an equal manner and without unjust discrimination. The value and force of a statute that grants rights is that the rights determined therein are more than an abstract idea, proper in spirit and purpose; rather, the written word renders them concrete and positive, to be applied under standards of equality for equals that may not be departed from for invalid reasons (Yick Wo v. Hopkins 118 US 356 (1886)). Last to be mentioned, though not in order of importance, is the norm that when rights are violated, every person injured thereby will be shown equal consideration and given equal treatment (Tussman and Ten Broek, "The Equal Protection of the Laws", 37 Calif. L.R. (1948-49) 341).

 

            16. The political rights are among the most important and decisive fundamental freedoms. Thus Professor Bernard Schwartz remarks:

           

            Among the most precious rights of citizenship are those denoted as political. Without such rights, indeed, it may be doubted that an individual can be said truly to attain the dignity of citizenship.

(A Commentary on the Constitution of the United States, Part III, Rights of the Person, p. 777.)

 

            The main political rights are these four: the right to vote, the right to be elected, the right to assemble for a meeting or demonstration, and the right to address a petition (see also section 48 of the bill of Basic Law: Charter of Fundamental Human Rights).

           

            As regards the right to be elected, the determination in section 6 of Basic Law: The Knesset that every Israeli citizen, who is 21 years old or over at the time of submission of a candidates list which includes his name, is entitled to be elected to the Knesset (unless the conditions specified in the concluding part of the section are found to exist) serves to define a right, ideologically based mainly on the principle of political equality, the duty to uphold which derives also from section 4 of Basic Law: The Knesset (H.C. 141/82[22], at 156; H.C. 246, 260/81[23], at 19). So far, the right to be elected has found expression in our judicial decisions mainly in the context of equal opportunity, but the directive of the Basic Law reflects a broader and more general import of that right. Incidentally, in providing for the right to be elected in the Basic Law, the Israel legislator gave express and positive recognition to what is only indirectly derived from the U. S. constitutional provisions, without any explicit mention in the text of that Constitution ("Developments in the Law of Elections", 88 Harv. L Rev. (1974\75) 1111, at 1135).

 

            Professor Schwartz says in this connection (op. cit., 778-779):

           

            ...though there are no other express provisions in the matter, it may be stated today that there is a right to hold public office that inheres in the status of citizenship.... One may go further and say that the right of a citizen to hold office is the general rule - with ineligibility the exception. A citizen may not be deprived of this right without proof of some disqualification specifically declared by law. One court has gone so far as to assert that "the lexicon of democracy condemns all attempts to restrict one's right to run for office".

(Emphasis added - M.S.)

 

            The legislature may restrict the right to be elected by determining eligibility qualifications, but the accepted practice in countries with similar systems of government to ours, is that there is no lawful restriction in this area except under express statutory directive.

           

            In the U.S. a thesis was developed that even the right to elect becomes incomplete where the freedom to be elected is restricted. In other words, a restriction on the right of a party faction to contend not only limits the activities of the faction but also narrows the right of the individual to cast his vote in the manner he considers most effective. From this follows the view that the right to vote and the right to associate in promoting an elections list are but two sides of the same coin. Thus Justice Black regarded the two rights as -

           

            ...two different though overlapping kinds of rights- the right of the individuals to associate for the advancement of political beliefs and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.

(Williams v. Rhodes [51], at 30).

 

            In other words, restriction of the right to be elected limits not only the rights of a person running for office, but also the rights of the voters to elect a candidate according to their preference by virtue of their right to enjoy equally with others everything accorded under the Elections Law to persons holding the right to vote. From the voter's point of view a restriction of the right to be elected indirectly narrows also his freedom of expression, since he is deprived thereby of his ability to associate with others in promoting his views and opinions as they would have been presented by his preferred candidate. Hence the court is required to exercise great caution in scrutinising the nature of such restrictions so as to ensure that they are reasonable and non-discriminatory. See Anderson v. Celebrezze [52]; Cousins v. Wigoda [53]; R.D. Rotunda, "Constitutional and Statutory Restrictions on Political Parties in the wake of Cousins v. Wigoda", 53 Tex. L.R. (1975) 935; Nowak, Rotunda and Young, Constitutional Law (2nd ed., 1983), 777.

           

            In summary, the right to participate in elections is a fundamental political right that gives expression to the idea of equality, freedom of expression and freedom of association, whence it follows that this right is one of the hallmarks of a democratic society.

           

            Thus far as regards the nature of the right.

           

            17. In Mitrani v. Min. of Transport [5], it was said, with respect to the conditions and limitations that may be imposed on a fundamental freedom, that the standing accorded any one of the fundamental personal rights in a given political or social framework reflects the notions and shapes the character of that framework. The oretical constitutional premise which holds that a fundamental right endures and subsists in its full scope so long as it has not been limited by the law, is more than a mere technical-formal indication of the ways in which the right may be limited. Likewise, that premise serves not only to underpin the principle of legality; rather its primary purpose is to express the superior legal status of a fundamental right, so that any restriction of the right must be founded on express statutory authority. The court there went on to say (ibid., p. 355):

           

            Determination of defined and special procedures for changing a fundamental right is, to a large extent, the principal means of assuring that the matter will be properly examined in substantive terms. The right should not be limited except after careful study and deliberation, since curtailment of the scope of the right might bring in its train a distortion of the character of the social or political regime, to a greater or lesser degree. We have indeed said that the place of a fundamental right within a given legal system mirrors the extent of the substantive rule of law, and any change in the scope of the right necessarily affects also the continued existence of the rule of law. Hence the importance of defined legislative procedures, which offer the sole means of changing the application and scope of a fundamental right.

 

            The exercise and practical implementation of a fundamental right are not absolute. In concrete given circumstances the use of a certain right by one person might conflict with another person's lawful right, as was indicated by my esteemed colleague, Barak J., in a different but related context (Temple Mount Loyalists v. Police Commander of the Jerusalem Region [24], at 455):

           

The freedom of conscience, belief, religion and worship, to the extent that it is given concrete expression, is not an absolute freedom (see Cantwell v. State of Connecticut 310 U.S. 296 (1940). My right to pray does not allow me to trespass on my neighbour's property or to subject him to a nuisance. Freedom of conscience, belief, religion and worship is a relative freedom. It must be balanced against other rights and interests that similarly merit protection, such as private and public property and the freedom of movement. One of the interests to be considered is the public order and security. "The freedom of religion must be qualified: no society can accept the notion that its fundamental concepts as to public order may be frustrated for the sole reason that they are incompatible with the demands of a particular religion" (Rubinstein, op. cit., at 135). The point was elucidated by Justices Black and Douglas in West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943), at 643-644:

 

No well-ordered society can leave to the individuals an absolute right to make final decisions, unassailable by the state, as to everything they will or will not do. The First Amendment does not go so far. Religious faiths, honestly held, do not free individuals from responsibility to conduct themselves obediently to laws which are... imperatively necessary to protect society as a whole from grave and pressing imminent dangers.

(See also H.C. 153/83[25]).

 

            If there is a substantial probability that the exercise of a certain right will jeopardise the public order and security in a concrete case, the competent statutory body may limit the practical exercise of the right in those circumstances. But this generates no general right of a statutory body, not so authorised by law, to nullify or qualify the essential right regardless of concrete factual circumstances from which arises such substantial probability of the public security being endangered. This means, for example, that a distinction must be made between a prohibition imposed by a competent agency against holding a demonstration in a certain place at a certain time, and a blanket prior prohibition of the right to demonstrate, in any place at any time, imposed on a defined group of people. Obviously a general prohibition of that nature can be determined only under a legislative provision that authorizes the statutory body to impose it (H. C. 337/81[5]). I need hardly reiterate that the a priori application of general prohibitions against the exercise of the basic freedoms has a direct and negative implication as regards the character and nature of the regime under which they are imposed.

 

            The subject can also be approached from a different angle, namely: the existence of a basic right does not grant immunity from legal proceedings to one who exercises it in contravention of the law. The right to demonstrate carries no permit to breach the public peace or to commit an assault, and a demonstrator who commits an act defined as a criminal offence will be prosecuted, when no general reliance upon the right of demonstration will save him. In other words, the general freedom offers no blanket license to perpetrate criminal acts. The converse is true, too. The right to take legal measures following the commission of a crime and the authority to restrict the exercise of rights in concrete cases, constituting criminal action or giving rise to a substantial probability of danger to the public peace, do not transform the authority in such cases into a general authority to prohibit and restrict in advance the various liberties of citizens, or of classes of citizens, unless the legislature has expressly enacted such authority. The authority to restrict civil rights - including the right to participate as a candidate in the Knesset elections - is not generated ex nihilo, nor is it a natural extension, in character or scope, of the authority to prevent crime and bring criminals to justice. The question of an a priori general withdrawal of a right is on a different level of discussion and of a different legal character. One should distinguish between the formal and the normative elements, and discuss each separately: the legal authority to impose a restriction is one matter; the import of the restriction in terms of its impact on individual liberties, is another matter.

           

            General prohibitions on enjoyment of the freedom of expression or the freedom of demonstration can only derive, in democratic states, from the exercise of an express constitutional power associated with special times of emergency. They are not in the category of a general and obvious inherent power which an authority may exercise without being so empowered by law. As aforesaid, no liberty may be denied in advance except in relation to a substantial and unavoidable probability of the commission of a criminal offence or an impairment of the public security or welfare (see H. C. 153/83[25]), and even then such power must derive from some statutory provision (for instance authorising the prohibition of a demonstration or the refusal of a licence to hold it, as may be provided in the statute concerned). Hence in Yeredor [1] the court, for the purpose of comparison, referred to a number of statutory provisions in English, American and German law which in one way or another imposed limitations on the right to be elected. In England and the United States, however, such general limitations are by and large related only to the candidate's criminal record, along the lines of what is laid down at the end of section 6 of Basic Law : The Knesset (presently we shall refer to special statutory provisions in the United States, as in the Smith Act).

 

            The Constitution of the Federal German Republic, on the other hand, makes express provision for the prohibition of political parties, which also affects the right to campaign for election (see P. Franz, "Unconstitutional and Outlawed Political Parties: A German-American Comparison", 5 B. C. Int'l & Comp. L Rev (1982) 51; H.W. Ruhrman, "KPD Verbotsurteil, Neue Juristische Wochenschrift" Dez. (1956) 1817). This provision is embodied in article 21(2) of the Basic Law of May 23, 1949 (Grundgesetz - BG B1 5.1) - the German Constitution. It prescribes that parties oriented by their purposes or the conduct of their supporters towards impairing the fundamental order of a free democracy or the removal or endangerment of the existence of the Republic, are unconstitutional, and entrusts the resolution of the unconstitutionality question to the Constitutional Court, leaving the particulars to be regulated by statute. To complete and supplement this constitutional provision the Law of Parties was enacted on July 24, 1967.

           

            Since the establishment of the Federal Republic the Constitutional Court has outlawed the existence of two parties under the above provision of the German Constitution: the neo-Nazi Sozialistische Reichspartei (decision of October 23, 1952, 2 BVerf.GS. 1) and the Communist party (KPD) (decision of August 17, 1956, 5 BVerf. G. 85, rendered by the Constitutional Court after protracted hearings over a period of some four years; see Dr. T. Maunz, Grundgesetz, (Becksche Verlagsbuchhandlung, Muenchen), Vol. II, pars. 4-21).

           

            Incidentally, the thesis that between the two World Wars the German Republic, based on the Weimar Constitution, lacked stability because it did not have the power and authority to ban political parties is unfounded. Under article 48(2) of the Weimar Constitution and the laws for the protection of the Republic (21.7.1922, I Reichsgesetzblatt (RGBI) 585; 2.6.1927, I RGBI 125; 25.3.1930, I RGBI 91), that obtained until the changes introduced by the Nazi regime, in Prussia alone some thirty parties and other political entities were banned between 1922 and 1929 (Maurer, "Das Verbot Politischer Parteien", 96 Archiv des Oeffentlichen Rechts (1971) 203, 206).

           

            It was not the absence of statutory power that was decisive in this area but a variety of deeper-seated factors, which need not be analysed here but have been mentioned before in another context (F.H. 9/77[21], at 361).

           

            18. (a) Article 21(2) of the Basic Law of the Federal Republic confers on the Constitutional Court the power to ban the existence of a political party. Under the pertinent German case law such ban applies not only to the party banned, according to its actual name and identity at the time of the judicial-constitutional decision, but also to bodies and entities seeking to take its place (ersatz Organisationen) (Maunz, op. cit., at 12). A vague and general intention to impair the fundamental order is not sufficient ground to permit the banning of a party. An aggressive, militant and active stance is required, but the orientation of a party may be deduced from its declared purposes or the conduct of its supporters (ibid., at 38).

           

            In a democratic regime the dilemma often arises of an apparent conflict between maintaining freedom of expression and the desire to uphold democratic principles even in the face of those who seek to do away with them yet, to that end and for their own convenience, avail themselves of the very democratic principles against which they conspire. In this connection commentators on the above Constitution pointed out that

           

...it is possible to reconcile the contradictory principles of the amenability of the political regime to historical changes (on the one hand), and preservation of the existing regime (on the other hand) only by way of practical-political reason, with cautious advancement and gradual changes ensuring the continuing existence of the whole.

(3 Kommentar zum Grundgesetz (1976) 32).

 

            With regard to these problematics, the American legal scholar, L.H. Tribe, observed (see "Toward a Metatheory of Free Speech", 10 SW. U. L.Rev. (1978) 237, 239):

           

It should be clear that no satisfactory theory of free speech can presuppose or guarantee the permanent existence of any particular social system. For example, a free speech theory must permit evolution from a society built on the ideals of liberal individualism to a society aspiring to more communitarian visions - just as it must permit evolution from communitarianism to individualism.

 

            (b) The direction indicated by Tribe is clearly formulated, but its application to day-to-day political life is more difficult. That which is permitted ought also to imply that which is forbidden, but drawing the line between the permitted and forbidden is not easy, and not infrequently the fear will arise that something of the freedom of expression or association has been sacrificed to create a wider security margin and to block in advance any trend from which the actual danger that arises may be far from a substantial probability. The German Constitution set down clear bounds, positive and negative, that are not necessarily tied to an ex post facto examination of the purposes and activities of the political party. From the power to ban the existence of a party, where the conditions laid down in Article 21(2) are fulfilled, the Constitutional Court has deduced also what the absence of a banning provision means. In other words, the Constitutional Court concluded from the permissible exercise of article 21(2) that it may not impose prohibitions on a political party. A party whose existence has not been banned under article 21(2) is free to act as a lawful body for all purposes (provided, of course, it is not a camouflaged substitue for a banned body).

 

            As observed by Franz, op cit., at 63:

           

            ... almost as a counterweight to its enormous party-prohibition power, the court has found that this clause provides a "privilege" to a party, under which both the party and its officials, when lawfully acting on behalf of the party, are to be free from government discrimination and governmental intervention as long as the Constitutional Court has not found the party to be unconstitutional. Through this interpretation, Article 21(2) retains a continuing vitality, despite the fact that the Constitutional Court last prohibited a party over twenty years ago.

           

            The court based this "party-privilege" on the theory that a judgment of a party's unconstitutionality is operative not declarative. The court's judgment of a party's unconstitutionality is, in other words, a "performative utterance" that changes something in the world. A party becomes unconstitutional only when the court adjudges it so. The court does not "discover" unconstitutional parties and merely label them as such.

           

            The declaration of a party ban under the above Constitution is constitutive and not declarative. So long as the prohibition has not been pronounced, the activity of the party is deemed lawful, hence it is not possible to employ measures on grounds of past organisation, in the manner of the thesis posited in the American judgment in Dennis v. United States (1951) [54], with which we will deal below. It follows that a party may not be discriminated against or restricted in its activity so long as the Constitutional Court has not decided to exercise its power under Article 21(2). For this reason the German Constitutional Court invalidated the text of election laws that restricted in advance the prospects of parties which, in the view of the majority, constituted "a political danger to democracy" (decision of 9.3.76, 41 BVerf. G. 399) - with reference to a political organisation that had not been banned under Article 21(2).

           

            19. (a) The Constitution of the United States has no provision that permits the banning of political organisations because of their views, but the American legislator has adopted several measures in ordinary legislation to ban the existence of the U.S. Communist Party and to restrict the activities of organisations that are generally subversive. These are the main enactments:

           

            (1) The Smith Act of 1940 (18 U.S.C. (1946 ed), pars. 10, 11 - now 18 U.S.C.A. par. 2385, 54 Stat. 67D 671) defines a new criminal offence, i.e. -

           

            (2)(a) ... (1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government.

           

            In the fifties and sixties this provision was applied to bring criminal charges against officers and activists of the American Communist Party.

           

            (2) The Communist Control Act of 1954 (Pub. L. No. 83637; 68 Stat. 775 (1954)) rendered the existence of the Communist Party unlawful and prevented its participation in the Federal elections and in various state and local elections.

           

            (3) The Subversive Activities Control Act of 1950 proceeded from the declared premise that the Communist Party constitutes a clear and present danger to the security of the United States, and imposed a duty of registering bodies and organisations connected in any way with that party or its activities (on the interpretation of the provisions of this Act, see Communist Party v. Control Board (1961) [55]). It appears that this law has not been applied since the beginning of the fifties.

           

            (b) In reliance upon the Smith Act, legal proceedings were initiated in the fifties and early sixties against certain activists of the American Communist Party (Dennis v. United States [54]; Yates v. United States (1957) [56]).

           

            The outcome of these two cases differed as regards the final decision, but in both the court mapped out the guiding principles for construing the provisions dealing with the offence of organising for and advocating any purpose defined in section 2 of the Smith Act. The majority in the Dennis case [54] made it clear that a requirement for conviction, under the Act as phrased, is an unlawful intention to overthrow the government by force or violence. Freedom of expression gives no immunity from legal proceedings to those who support and advocate staging a revolution - in circumstances of a clear and present danger of commission of the forbidden act, that is, the overthrow of the government.

           

            Freedom of expression indeed rests on the assumption that -

           

            ...speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies.

(Dennis [54], at 503, per Vinson C.J. , following Communications Assn. v. Douds [57], at 396.)

 

            At times, however, the conclusion is required that the immediate danger outweighs the wish to preserve freedom of expression (ibid, at 509, per Vinson C.J.):

           

            Overthrow of the government by force and violence is certainly a substantial enough interest for the Government to limit speech.

           

            As was held in that case, the government need not sit back and wait for a putsch to take place. If the authorities know that an entity aspiring to revolution is trying to educate its members and organise them in such manner that they will carry out their leaders' decision to commit an illegal act, that will require the authorities to take action as well. The argument that there is no occasion for the governmental authorities to be overconcerned since they in any event command sufficient forces to overcome any uprising, if such occurs, is not weighty enough to call for a protracted inactivity, to wait-and-see.

           

            (c) In the Dennis case [54], on the other hand, warnings were also voiced against excessive use of the "clear and present danger" test. Frankfurter J., who concurred in the majority opinion, referred to the comment of Prof. P.A. Freund (Understanding the Supreme Court, 27) that the test is not to be taken too simplistically, and that a number of factors must always be considered before exercise of the power, including, inter alia: the comparative gravity of the danger in relation to preservation of the values of freedom of expression and political activity; the possibility of employing more moderate means of control, and the need to examine in depth the specific intent accompanying the spoken words. Simplistic reliance on the above mentioned test is no substitute for the weighing of values.

           

            Black J. dissented from the majority opinion and viewed the conviction as a far-reaching violation of the freedom of expression. An assembly for the purpose of disseminating ideas and viewpoints ought not to have led, according to Justice Black's thesis, to conviction for conspiracy to overthrow the government. He added, in a mixed tone of regret and optimism (Dennis [54], at 581):

           

            Public opinion being what it now is, few will protest the conviction of these Communist Petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.

           

            In other words, a decision to restrict the exercise of a given liberty should not be governed by momentary pressures or passions, and a more tolerant, long-term evaluation is required.

           

            Douglas J., also in the minority, sought to qualify the restriction on freedom of expression that flowed from the conviction of the accused conspirators in the Dennis case [54]. To give foundation to his point of view he referred, inter alia, to the comments of Brandeis J. in Whitney v. California (1927) [58], noting as follows (Dennis [54], at 585-586):

           

            The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. California 274 U.S. 357, 376-377:

 

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it... But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immeidately acted on... In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

 

...To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

(Emphasis added - M.S.)

 

          (d) In the Yates case [56] the meaning of the term "advocacy" was somewhat narrowed, in relation to the expression of opinions about overthrowing the government. The court distinguished between support of abstract ideas and advocacy to carry out illegal acts. As explained there, the Smith Act was not designed to prohibit beliefs and opinions, but only advocacy and incitement to the commission of acts.

         

          20. The above examination of some of the conclusions reached by the U.S. Supreme Court in Dennis [54] and Yates [56], is for comparative purposes alone, and is not exhaustive of the rules emerging from American case law in this area.

         

          One may learn from the legislative as well as the interpretative approach in the United States, that the starting premise there differs somewhat from the practice under the German Constitution. The latter creates an express and exclusive constitutional basis for the prohibition of a political entity, and once a political body has been declared illegal it follows that no act may be done on its behalf in the area of organisation, dissemination of views, activities and the like. The banned entity is ipso facto precluded from participating in an election campaign. As explained above, the provision in the German Constitution that enables the banning of a political party, reinforces indirectly the conclusion as to the general lawfulness of the political activity undertaken by a body that has not been so banned. For the present purpose one may add that whatever be the views of the party, so long as its existence has not been prohibited by the Constitutional Court under the legal order prevailing there, its participation in elections may not be prevented.

         

          The American approach, as expressed in the Smith Act, puts the emphasis on the character of the actions carried out from time to time. According to the nature of these it is determined whether or not an unlawful act has been committed, and in this respect a preliminary declaration as to the banning of the body is not a condition precedent for the institution of legal proceedings on account of the body's organisational activities.

         

          21. The foregoing demonstrates the nature of our subject as regards its general legal classification. We are concerned here with one of the fundamental political rights. The pertinent provisions of the statutory law embody no authorisation for its restriction on grounds of the purposes and nature of the candidates list. In other words, the court cannot rest its decision upon a statutory provision that delineates in advance the scope of its power and expressly empowers the court to prohibit the participation in elections of a given list or of a type of list. Hence the need of the court to consider (both at the time of giving its judgment in the Yeredor case [1], and now when dealing with the two lists in the present case) to what extent an innate authority is vested in the Central Elections Committee to restrict freedoms and narrow fundamental rights without having been expressly empowered to do so by statute.

 

          What are the powers of the Central Elections Committee and those of this court in the absence of statutory guidance? The principle of legality and the pursuit of the rule of law, which shrinks from restricting liberties without statutory sanction, as well as the special deference we must pay to the various freedoms - all these support the thesis that a fundamental right may not be restricted without statutory authority (H.C. 337/81[5], at 355). The proper and desirable fundamental aim is that rights should be maintained without limitation. Even when rights conflict one with the other, one must consider which of them prevails in the circumstances, or in what circumstances should the one prevail and in what circumstances should the other - and one has recourse to a value test that seeks to maintain the rights as far as possible side by side and not one at the expense of the other. This court cannot and ought not detach itself from the general legal context, and its interpretation is necessarily governed by the constitutional nature of the matter brought before it.

         

          The path taken by the majority in Yeredor [1] represented an optimal exercise of the court's power, and in light of its reasoning we can only conclude that in any less extreme factual situation, the majority of the court in Yeredor [1] also, would have refrained from disqualifying the list.

         

          In other words, the court faced a situation in which it had to fashion criteria ex nihilo for determining when the right to participate in elections was subject to restriction. In any event the court could only act on the premise that the existence of the state, its institutions and the elections thereto was a supreme necessity; and in so doing it had to be guided by the basic perspective that no liberty or right was to be prejudiced except in the most extreme cases. Only the far-reaching significance of the objective to liquidate the state engendered the court's readiness to assume a power amounting to the absolute denial of a right. It thus adopted a twofold test that integrates the supreme, basic constitutional concept of the existence of the state with the practical criterion of "substantial probability". That means that the court rested its decision on the (list's) illicit purpose that goes to the very root of (the state's) existence and on a test constructed in accord with the qualitative weight of the danger, its imminence and its clarity.

         

          What we have said above serves to answer the fourth question we earlier posed, i.e., to what extent, if at all, may the decision of the Supreme Court in Yeredor [1] be supplemented. That is, can the kinds of cases in which a list may be banned from participation in elections be added to by virtue of judicial decision alone, without prior statutory sanction?

 

          The clear answer to this question, which founded our decision of June 28, 1984, is in the negative. Only the polar conflict between the objective of eradicating the state, on the one hand, and the desire to participate in elections to state institutions, on the other, could have called forth a judicial determination resting on an ultimate principle and not requiring concrete legal substantiation founded on express statutory provision. Participation in fashioning the image of the state, through Knesset membership, on the part of those who contest its very existence, is a contradiction in terms, and it was this profound inner contradiction that freed the majority in Yeredor [1] from the limitation imposed by the absence of any written legislative endorsement. However, had it been attempted to add variously to that, and had there developed an expansive case law with new circumstances added and elaborated in which the right to participate in elections might be denied without statutory ground, for reasons unconnected with the above substantive contradiction, the result might have been the clearest injury to the character of the political regime under which we live, and subversive of the fundamental notions by which it is nourished. The addition of further grounds for disqualifying a list would not be of mere quantitative import, but would entail transition to another dimension. Instead of reliance on the fundamental value of the existence of the state, which alone can bridge the legal gap engendered by the lack of statutory guidance, recourse would be had to substantive evaluation or to a value judgment concerning the party list based on its platform. So to do requires express and clear legislation, which demarcates limits and does not leave matters for resolution by way of unqualified discretion. A prominent feature of the democratic regime is not merely that it establishes checks and balances between the different branches of government, but also that it refrains as far as possible from entrusting unlimited discretion to any particular branch. The executive, the legislature and the judiciary must all act within their constitutional confines in such a manner that the fundamental values serve them as their foundations as well as defined tests for exercising discretion.

         

     The danger in choosing an alternative course is not to be discounted. If a committee composed entirely according to political party affiliation considered itself free to decide, by the ordinary majority required, that one list or another is disqualified from participating in the elections, notwithstanding the lack of any enabling statutory authority or normative standards delimiting the committee's discretion and prescribing the circumstances for its exercise of such power - the result might be to reduce substantially the general scope of the political right to participate in elections. In this regard it matters little that initially the committee exercises its power only with respect to entities which are obnoxious to a majority of the public. In the absence of any binding qualifying standard, it would be no surprise if the first selection for disqualification is a list of the kind that a majority of the public finds objectionable. We learn from the experience in other countries that the first examples do indeed relate to the extreme cases, but a less than strict observance of the rule of law and the fundamental freedoms gradually calls forth less extreme examples, as is well known.

 

          Alongside the danger that democracy will be abused by those seeking its eradication or weakening, is the contrary danger that excessive anxiety to preserve democracy will render its principles purely theoretical and alienated from its practical significance, imposing multiple a priori limitations and prohibitions on liberties.

         

          One should bear in mind in this connection that the dilemma of the limitation of liberties, that frequently assails governmental authorities, generally does not arise in relation to the rights of bodies whose existence and ideas are not controversial. It arises most acutely when views are voiced that arouse firm objection on the part of the majority, and even outrage the feelings of listeners. The true test for the existence of a right arises not in times when the current events express composure, tolerance and understanding, but at moments of pain and vexation, when there is little sympathy for the person claiming a certain right or for his views. The individual's right to personal liberty and the preservation of his rights against unlawful imprisonment or bodily torture, does not arise for debate only upon investigation of a respectable citizen's complaint that he was mistakenly taken into custody and mistreated by a police officer. The right is also truly tested when persons suspected of murder or rape are arrested, taken to prison and interrogated there. Protection of the freedom of speech or freedom of demonstration is important not only when words of wisdom are spoken, quietly and reflectively, for the existence of the right is not problematic where there is civilised and calm debate. But it is far more difficult to preserve freedom of expression and similar or associated fundamental rights, where beliefs, opinions and views are aired of a nature found outrageous and reprehensible.

         

          We have seen that it is not sufficient to create a mere formal statutory basis for the authority of the Committee or this court. That is indeed an essential precondition for authority to restrict the right of candidacy in elections, but over and above that need, substantive normative definition of the nature of the discretion and its limits is also required. That is to say, the legislative act must consist of two components: one is satisfied by the formal act of vesting authority; the other - which must be treated with great care - is the definition of circumstances in which the authority may be exercised.

         

          The central problem is the need to determine standards founded on democratic beliefs and viewpoints that must be applied also to persons who do not adhere to democracy and its values - quite the contrary! Professor John Rawls of Harvard named this challenge "The Toleration of the Intolerant" (Rawls, A Theory of Justice (Cambridge, 1971) p. 216).

 

            This matter must be treated with great circumspection. The statutory restriction of the right of party lists to contend in elections when they seek to jeopardise the very existence of the state, creates no special problems. But as one widens the circle encompassing the classes of bodies whose candidacy is sought to be inhibited in advance, one also widens the possible impact of such legislation on the continuing existence and realisation of our fundamental democratic concepts. Thus, as in Britain and in other countries, we have found no room to prohibit the candidacy of lists that would establish a political regime of the kind that exists in some other countries and differs radically from our own. Are there grounds to depart therefrom? Of course, this court will not encroach upon the domain of the legislature, yet it is proper to stress again the caution that is required in this regard, lest any proposed new legislation bring about a change in an unintended direction. In any event, I am not persuaded that there is any reason to discard past truths or to determine new standards that might substantially restrict any of those clear manifestations of the democratic political regime that we have accepted so far.

           

            The fundamental liberties - including freedom of expression, freedom of belief and equality in competing for public office, are all inherent in our governmental system and, therefore, in our legal system too. In every society one finds a variety of differing views and opinions; in a free society the diversity is manifest, in a totalitarian society the diversity is masked and concealed. Exchange of opinions, clarification of views, public debate, the urge to know, learn and convince - all these are essential tools in the service of every opinion, view and belief in a free society. The act of classifying citizens and distinguishing between them, some of whom are granted rights and others not, contradicts the truth that underlies the freedoms and, in its theoretical essence, manifests the same internal contradiction as does a person who decries democracy while utilising the rights it confers. Even with unpopular views and opinions must one contend and seek methods of persuasion. Prohibitions and restrictions are extreme devices of the last resort. The premise is that freedom of speech finds prominent expression when accorded also to those whose opinions appear to be mistaken and even dangerous (per Scrutton J. in the O'Brien case [48], at 382, and see Agranat J. in Kol Ha'am [26], at 878). Adopting a similar approach in Dennis v. U.S. [54], Frankfurter J. quoted these words of Sir. W. Haley, Director-General of the British Broadcasting Authority (at pp. 553-554):

           

...there are powerful forces in the world today misusing the privilege of liberty in order to destroy her. ... [But] no debate is ever permanently won by shutting one's ears or by even the most Draconian policy of silencing opponents. The debate must be won. And it must be won with full information. Where there are lies, they must be shown for what they are. Where there are errors, they must be refuted. It would be a major defeat if the enemies of democracy forced us to abandon our faith in the power of informed discussion and so brought us down to their own level.

           

            No person has a monopoly over truth, opinion and reason, and it has been said that what appears today to be simple and self-evident may seem uncertain tomorrow, or as it was put by Learned Hand: (The Spirit of Liberty, (New York, 2nd ed. 1953), p. 82):

           

            ...(the) certainties of today may become the superstitions of tomorrow. . we have no warrant of assurance save by everlasting readiness to test and test again...

           

            True, liberty does not mean licentiousness, and there are circumstances that necessitate the imposition of restraints, just as it is necessary to take legal measures against the commission of various crimes (Kol Ha'am [26]; Levi v. Southern District Police Commander [25]). However, the restrictions must not only be based on express statutory provision but, more importantly, they must also be imposed only as an extreme measure of last resort in face of a substantial probability of danger. There must always be a rational connection between the degree of danger and the measures taken; and even if the advocacy of a certain view raises just indignation, that is not sufficient to cause the total denial of a basic right. A democracy that acts to restrict freedoms when this is not an existential necessity, as indicated above, loses its spirit and force.

           

            In summary, the practical maintenance of fundamental liberties should not be influenced by transient events or the prevailing sentiments, and where restraints on fundamental rights are necessary, these must not be improvised and moulded according to momentary needs. In a state that regards the rule of law as the principal means for protecting its citizens from diverse internal dangers and believes in the moral power of democracy, a person's liberty may not be restricted except by law and may not be denied him merely on grounds of objection, however forceful, to the content of his statements. Restraints on liberties to prevent dangers that are a substantial probability is sometimes a cruel necessity, but the introduction and implementation of restrictions and prohibitions - except as an extreme measure of last resort in face of a "substantial probability" of danger - could in the long term have the same effect on the fundamental liberties, and cause them the same harm, as is threatened by the advocacy of their restriction on the part of those who object to the very existence of such freedoms.

           

            22. For the above reasons I decided at the time, together with my esteemed colleagues, to set aside the decisions of the Elections Committee.

           

            BEN-PORAT D.P. My esteemed colleague, Shamgar P., has dealt extensively and impressively with all aspects of the problem at the core of the two appeals before us. Accordingly, I shall content myself with a brief exposition of the lines of thought which guided me to concur in the opinion of my colleagues that the appeals should be admitted.

           

            After much thought I have reached the conclusion - which on the face of it might seem somewhat strange - that the Knesset Elections Law [Consolidated Version], 1969 (hereinafter - "the Elections Law") does not grant the Central Elections Committee (hereinafter - "the Committee") any authority to consider the worthiness of a given list to be a contestant in the elections by virtue of its platform or objectives. Its sole duty is to examine whether the list complies with the technical requirements enumerated in sections 6 and 7 of Basic Law: The Knesset (hereinafter - "the Basic Law") and in various sections of the Elections Law, inter alia: whether the candidate meets the conditions of age, citizenship, etc.; whether the list has the required number of signatures, and so on. Once a list is submitted in compliance with all the conditions, and at the proper time, it has been "lawfully submitted" and must be confirmed; if not - it must be rejected.

           

            I have said that on the surface my conclusion that the legislature entrusted the Committee with a purely technical-ministerial function, might seem somewhat "strange". For, on the one hand it may be urged that it is vital to prevent the infiltration of a dangerous list into the elected body, and it would be better therefore to recognize the power of the Committee to take this weighty consideration into account when asked to grant its approval to a list. On the other hand, however, it emerges from the case law to which I shall presently refer (and which, on the face of it, is unacceptable to me, with all due respect), that there is no judicial forum competent to set aside the Committee's approval of a list. On the contrary, if the Committee has approved a list, no matter how dangerous its purposes, that is the end of the matter and its decision cannot be questioned either by way of appeal or before the High Court of Justice. Recognition of a power in the Committee to grant a list final approval, to the exclusion of all judicial review, is an unacceptable result.

           

            It appears that the Kach List, submitted to the Committee for the elections to the Tenth (i.e. prior) Knesset, was approved by a majority vote, contrary to the view of the Committee chairman (Justice Etzioni) who favoured its disqualification. His opposition was based on certain publications on behalf of Kach, which stated:

           

            ...In order to deter those who are intent on seducing Jewish girls to assimilate we propose mandatory imprisonment for a term of five years without mitigation of sentence or reduction of the term of incarceration for every non-Jew who has sexual relations with a Jewess...

 

To prevent further deterioration we demand that an end be put to all plans of the Ministry of Education to encourage social relations between non-Jews and Jews and also to carry out schooling only in separate schools for Jews and Arabs... This is only by way of initial steps since it is clear that the true solution of the Kach program is to motivate the Arabs of Eretz Yisrael to migrate to their own countries.

 

            As already mentioned, a Committee majority prevailed over the chairman and decided to approve the list. At a further meeting, when those present were informed of the Attorney-General's position that certain publications of this list amounted to a criminal offence, the Committee stood by its decision.

           

            Four Israeli citizens, among them Mr. Moshe Negbi who pleaded on behalf of them all, felt impelled to counter what they considered an impending evil and petitioned the High Court of Justice (in H.C. 344/81[27], hereinafter - the Negbi case) for an order nisi against the Committee (and the Kach list) to show cause why it should not reverse its decision to approve the list, and disqualify it. Mr. Negbi was aware of section 137 of the Elections Law, which provides:

           

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

(Emphasis added - M.B.P.)

 

            To overcome the difficulty, Mr. Negbi submitted the argument, rightly called "sharp", that section 137 presented no obstacle because the Committee's approval was in no any way based on the Elections Law but on what have been called supra-constitutional principles. In other words, according to the Elections Law the Committee must only consider whether the requisite conditions have been met, materially and technically, in order to deem the list "duly submitted", and no more.

           

            However, according to the rule of the majority opinion in the Yeredor case [1], it is also empowered, so it was argued, to consider supra-constitutional considerations (for instance whether the list is in any way subversive of the existence of the state). Such a consideration, he submitted, goes beyond the strict confines of the Elections Law, hence it is also beyond the ambit of section 137 of the Elections Law and is amenable to judicial review by the High Court of Justice. On the other hand, if a supra-consitutional consideration is a matter within the scope of the Elections Law, then the Committee exceeded its power, which is confined entirely to a technical-ministerial examination, i.e. whether a list has been "duly submitted".

 

          This argument was rejected, the court holding as follows (ibid., at 839-840, per Barak J.):

         

The decision of the Central Elections Committee to approve or refuse to approve a list is taken by the Committee by virtue of the power vested in it under the Elections Law, according to which the candidates lists are submitted to the Elections Committee (section 57(i)), and the Committee either approves or refuses to approve them (sections 63 and 64)... The constitutional-or if you wish the "supra-constitutional" - principles dealt with in Yeredor case, E.A. 1/65, do not sever the act of the Elections Committee from the Elections Law, and the application of these principles by the Committee in actual practice is not excluded from the immunity prescribed in section 137 of the Elections Law. The legal principles laid down in the Yeredor case, E.A. 1/65, comprise a complex of relevant considerations which the Central Elections Committee may or even must take into account when acting under the Elections Law, and in doing so it is immune from judicial review.

(Emphasis added - M.B.P.)

 

          Further on it was stated that even if the Committee erred in exercising its discretion, this does not mean that the decision went beyond the scope of its power under the Elections Law. In the words of Barak J. (ibid. at 840):

         

...Just as a correct decision by the Committee is protected from judicial review, so too is an incorrect decision.

 

          Accordingly, it was on the basis of the immunity covering the decisions and acts of the Committee under section 137 of the Elections Law, that it was decided to dismiss the petition, which meant that the Committee's approval of the Kach list was final and could not be challenged, whether the decision was correct or erroneous. That is to say, even assuming that judicial review were to reveal that the platform or purposes of the Kach list call for its disqualification, it remains legislatively decreed (in light of section 137 of the Elections Law) that the Committee's approval is final and binding.

         

          I must confess that in reading the judgment I formed the impression that it does not distinguish between approval and non-approval by the Committee, as if in both cases its action is covered by the immunity of section 137 (see the passages cited above), but this is not so. To the contrary, the Elections Law does indeed "provide otherwise" (in the sense of section 137), regarding the Committee's refusal to approve a list in section 64(a), which reads:

 

            Where the Central Committee refuses to approve a candidates list, either wholly or as to the name of one of the candidates or the designation or letter of the list, it shall, not later than the 20th day before election day, notify its refusal to the representative of the list and his deputy, and they may, not later than the 18th day before election day, appeal to the Supreme Court against such refusal.

           

            In other words, the symmetry that seemingly emerges from the Negbi case [27], does not exist at all: while the approval of a list is immune from judicial review, the legislature did grant a right of appeal to a list that considers itself prejudiced by the Committee's refusal to approve it. That is to say, the legislature saw no need for judicial review in case of approval of a list, but sought to prevent the injustice that might be caused to a list when the Committee refuses to approve it. If we construe this asymmetry in light of the ruling in Negbi [27], we must inevitably conclude that a decision of the Committee to approve a list is conclusive, regardless of any differences among its members as to the worthiness of the list to campaign in the elections to the Knesset because of its unacceptable platform and that there is no way to challenge such approval, whether by way of appeal or by petition to the High Court of Justice. On the other hand, the Committee's decision to refuse to approve the list is subject to the list's right of appeal to the Supreme Court (section 64(a)).

           

            If this asymmetry relates solely to ministerial examination of the conditions prescribed by the Elections Law (and the Basic Law), it seems reasonable and is even logically compelling. Where a list has been approved, there is no one at all to appeal the decision (unless a minority of the Committee members be permitted to appeal against the majority). It is possible also to understand it is better that a list be allowed (even erroneously) to participate in the elections, than be disqualified without just cause. In this way the principles of democracy are preserved, by the fact that a list barred from contesting benefits from a right of appeal and judicial review of the refusal. On the other hand, were the Committee empowered to take into account superior principles (for example, the fact that the list's platform undermines the existence of the state) and not merely to conduct a ministerial examination, then such asymmetry would be puzzling. The approval of a list subversive of the existence of the state and seeking its annihilation is far more dangerous than a refusal to approve it. It is clear that ensuring the existence of the state takes precedence even over the principles of democracy. Hence, had the legislature intended to embody also such a consideration in the frame of the Elections Law, logic would dictate that it should confer the right of judicial review precisely and primarily when the Committee's decision is to approve a list that endangers state security. If one maintained otherwise, an erroneous decision by the Committee to approve a list that aspires to destroy the state could well be disastrous. Moreover, the natural forum for judicial review of a decision to approve a given list is, to the best of my understanding, the High Court of Justice and not an appellate instance, since there is no one to appeal such approval. Another possible course (for example) is to vest in the Attorney-General a right of appeal against a list's approval. But, as aforesaid, the immunity extended to the approval of a list by the Elections Committee is absolute.

 

          It should be noted that if we are dealing with superior principles, there is no reason to stop at the point where a list is in fact directly subversive, and there is good reason for also barring from the contest a list that aspires to a grave violation of basic democratic principles. Furthermore, without going into detail, it is at times difficult to establish a clear-cut division between crass subversion of the foundations of democracy and an aspiration to destroy the state.

         

          I am aware of the answer given by my esteemed colleague, Barak J., to this asymmetry. His view is that in case of the approval of a list which endangers the existence of the state, the Knesset will be impelled to act. I wonder why the refusal to approve such a list invokes judicial scrutiny, with all the haste necessitated by the impending elections, whereas its approval is a matter for the Knesset and not (for example) the High Court of Justice. In my opinion it is important to prevent such a list from entering the contest, and during the elections period it is difficult to expect the Knesset to find the time to resolve a matter of this kind. Moreover, if the Kach list had attained the "cut-off' percentage in the elections to the previous Knesset, when its participation was approved by the Committee, would the Central Elections Committee have been competent to refuse to approve its participation in the next elections? I wonder. Let us assume that a veteran Knesset faction submits a list to the Committee which is valid in all formal respects, but a majority of the Committee members think that by reason of its past conduct the list is subversive. Would the Committee be competent to refuse approval? The answer, to my mind, is that the Knesset - and it alone - has the power to outlaw an existing party faction. One should bear in mind that it was only by mere chance that the Kach list did not obtain the "cut-off" quota of votes in the previous elections to the Knesset and was not therefore a party-faction in the outgoing Knesset. This line of reasoning also supports my conclusion, that the function of the Committee is merely technical-ministerial. Incidentally, unlike my esteemed colleague, Barak J., I think that the platform of a party-faction would be sufficient ground for the competent body (if such existed) to disqualify it, and it would not be necessary to wait (if the platform is illegitimate) until that faction proves by its conduct that it indeed carries out the platform in practice.

         

            I am conscious of the weighty considerations that moved the majority Justices in Yeredor to hold that the power to disqualify a subversive list was a practical necessity. Those proceedings concerned an appeal against the Committee's refusal to approve the Socialist list, the court holding that a party list whose aim is to destroy the state cannot be allowed to participate in elections to the Israel house of representatives. To so decide as an appellate instance, it was obviously necessary for the court to recognise also (as it did) the Committee's power to disqualify such a list. The reason is simple: the function of an appellate instance, by its very nature, is to determine what decision should have been made by the body against which the appeal was brought. However, assuming that the list (Socialists) had been approved by the Committee (as was the Kach list in the elections to the Tenth Knesset), if only by a single decisive vote, it might be asked whether the immunity extending to such approval would have rendered that list any the less dangerous to the existence of the state? Yet such approval, as already indicated, has absolute immunity from judicial review.

           

            Had it been decided in the Negbi matter [27], that for lack of an appeal (or an appellant) against approval, the doors of the High Court of Justice were open to anyone with locus standi, I might have been inclined to accept the majority judgment in Yeredor [1], if only for the reason that both approval and refusal by the Committee could be judicially reviewed (whether by the High Court of Justice or an appellate instance). I might have been so "inclined" since one of two solutions is possible: "supra - constitutional" considerations are either extraneous to the Elections Law or they fall within its scope. In other words, if the procedure to challenge a Committee refusal (on ground of subversion) is by way of appeal, then the same procedure should also be available to challenge a Committee approval (say at the instance of the Attorney-General, but no such provision is made in the Law). In any event, if the High Court of Justice cannot be approached in case of approval of a list, yet we find ourselves faced as we are here with an appeal against the Committee's refusal, the question of asymmetry in the existing interpretation arises most acutely.

           

            In view of the rule laid down in Negbi [27], and so long as it remains unchanged, I cannot, with all due respect and modesty, see any way to adopt the solution according to which the danger posed by a particular list will be subject to judicial review when the Committee withholds its approval, but will not be reviewable precisely when the Committee approves the list, albeit mistakenly (that is, even when it is in fact dangerous and given to disqualification). I have read with interest the opinions of my esteemed colleagues but have not found in them any reference to the Negbi decision, nor a satisfactory answer to the question how any judicial instance (the High Court of Justice or an appeal court) can remedy the situation if the Elections Committee (whether for political reasons or erroneously) approves a list that aspires to annihilate the state. Such is the consequence of perpetuating the asymmetry. Thus the duty to disqualify the list is held by my esteemed colleague, Elon J., in paragraph 13 of his judgment, to be entrusted to the Central Elections Committee; but if the Committee fails to discharge its duty - how shall we rectify the error? Clearly the statement of my esteemed colleague (ibid.), "in that case we are obliged to disqualify it", is not given to implementation in the existing situation. Likewise, the distinction made by my esteemed colleagues between annihilation of the state and prejudice to democracy is in my humble opinion very questionable. Not only does grave prejudice to democracy pose a danger also to the state's existence, but is itself among the "superior principles" that merit consideration. I nevertheless reiterate, that in case of conflict between principles of democracy and security considerations affecting the very existence of the state, clearly the existence of the state must be given first priority, however important the other principles may be.

 

          In light of the situation I have described I hold to the opinion (as a lesser evil) - also expressed in the dissenting opinion of Cohn J. in Yeredor [1] - that the Elections Law charged the Committee with the sole function of examining compliance with the conditions prescribed by statute. That and no more. The legislature apparently believed - assuming it considered the matter at all - that the supra-constitutional aspects would be dealt with by the Knesset itself, if the need ever arose in the future. The danger that a problematic list would appear and also exceed the "cut-off" quotient of votes, apparently seemed slender or remote. Another possibility, that of petitioning the High Court of Justice in matters vitally affecting the State of Israel, was blocked by the above mentioned ruling in the Negbi case [27].

 

          Support for the attribution of a limited function to the Committee can be found in section 63 of the Elections Law, which provides:

         

          A candidates list duly submitted ... shall be approved by the Central Committee, which shall give notice of ... the approval ...

(Emphasis added - M.B.P.)

 

          Literally at least the text indicates a purely technical examination, as explained succinctly by Cohn J. in Yeredor ([1] at 376 ff.). In this manner the asymmetry loses its significance (as explained above).

         

          This state of affairs, however, is undesirable and in the present reality even intolerable. It is time to enact a law protecting the state against the entry of subversive lists into its legislative body. A state that wishes to survive and remain committed to the principles of democracy, must take care that these are not overwhelmed by destructive elements from within, all in the frame of legitimate campaigning, as it were, for election to the Knesset.

         

          On a previous occasion I agreed that even the majority in Yeredor [1], did not hold the Committee empowered to reject a list that sought to undermine the foundations of democracy, because the question never arose in that case. The fact that the discussion focused solely on the question of state subversion appears from Sussman J.'s description of the political purpose under discussion there (ibid., at 389):

 

          ...a purpose that aspires to annihilate the state, to bring catastrophe upon most of its inhabitants for whose sake it was established, and to form alliance with its enemies.

          As regards the Progressive List for Peace, the esteemed President has already explained in his opinion that privileged material is not "evidence". On the contrary, the meaning of the very privilege is that such evidence may not be proffered, disclosed or relied upon. Thus the preclusion of essential evidence in judicial proceedings because of privilege, will cause the litigant in need of that evidence to fail, for the reason that he is unable to bring evidence that is (so I assume) essential. In other words, privileged material lacks evidentiary force, and it is mistaken to think that the very privilege is in the nature of proof upon which the Committee or this court could rely to conclude that this list aims at annihilation of the state.

         

          Finally, a marginal observation, that I must not be understood to agree with what my esteemed colleague, Shamgar P., said in relation to F.H. 9/77[21] and C.A. 723/74[3]. Vieing with the interest of freedom of expression is the legitimate interest of the individual in his good reputation, and it seems to me that the majority judgment in that precedent expresses the correct balance between the two.

         

          In summary of my opinion that the Central Elections Committee - hence also this court sitting on appeal - is not competent to disqualify a list because it seeks to undermine the existence of the state, I shall restate my main considerations:

         

          A. The Elections Law grants a list a right of appeal to this court against the Committee's refusal to confirm its participation. On the other hand, it absolutely precludes any judicial review (whether by a court of appeal or the High Court of Justice) of a Committee decision approving a list's participation in the elections. In the precedents, too, no ground is found for such review of the Committee's approval (the Negbi case [27]).

         

          B. The above policy reflects the legislature's fear that a list might be wrongly disqualified, and its lack of concern over the possibility of a list's wrong approval. This policy is consonant only with a technical-ministerial function, according to which the Committee must confirm all lists duly submitted in that (formal) sense. An erroneous approval is a "windfall" for the list (because of the lack of review). But the Committee's mistaken refusal to approve the list, provides the list with a right of appeal.

 

            C. The concern that a list might be unlawfully excluded from the contest is consonant with a liberal approach and the desire to ensure wide participation in the electoral contest, as far as possible without hindrance or restriction.

           

            D. Had the legislature assigned to the Committee the function of examining the substance of a list's platform (whether, for instance, it is subversive of the state's existence), it should have designated as a first requirement a judicial or other forum with the power of review, particularly of, the approval of a list by the Committee. If the Committee were to err in such examination, it would be imperative to provide for the possibility of correcting the error, otherwise the security of the state might be endangered and a subversive list allowed to become part of the house of representatives. To leave the solution of the problem, if and when it arises, to the Knesset itself (as Barak J. suggests), is in my view, impractical, since in the midst of elections the Knesset cannot be expected to free itself for this task, and it is important, moreover, to prevent such a list's very entry into the contest.

           

            E. It follows from the above that to invest the Committee with a conclusive power to approve a list, as regards the legitimacy of its platform, is so unwise and unreasonable as to be inconceivable.

           

            F. If the Committee is competent to take into account not only technical but also substantive considerations and on that basis to disqualify a list (for instance) because of its subversive objectives, it is difficult to see how such power may be confined solely to the submission of a new list, as distinct from a list submitted by an outgoing and even longstanding Knesset party or faction. To the best of my understanding this matter is left to the Knesset itself.

           

            I wish to emphasise the immediate and urgent need for appropriate legislation to prevent the infiltration of subversive lists into the house of representatives, perhaps by extending the existing framework so as to embrace, besides direct danger to the existence of the state, also crass violations of basic democratic principles.

           

            ELON J. 1. When I agreed with my esteemed colleagues to allow the two appeals now before us, I did so in reliance upon the majority opinion in the Yeredor case [1]. The rule that emerges from that case is that the Elections Committee is competent to consider the election platform of a party list, and to disqualify that list from participating in elections to the Knesset, only when its platform negates the very existence of the State of Israel, or its integrity. In the present matter, that has not been proved to be the purpose of those promoting the Progressive List for Peace, as was well explained by the learned President. And as regards the Kach list, it falls entirely outside the reach of this ground for disqualification. I might have rested content with that explanation of my opinion - considering the particular circumstances accompanying this judgment, as well as the tradition that brevity is blessed: "And (Boaz) said unto the reapers*, the Lord be with you" (Ruth 2:4). But having regard to the opinions of my esteemed colleagues, I wish to add some further comments. In particular, I do not find their explanations of the Yeredor majority ruling fully exhaustive of its implications and I accordingly see need to elucidate it further. My esteemed colleague, Barak J., expands the Yeredor ruling to cover also a list that negates the democratic nature of the state. He further renders it a precondition to the disqualification of a list, for any reason whatever, that the realisation of that list's ideas is a reasonable possibility. I disagree with him on both scores. I also attach much importance to a Knesset enactment that will delimit the borders of the permitted and the forbidden respecting the matter in issue here - provided that enactment prescribes clear standards. I shall endeavour to explain briefly the reasons for my position in this matter.

 

            2. The majority ruling in the Yeredor matter [1] was a great innovation, and it cannot be explained or even understood in terms of our accepted methods of interpretation. It is well known that the methods of interpretation vary with the interpreter, and this court has said (see C.A. 2/77[28], at 11) -

           

... which is only natural and comprehensible, considering that the rule of the Jewish scholars, "the judge has only what his eyes see", applies primarily to the modes of interpreting the law and the rules for its construction. The view of one judge differs from that of another. All depends on the eyes that penetrate the very heart of the law, its aim and purpose, and not merely the superficial meaning of the text. Some adopt an expansive method of interpretation... others advocate restrictive and strict interpretation... Still others proceed along various middle paths in order to find the proper balance.

 

            From amongst these differing approaches that which commends itself to me holds (ibid., at 12). -

           

...Let not the judge be likened to a mountain palm, and let him not abstain from the task of construction, so long as it is possible, even if strained, to reconcile the matter with the written text, if by doing so a result contrary to the declared purpose of the legislature can be avoided...

 

            It has been said further (H.C. 188/63[29], at 350, per Berinson J.):

           

               We are interpreters and not simply linguists. A good interpreter of the law is one who carries out the legislature's will.

           

            I also accept that the interpretation of a statutory provision must heed the spirit of the law and of the entire legal system. The judge should not rest content with the act of deciding alone, but must adopt a decisory policy. As we said elsewhere (C.A. 32/81[30], at 767):

           

               Such a process of decision-making pursuant to legal policy, which prevails over the legal rule since it itself is part of the law, is a common phenomenon in the decisions of the courts.

           

            But there is a limit to all these methods of interpretation which the judge may not exceed or transgress: the will of the legislature, as it finds expression in its enactments. This prohibition against trespassing upon the domain of the legislature derives from the fundamental principles of the legal system concerning the boundaries of the three branches of government, and the judge may not enter the domain of the law-maker. Just as ascertainment of the legislature's will is one of the fundamental principles of legal policy, so too is it fundamental not to raise ourselves above the legislature but to accept its fiat.

           

            3. The Knesset Elections Law (Consolidated Version) (hereinafter - the Elections Law) prescribes the fundamental right of every Israeli citizen to be elected to the Knesset, the circumstances in which this right may be denied, and the various requirements concerning the submission of candidates lists and similar provisions (section 56 and chapter six of the Law). The conclusion to be drawn from all these provisions is that the legislature directed and intended that only on the given grounds, and no other, may the Committee refuse to approve an election list. One may not infer in any manner from these grounds - which are technical and formal - the existence of additional grounds, such as flow from examination of the content of a list's platform. There is good reason for the legislature's wish to limit the possibility of disqualifying a list to purely technical-formal grounds. On the one hand it wanted to safeguard the right to be elected, a fundamental right in the democratic regime; on the other, it lacked the confidence to entrust a power of disqualification - on grounds of a party list's substance and content, to a body mainly composed (except for its chairman) of party-political representatives, whose considerations might be ideological-political.

           

            Furthermore, the Elections Law prescribes, mandatorily, that a list meeting the enumerated requirements "shall be approved by the Central Committee" (section 63). In that situation, the court may not assume, nor confer upon the Elections Committee, a discretionary power to disqualify a list for reasons not specified in the Law, when that discretion was withheld by the legislator. We are not concerned here with the application of rules of interpretation, but with acceptance of the rule of law, which is paramount in our legal system.

 

            4. Prima facie this legal situation would lead to the conclusion reached by Cohn J. in the Yeredor case [1], and by my esteemed colleague, Ben Porat D.P., in the present matter, that there exists no competent power to disqualify a list whose platform embodies liquidation of the state and impairment of its territorial integrity. Indeed, had the majority in the Yeredor case reached its conclusion by applying the rules of interpretation as to the balancing of contradictory fundamental interests and the exercise of discretion in that process, I too would have thought that such power does not fall within the scope of the Committee's authority. But that was not the ground for the majority decision, which is clear from its reasoning. Thus Agranat P. said (ibid. p. 387):

           

I agree that ordinarily it is not for the Central Elections Committee, when exercising its power to decide upon approval of one or other list of candidates, to examine the candidates in detail or to question their political views. This rule, however, ceased to apply in the present matter the moment the attention of the Elections Committee had been drawn to the fact that the appellant list was to be identified with a group of people held by the High Court of Justice to be an illegal association, because its purpose was to deny utterly and absolutely the existence of the State of Israel in general, and its existence within its present borders in particular, and that in consequence the same group had been declared an illegal organisation. In view of these facts, the Central Committee was left no discretion or alternative but to decide against approving the appellant list.

(Emphasis added - M.E.)

 

And Sussman J., concurring with the President, added (at p. 389):

 

I also have no doubt that the Elections Law did not empower the Central Elections Committee to approve or refuse to approve a candidates list at its discretion. The opposite of such discretion is implied in section 23 of the said Law; nor is the grant of such discretion consistent with the composition of the Committee, which is a body composed entirely according to political criteria based on the representation in the outgoing Knesset - except for the chairman of the Committee, who is a justice of the Supreme Court. That was not, however, the question before us. The question as defined by the chairman of the Committee at its sitting on September 29, 1965 (p. 27 of the Committee's minutes), was whether the Committee may examine the legitimacy of the list according to a principle that is not written in the statute book.

(Emphasis added - M. E.)

 

            The disqualification of the list in Yeredor was not, therefore, a consequence of the exercise of discretion, or of a balancing of interests, or the rules of interpretation. The Committee "was left no discretion or alternative" but to disqualify the list. For what reason? Sussman J. goes on to say (at p. 390):

           

Just as a person does not have to agree to be killed, so also the state does not have to agree to be annihilated and wiped off the map. Judges may not sit with arms folded in despair at the absence of a positive law to invoke when a party asks them to assist in bringing an end to the state. Likewise no other state authority is required to serve as a tool in the hands of someone who has set the annihilation of the state as a goal, and perhaps has no other goal but that.

 

            It is a contradiction in terms to participate in elections to the legislature in order to abolish the legislature, for the Knesset cannot exist together with those who seek to destroy it. That is an innate contradiction which cannot be reconciled, and the matter is not at all contingent - as my esteemed colleague, Barak J., maintains - upon the existence of a "reasonable possibility" that the members of such list will achieve their evil design. (I shall refer again later to the "reasonable possibility" criterion.) And by virtue of "natural law" and "the right of self-defence of organised society" (per Sussman J., ibid.) there is no alternative but to prevent the list from carrying out its scheme. This lack of choice does not stem from any of the ordinary rules of interpretation, but is founded on a supreme imperative in Judaism: "and man shall live thereby - and not die thereby" (Leviticus 18:5, B.T. Yoma 85b). As for the reservation expressed by my colleague, Barak J., I should make it clear that the legislature may be presumed to expect that the court and every other state authority will have recourse to and apply this supreme imperative, which exists by virtue of natural law. It is hardly necessary to say that this presumption is given to rebuttal where the legislature provides explicitly and unequivocally that the Elections Committee need not or shall not disqualify a list, even when it contests the very existence of the state or its territorial integrity.

           

            5. As I said at the outset, the reasoning behind the Yeredor ruling marks a great innovation in our case law. It does not add a new rule to the ordinary modes of interpretation, but lays down a one-time principle superimposed on the ordinary modes of interpretation. This principle, by its very nature, is confined to the special case of an intent to put an end to the existence of the state or impair the integrity of its borders, and does not apply in any other case, no matter how reprehensible to us the list's political and cultural views. In every other situation the matter invokes the ordinary methods of interpretation, the principle of balancing interests and fundamental rights, the discretion of the body empowered to interpret and consider the matter. And since the legislature never conferred such discretion on any body whatever, the necessary conclusion is that except for the case of a party list whose object is to annihilate the state and impair its integrity - there is no one empowered to prevent any list, whatever its platform, from participating in Knesset elections.

 

            6. As we have seen, this material difference between a list that contests the very existence of the state and one that propounds any other kind of objectionable and questionable ideas, was central to the majority opinion in Yeredor. And just as their observations stress the necessity, as an "imperative of life", to disqualify a list intent on annihilating the state, so too they stress the enjoinder against disqualifying a list for other reasons relating to the content of its platform. Agranat P. dwelt on the point that in a democratic state it is not permissible to preclude the candidacy of any group of people seeking election to the Knesset in order to promote its own ends, except when the purpose is to annihilate the state, in which case it is imperative to disqualify the list (ibid., pp. 387-388). Sussman J. reiterated the point (ibid. p. 389):

           

An "unlawful purpose" in the present context does not mean a purpose that aspires to change the governmental order. That order is not sacrosanct, and its change is not a punishable crime. Rather an "unlawful purpose" is a purpose that aspires to annihilate the state, to bring catastrophe upon most of the inhabitants for whose sake it was established, and to form alliance with its enemies.

(Emphasis added - M.E.)

 

            A clear and exhaustive analysis of this distinction was made by Justice Landau, then serving as chairman of the Knesset Elections Committee, whose views were cited by his colleagues in the Yeredor decision ([1], at 372):

           

...I do not find it at all difficult to draw a line between this list - whose purposes were defined in its rules of association and parts whereof were also mentioned in the judgment of the Supreme Court - and other political parties who aspire to change the internal constitutional regime of the state... I find a vast difference, as between East and West, between a group of people which seeks to undermine the very existence of the state, or in any event its territorial integrity, and a party that acknowledges the political entity of the state but wishes to alter its internal regime.

 

            The question raised here was what will the morrow bring if we apply the same statutory provision against other parties. I know of no other party in the state against which I could apply the same provision...

 

Hence (ibid., at 374) -

 

...There is no dispute, and the learned chairman explained this to the Committee in unequivocal terms, that a list of candidates who oppose a certain statute and wish to repeal or amend it, or who oppose the composition of the existing government and wish to change it, and the like, is entirely legitimate, and no one would consider disqualifying it.

 

            7. These observations on the rules of democracy made by three past Presidents of the Supreme Court were valid when they were uttered and are even more apposite today. After the Yeredor decision, our legal system underwent a change, and in 1980 the Knesset enacted the Foundations of Law, 5740-1980, which now constitutes one of the basic laws of the State of Israel that form its underpinnings. The fundamental principles enshrined in the Declaration of Independence, that "the State of Israel ... will be based on freedom, justice and peace as envisaged by the prophets of Israel" which served only as basic guidelines but lacked full legal efficacy, became with the enactment of the Foundations of Law, fundamental legal principles, underlying the entire legal system in the state, namely: "the principles of freedom, justice, equity and peace of Israel's heritage" (section 1 of the Law). It seems to me that there is no issue more amenable to examination in accordance with these principles of Israel's heritage than the one now before us.

           

            My esteemed colleagues expanded upon the views of legal scholars and philosophers in various legal and political systems on the issue of freedom of expression and opinion, whose views are not always in alignment with and sometimes even contradict each other. Such an examination is most important, since it helps to broaden the horizons and deepen the study of a subject common to all enlightened and progressive legal systems. And in this respect I may comment that in an examination of this kind one must always bear in mind the political background and the legal framework in which the statements are made, since these may vary from those in Israel. Since the different conceptions of scholars the world over have been well elaborated by my esteemed colleagues, I see no need to deal with them again. As I have indicated, we would do well to nourish the answer to our present problem on principles of the Jewish heritage. These we shall now seek to elucidate.

           

            First a preliminary remark. It is common knowledge that abundant differences of opinion and conflicting approaches mark also Jewish thought throughout the ages - even the halakhic system itself, as will be shown later. No party to litigation will find it difficult to glean from its recesses some support for his arguments or views. Such is the case in relation to every matter, including freedom of expression and opinion and other questions which will be dealt with below. It goes without saying that all these views and approaches have contributed together to deepening and enriching Jewish thought at all times. But whoever embarks upon the quest for knowledge must distinguish between statements made for particular times and circumstances and statements made for all times, between a generally accepted view and an exceptional one, and the like distinctions and implications. From this vast and abundant treasure, it is possible to gather much that is significant for the requirements of one's own generation and age, so as to answer contemporary needs and at the same time replenish the treasure of Jewish thought and the heritage of Israel. This reality and the duty to make such distinctions are of the essence of Jewish thought - and of the halakha itself - as is the nature of every conceptual system. The subject is multi-faceted, but this is not the occasion to expand on it (see Rabbi A.I. Kook, Eder HaYekar (Jerusalem, 1967) 13-28; see also M.R. Konvitz, Preface to Judaism and Human Rights (M.R. Konvitz, ed., New York, 1972) 11.)

 

            8. We shall have recourse to the heritage of Israel in relation to two questions: the principle of freedom of opinion and expression, and the legitimacy of the Kach list platform. I shall start with freedom of opinion and expression.

           

            The prophets of Israel and their prophecies have long served as the paradigm of impassioned and uncompromising rebuke of governmental abuse of might and power, and of a corrupt public or individual. They condemn oppression of the poor and exploitation of the widowed, the repression of individual and community rights, and deviation from the spirit and substance of the Torah and halakha. The firm stand and struggle of the prophets of Israel, even when the evoke severe and angry reactions, has been an inexhaustible source of inspiration in the struggle for freedom of expression and for contemporary enlightened democratic regimes. This is common knowledge, not in need of proof, and common currency for every student of political and democratic theory.

           

            I believe there is no more penetrating and encompassing description of the freedom of expression and the importance of every individual opinion - even that of a single individual - than the Talmudic statement regarding the disputes between Bet Hillel and Bet Shammai: "both are the words of the living God" (B.T. Eruvin 13b; J.T. Berakhot 1:4; J.T. Yevamot 1:6). For practical purposes, as a binding form of conduct, the halakha is according to Bet Hillel "because they were kindly and modest" (see Rashi to Eruvin 13b), but the views of Bet Shammai remained legitimate and material in the world of the halakha. This approach became characteristic of the halakha.

  

                      The "rebellious elder", even after the Sanhedrin - the highest tribunal of the nation - had ruled contrary to his opinion, could continue to hold to his views and "teach as he had done before", provided he did not actually rule accordingly (Mishna, Sanhedrin 11:2; B.T. Sanhedrin 86b). Moreover, a minority view might in time become generally accepted and acted upon. Rabbi Judah said: "The opinion of a single person is recorded along with that of the many, in case time makes it necessary to rely upon it" (Tosefta (Zuckermandel) "Eduyot 1:4; see also Mishna, Eduyot 1:5). Also:

         

Although the view of a single person is not accepted at first, and many disagree with him, at another time the majority may accept his reasoning and the law be decided accordingly, for the entire Torah was so given to Moses at times to forbid and at times to permit, and when he was asked: "until when shall we deliberate?" he answered: "follow the majority; because both are the living word of God".

(R. Samson of Sens, Talmudic scholar of France and Palestine at the turn of the 13th century, commentary to Mishna, Eduyot 1:5).

 

            And still striking today are the words of Akavia ben Mahalalel, who differed from his fellow scholars:

           

            Akavia ben Mahalalel testified concerning four matters. They said to him: "Akavia, withdraw these four things which you say, and we will make you presiding judge of the court". He said to them: "better I be called a fool all my days than I become even for one hour a wicked man before the Almighty; and let not men say: he withdrew his opinions for the sake of holding office".

(Mishna Eduyot 5:6; and see further M. Elon, Jewish Law, Its History, Sources and Principles (2d ed., Jerusalem, 1978) 870-878).

 

            This plurality of views is no negative phenomenon or defect, but is substantive to the world of the halakha. "There is no instability or shortcoming, such as to say that he causes more than one law to exist, Heaven forbid! On the contrary - such is the way of the Torah, and both are the words of the living God" (R. Hayyim ben Bezalel, introduction to Vikuah Mayim Hayyim (Prague, 16th century); and see in detail Elon, op. cit., at 1145-149). Moreover, plurality of views and approaches has the power to create harmony and unity out of difference. As the last of the codifiers, R. Yehiel Michal Epstein, said at the beginning of this century (Arukh Ha Shulhan, Hoshen Mishpat, Introduction):

           

            All the disputes of the Tannaim and the Amoraim, of the Gaonim and the codifiers, are truly the words of the living God, and all are aspects of the halakha. Indeed that is the glory of our pure and holy Torah, the entire Torah is a song, and the glory of a song is when it is sung in different voices. And this is the essence of its pleasantness.

           

            Indeed this basic conception that "both are the words of the living God" has at all times exerted a decisive influence on the mode and substance of halakhic codification as well as decision. I have dealt elsewhere with the subject and need not enlarge upon it here (Elon, op. cit., at 870, and the references in note 94).

           

            The plurality of views plays a material and fruitful role generally in the life of a just society. The rabbis even composed a special benediction to fit the secret encompassed in this notable phenomenon of a plurality of views in society: "If one sees a large crowd of people, one should say: Blessed is He who is wise in secrets; for neither their faces nor their thoughts are alike" (Tosefta (Zuckermandel), Berakhot 7: 5; and see B. T. Berakhot 58a). This is a blessing for wisdom and creativity: "Just as the nature of creation still renders the countenances of all people different, so also are we to believe that wisdom is still shared by men each differing from the other" (Vikuah Mayyim Hayyim, supra). Such a plurality of views should be respected by our leaders and government, as the following midrashic comments instructively indicate (Numbers Rabbah, Pinhas, 21:2; Tanhuma, Pinhas 10):

           

            Just as the countenances (of people) are not alike, so also their views, and each person has his own opinion ... Thus on the point of death Moses begged of God: "Master of the Universe, the views of every one are well known to you and your children's views are not all alike. When I depart from them, I pray, appoint them a leader who will be tolerant of each person's view".

           

            That is the lesson of leadership and government in the heritage of Israel - tolerance for every individual and every group, according to their opinions and outlooks. And this is the great secret of tolerance and listening to the other, and the great potency of the right of every individual and every group to express their opinions, that they are not only essential to an orderly and enlightened regime but also vital to its creative power. For in the real world "two opposing elements converge and fructify; how much more so in the spiritual world" (Rabbi A.I. Kook, HaNir (Jerusalem, 1909) 47; Eder HaYekar, 13 ff.)

           

            9. When in the plurality of opinions - itself welcome and vital - there is sounded a view that is injurious to society's spiritual and cultural foundation, that society must defend itself and its views. This end must be achieved first and foremost by persuasion and education. Education, as we all know, does not mean merely preaching to others, to those who have strayed from the desired path, but includes self-examination and reflection upon the spiritual and cultural image of that society in which thorns and thistles have sprung up. And when the need arises, a cultured society will employ legislation to punish those who incite and agitate to challenge and threaten it. Those who so deserve, whose transgression has been adequately proved before the judicial authorities, will be punished accordingly. The legislature, needless to say, may employ even the most extreme measure of silencing such views by denying those who express them the right to be elected to its own house; which means also, as indicated by my learned colleague, Shamgar P., denial of the right of those adhering to such views to vote for and elect persons of their choice. This is the legal right of the Knesset, which represents the will of the people, and I shall later make some observations as to the extent to which it is proper, in my view, for the legislature to exercise this right and enact such an extreme and far-reaching measure as withdrawal of the right to elect and be elected.

 

            As I said at the outset, in our democratic regime the denial of such a fundamental right does not lie with the judiciary in the absence of express authorization by the legislature - which represents the will of the people, and whence the judiciary draws its authority and power. If the court were to assume such power without legislative authorization, that itself would constitute an injury to an enlightened democracy, whose very foundation lies in the rule of the law - not of the legislature, the rule of justice - and not of the judge (see H.C. 152/82 [31], at 472-474; HC 234/84 [32], at 484). A further danger is threatened by the court's assumption of such power of disqualification, without express authority and guidance from the legislature, as to the scope and measure of such disqualification. The democratic character of the State of Israel found expression in the Declaration of Independence, which speaks of ensuring complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex, and guaranteeing freedom of religion, conscience, language, education and culture. These principles serve as our guiding light. The Jewish character of the State of Israel found expression in the Declaration of Independence in the very definition of the state as a Jewish State, and not merely as a state of Jews, in the opening of its gates to Jewish immigration for Ingathering of Exiles (as was expressed later in the Law of Return, 5710-1950), and so on. These principles likewise serve to guide us. This constellation of principles forms part of the Jewish state's special make-up. Prominent Zionist thinkers of all trends and streams, Jews of varying world outlook, citizens of the State of Israel of different ethnic and religious belonging, have all reflected upon and continue to debate the practical significance and application of the principles of the Declaration of Independence in the Jewish state. How and by what standard will the court adjudge the content of a party platform that is not reconcilable with each and every one of the complex of principles set out in the Declaration of Independence?

  

                      My esteemed colleague, Barak J., says that disqualification of a list because its platform does not comport with the principles of democracy upon which the State of Israel is founded, may only be effected when there exists a reasonable possibility that the members of that list will indeed achieve their aims; and when the court examines the existence of such reasonable possibility it must "consider the entire social scene in all its various aspects. It should analyse social processes ... not only past events but also the probability of potential future happenings". Does the Court have the tools for this task, which rests entirely on social-sociological considerations and entails no judicial decision at all? According to what guidelines and rules will the court make its decision? Indeed, my esteemed colleague holds this examination to amount to "a prophecy in the guise of a legal decision", in the words of Jackson J. in the Dennis case. I would suggest that as judges we refrain from acting as prophets. The illustrious scholar, Maimonides, appositely remarks:

         

          The Holy One did not permit us to learn from the prophets [how to rule on the law - M. Elon] but from the scholars, the men of reasoning and opinion; and He did not say: "you shall come unto the prophet that shall be in those days" but "you shall come unto the priests and levites and unto the judge (that shall be in those days)".

(Deuteronomy 17:9) (Introduction to Commentary on the Mishnah; and see Elon, op. cit., at 224-225).

 

          If that is so in Jewish Law, which the Jewish scholars recognised as deriving from a supra-human source, all the more so in a legal system that is based entirely on wise men, men of reasoning and opinions, and applied by them. Moreover, as already indicated, the power to disqualify a list for social, ideological and sociological reasons is vested primarily in the Central Elections Committee, which - except for its chairman - is a political body par excellence, whose various members adhere each to his own long held political opinions, and it is much to be apprehended that they will not easily be open to considered and impartial deliberation of so conspicuous a politico-social issue.

         

          10. What I have said suffices to indicate the abundance of problems and difficulties that face us when we begin to consider disqualifying a list because of the content of its platform. From this viewpoint, the case of the Kach list hardly serves to illustrate the reality of these difficulties. For the content of its platform and the aspirations of its initiators and leaders are of such gravity, and so patently mischievous in terms of the cultural and democratic image of the State of Israel, that - had we been vested with the power of disqualification - we could conclude that it should not be allowed to participate with the other lists in campaigning for election to the Knesset. And as far as I am concerned, the most severe and serious aspect of the Kach platform - even more than its distorted outlook as to safeguarding the democratic foundations of the regime in the State of Israel - is that this list and its leaders seek support in the Torah and the halakha. Let us look at this aspect briefly.

 

            A basic element in Judaism is the idea that man was created in the image of God (Genesis 1:27). The Torah so opens, and from this concept the halakha derives certain fundamental principles regarding the value of man - every human being as such - his equality and the love of him:

           

            He [R. Akiva] used to say, beloved is man in that he was created in the image of God, but it is a mark of a greater love that it was made known to him that he had been created in the image of God, as it is said (Genesis 9:6), "For in the image of God made He man".

(Mishna, Avot 3:18).

 

            And it was by reason of this verse that the sons of Noah were prohibited from spilling blood, even before the Torah was given. Very instructive is the difference of opinion between two leading Tannaim as to the crowning value in human relations:

           

            "And you shall love your neighbor as yourself" [Leviticus 19:18], R. Akiva said, this is a major rule of the Torah. Ben Azai said, "This is the book of the generations of Adam" [on the day God created man He did so in the image of God-Genesis 5:1] – this is the greater rule.

(Sifra, Kedoshim, 4:10).

 

            According to R. Akiva the supreme value in human relations is love of one's fellow man; and according to Ben Azai, the supreme and preferred value is the equality of man, since every man was created in the image of God. And these two values - equality and love of one's fellow - came together as one at the hands of the Jewish nation, together forming a cornerstone of Judaism throughout its generations and history. It is also stated in connection with this fundamental issue :

           

Ben Azai said, "This is the book of the generations of Adam"-this is a major rule of the Torah; Rabbi Akiva said, "You shall love your neighbor as yourself"- that is a greater rule; so that people should not say, since I have been demeaned, my fellow man shall also be demeaned...Rabbi Tanhuma said: if you do so, then know whom you are demeaning - "in the image of God He created him".

(Genesis Rabbah, 24:7).

 

            The great rule of loving your neighbor as yourself is not just a matter of the heart, or an abstract love without commitment, but refers to a practical way of life. And Hillel formulated the rule thus: "Do not do to others what is hateful to yourself". The commentators have dwelt on the fact that this negative formulation lent the principle a meaning that makes it compatible with human nature:

           

For a man cannot in his heart love his neighbor as he loves his own self; and in any event R. Akiva has already taught us: your life comes before your neighbor's.

(Nachmanides, Leviticus 19:18).

 

            R. Akiva, for whom the predominant rule was "Love your neighbor as yourself", himself taught that in times of danger - to the individual and to the community - it may be that "your life comes before your neighbor's" (B.T. Bava Metzia 62a).

           

            The Jewish nation is enjoined to fight for its existence and to ward off those who conspire to harm and dispossess it of its sovereignty and its land. But the enemy too retains the value and dignity of a human being. When Jehoshaphat, king of Judea, was victorious over the Ammonites and Moabites, the people stood and sang "Praise the Lord for His mercy endures for ever" (2 Chronicles 20:21-22). On this the scholars commented (T.B. Megilla 10b):

           

R. Johanan said: Why are the words "for He is good" omitted from this thanksgiving [in relation to the corresponding phrase in Psalms 107:1]? Because the Holy One does not rejoice in the downfall of the wicked. And R. Johanan further said: what is the meaning of the verse "and one came not near the other all the night" [Exodus 14:20; the reference is to the Israelites and the Egyptians at the crossing of the Red Sea]? The ministering angels wanted to chant their hymns, but the Holy One said: "the work of my hands is being drowned in the sea and shall you chant hymns?"

 

            My esteemed colleague, Barak J. , referred to the instructive observations of Rabbi A.I. Kook on the love of mankind. Rabbi Kook indeed uttered profound words on this important theme in Judaism. In the chapter from which Barak J. quotes, he went on to say (Middot Hare'ayah, Ahavah 5):

           

            The love of mankind should be alive in the heart and soul, the love of the individual and the love of all peoples, the desire for their uplifting and their spiritual and material welfare... An internal love from the recesses of the heart and soul, to benefit all peoples, improve their possessions and render their lives blissful...

 

            Also illuminating in this context and in Judaism generally, is R. Kook's teaching on the relationship between the "natural, customary morality" of every cultured person and the moral demands of Judaism:

           

The love of mankind needs much fostering, to be expanded as befits it, against the apparent superficiality of its inadequate application in terms of the Torah and customary morality, as if there can be conflict or at least indifference regarding such love, which ought always to fill the chambers of the soul.

(Ibid., Ahavah 10; and cf. Orot HaKodesh, vol. III, p. 318.)

 

            Thus the Torah and customary morality complement and reinforce one another as a dual requirement in nurturing and educating the Jew.

           

It is forbidden that the fear of Heaven suppress the natural morality of mankind, for then the fear of Heaven is no longer pure. A sign of pure fear of Heaven is when natural morality, inherent in the very nature of man, proceeds to rise to even loftier heights than it might otherwise reach. But if fear of Heaven is portrayed in such fashion that life would have a greater tendency to do good and to benefit individuals and society without its influence, and the force of that active agent diminishes under its influence, such fear of Heaven is deficient.

(Orot HaKodesh, vol. III, Preface, paragraph 11, p. 27).

 

And further on (ibid., paragraph 16, p. 32):

 

The visible natural morality must be manifested before the substantive paths of the concealed superior morality can be revealed in the soul. Only in this manner, by establishing first the firm basic foundation, can we erect the upper structure, the summit of which is in heaven. The wider and deeper the roots of the tree spread, the fresher, stronger and more fruitful the branches, and its leaves will not wither.

 

            The demand of morality in Judaism adds to and complements the moral conduct required of civilized and enlightened society, and whoever ignores the latter is deficient in the former.

           

            11. These fundamental perceptions also determined the attitude of Jewish law to a national minority living under Jewish rule. A series of basic Jewish precepts are grounded in the Torah in the historical memory of the nation, in its suffering as a minority under the rule of others: "For you were strangers in the land of Egypt" (Exodus 23:9; Leviticus 19:30; 22:20; 29:9 and so on).

           

 Furthermore, "You shall not abhor an Egyptian, because you were a stranger in his land" (Deut. 23:8). Racism, which has brought so much suffering to mankind, even to this very day, is alien to Judaism, and has been categorically rejected by it. A foreigner who joins the Jewish people becomes one of its members, with all rights and obligations: "You shall have one statute, both for the stranger and for him that is born in the land" (Numbers 9:14); "Neither let the alien that has joined himself to the Lord say - The Lord will surely separate me from His people ... For My house shall be called a house of prayer for all peoples" (Isaiah 56: 37). This applies not only to the future but even to the past. And thus wrote Maimonides in response to R. Ovadiah Ger Tzedek (a righteous convert) (Responsa (Freiman ed.) 369):

 

            Every one who converts, down to the end of days, and every one who professes the unity of the Holy One blessed be He as written in the Torah, is a disciple of our Patriarch Abraham ... and all are members of his family... No difference at all exists between us and them in any respect. And let not your pedigree be slight in your eyes; if our pedigree relates to Abraham, Isaac and Jacob, yours relates to Him who created the world by his word.

           

            The Jewish people does not "gather souls" in order to draw members of other nations into its fold (Genesis 12:5; Maimonides, Hilkhot Melakhim 8:10). This serves to express, among other things, the protection which Judaism gives to minorities to live by their own culture and heritage. The practice, common in ancient - and in less ancient times - of a minority's assimilation and absorbtion into the majority according to the principle of cujus regio cujus religio by virtue of which many minorities were persecuted until they adopted under duress the religion of the ruling majority, was categorically rejected in the world of the halakha. For this reason, when Israel was most powerful the bet din did not accept converts throughout the times of David and Solomon. "In the time of David -in case they came out of fear, and in the time of Solomon-in case they came out of attraction to the greatness and goodness of the kingdom of Israel" (Yad, Hilkhot lssurei Bi'ah 3:15).

           

            The halakha defined a member of a national minority as possessing the status of a "resident alien" (ger toshav) and the only condition that attached to that status was observance of the seven Noachide Laws, i.e., those elementary obligations of law and order which all civilised peoples are commanded to observe, and which the scholars regarded as a kind of universal natural justice (Maimonides, Hilkhot Issurei Bi'ah 14:7; B.T. Sanhedrin 56a; Nahmanides, Commentary to Genesis 34:13; and cf. Elon, op. cit., 183 ff.). A national minority is entitled to all the civil and political rights enjoyed by other residents: "...A stranger and a sojourner shall live with you" (Leviticus 25:35); "Resident aliens are treated with courtesy and loving-kindness as an Israelite, since we are commanded to sustain their life ... and since you are commanded to sustain the life of a resident alien, he is healed gratuitously" (Yad Hilkhot Melakhim 10:12; Hilkhot Avodah Zarah 10:2). And the scholars also said (Deut. 23:17 and Tractate Gerim 3:4):

 

A resident alien shall not be settled in border districts nor in poor habitation but in a good residence in the centre of the Land of Israel where he can pursue his skills, as it is written: he shall dwell with you, in the midst of you, in the place which he shall choose within one of your gates, where it pleases him best, and you shall not oppress him.

 

          The fundamental guiding principles as regards the attitude of the Jewish State to its overall population, are the fundamental principles of the halakha in general, as pointed out by Maimonides (Yad, Hilkhot Melakhim 10:12):

         

For it is stated: The Lord is good to all and His tender mercies extend to all His works, and further: Its [the Torah's] ways are ways of pleasantness and all its paths are peace.

 

          I have cited just a small portion of the halakhic rules of government affecting minority rights in a Jewish state, and need not elaborate any further here.

         

          I shall end these observations with the inspiring words of Maimonides on the aspiration of the generations for messianic times, which "differ from present times solely in servitude to earthly governmental power" (Hilkhot Melakhim 12:2, relying on Samuel's statements in B.T. Sanhedrin 91b, 99a and elsewhere). He writes:

         

The scholars and the prophets did not yearn for messianic times that they might dominate the world or rule over the gentiles, nor to be exalted by the nations and to eat, drink and rejoice - but to be free for the study of Torah and its wisdom without oppression or disturbance - to gain everlasting life, as we explained in the laws relating to repentance. In those times there shall be neither famine nor war, neither jealousy nor strife - goodness will be abundant and all pleasant things profuse. The whole world will be preoccupied only to know the Lord. Hence Israelites will be wise and will know things that lie obscure and attain understanding of their Creator according to their human capacity, as it is written, "For the earth shall be full of knowledge of the Lord as the waters cover the sea". (Isaiah 11:9) (Maimonides, Hilkhot Melakhim, 12:45).

 

          Israel's sovereignty and Jewish government - not in order to dominate the world or rule over the gentiles, but so that Israel no longer suffer oppression, and may engage in the study of Torah and its wisdom, and the earth may be filled with knowledge. These significant words of the greatest of Jewish thinkers embody the aim and image of the Jewish State.

 

            12. 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.

 

            13. It was not, therefore, for lack of sensitivity to the gravity of the Kach list phenomenon that we refrained from endorsing its disqualification, but because the legislature has not empowered us or the Central Elections Committee to disqualify a list from participating in elections to the Knesset on ground of the content of its platform. The only exception is a list that avowedly seeks to abolish the sovereignty of the state or impair the integrity of its borders, in which case we - and any other competent state body - are bound to disqualify it, by virtue of the paramount principle "thou shalt live by them", as we explained at the outset.

 

            The consequence of not disqualifying the Kach list is difficult and saddening, considering the content of its platform, but it is right and proper not only in terms of our respect for the rule of law but also because it precludes the drawing of undesirable conclusions in such an important and complex matter. As I have already indicated, such a fateful and farreaching determination as denial of the right to be elected to the Knesset, on ideological grounds, should properly be made with the approval of a majority of the public, through the legislature, with clear limitations and definitions provided. A general legislative power that sanctions disqualification of a list because its promoters or its platform are opposed to the democratic principles on which the State of Israel rests or which are to be found in the Declaration of Independence, or any other like general and indeterminate formulation, would be so inherently uncertain and vague that this court could not exercise it in actual fact. This certainly applies to a body such as the Central Elections Committee, which is mainly composed (apart from its chairman) of members with defined political views and inclinations. Democratic principles, including those enumerated in the Declaration of Independence, are by their very nature subject to interpretation in different ways, and incorporate different, sometimes contradictory, world views and fundamental perspectives. So it is in the enlightened democracies in general, and so it is in our society in particular, where social, religious, economic and constitutional problems are legitimate subjects of controversy.

 

            Here it is appropriate to return to the Yeredor matter [1], and cite again the comments concerning the vast difference between an entity that undermines the very existence of the state, or in any event its territorial integrity, and a faction that acknowledges the existence of the state but desires to change its internal regime (at p. 372); or opposes a particular statute and seeks its repeal or amendment (at 374); or "aspires to change the governmental order, an order that is not sacrosanct, and its change not a punishable offence" (per Sussman P., at 389). These observations alone are enough to illustrate the objective as well as subjective difficulty of the court in circumscribing the permitted and the forbidden - the court having the function and authority to rule on the interpretation of a statutory enactment, its purpose and application, and not on an issue that turns entirely on world views, the recesses of the heart, and the social image of the regime. In the view of my esteemed colleague, Barak J., the existing situation is preferable to "unbalanced legislation". My view is otherwise, and in paraphrase of my esteemed colleague I would say that detailed legislation is preferable to adjudication that may well be unbalanced. Only the legislature may and can prescribe the criterion, from among the principles of democracy and the Declaration of Independence, which when disregarded justifies the disqualification of a list, and what shall be the degree of the violation and the likelihood of the danger from the violation of such principle that is required for the purpose of disqualification. Such clear determinations are the preserve of the legislature as well as its duty.

           

            That is certainly no easy task, and perhaps its difficulty accounts for the legislature's silence so far. But this task is the legislature's entirely, from which it cannot be absolved. The grave and unwelcome phenomena apparent from the appeal before us, in terms of the image and character of our state, call for the legislature to accomplish this vital task without further delay.

           

            14. In conclusion, for the reasons given above, I concur in the opinion of my esteemed colleagues that the two appeals should be allowed. The appeal of the Progressive List for Peace - because it was not proven that it seeks to liquidate the State of Israel or impair the integrity of its borders, thus leaving no occasion to apply the Yeredor ruling. And in the case of the Kach list - because it falls outside the ambit of the Yeredor ruling, since neither we nor the Central Elections Committee are empowered to disqualify it.

           

            BARAK J. 1. I have read with great interest the comprehensive and important judgment of my colleague, Shamgar P. and I concur, not only in the result reached by him, which we have already announced, but also in the main points of his reasoning. Like him, I am of the opinion that the ratio decidendi of E.A. 1/65[1] (hereinafter "the Yeredor ruling") is confined to a refusal to confirm a list that contests the very existence of the State and wishes to annihilate it. The application of this test was not argued at all with respect to the Kach list, and it was argued but not proven with respect to the Progressive List for Peace. In this matter I believe that the burden of proof lies with the party arguing for the refusal of a list's confirmation, and that it must be discharged by competent "administrative evidence", that is, "such testimony as any reasonable person would consider to be of probative value and upon which he would rely to a greater or lesser degree" (per Agranat P. in H.C. 442/71[13], at 357; H.C. 297/ 82[20], at 37). If I nevertheless choose to add some reflections of my own, it is to elucidate my position on the question whether the Yeredor ruling should be extended and applied also to a case in which the election platform of the list rejects, not the very existence of the state, but its democratic character. Such elucidation would have been relatively simple had I been of the opinion, held by Cohn J. in Yeredor and by Ben-Porat D.P. in the present matter, that the Elections Committee does not have any authority to refuse to confirm a list on grounds of the content of its election platform. That is not my view. I am of the opinion, as was the majority view in the Yeredor case, that the Elections Committee is authorized to refuse confirmation of a list by reason of the content of its platform. Moreover, I am of the opinion that for our present purpose one should not distinguish between a platform that negates the existence of the state and a platform that recognises the existence of the state but disavows its democratic character. At the same time, however, my approach is that the Committee should exercise this authority - with respect to both a platform that rejects the existence of the state and one that rejects its democratic character - only where there is a reasonable possibility that these ideas will be realized. Since such a possibility was by no means established in the present matter, I formed the opinion that there was no ground for refusing to confirm the participation of the Kach list in the elections. My approach thus differs from both the majority and the minority approaches in the Yeredor case. Unlike the majority, I do not believe that it is sufficient for the list to reject the existence of the state in order not to confirm its participation in the elections. Unlike the minority, I do not believe that the Elections Committee has no authority at all to refuse confirmation of a list whose platform rejects the existence of the state. As already indicated, my opinion is that the authority of non-confirmation exists with respect to both a platform that rejects the existence of the state and one that rejects its democratic character; but the exercise of such authority in both cases must be on ground of a reasonable possibility that the "threat"' will be translated into practise. It appears to me that my approach is very similar to that of my colleague, the President, who also stresses a number of times that the authority might inhere in special circumstances where there is a substantial probability that the exercise of a fundamental civil right will cause harm that is sought to be prevented. Yet my colleague is not prepared to follow my approach entirely, so that I find it necessary to set forth my reasoning. I shall begin with an analysis of the ruling in Yeredor [1], with an examination of the law as regards an election list that negates the existence of the state, and thereafter proceed to examine the issue before us of a list that negates the democratic character of the state.

 

            The "Yeredor" Rule: Negating the Existence of the State

           

            2. As we have seen, the question in Yeredor [1] was whether the Elections Committee may competently refuse to confirm a list for participation in the elections if it negates the very existence of the state. On this matter opinions were divided. The dissenting judge, Cohn J., was of the opinion that the Elections Committee is not vested with such authority. It appears that even those who question the correctness of this position do not deny the legitimacy of Cohn J.'s approach. It is well founded on accepted legal arguments in our "interpretative community". It relies, on the one hand, on the legislator's silence and, on the other hand, on a reluctance to read into the law a broad authority which would contradict fundamental principles of our system as regards the citizen's basic right to express himself and to vote. Arguments of this kind are often reflected in this court's rulings, they have significant force and power (see, e.g. , H.C. 337/ 81[5]), and I myself have recourse to them and accept their validity. But the approach of Cohn J. is not the only possible one. That of the majority judges - Agranat P. and Sussman J. - and of Justice Landau when heading the Elections Committee, is likewise well-founded in accepted legal arguments in our "interpretative community". According to this approach, the Knesset Elections Law [Consolidated Version], 1969 (hereinafter - "the Elections Law") established the Elections Committee and granted it powers to refuse to confirm a list on certain grounds. These grounds can be supplemented, by way of interpretation, which addition is required by the basic principles of our system - principles which serve in the interpretation of statutes. Where the legislature provides that a list "shall be confirmed by the Central Committee" (section 63 of the Elections Law), the court, in applying the interpretative rules of its system, may determine that it is dealing with a directive which confers authority, and despite the mandatory language used, the Elections Committee must necessarily be conceded a discretionary power in order that the fundamental principles of our system be realized. It is true that the linguistic foundation for this interpretative result is weak, but it is decreed by the very fact that we are dealing with the interpretation of a basic constitutional provision. Such basic provisions should be construed according to a "spacious view" - in the words of Frankfurter J. in Youngstown Sheet & Tube Co. v. Sawyer [59], quoted by Agranat D.P. in F.H. 13/60[33] at 442 - and on the understanding that we are dealing with a provision that determines a way of life. The interpretation of an ordinary legislative provision is not the same as that of a fundamental constitutional provision. Familiar to us is the statement made by Justice Marshall, upon fashioning the American constitutional perspective, that when interpreting the constitution it should always be borne in mind that it is not an ordinary document - "it is a constitution we are expounding" (M'Culloch v. Maryland [60]). We are concerned with a human endeavour that must adapt itself to a changing reality. We have said that an ordinary statute is not a [linguistic] fortress to be conquered with the help of a dictionary but rather the cloak of a living legislative idea (Cr.A. 787/79[34], at 427); this approach should guide us a fortiori in interpreting provisions of a constitutional character. In the well-known words of Holmes J. (Gompers v. U.S. [61]):

 

            The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions... Their significance is vital not formal; it is to be gathered not simply by taking the words and dictionary, but by considering their origin and the line of their growth.

           

            We may, therefore, construe the wording of a basic constitutional provision that determines a mandatory duty, in a manner that gives discretion to the authorized person - if such discretion is essential to realising the fundamental principles of the system. The American courts faced a similar problem in interpreting the First Amendment to the Constitution which states in unequivocal language that "Congress shall make no law...abridging the freedom of speech, or of the press." The Supreme Court did not hesitate to hold, in a long line of precedents, that despite the unequivocal language which denies Congress any discretion in the matter, it does have authority to limit freedom of speech and the press in certain cases. (See Lahav and Kretzmer, "The Charter of Civil Rights in Israel: Constitutional Gain or Illusion", 7 Mishpatim 154 (1976).) Indeed, our own Supreme Court has often taken this very approach that narrows or broadens the statutory language so as to realize the fundamental principles of our legal system (Cr. A. 696/81[35] at 574). For a legislative enactment in general, and a fundamental statutory provision in particular, is not a one-time act isolated from the general way of life. The statute gains substance within the framework of a given political and legal system. It constitutes one brick in a whole structure built on the given foundations of that regime and law, which constitute the "primary concepts of that society" (H.C. 163/57[36] at 1051). When a statute provides that a certain person shall decide every dispute, it is clear that he is not obliged to hear a dispute in which he has a personal interest. We interpret the general mandatory language against the background of our constitutional regime and the principles of equality, justice, fairness and morality in our system. Their application narrows the scope of the general language, or expands that of specific language, and this can transform discretionary authority into mandatory authority, and mandatory authority into discretionary authority. "The law of the people", said Agranat P. "must be deduced in the context of its national way of life" (H.C. 73/53[26] at 884). Therefore, every law must be interpreted in the light of the Declaration of Independence, which expresses "the vision and credo of the people" (Smoira P. in H.C. 10/48[37] at 89). Justice H. Cohn himself said in similar vein:

 

When we talk of an enlightened democratic legislature, guided by good practices, lofty principles and concepts of justice, not only are we not allowed to assume that it has abolished them, but its enactments must be faithfully interpreted on the assumption that any law passed by it has been adapted to the framework of the existing "law', in all its multiple and varied components.

(Cohn, "Faithful Interpretation in Three Senses", 7 Mishpatim 5, 6).

 

            According to this approach, the majority position in Yeredor [1] is founded on a firm interpretative base. The existence of the state, its "continuity and perpetuity" - in the words of Agranat P. in Yeredor - is certainly a fundamental principle of our legal system (cf. Pound, "A Survey of Social Interests", 57 Harv.L.Rev. 1). The Elections Law should be interpreted in light of this principle, by virtue of which the authority of the Elections Committee may be expanded so as to allow it not to confirm the participation in elections of a list that rejects the very existence of the state and aspires to its annihilation.

           

            3. It appears, therefore, that both the majority and the minority opinions in Yeredor are possible from an interpretative point of view. Thus we face a real dilemma in which the judge must exercise the "sovereign prerogative of choice" (see Holmes, Collected Legal Papers (1952) 239). How is this choice to be made? It seems to me that the key lies in the fundamental principles of the system, which both the majority and the minority relied upon. The majority put its trust in the principle of the state's continuity and perpetuity; the minority in the principle of the citizen's freedom to vote and be elected. It appears to me that the correct course of interpretation must take into account all principles, those relied upon by the proponents of both views. Indeed, I believe that the interpreter-judge should not adopt a particular fundamental principle and neglect another. The judge should have recourse to all the fundamental principles and not choose only those that commend themselves to him as proper.

           

            4. One might ask: how can one take into account all the fundamental principles when some of them lead to a narrow interpretation that denies the Committee's authority (as in the minority opinion) whereas others lead to a broad interpretation that extends authority to the Committee (as in the majority opinion)? What should a judge do when the fundamental principles are contradictory and lead to different constructions in a given situation? This is not a new phenomenon, nor is it peculiar to the case before us. The judge often encounters fundamental values that contradict one another. It is not unusual to find one principle in conflict with another and a thesis opposed by its antithesis. Justice Cardozo commented:

 

Again the task of judging is found to be a choice between antithetical extremes. We seem to see the working of an Hegelian philosophy of history whereby the tendency of every principle is to create its own antithesis or rival.

(Cardozo, Paradoxes of Legal Science, (1928) 62).

 

            Indeed, the basic tenets of the system often march in pairs, each having its own direction. (See Dickinson, "The Law Behind the Law", 20 Col.L.Rev. 113,123.) The decisions of the Supreme Court bear testimony to this phenomenon. Thus, for instance, the principle of state security, public order and public security competes with those of freedom of expression (H.C. 73/53[26]), freedom of procession (H.C. 153/83[25]), freedom of religious worship (H.C. 292/83[24]) and freedom of information (H.C. 243/62[38]). The principles of judicial integrity (Cr.A. 696/81[35]) and a person's good reputation (F.H. 9/77[21]) conflict on occasion with the principle of freedom of expression.

           

            5. When the judge encounters fundamental principles of his system that contradict each other - for instance, the preservation of the state and the freedom of expression and the vote - he must take them all into account. The judge must place the principles alongside each other and give each its proper weight and, having done so, he must strike a balance between the various principles. In the words of Justice Frankfurter:

           

The core of the difficulty is that there is hardly a question of any real difficulty before the Court that does not entail more than one so-called principle... Judges cannot leave such contradiction between two conflicting "truths" as "part of the mystery of things". They have to adjudicate. If the conflict cannot be resolved, the task of the Court is to arrive at an accommodation of the contending claims. This is the core of the difficulties and misunderstandings about the judicial process. This, for any conscientious judge, is the agony of his duty.

(F. Frankfurter, Of Law and Man (New York, 1956) 31,43).

 

            The judges of Israel also face this unavoidable task. This is a process in which "we weigh various competing interests in the balance and, after reflection, select those which, in the circumstances, predominate" (Agranat P. in H.C. 73/53[26], at 879), and which constitutes "the interpretative starting point" (Shamgar P. in F.H. 9/77[21], at 361). This was the approach of the Supreme Court in the Kol Ha'am case [26], where the court held that the authority of the Minister of the Interior must be exercised with a proper regard for the objectives of freedom of expression, on the one hand, and public security, on the other. In reaching that conclusion the court did not adopt the one principle and reject the other, but balanced the two. Taking a similar approach in the matter of a Police District Commander's authority as regards the holding of demonstrations, this court noted (H.C. 153/83[25], at 401) that such balancing requires -

 

          ... a judicial determination - in the absence of statutory guidance - as to the relative grading of the different interests, which will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to which interest shall defer to the other. Thus a judicial pronouncement has to be made with respect to the "limits of sufferance" of the various rights.

         

          It follows that where fundamental values of the system incline in conflicting directions, the court must take them all into account. It must allow the different values to vie with each other, and balance them in accord with their weight and force at the point of friction. Holmes J. said in this respect (op cit., p. 181):

         

          Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.

         

          6. This same approach, requiring the balancing of competing values, should be adopted also where the platform of a list seeking to participate in the elections, negates the very existence of the state. It appears to me that a judge construing the Elections Law may not ignore the fundamental principles referred to by Cohn J. in the Yeredor case. He must take into account the citizen's fundamental right to elect and be elected. My colleague, Shamgar P., noted justly that "the right to participate in elections is a fundamental political right that gives expression to the idea of equality, to the freedom of expression and to the freedom of association" and, hence, "is one of the hallmarks of a democratic society". These principles must be considered in the interpretation of every legislative enactment, including the Elections Law. But, by the same token, it is impossible to ignore the fundamental principles referred to by Justice Landau (in the Elections Committee) and by Agranat P. and Sussman J. in the Yeredor case. It is inconceivable that we should interpret a statute without taking into account the principle that "the State of Israel is an existent state whose continuity and perpetuity is not to be questioned" (Yeredor, at 386). A constitution is not a prescription for suicide, and civil rights are not a stage for national extinction (cf. Jackson J. in Terminiello v. Chicago [62], at 37). The laws of a nation should be interpreted on the assumption that it wishes to continue existing. Civil rights are nourished by the existence of the state and ought not become a tool for its annihilation. Therefore, judicial interpretation has no alternative but to seek a proper balance between the competing values of the continued existence of the state, on the one hand, and freedom of expression and election, on the other. Frankfurter J. commented thus on the matter (Dennis v. U.S. [54], at 524):

 

       The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved.

      

       7. How is the balancing of values, as they compete for primacy in the Yeredor case, to be accomplished? The interest in the state's existence and the interest in the right to vote are not equal. The first clearly precedes the second, since it is a condition for the existence of the second (cf. F.H. 9/77[21]). This court likewise held with respect to conflict between the principle of state security and the public peace, and that of freedom of expression (H.C. 73/53[26]), freedom of demonstration (H.C. 153/83[25]) and freedom of worship (H.C. 292/83[24]). Certainly the same approach should be taken where the very existence of the state is in the balance. It follows that we are concerned with achieving a balance that requires a judicial determination as to the probability that realization of the right to vote will prejudice the interest of the state's continued existence. What, then, is the criterion for weighing the probability of prejudice to the state's existence that would justify a denial of the right to vote? Of course, there is no answer to this question in the Elections Law, and the Supreme Court must provide it. The Supreme Court has faced such questions in related issues. Thus, for example, where the conflicting interests were state security and the freedom of expression, the Supreme Court adopted the test of "probable" danger, while rejecting the known American formula of a "clear and present danger" (H. C. 73/53[26]). The same "probability" test was applied with regard to a conflict between the principle of the public peace and that of the freedom of demonstration, worship and information (H.C. 243/82[38]). However, where the conflict was between the principle of free speech and that of judicial integrity, the court used the standard of a "reasonable possibility" (Cr.A. 696/81[35]), following Cr.A. 126/62[39]. Indeed, when adopting the standard of probability one should not follow a general, universal criterion, since it depends on the force of the different values that come into conflict within a given legal context (H.C. 153/83[25], at 403). The question always is whether the measure of harm, weighed against the possibility that it may not actually occur, justifies violation of a civil right so as to prevent the danger (see Hand J. in U.S. v. Dennis [63]). Professor Schauer remarks in this connection:

      

       Evaluation of the interest in national security requires a determination of the extent of the harm should the argued effect actually occur, the probability of that effect occurring and the immediacy of the effect. The more serious the effect, the less certain and less immediate that effect need be.

            (Schauer, Free Speech: A Philosophical Enquiry (1982) 199).

           

            According to this approach it is clear that when the interest is that of the state's existence, the damage that may occur is so great that there is no need to require the existence of a clear and present danger or a substantial probability of danger. Furthermore, these formulae are appropriate in cases of concrete, specific and special dangers related to defined events. It is not possible to apply them when dealing with social phenomena that are part of a continuing process. Indeed, the matter calls for wide margins of security, because no unnecessary risks can be taken, and once a list has been confirmed the Elections Committee cannot, at a later stage after the elections, retract its decision. Nonetheless, the principle of freedom of expression and the right to elect and to be elected are precious values, and we should not, therefore, accept a test of probability for which a mere remote danger suffices. It appears to me that the proper balance will be found in a test of "reasonable probability", to which this Court has had recourse in the past (cf. Cr.A. 696/81[35], following Cr.A. 126/62[39]). Certainly, this test "does not constitute a precise formula that can be easily or certainly adapted to every single case" (Agranat P. in Kol-Ha'am [26], at 888). On the contrary - this is a difficult formula that leaves broad margins of uncertainty, but in the absence of a legislative formula it commends itself to me as the most appropriate one.

           

            8. It follows that I find myself taking a position that is not identical with either the majority or the minority opinion in Yeredor. Like the majority view, I too hold that the Elections Committee may refuse to confirm a list for participation in the elections, if its platform negates the existence of the state. However, I do not rest content with the list's "bad tendency" - in the words of Agranat P. in Kol Ha'am [36] - but would require a reasonable possibility that the list's platform will actually be realised. (For a similar approach, see Lahav, "On the Freedom of Expression in the Supreme Court Precedents", 7 "Mishaptim 375 (1976) at 416.) I regret that this requirement was not specified in the Yeredor case. Had the majority adopted that requirement, it might still have reached its same disqualificatory conclusion, since the case involved an organisation which the Minister of Defence had seen fit to declare illegal, which had acted as an arm of terrorist organisations existing in neighbouring Arab states, and which posed a general threat to the state with perhaps a real possibility of endangering its very existence. It is interesting to note the reference made by the minority judge to this aspect (Yeredor [1], at 381):

           

            Moreover, even where the law expressly authorised the denial of a certain civil right - which right was a fundamental civil right, such as freedom of opinion and speech - this court refused to support the exercise of that legal power where the denial was not necessary to prevent a present, clear and substantial danger (H.C. 73/53 - Kol Ha'am). I fail to discern the substantial, clear or immediate danger to the State, its institutions or its rights, in the participation of this candidates list in the Knesset elections. And if one wishes to argue that this danger is concealed from the courts and known only to the security agencies of the Government, I would reply that the material before the Central Elections Committee, which was also submitted to us, does not justify and certainly does not compel a finding that such danger exists. Indeed, the attention of the Committee members was not drawn to any substantial danger supposedly imminent. In the absence of as a sanction for past conduct and opinions; and the Central Elections Committee is certainly not authorised to impose a sanction like that.

           

            Can one assume that if a substantial danger had been proven, Cohn J. too, would have been prepared to take it into account? Should one not hold that the minority judge also would not have accepted the Elections Law as a prescription for national suicide? Still, it should be noted that the above remarks of Cohn J. were obiter dicta, and his main approach was that the Committee had no authority to deny a list's participation on grounds of its platform. I cannot agree with that approach, for if there is proved to be a reasonable possibility that the platform negating the state's existence might be realised, the Elections Committee certainly has the authority, even the duty, to disqualify the list from participating in the elections.

           

            9. Thus far I have not discussed the fact that the authority of disqualification - according to my interpretation, upon a "reasonable possibility" test - is vested in the Elections Committee, which is a body representing mainly political interests. It has occurred to me that this political composition may be indicative of the legislature's disinclination to rest the Committee's vested authority to decide upon a list's participation in the elections, on a party-platform test. Indeed, this is an important argument for, in principle, I believe that a body's authority can be inferred from its structure and composition (cf. J. Stone, Social Dimensions of Law and Justice (1966) 674). Nevertheless, it appears to me that this argument should be treated as part of a structural whole, and not as conclusive in itself. Thus, for example, in municipal elections the like authority is given to an elections officer who is an administrative functionary, and it cannot conceivably be argued that a different law applies there for that reason. Therefore one ought not deduce from the composition of the Elections Committee a decisive conclusion that, in the instant situation, would preclude application of the fundamental principles of our system and their internal balance. My colleague, Miriam Ben Porat D.P., has emphasized the fact that once the Elections Committee decides to confirm a list's participation in the elections, there is no appeal to the Supreme Court (H. C. 344/81[27]). According to her approach, this indicates that the Elections Committee is not authorized to weigh considerations affecting the state's existence, since she holds that it is inconceivable for the legislature to vest such power, without any possibility of an appeal or challenge, in the hands of a political committee. Although I share this approach in principle, I do not believe that it is decisive in the present matter for several reasons. Firstly, the Elections Committee is presumed to weigh material considerations with respect to both confirmation and non confirmation of a list. Secondly, it is necessary in every system to determine who shall have standing to apply to the court for a list's disqualification; in general, this power is given to political functionaries. From this point of view one can regard the Elections Committee as a preliminary obstacle to approaching the court. Finally, in the unusual event that the Elections Committee confirms a list which poses a reasonable possibility and, perhaps, even a certainty of danger to the very existence of the state, the Knesset always retains the power to prevent that disastrous consequence by legislative means.

 

Negation of the Democratic Character of the State

 

            10. So far I have examined the Election Committee's authority to withhold the right of participation in elections from a list that negates the very existence of the state. What is the Committee's authority as regards a list that acknowledges the state's existence but disavows its democratic character? In my opinion, here too we should adopt a like method of analysis. It appears to me that just as the existence of the state is a fundamental tenet in our legal system, so is its existence as a democratic state. The Declaration of Independence - in the light of which our legislation is construed - indicates that Israel rests "upon foundations of liberty, justice and peace as envisioned by the Prophets of Israel" and that it will ensure "complete equality of social and political rights for all its citizens, without distinction of creed, race and sex". All this presupposes not only the actual existence of the state but also its democratic essence, for it is impossible to ensure equality, liberty and justice without maintaining a democratic regime under which these principles will be realized. "The system of laws under which the political institutions in Israel have been established and function are witness to the fact that this is indeed a state founded on democracy" (Agranat P. in Kol Ha'am [26], at 884). Indeed, the distinction between questions pertaining to the state's existence and those touching upon its democratic nature, is at times difficult and complex. Can we not say, with a large measure of justice, that sometimes a danger to the existence of our democratic regime endangers also our existence, for our strength is in our regime? Can we not say that our democracy, our equality and our fundamental values are our strongest forces? Is it at all possible to distinguish questions about the state's existence from those about the essence of its democratic regime? Would the State of Israel without the Declaration of Independence be the same State of Israel? Is there any essential difference between denying the state's right of existence and recognising its continued existence under the flag of the Palestine Liberation Organisation?

           

            11. It appears to me, therefore, that just as we must interpret the Elections Law on the basis of a proper balance between the principle of the state's existence and that of the freedom to elect and be elected, so too we must interpret the Elections Law on the basis of a proper balance between the principle of the state's democratic regime and that of the freedom of election. In its interpretation the court may not consider merely the principle of the state's democratic character, thereby ignoring the important fundamental principle of the freedom to elect and be elected. But, likewise, the court may not take into account only the principle of the freedom to elect and be elected, while ignoring the framework of the regime and the law under which that right is exercised, i.e our own democratic regime. As in the Yeredor case [1], so in the matter before us, there is no avoiding a proper balance between the competing values. As with the threat to the very existence of the state, so with the threat to its democratic character, the balance finds expression in the formulation of a proper standard to determine the likelihood of realisation of the danger. As we have seen, that standard is shaped by the extent of the anticipated damage and the chance that it may not come about. It appears to me that in this connection too we should adopt the standard of reasonable possibility, and not probability, because of the supreme importance of the interest in the state's democratic character. Furthermore, as we have seen, the probability test is appropriate in the context of a concrete, defined event, and inappropriate in the context of an overall social framework (see O. Kirchheimer, Political Justice (Princeton, 1961) 140). As with the issue of the state's existence, so here we should maintain broad margins of safety. Still, to meet this standard of reasonable possibility, a "bad tendency" alone will not suffice, and it requires substantial proof of a reasonable possibility that the anticipated danger will actually come about. It follows from what we said above, that the same standard of "reasonable possibility" can be applied to the threat both to the state's existence and to its democratic character. It should not be inferred that these two values are thus seen to be on the same level. The difference between the two will find expression in the different balances that are called for when applying the "reasonable possibility" standard (see C.A. Auerbach, "The Communist Control Act of 1954: A Proposed Legal-Political Theory of Free Speech" 23 U. Chicago L.R. 173 (1956)).

           

            12. The import of the balancing process is no more than to convey that the right to vote, like the rights of expression, procession, information, assembly, and all other "political rights" are not absolute but relative rights (H.C. 148/79[40]). It was so noted by Justice Brandeis in Whitney v. California ([59], at 373):

           

            Although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral.

           

            The same applies to the right to elect and be elected. This right too is one of the citizen's fundamental rights (Reynolds v. Sims [64]), but it is not an absolute right, only a relative one. It can be restricted if there is a reasonable possibility that its exercise will deprive the state of its democratic character. Thus a delicate balance is attained between principles and values that mark democracy. On the one hand, the fundamental right to political expression is not to be denied merely because of the nature of the political view. Quite the contrary, the power of democracy lies in the freedom it allows to express opinions, however offensive to others. On the other hand, democracy is allowed to protect itself, and it need not commit suicide so as to prove its vitality.

           

Reasonable Possibility

 

            13. What is a "reasonable possibility" of injury to the existence of the state or its democratic character? The answer to this question is not at all simple since it requires examination on the particulars required to be taken into account. It appears to me that one should not take into account only the possibility of a change by parliamentary means, through a majority vote in the Knesset. I believe the scope of the examination should be widened to take into account all the social possibilities. The parliamentary test frequently constitutes but a last formal stage in a social system, in which the legitimate activity of a list that rejects the very existence of the state or its democratic character, could injure the social fabric. It appears to me that all these should be taken into account. The danger of a vote in the Knesset is no greater than a danger that the lawful activity of a list which rejects the state, or democracy, might reinforce phenomena that impair the legitimacy of the state, or democracy itself, in the eyes of the public. The reasonable possibility test should encompass the entire social scene, in all its various aspects. It should analyse social processes in the course of which a marginal entity that disavows the state or democracy might gradually accumulate strength until reaching the stage where it constitutes a danger to the existence of the state or its democratic regime. Kirchheimer remarks in this connection (op. cit., 137):

           

            He must consider past experience, future expectations, the ends pursued and the means applied by the revolutionary group, the doctrine it subscribes to, and the relation, if any, between doctrine and action patterns.

           

            The test indeed imposes a difficult task on the Elections Committee and on the Supreme Court. They must examine not only past events, but also the probability of potential future events. This examination amounts to a "prophecy...in the guise of a legal decision" in the words of Jackson J. in the Dennis case ([54] at 570). But this is a task to which a political body is accustomed, and it is not alien even to a legal proceeding which often calls for a decision founded on the examination of social processes.

  

                      14. In determining the reasonableness of the possibility that explicit or implicit ideas of a list will be translated into practice, one must consider the various means that may be adopted so as to mitigate the risk, short of actual denial of the right of election. In fact, the drastic measure of withholding the right to participate in elections should not be taken unless the alternative means are insufficient adequately to reduce the danger to the state or its democratic regime. In this respect two important points should be made. First, one should consider whether methods of persuasion, explanation and education would not act to mitigate the danger. Often the soft face of education towards democracy and its values is preferable to the stiff hand of governmental intervention. These words of Justice Brandeis, quoted by my colleague, Shamgar P., are well-known (Whitney v. California [58], at 377):

         

          If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.

         

          Second, there is room to consider other governmental measures that fall short of actually barring the list from participation in the elections. Thus, for example, activity against the state and its regime might constitute a criminal offence, and those associating together might constitute an illegal association under the Defence (Emergency) Regulations, 1945. Often the danger to the state and its democratic foundations can be reduced by punitive means - which might also entail the withdrawal of immunity from a Knesset member involved in criminal activity - before using the sharp measure of depriving the list of its right to participate in the elections.

         

          From the general to the particular

15. In the instant matter we have examined the platform of the Progressive List for Peace but have not found in it any indication, explicit or implicit, of a desire to bring about the annihilation of the state or to impair its democratic character. That being the case, the appeal must be admitted without any need to apply the test of a reasonable possibility. Not so with respect to the Kach list. Here the Elections Committee studied the Kach list and its publications, concluding that this material showed the list "propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel". On the basis of this finding the list was denied participation in the elections. In so doing the Committee erred, for the platform alone is not sufficient, and the Elections Committee must consider whether the list poses a reasonable possibility of harm to the democratic character of the state. Words, opinions and views are not sufficient. There must be evidence of the existence of a reasonable possibility of activities that endanger the democratic character of the state. For this purpose one may take into account the past conduct of the faction, its members and its leaders, and the future dangers they hold out. No evidence was brought in this respect, nor was any attempt made to do so. True, there was much evidence before the Committee that the platform of the Kach list impairs the democratic character of the State. There was even evidence that it seriously intends to realise its objectives and does not renounce them. Indeed, the evidence shows that it has engaged in several overt acts to realise its platform. Thus, for example, the head of the list and one of its members were taken into "administrative detention" under the Emergency Powers (Detention) Law, 1979, on the basis of information that they were planning attacks against Arabs. That detention was confirmed by the President of the District Court, and an appeal against his decision was dismissed by the Supreme Court which found that the activity of the two constituted a danger to national security (A.D.A. 1/80[41]). So too, a number of the list's activists were convicted in the Magistrate's Court of improper conduct in a public place (Cr. F. 135/82, not published). But all this is not enough. The question is not whether the list is serious in its designs, but whether there is a serious possibility that its purposes will be accomplished. The question does not, therefore, concern the list internally, rather the list in relation to the state. The question is whether the possibility that the platform of the list will be realised, is a reasonable one, or whether such a possibility is most remote. In my opinion there was no evidence before the Committee of any such reasonable possibility. On the contrary: the administrative detention and the criminal trial that were brought to the Committee's attention reinforce the possibility that there are accepted means of defence at democracy's disposal, and there is no need, as yet, to adopt the drastic measure of denying the right to be elected. Indeed, neither the Committee nor this court was confronted with any factual data on which to base a finding that the list creates a possible danger to democracy in Israel. There was no fact from which to conclude that the Israeli democracy had lost, or that there was a reasonable possibility it would lose, its capacity to defend itself against this list - whether by educational or governmental measures. In the main, all that was proven was "bad tendency" - in the words of Agranat P. in the Kol Ha'am case [26] - and attempts to translate it into practice. That alone will not suffice. In these circumstances there was no justification for depriving the list of its right to take part in the elections. Note! I have no doubt that the ideas of Kach are racist and that its principles violate the fundamental doctrines on which the democratic regime of the state is founded. I am also convinced that they contradict the spirit and essence of Judaism, in all its various forms. In the words of Maimonides (Yad, Hilkhot Sanhedrin 12:3):

 

            For this reason, but a single man was created, to teach us that if any man destroys a single life in the world, Scripture imputes to him as though he had destroyed the whole world; and if any man preserves one life, Scripture ascribes it to him as though he had preserved the whole world. Furthermore, all human beings are fashioned after the pattern of the first man, yet no two faces are exactly alike. Therefore, every man may well say, "For my sake the world was created".

                     

The same approach is echoed by Rabbi Avraham Yitzhak Kook:

 

The most supreme value in the love of living creatures should be taken to be the love of man, which extends to all mankind. Despite differences of opinion among religions and faiths, and despite differences of race and geographic location, it is proper to understand the various nations and groups, to attempt to learn their nature and characteristics, in order to base love of humanity on foundations close to reality. For only on a soul rich in the love of living creatures and love of man can the love of the nation rise in its exalted nobility and its practical and spiritual greatness. And narrow mindedness, which sees only ugliness and impurity in all that is beyond the boundary of the particular nation, and beyond the border also of Israel, is one of the more terrible darknesses causing general destruction to all good spiritual edifices that guide by their light every gentle soul.

(See Z. Yaron, Teachings of Rabbi Kook (W.Z.O. Publications, 1973/4), 304.)

 

            If we have decided to sanction the list's participation in the elections, it is not because we accept any particular item in its platform. On the contrary, we have held, and reiterate once more, that its approach contradicts our fundamental conception and the general and Jewish values upon which our national edifice is being constructed. But so long as it has not been proven to the satisfaction of the Elections Committee, and to this court, that the list creates a reasonable possibility of danger to the existence of the state or its democratic character, there is no alternative but to allow it to participate in the elections.

           

From the Particular to the General

 

            16. I have accordingly reached the conclusion that under our existing law, the Elections Committee may refuse to confirm the participation in elections of lists that negate the existence of the state or its democratic character. However, that authority may not be exercised except where the Elections Committee is persuaded by the evidence before it that participation of the list in the elections raises a reasonable possibility of danger to the existence of the state or its democratic character. This approach stems entirely from the creative sources of the judicial process. This process is creative, but constrained within limits. The judge is not as free as the legislature. Therefore, I did not consider myself free to ignore the various principles, values and interests that compete for precedence, and I considered myself obliged to balance them in accord with a standard suited to the nature of the problem. It follows that my examination is interpretative. It seeks to exhaust the statutory language and has recourse to "supra-norms" with respect to the existence of the state, as an interpretative guideline. The same approach was taken by Justice Landau in the Central Elections Committee, in connection with the Yeredor matter. He said:

           

As chairman of the forum of first instance, the Central Elections Committee, I focused my statements on an interpretation of the statute - albeit a broad interpretation, so as to prevent undermining of the constitutional foundations of our regime and of the very existence of the state itself. I believe that this is also the line of reasoning taken by Agranat P. I do not think that the criticism of this approach is justified. We never entertained any doubt as to the sovereignty of the legislature, from whose word the judge may not depart, and which can change any ruling of the court. In lofty matters such as these, it may be presumed that the legislature will address the issue despite its many other occupations. But it is also clear that the court may exercise its discretion in interpreting the legislative word and, with respect to legislation of constitutional significance, that interpretation must derive inspiration from the fundamental notions upon which our constitutional regime is founded.

(M. Landau, "Ruling and Discretion in the Administration of Law", 1 Mishpasim 292 (1969), at 306.)

 

          That is my opinion as well. We are dealing with the interpretation of a legislative text through recourse to the ordinary rules of interpretation. One of those rules is that the statutory language should be interpreted in light of the accepted fundamental values of our legal system (Cr. A. 696/81[35], at 574; C.A. [42]), one of which - among the more important of them, but not the only one - is the principle of maintaining the state's existence. This interpretative approach exhausts the judicial process and lies at its core. It follows from the doctrine of the separation of powers and is consistent with our conception of the democratic state. My colleague, Elon J., is of the opinion that this interpretative approach entails a denial of the Elections Committee's authority. If that is the case, whence the judge's power to contradict the word of the legislature? Let us suppose an express statutory provision that the Elections Committee may refuse (to), or shall not, disqualify a list that negates the very existence of the state. Would Justice Elon still persist in holding that the Elections Committee must prohibit the list's participation in the elections? In my opinion, that result indeed follows from his approach. But how can it be reconciled with the approach of my colleagues - to which I too subscribe - that the judge may not raise himself above the legislature, and that the rule of law, not the rule of the judge, governs our regime? Indeed the "extra-interpretative" approach is not new, and it has been referred to in the past. (See, e.g., Guberman, "Israel's Supra-Constitution", 2 Israel L R 455 (1967).) In this respect I need only adopt again the comment of Landau J. with reference to the Yeredor case, made in his above mentioned article (at p. 306):

         

That decision has evoked criticism. It is said that the court exceeded its authority, thus violating the principle of the rule of law. In my opinion, that is too mechanistic a view of the court's role in interpreting the law. I agree with the statements of Dr. Rubinstein in his article "The Rule of Law: The Formal and the Substantive Perspective":

 

The rule of law is meaningless without basic premises that stand above the positive system of law...The role of the jurist, who has the knowledge and training for this purpose, is to apply the meta-legal principle and to effectuate it through the deductive methods offered him by the juridical technique.

 

That is the role of judicial discretion in the interpretation of the law, so as to bring it into harmony with the foundations of the existing constitutional regime in the state. We know too that the boundaries between the interpretation of statutes and their supplementation where needed, are not defined, and that there are borderline areas. The leading decisions given in this spirit in the first twenty years of the state's existence - and their number is significant - have given our constitutional regime its special character, no less than the legislative enactments of the Knesset. This line of thought is the principal heritage to come down to us from the world of the Common Law, and it links our legal system to that world.

 

            Indeed, my approach in the instant case is based not on "supernorms", raised above the law, but on "supreme principles" that pervade the law and emerge from it. My approach posits no "supra-constitutional" "natural law" that overrides the statutory law. It is a positivist "intraconstitutional" approach, which examines the nature of the law and interprets it according to accepted interpretative criteria. The law, in the words of Sussman P. (H.C. 58/68[43], at 513) is "a creature that thrives in its environment", which environment includes not only the immediate legislative context but also broader circles of accepted principles, fundamental purposes and basic standards that comprise a kind of "normative umbrella" encompassing the entire field of the statutory law (C.A. 165/82[42]). In this manner the judge fulfills his proper role and does not trespass upon the domain of the legislature.

           

            17. I would note, nevertheless, that even were I to resort to such "supra" principles, I would reach the same conclusion. The supra-constitutional rule relied upon by Sussman J. "is actually, so far as concerns the instant matter, no more than the right of self-defence of a society organised within a state" (Yeredor [1], 390.) But when, and in what circumstances, is this rule to be applied? Is a remote fear of a theoretical danger a sufficient ground for applying these principles? The answer appears to be that even with the application of a "supra" principle one must determine a ratio of probability between the danger and its avoidance. Indeed, even the supra-constitutional rule is a legal rule, and as such it too requires interpretation. It appears to me, therefore, that if I were to have recourse to it, I would hold that the supra-constitutional principle may be applied only in the case of a reasonable possibility that the danger will be realised. It follows that I would reach the very same conclusion as I did through interpretation of the Elections Law itself.

 

            18. From the aspect of the general constitutional structure, it is desirable that this question of barring a list from participation in the elections, on grounds relating to the content of its platform, be regulated by legislation and not be left open to judicial interpretation. In this respect I am in agreement with my colleague, Deputy President Miriam Ben-Porat. But the main problem is the substance of that legislation. In my opinion the present situation is preferable to legislation lacking a proper balance, from which might result damage to democracy outweighing any benefit to the democratic process. It cannot be denied that a democracy wishing to withhold the electoral right from lists which reject democracy, is confronted with a philosophico-political difficulty. The difficulty lies in the dilemma - or, if you wish, the paradox: is the barring of antidemocratic lists from participation in the elections compatible with democracy itself, or is the democratic entity not itself taking an anti-democratic measure? This is an old question, and Plato discerned it in asking whether complete freedom does not entail enslavement, and whether the freedom of choice granted by democracy does not lead to tyranny (see, in this respect, Popper, The Open Society and Its Enemies, vol. 1, 123, 265). Opinions on this issue are divided among philosophers and political scientists. Some maintain that the essence of democracy lies in full freedom of expression, extended under all circumstances and for all opinions, including those that might undermine the very democracy itself (see A. Meiklejohn, Political Freedom; Constitutional Powers of the People (N.Y. 1965)). Others - who constitute a majority - hold that a democracy has the right, under its own internal logic, to exclude election lists that disavow democracy itself from participation in the democratic process (see J.R. Pennock, Democratic Political Theory (1979), 377; Kirchheimer, Political Justice (1961), 119). But even those holding the latter view lack agreement as to the desirable solution. Some advocate the solution adopted in Germany, in both the Weimar and the post World War II periods, according to which a party that negated the democratic character of the state could not take part in the democratic process. In Yeredor ([1] at 384), Cohn J. noted that this legislative course might also serve our own legislature as an example. For all its merits, one cannot ignore its many deficiencies, since it denies a fundamental political right solely on grounds of content (of party platform), without any examination of the prospects of its realisation. Ought it not be said that the true test of the ideas of liberty, justice and equality, and the other fundamental principles that form the "credo" of our constitutional regime, is in their inner strength, their inherent truth, and not in their coercive power? Ought it not be maintained that the weakness of racism and incitement lies in their inherent falsehood which is exposed to all precisely in the free exchange of opinions and ideas that is unique to democracy. Justice Holmes explained the notion thus (Abrams v. U.S. [65], at 630):

 

            The ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

 

            Is there no danger that boundaries will be trespassed and that the stamp of racism and incitement will be imprinted on the views of a political opponent merely because they are unpopular? Should we not say that the test of democracy, where there is no reasonable probability of danger that the controversial views will be realized, lies precisely in its toleration of opinions, however odious they may be? Freedom of expression is not the freedom to express an accepted opinion, but rather the freedom to express a deviant opinion. Bach J. elucidated the point in instructing the Elections Committee. He noted that the Elections Committee could extend the Yeredor ruling also to bar the participation of a list whose platform rejects the foundations of democracy, and he also believed that this extended principle should be applied in relation to the Kach list. Nevertheless, he wished it to be taken into consideration that

           

...above all, the right to elect and be elected to the Knesset is among every citizen's central and most hallowed civil rights in a democratic regime - the denial of this right is an exceptional measure which can be justified only in extraordinary cases... This rule is put to the test especially in relation to controversial lists. Ordinary, accepted lists present no challenge to it. But the rule is tested precisely where there is strong objection and aversion to the list on the part of certain or broad sections of the public. Precisely in such case must we generally take care to allow the expression of those opinions and leave the decision as to their weight and justification to the public in a free vote.

 

            As Jackson J. said in West Virginia State Board of Education v. Barnette ([66] at 642):

           

But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

 

            One might argue that these words are fit and proper for the great and powerful America, which can allow itself such a "liberal" approach, whereas we must act very cautiously since our state is small, its regime is young, and it is surrounded by enemies that pose a real threat to it. Indeed, that difference exists, but our own strength is in our moral force and our adherence to the principles of democracy notwithstanding the surrounding danger. In this respect our strength is great, and we can say out loud that even if we do not agree with a certain opinion we would give our lives for the right to make it heard. The legislative question involved is truly weighty and hard. We should hope to find the proper balance, that takes into account the entire picture, in all its complexity.

 

            For these reasons I joined my colleagues in admitting the appeals, setting aside the decision of the Elections Committee, and confirming the participation of the two lists - Kach and the Progressive List for Peace - in the Knesset elections.

           

            BEJSKI J.: 1. Because of the proximity of the elections, we were pressed for time in deciding the two appeals brought before us. Despite the different considerations and reasons of the Elections Committee in refusing to confirm each of the two lists, we found a common denominator that required us to admit both appeals, since that result followed from adoption of the majority opinion in Yeredor [1], and even more so were we to adopt the minority opinion there. My esteemed colleagues have elaborated extensively and incisively upon the important constitutional issue in all its varied complexities, as regards both principles and consequences, and the absence of statutory guidance has brought to the fore differences of approach to the desirable solution of a conflict between basic fundamental rights. If one accepts the minority opinion in Yeredor, as does the esteemed Deputy President, the conclusion is unequivocal as regards each of the two lists concerned. According to this perspective, the Knesset Elections Law [Consolidated Version], 1969 does not grant the Central Elections Committee authority to deny any list the right to contend in the elections, irrespective of its objectives and declared platform.

           

            If such list meets the formal, technical conditions determined in the Law, and none of its candidates are found to be disqualified under section 6 of Basic Law: The Knesset, the position is clear-the list must be confirmed as a lawfully submitted one. And if one adheres to the majority opinion in Yeredor - in its narrow, restrictive sense one might also reach the same result, since the majority opinion is limited in application to a list whose objectives negate the integrity of the State of Israel and its very existence. The reason for the refusal of the Central Elections Committee (hereinafter "the Committee") to confirm the Progressive List for Peace comes very close to attributing such objectives to it, and with regard to this list the decision turns on the evidence, that is, whether the objectives attributed to it were proven sufficiently. In this connection I can already say at this point that I am in agreement with the reasoning in the esteemed President's instructive opinion, and this list's appeal should accordingly be upheld.

 

            The reason for the refusal to confirm the Kach list attributes to it subversion of the foundations of the democratic regime in that it propounds racist principles, supports acts of terrorism, attempts to incite to hatred and hostility among different sectors of the population in Israel, and intends to violate the religious sentiments and values of a section of the state citizens. It is clear that this reason strays from the basis of the majority ruling in Yeredor. Hence, adherence to the majority ruling, as regards the narrow issue of negation of the state's very existence, provides no ground for disqualifying the Kach list, unless the ruling is expanded, by way of judicial legislation, to disqualify also a list which in essential nature propounds anti-democratic principles and seeks to undermine the foundations of the state's democratic regime. Obviously, this reasoning too would require the Committee to examine and be persuaded, in accepted probative manner, that the allegations against that list are substantial. In the case of Kach the Committee reached that conclusion.

           

            2. Counsel for the state indeed invites us to expand the Yeredor ruling, and to hold that the Committee is authorised to disqualify not only a list that negates the very existence of the state but also one that disavows and undermines the principles of democracy as perceived by the free Western world. He contends that Kach is such a list, and therefore it was justly disqualified by the Committee.

           

            It is possible to understand Mr. Yarak's argument that it is not necessary to regard this reasoning as an expansion of the majority opinion in Yeredor, because it was said in that case (following the Kol Ha'am decision [26] at 884) that any element posing a danger to the perpetuity of the State of Israel could not be countenanced; this was a constitutional foundation "which no state authority, whether administrative, judicial or quasi-judicial, may disclaim when exercising its power" (Yeredor [1] at 386). The existence of the state in its present form is tightly linked to the democratic foundations on which it is based and the state cannot be protected without protecting its democratic foundations. In other words, subversion of the principles of democracy is tantamount to subversion of the very existence of the state, for the State of Israel inscribed in the Declaration of Independence, as a constitutional principle, that "it will rest upon foundations of liberty, justice and peace as envisioned by the prophets of Israel. It will maintain complete equality of social and political rights for all its citizens, without distinction of creed, race or sex; it will guarantee freedom of religion, conscience, language, education and culture...".

           

            Mr. Yarak argues further that if the legislator has not seen fit to provide express statutory protection for the values of democracy, that is because these supra-principles have always been acknowledged in the case law as the basis of our regime, as regards both the recognition of rights and the creation of corresponding duties (H.C. 1/49[10] at 83; H.C. 73,87/53[26]; H.C. 148/79[40]), including rights and duties that are not written in the statute book but are recognised in law as stemming from the essential nature of our democratic regime (H.C. 29/62[44], at 1027; H.C. 112/77[45]; H.C. 262/62[46]; H.C. 337/ 81[5]; C.A. 723/74[3], at 295).

 

            3. It is true that to undermine the foundations of democracy is largely the same as undermining the foundations of the state as presently constituted. A democracy may defend itself against such phenomena, and the difficult dilemma which faces most Western democracies relates to the permissible means of defence. That defence is not at all easy since subversive groups often, perhaps mostly, take advantage of the benefits of freedom of speech and assembly under a democratic regime, in order to achieve their goals. Extreme examples of this phenomenon are found in the events overtaking Italy in the 1920's, Germany in the 1930's and Czechoslovakia in the 1940's. The dilemma as to the methods of self-defence - and perhaps also of waging war against groups of a totalitarian nature, is compounded sevenfold because of the fundamental values of democracy which, by its nature, is open to a plurality of opinions and world views. In 1763 Voltaire is reputed to have said that even if he objected to all that his opponent said, he would defend the right to say it with his own life. Open discourse, the right to make unconventional statements, exertion of influence to change ways of thinking on controversial And in the aforementioned Dennis case, Frankfurter J. said ([54] at 551):

           

            This difficult dilemma does not spare us either, and we have to contend with it from time to time. I choose to mention only one decision, the well-known El-Ard case (H.C. 253/64[2], at 679), from which reverberates the warning of Witkon J. concerning events of the kind seen in the recent past, when different totalitarian entities exploited the freedoms of speech, press and association granted them by the state, under the auspices of which to carry out their own destructive policies. It was said there (following H.C. 241/60[47], at 1170):

           

"These freedoms are valuable possessions, the tradition of a democratic regime in a free country, but precisely for that reason they may not be used as a pretext or tool by those who seek to undermine that regime." Likewise in the present matter. And the encouragement given the El-Ard Movement from across the borders alerts us to its potential danger to the State of Israel. It would be blind folly to sanction it.

 

But at the same time the other side of the dilemma was expressed:

 

The freedom of association is of the essence of a democratic regime and a fundamental civil right. Far be it from us to deny that right and disqualify an association for the sole reason that its goal, or one of its goals, is to strive towards changing the existing legal situation in the state. ... However, no free regime will lend support and recognition to a movement that undermines the regime itself.

 

            If we maintain that the right to freedom of association and speech is of the essence of a democratic regime, and that "a regime that does not honor the freedom and right of a minority to express its views cannot claim to be a true democracy" (G. Leibholz, Politics and Law (Leyden, 1965) 44), that does not imply that one may deviate from the fundamental doctrines of that regime in the name of democracy and under its guise. One who claims rights in the name of democracy must himself act in accord with its rules. In the words of Schauer (Free Speech, A Philosophical Enquiry, Cambridge University Press, p. 190):

           

            Superficially, we might say that advocacy of legal change should be permitted, but that advocacy of violent or unlawful means of change should not be protected by the Free Speech Principle. After all, people should not be able to rely on freedom of speech derived, here, primarily from the argument from democracy, for the purpose of going outside the process of democracy. It is not that fairness or consistency requires that those who claim rights under a principle must themselves subscribe to that principle, although such an argument is quite plausible. Rather, speech that produces extra-legal change undermines the process of rational deliberation that is the a priori value of a democratic system.

 

And further on (at 194):

 

That is, if freedom of speech is justified by its relationship to the legal system, and especially if it is justified by its ability to ensure the functioning of a system of laws, then speech directed at weakening or destroying that legal system would appear to have little claim to protection.

 

            Pennock's comment is apposite (Democratic Political Theory, Princeton University Press, p. 377):

           

...It would seem strange to dub as undemocratic a provision designed to prevent democracy from committing suicide.

 

            4. Measures of self-defence against acts subversive of the foundations of democracy are accordingly not considered prohibited, although in theory one can say that self-defence by the extreme method of suppressing or forbidding organisation entails an antidemocratic act. That is a price that must be paid, and it does not appear to be too heavy where a danger to national security or a state of emergency arises, which dangers are regarded as sufficient to deny freedom of speech or organisation. Against this background, the doctrine of a "clear and present danger" was evolved in the U. S. A. , as expressed in Whitney v. People of State of California [58] and modified in Dennis v. U.S.[54] at 507), and especially in Brandenburg v. Ohio (1969 [67]), 444). The doctrine's development and the considerations that guided the U.S. courts were discussed extensively in the opinion of the esteemed President, and there is no need for repetition, except to note that when Douglas J. retreated from the "clear and present danger" test in the Brandenburg case, he said (at p. 456):

 

            The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation, is the line between ideas and overt acts.

           

            Any test we adopt, be it the criterion of a clear and present danger, or that of an overt act, or the "reasonable possibility" test now suggested by my esteemed colleague Barak J., immediately poses a twofold dilemma: one relates to the proper time when the defensive reaction may and should come; the other concerns the dimension of the permissible measures, that is, whether radical elimination of the danger, in its infancy, or other lesser means. The tolerance that democracy espouses calls for forbearance also with respect to the timing, until the maturation of the selected test. Still, Leibholz warns (op.cit., at 87):

           

But usually the process of enlightening a misled public opinion in democracy is a very delicate undertaking. The slowness of its tempo may even have disastrous consequences: the warning voices may remain unheard and the reversal of public opinion may come too late.

 

            After comprehensively analysing the lurking dangers, when a democracy fails to act in time and tolerantly seeks to reach compromise and understanding, the author adds (at 160):

           

All these well-timed, tactical, so called understandings only confirm the old experience, that states, like men, are very slow to learn the lesson taught by history, even contemporary history, and to guide their policy and actions accordingly.

 

            It is commonly agreed that governmental intervention against subversive bodies is justified and even necessary. Our historical memory also justifies timely, even prior intervention. That is necessary especially where the group does not stop at mere words but proceeds to act in destructive ways. However, the concrete dilemma concerns the permissible active modes of protection and their limits. Ought the conclusion be to bar the group from participation in public life, to outlaw it, or does it suffice to impose some form of control over the group's activities. The answer involves many factors and considerations - political, educational, economic, military, and the like, and above all the virility of the democracy, the composition of the population and its capacity to withstand external onslaughts. This complex array suggests that the answer lies properly in the political domain. Thus Lippincott opines (Democracy's Dilemma (1965) 199-220) :

 

            It is a task of the highest statesmanship. In order to carry it out, at a minimum cost, democracy will need all the wisdom of which it is capable.

 

            5. I have made these observations to explain why I believe we cannot admit the argument of counsel for the state, i.e. that it is supposedly self-evident that the Yeredor ruling [1] should be extended also to bodies which undermine the foundations of democracy, since that amounts to undermining the very existence of the state; likewise the argument that at in any event, and for the same reason, there is room to expand the Yeredor ruling beyond the narrow confines of the matter decided there. It is clear to me, and so it was unequivocally stated in the majority opinion, that only the vital need and the interest in the state's continued existence moved the court to take the extreme position of withholding the right to be elected, albeit by virtue of inherent authority, based on natural law, from someone whose avowed purpose is the destruction of the state. In the words of Sussman J. (Yeredor [1] at 390):

           

            Just as a man does not have to agree to be killed, so a state too does not have to agree to be destroyed and erased from the map. Its judges are not allowed to sit back idly in despair at the absence of a positive rule of law when a litigant asks them for assistance in order to bring an end to the state.

 

            The majority judges were not prepared to go any further, as was explicitly stated by Agranat J. (ibid. p. 387):

           

As already indicated, I agree that the Central Elections Committee, in exercising its power to decide upon the confirmation of a candidates list, is not ordinarily empowered to inquire into the candidates' worthiness or to reflect upon their political views.

 

            Sussman J. spoke in a similar vein (ibid. p. 389). One might ask: since in the Yeredor case the court, without statutory sanction, assumed the power to deny a fundamental right, why shouldn't we extend that power to another cardinal matter that poses a danger to democracy, and is closely related to that dealt with in Yeredor - where the court saw fit to forestall the danger? The answer is that the two are not alike. Negating the very existence of the state is not the same as subverting the foundations of democracy. If in regard to the former question the court felt itself constrained to go beyond its ordinary bounds and to resort to natural law, that does not mean that the court will extend such judicial legislation beyond the call of necessity. Certainly not where it is concerned with an essentially political matter lying primarily in the domain of the legislature - upon which the court will not encroach except through the modes of interpretation. Even in the Federal Republic of Germany, where section 21(2) of its Basic Law of 1949 expressly authorises the Constitutional Court to decide whether the objectives or tendencies of a party are to impair the democratic foundations of the Republic, that court is enjoined to act with restraint when exercising powers of a political nature. Leibholz says (op.cit., at 299):

 

As custodian of the constitution, the constitutional judge has to watch out that the Supreme Court does not usurp political power and authority. He must respect the well-determined tendencies of the modern state. Out of this, it results that the constitutional judge, in the exercise of his powers, must wisely restrain himself.

 

And in the aforementioned Dennis case, Frankfurter J. said ([54] at 551):

 

To make validity of legislation depend on judicial reading of events still in the womb of time - a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations - is to charge the judiciary with duties beyond its equipment.

 

            The authors Nowak, Rotunda and Young comment in similar vein (Constitutional Law (2nd ed.) at 779):

           

Although the Supreme Court has recognized that basic constitutional rights are intertwined in the electoral process, the Court also has noted that elections are largely political creatures and the Courts should refrain from getting too involved in basically political decisions.

(See also G. Marshall, Constitutional Theory (Oxford, 1971).)

 

            If that is the situation in relation to the review and interpretation of the provisions of a written constitution, a fortiori in our case where there is no enacted provision and we are asked to usurp the legislator's function by way of expansive judicial legislation.

           

            It bears reminder that it is the Committee's function to decide on disqualification and the court has only a power of review. The Committee is a clearly partisan political body, and it is constituted only for the purposes of, and with the powers granted by, the Knesset Elections Law [Consolidated Version], 1969 - and no more. If without defined and qualified legislative authority this Committee is extended the power to decide which lists undermine the foundations of the democratic regime, lists might be disqualified on grounds of narrow party interests, as deemed fit at the time by a chance or contrived majority in the Committee. Nor should one forget the fervour of elections, with all it entails.

 

            It follows from everything I have said that I adopt the majority opinion in the Yeredor ruling, as it was limited and confined to the disqualification of a list that negates the very existence of the state or aspires to its destruction and the repudiation of its sovereignty.

           

            That is the outer limit. Like my esteemed colleagues, I too am aware of and troubled by those occasional subversive forays, which from time to time might cause serious harm to the values of democracy if there is no planned, timely defence against them. However, I am not prepared to uphold the extreme sanction of disqualifying a list and denying the fundamental right to be elected, without legislative authority.

           

            6. I have read attentively and with pleasure the interesting opinion of my esteemed colleague, Barak J., who, in his own way, finds it possible to expand the Yeredor ruling to apply also to a list whose platform negates the democratic character of the state, provided a reasonable possibility of the realization of its objectives has been shown. My colleague proceeds on the assumption that this authority stems from section 63 of the Knesset Elections Law, and, therefore, the court may apply its system's rules of interpretation to hold that this is an empowering provision; that despite the mandatory language, the Elections Committee must be vested with discretionary authority so as to realize the fundamental principles of the system.

           

            My understanding is that the authority granted under section 63 is not merely limited to a "lawfully submitted" candidates list but, moreover, the power to refuse to confirm a list can only be based on section 6 of Basic Law: The Knesset (apart from technical-formal grounds that do not concern us here). That section grants the right to be elected to every national who is twenty-one years of age or over, and provides that a candidate may be disqualified only if a court has deprived him of that right by law or if he has been sentenced to five or more years imprisonment for certain offences against national security, as prescribed in that Law.

           

            We are accordingly dealing with a very circumscribed and narrow authority, deviation from which is not a matter of interpretation or discretion, but one of legislation proper on a subject that has no connection whatever with the matter for which the authority was granted. Moreover, the judicial exception made related only to a danger to the very existence of the state, as was the opinion of Sussman J. in Yeredor, with which I find myself in agreement. It is one matter to refuse to confirm a list that was not lawfully submitted, with which alone section 63 deals, and an entirely different matter to disqualify a list because of its platform or the views of its members, which is nowhere mentioned in the statute. Where the legislature sought to obstruct the path to election of a person sentenced to five or more years of actual imprisonment for an offence against state security, it said as much; in that respect there is room for judicial interpretation, for example as to what constitutes an offence against national security, and so on.

 

            In his instructive article on "Judicial Legislation", (13 Mishpatim (1983), 25 at 39) Justice Barak said:

           

The judiciary is not omnipotent; it is not 'sovereign' in judicial legislation. It is not free to choose the content of a legal norm. Judicial legislation is subject to external limitations that define its formal legitimate sphere ... It is clear that the judge interpreter may not impart to the law a meaning that commends itself to him as interpreter, without it being rooted in minimal connections to the legislative enactment.

 

            And in another article he said ("On the Judge as Interpreter", 12 Mishpatim (1982) 248, at 255):

           

It is possible to give the language of the law a broad or narrow interpretation, an ordinary or exceptional interpretation, but generally one must find an Archimedean foothold for the purpose in the statutory text. There must be, generally, a minimal verbal connection between the language and the purpose. The interpreter may not achieve a purpose that has no hold, however weak, in the statutory language.

 

            I am in full agreement with the above statements, and precisely for that reason I cannot find it possible to extend the Yeredor ruling beyond the issue decided according to the majority opinion, since the statute lacks that "Archimedean-foothold" upon which broad and expansive interpretation can be grounded and constructed. As far as I am concerned, we are not facing here any option of broad or narrow interpretation, but rather the total absence of any statutory provision on the matter concerning us in which we could find some foothold. We cannot forget that we are dealing with such a fundamental matter as the denial of the right to be elected; and if the majority opinion in the Yeredor case followed the unusual course that it did, the matter is explained by the disproportionate weight between the considerations, on the one hand, of negation of the existing integrity of the state and, on the other hand, the right to be elected. From this aspect of both the issue and the conclusion are indeed exceptional, and every other consideration must give way in face of the danger entailed in the negation of the very existence of the state. It is different in the instant case, where the court has little justification for invading so deeply the preserve of the legislature merely on the ground that for nearly two decades that body has kept silent on such an important question of principle as that which arose so acutely in the Yeredor case.

 

            Indeed, my esteemed colleague Barak J. also spoke of the desirability that this issue - the barring of a list from participation in the elections on grounds relating to the content of its platform - be regulated through legislation and not be left open for judicial interpretation. My difficulty is that I cannot find any basis and foothold upon which to construct such judicial interpretation, and for that reason I cannot adopt the solution proposed by my colleague. However, the very appeal to the legislature as regards the need for statutory regulation of the matter, to which I wholeheartedly subscribe, reinforces my view that in its absence we should not trespass upon the domain of the legislature in such a cardinal matter. Like my colleague Barak J., I too am apprehensive of an unbalanced legislative treatment of the subject, but one can assume that the broad considerations and difficult deliberations that accompanied each of us in deciding this case will not escape the attention of the legislature. And once it has spoken, the court will have a basis for interpretation for which there will undoubtedly yet be need.

           

            7. I now come to the other question on which I disagree with my esteemed colleague, Barak J. If I had found it possible to agree with him on the principled question regarding the Committee's authority to disqualify a list on grounds of its platform, objectives and activity - if designed to endanger the foundations of democracy, I would have reached the conclusion that the Kach list had been lawfully disqualified and that we should not intervene.

           

            My colleague says: "Words, opinions and views are not sufficient. There must be evidence that there exists a reasonable possibility of acts that endanger the democratic character of the state." For the sake of argument I am prepared to accompany him this far, though it should not be inferred that I accept the "reasonable possibility" test. However, even according to that test, if one accepts it as correct, I ask myself: what more evidence is required and could be offered in discharge of the burden of proof, than was actually proven with respect to the Kach list?

           

            The Committee had before it scores of publications, booklets, pamphlets, posters, articles, all full of insufferable racist hatred. They speak of deporting the Arab population to other countries, while those remaining in Israel are to become alien residents without national rights. They advocate denying social security benefits to Arabs so as not to subsidize population growth in that sector.

  

          At press conferences views are voiced, mainly by the head of the list, in support of terrorism against Arabs as a religious act in sanctification of God's name. In one public appearance Rabbi Kahana said that if he were appointed Minister of Defence, there would be no mosques and Arabs on the Temple Mount within half a year. In his platform he calls for enacting a law that would impose a sentence of 5 years mandatory imprisonment on a non Jew who engages in intercourse with a Jewish woman. There were also calls against the employment of Arabs, as well as justification for laying explosives on the Temple Mount.

 

          Lest one say that these are only words and opinions which do not amount to a "reasonable possibility" of endangering the democratic character of the state, the Committee had information about members of the list who went to Arab settlements to convince them that they had no place in this country, and that if they did not leave voluntarily with compensation paid, other means would be found. Legal and illegal demonstrations were held to disseminate these views. The Committee had before it court judgments convicting members of the movement in respect of these activities (Cr.F.(Jerusalem)134/82; Cr.F.(Tel Aviv) 167/73). In A.D.A. 1/80[41], this court justified the administrative detention of the head of the list and his comrade, and it was said there:

         

          ...in the instant case the danger to national security, which the orders were intended to prevent, is of such gravity that it is proper to confirm the detention orders despite the violation of the detainees' right to defend themselves.

         

          Lack of space prohibits the specification of all these activities and suffice it to say that they go beyond mere words and opinions, amounting to continuous and consistent action and deeds. And if indeed all these are not sufficient evidence of a danger to the democratic character of the state, then I do not know what more need or could be proven. And in appearing before the Committee, the head of the list gave a lengthy explanatory speech, in which he not only did not deny what was attributed to him and proven against the list, but actually repeated the racist "credo". The speech was long and there is no need to repeat it here, except for one or two extracts by way of illustration: "I now ask all the members of the Committee whether an Arab may live in a Jewish democratic state in peace, in quiet, in democracy, in procreation, to become a majority here and turn this state into one that is not Jewish but Arab?" (p.38). After explaining his conception of an "alien-resident" - that is, "he is not a citizen, does not cast a vote for the Knesset, he has cultural, religious, economic, social rights and no more" - he says: "If he is willing, then by all means, let him dwell here; if not, he shall leave. How? Whoever is prepared to leave quietly, nicely, peacefully, receives money for his property. If not so, the Government will send him out, as did the Poles, the Czechs, the Greeks, the Turks, and all those" (page 39 of the Committee minutes).

 

            These tones reverberate so ominously from the not too distant past, that a democratic state like ours may justifiably defend itself against them despite all the patience and tolerance decreed by democracy for the another person's views. And, as was proven, the Kach list does not even try to disguise its platform, as is sometimes done so as not to arouse fear and suspicion regarding the true goals. Even the affidavit submitted to this court in support of the notice of appeal displays plentiful mention of these views, and without quoting them I shall refer particularly to pages 2-4 of the affidavit. Still I feel obliged to add that even if the platform of the Kach list were untainted with these blemishes, the platform alone does not present the full picture. A platform can be camouflaged. Therefore, the Committee is certainly allowed to base itself on material other than the platform, to the extent that it is indicative of the real objectives of the list and its activity, and so far as reliable. And here, as aforementioned, there was no denial-quite the contrary!

           

            Like the Central Elections Committee, with all the material before it, I am persuaded that there was good reason to regard the Kach list as one that advocates racist and antidemocratic principles, as set forth in the letter of the Committee Chairman, Justice G. Bach, dated June 17th, 1984.

           

            And if in our decision on June 28th, 1984, I concurred in the opinion of my colleagues on the bench that this list should not be disqualified - that was not due to lack of evidence as to its character and purposes constituting a danger to the foundations of democracy, by any standard. As I have explained, it was because I found no lawful authority to do so and did not consider it possible to extend the Yeredor ruling without having been granted such authority by the legislature.

           

            Both appeals allowed.

           

            Judgment given on May 15, 1985.

 

 

 

 

 

 

 

Petition granted by majority decision (Justices E. Mazza, D. Dorner, T. Strasberg-Cohen), Justices Y. Kedmi, Ts. E. Tal dissenting.

15 Heshvan 5756.

8 November 1995.

 

HCJ 727/00

 

1.  Committee of Heads of Local Arab Councils in Israel

2.  Balal Ibrahim

3.  Agudat Ha’arba’aim

4.  Il Beit, the Arab Association for the Protection of Human Rights

5.  Adalah Legal Center for Arab Minority Rights in Israel

v.

1.  Ministry of Construction and Housing

2.  Prime Minister of Israel, Ehud Barak

 

The Supreme Court Sitting as the High Court of Justice

[December 12th, 2001]

Before President A. Barak, Justices J. Türkel and D. Beinisch

 

Petition to the Supreme Court sitting as the High Court of Justice for an order nisi and an interlocutory order.

 

Facts: Petition seeking the establishment of egalitarian socio-economic criteria for the implementation of the Neighborhood Restoration Project, and a similar inclusion of Arab settlements, which are ranked under the first and second cluster by the Central Office of Statistics, to the inclusion within the project of Jewish settlements which fall under that same ranking.

 

Held: In the majority opinion, written by Justice Beinisch, the petition was granted in part as to the requested criteria.  The court determined that the petition was made partially extraneous given the drafting of new criteria in 1999, and that the criteria were to be redrafted and the criterion relating to ‘saturated construction’ and its relative weight among the rest of the criteria was to be given explicit expression within the criteria.  The petition was denied in relation to the immediate inclusion of all the settlements detailed therein.

 

Israeli cases cited:

[1]      HCJ 2814/97 Chief Supervision Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport, IsrSC 54(3) 233.

[2]      HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs IsrSC 54(2) 164.

[3]      HCJ 59/88 Tzaban v. Minister of Treasury IsrSC 42(4) 705.

[4]      HCJ 1703/92 C.A.L. Cargo Airlines v. Prime Minister IsrSC 52(4) 193-205.

[5]      HCJ 1438/98 Conservative Movement v. The Minister of Religious Affairs (unreported).

[6]      HCJ 3792/95 National Youth Theater v. Minister of Science and Arts IsrSC 51(4) 259.

[7]      HCJ 637/89 ‘A Constitution for the State of Israel’ v. Ministry of Finance IsrSC 46(1) 191.

[8]      HCJ 4906/98 ‘Am Hofshi’Association for the Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing IsrSC 54(2) 503.

 

For petitioners – Maruan Dalel

For respondent – Malchiel Blass

 

JUDGMENT

 

Justice D. Beinisch

1.    An order nisi was issued by the Court ordering the respondents to explain why egalitarian socio-economic criteria are not to be established for the implementation of the Neighborhood Restoration Project (hereinafter: ‘the project’).  So too, the order directs the respondents to explain why they are not including all the Arab settlements which were ranked in the first and second cluster according to the rankings of the Central Office of Statistics (hereinafter: ‘the COS’) within the project in the same way that all the Jewish settlements which belong to these clusters are included in the project.

Background to the Petition

The background to the petition is the desire of the petitioners – public entities from within the Arab population – to implement educational and welfare programs in the Arab sector, a demand that has already been raised in a prior petition: HCJ 2814/97 Chief Supervision Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport (hereinafter: ‘HCJ EWS’) [1].  In that petition the question of the implementation of the Division for Educational and Welfare Services (EWS division) programs in Arab educational institutions in Israel was under consideration, and it was determined that funds were to be granted gradually for implementation of the division’s programs in a manner relative to the proportion of the Arab population in the overall population in Israel.  It was clarified in that petition that some of the division’s funds are distributed via a Neighborhood Restoration Project to those settlements and neighborhoods that have been included in the project.  The claim relating to the budget for neighborhood restoration was dismissed for being too general, and because the EWS budget which relates to the Neighborhood Restoration Project constitutes only one component in the many components which result from the inclusion of a settlement within the Neighborhood Restoration Project.  As we noted in that case [1]:

‘Including a settlement or a neighborhood within this project is a necessary condition for the existence of the neighborhood restoration program that the EWS division implements.  However, this inclusion is in the hands of the Ministry of Construction and Housing, which operates according to principles determined by the government.  This matter, therefore, warrants a separate inquiry, which will focus on the consideration of the criteria according to which the government enacts the Neighborhood Restoration Project.  Given that the petition before us focuses on the question of discrimination in regard to welfare in educational funds, while the subject of broadening the Neighborhood Restoration Project relates to the extension of a wide net that is not laid out before us in this petition – we have not seen fit to deliberate on it in the framework of the petition before us.’ (p. 239 of the judgment).

Consequently, the petition before us, which deals in its entirety with the Neighborhood Restoration Project in all is various components, both physical and social-educational, was submitted.

The neighborhood restoration project

2.    We have learned of the quality, essence, and scope of the Neighborhood Restoration Project from the affidavit given in support of the State’s response which was signed by the head of the division for social neighborhood restoration and the coordinator of government offices for the project since September, 1982, Ms. Hagit Hovev.  In her affidavit Ms. Hovev surveyed the development of the Neighborhood Restoration Project since its establishment was announced in 1977, when it was established as a national-social project of the State in collaboration with Diaspora Jews via the Jewish Agency.  As is apparent from her affidavit, the project was intended to deal in a comprehensive and multi-faceted manner with social disparity in the State and to deal in particular with points of social hardship and areas of physical wear in city centers and development towns.  The project is the responsibility of the Ministry of Construction and Housing, and includes two primary realms: the physical realm and the social realm.  The physical realm of the project includes many components, among them:  expanding residential apartments, renovation of residential buildings and courtyards, completion of the development of public infrastructure, renovation of apartments for the elderly, and encouragement of the purchase of apartments under public lease.  The social realm includes inter alia: programs for the very young, reinforcement of formal studies, programs for youth and at-risk youth and higher education programs.

At first, the project was jointly administered by the government and the Jewish Agency, whereby the Agency served as the mediating entity between the project’s administration and the Jewish communities abroad, and also participated in its financing.  However, since 1990, following the immigration from the CIS, the Agency’s role in the project diminished, and it was passed on to government hands, both in terms of administration and budget.  Implementation of the project is fairly flexible: the project may include both entire settlements, and specific neighborhoods suffering hardship within established cities.  So too, a settlement or neighborhood might be included in only one realm of the project, for example: the physical realm without being included in the other realm of the project.  It is important to note that the project is limited in time, and after its implementation is completed in a particular settlement, the settlement is removed from the project.

The arguments of the parties

3.    The parties are claiming three different remedies, which all surround one central claim, which is a claim of discrimination.  The petitioners present much numerical data which proves, according to them, the difficult situation of the Arab settlements and the discriminatory attitude toward them, in the limited scope of the application of the Neighborhood Restoration Project to them.  Inter alia, they claim that despite the fact that all of the Jewish neighborhoods that are in the first three clusters of the COS ranking are included in the project, only 5 out of 48 of the Arab settlements found in these clusters are included in the project.  Consequently, the petitioners request in their petition that egalitarian criteria be established for implementing the Neighborhood Restoration Project, and they also request that an egalitarian policy be administered between the Arab settlements and the Jewish settlements by including within the framework of the project all the Arab settlements found in clusters 1 and 2 in the  COS ranking.

After the order nisi was granted, the State’s response was received on April 13, 2000.  In its response the State did not disagree with the need for egalitarian treatment of the Arab population, but claimed that the question at the center of the discussion in our matter was the question of ‘the application of the concept of equality’.  According to the State’s claim, the application is particularly complex in the case before us, where it is a matter of a project that has been implemented for over twenty years and when the ramification of the requested remedy is a budget increase of tens of millions of shekels per year, or a detraction from funds given to other settlements which are not party to the petition.  Beyond this generalized claim, the State raised many additional arguments in the framework of the two affidavits that were attached to the petition – the aforementioned affidavit from the Ministry of Construction and Housing and an affidavit on behalf of the Prime Minister’s office.  First, the State admits that at first the project included a relatively small number of Arab settlements as it was a joint project of the State, the Jewish Agency and Jewish communities in the world.  According to its claim, with the lessening of the role of the Jewish agency in the project there has been a marked increase in the number of Arab settlements and neighborhoods included in the project.  According to the claim, as a result of the respondents' policy as to the appropriate criteria for application of the project, and in consideration of the need to complete implementation of the project in the settlements and neighborhoods in which its implementation had already begun, recent years witnessed a gradual change whereby Arab settlements were added to the project and Jewish settlements in which implementation of the project was completed, were taken out.

As to the matter of the criteria for inclusion of additional settlements in the framework of the project, the State argues that in 1999, new criteria were implemented which guide the inter-office team in its recommendations for inclusion of new neighborhoods or settlements within the project.  These criteria were already added to the State’s response in the framework of the discussion in said HCJ EWS, and they were attached again in attachment HH/1 to the affidavit of Ms. Hagit Hovev which is attached to the State’s response, and in attachment P/4 to the petition.  The four criteria that appear on the list are:  multi-dimensional hardship of a large percentage of the neighborhood’s inhabitants (45%).  A lack or low level of physical and social infrastructures (25%), socio-economic strength of the settlement’s population (20%), the presence of new immigrants or particularly weak populations in the neighborhood (10%).  According to the State’s claim, the petitioners arguments according to which it is appropriate to rely exclusively on the COS data to determine the list of settlements included in the project is to be dismissed, as this data does not give a full picture as to the ranking of the settlements included in the project.  Based on the criteria that were established, the COS data makes up only 60 percent of the points to be weighed which are examined for purposes of implementing the project, while the remaining 40 percent are based on data from the various government offices.  Beyond these criteria the State noted, that beginning in 1986 the Ministry of Construction and Housing decided to give preference in the framework of the project to urban areas of hardship, which are characterized by saturated construction, as in these areas the investment can contribute to improvement in the lives of more residents.  The State further claimed that the new criteria are future-looking only, meaning: they will apply only to settlements that will be included in the project from now on.  According to its claim, a change in criteria which will lead to removing settlements in which the work is in progress will cause damage to these settlements and may cause the funds that were already invested to go to waste.  Beyond this, the State noted that due to the ongoing nature of the project and the limited funds at its disposal, it was decided in 2000 not to include new settlements in the project and to concentrate efforts on the 10 neighborhoods which have been included in the project for many years with the goal of completing the work in them.

Another central claim raised by the State, deals with the existence of alternate programs for investing funds in the Arab sector, programs which are better suited, according to the State’s claim, to the needs of the sector, and their purpose, inter alia, is to add funds to the Arab sector in order to close gaps that were created over the years.  According to the State’s claim, the Neighborhood Restoration Project was intended primarily to assist in renewing an area that has deteriorated or to complete physical or social infrastructures that are lacking, while many of the Arab settlements require establishing infrastructure from scratch.  The central program that according to the State will be able to properly address the needs, including the needs for which the Neighbourhood Restoration Project was intended, is a four year plan to develop the Arab sector which was approved by a government decision dated October 22, 2000, and which will include the total sum of 4 billion NIS (including an addition of 2 billion NIS beyond existing development budgets).  According to the State’s claim, the program is meant to include activity of all government offices, inter alia, construction of infrastructures and public buildings, and funds in the areas of education – building classrooms, pedagogical programs and a five year plan for the Bedouin settlements in the north that was begun in 1998 and which will include a total sum of 615 million NIS.  Beyond these broad programs, the State noted in its response two additional programs, smaller in scope, which are operated by the Ministry of Construction and Housing, and their budgets are also directed at the Arab sector – the ‘reinforcement’ program and the program to complete development in old neighborhoods.

The petitioners, for their part, claimed in response that criteria that relate only to new settlements are not sufficient, and that non-inclusion of Arab settlements immediately in the project causes them cumulative damage, the result of which will be a deepening of the social gaps.  So too, the petitioners noted that the criterion relating to ‘saturated construction’ was not mentioned in the framework of the official criteria and that it is a criterion which distinguishes between groups based on an irrelevant basis and leads to a discriminatory result. In regard to the alternate programs the petitioners argue that it is a matter of a claim that is not relevant, since the existence of one assistance program does not offset the right of the Arab sector to benefit from another program.

Consequent to hearing the parties’ arguments and reading their written arguments the case was taken under consideration.  Later, on May 17, 2001, we decided to ask the respondents additional questions relating to the distinction between the physical and the social realms of the project, to the criterion of ‘saturated building’, to an update as to the results of the efforts to concentrate the effort in the year 2000 and to the extent of implementation of the multi-year program to the Arab sector.

In its response of June 21, 2001 the respondent noted that the criteria are indeed general and do not distinguish between the social and the physical realms of the project.  They also noted that the anchor for the criterion as to ‘saturated construction’ which is not mentioned in the general criteria listed above, is found in the guidelines for external renovation of structure that is included in the project, and which is based on the decision of the entities in charge of the project.  As to concentration of the effort in implementation of the project in the year 2000, the respondents noted that the concentration of effort was a success and the project has ended in 10 neighborhoods in the realm of physical restoration, and in 4 neighborhoods in the realm of social restoration.  The State added in its notice that at this stage no additional settlements or neighborhoods will be included in the project, as it is the intention of the Ministry of Construction and Housing to conduct a comprehensive assessment of the project in the upcoming months.  As to this the Stated noted that:

‘At this stage, the inclusion of additional neighborhoods or settlements to the Neighborhood Restoration Project is not on the agenda as it is the intention of the Minister of Construction and Housing and the Director of its office to conduct a comprehensive assessment in the upcoming months of the cumulative contribution of the Neighborhood Restoration Project from its inception, both in the physical and social realm.  In the framework of this assessment it is the intention of the office to assess the suitability of the underlying premises which are at the basis of the project, the geographic units which will be included in it and a formula for its application to the many changes that have taken place in Israel in the social and urban reality, since the project’s inception.  This stance of the Ministry of Construction and Housing relates to all settlements in Israel that are not included in the project, including Arab settlements which need programs in the social realm.’

As to the application of the multi-year plan to the Arab sector, the State noted that staff work has begun in the budget department of the treasury the purpose of which is to produce necessary regulations for the implementation of the project which were to be presented for approval by the Finance Committee by the end of June 2001.  So too, the State’s counsel noted in his response in a general manner what the areas of overlap are between the multi-year plan and the Neighborhood Restoration Project, and which areas in the project supplement the projects in various aspects.  As of the date of this judgment the State has not given notification as to whether these funds were approved and to what extent.

Current allocation of budgets

4.    As said, the respondents admit in their response, that there was historical discrimination in the allocation of funds in the framework of the Neighborhood Restoration Project, however, according to their claim this discrimination has greatly decreased with the gradual inclusion of Arab settlements and neighborhoods within the project.  In order to prove this claim, the respondents presented before us the data which relates to the year 2000.  As appears from this data, of the settlements and neighborhoods included in the project, close to 20% are Arab settlements, as is the proportion of the Arab population in Israel.  However, this data does not reflect the full picture, and this is also the State’s position in its affidavits.  Comparison of the budgets as they have been presented by the respondents shows that the proportion of funds that were allocated to the minority sector in the framework of the project stands at 10% only.  The State noted that this budget data does not reflect the true sum that was allocated to the minority sector as additional funds were added in additional restoration programs.  According to the claim, in order to get a full picture of the funds directed to the sector the calculation must include two additional programs: the ‘reinforcement’ program and the program of supplementation of development in the older neighborhoods.  The ‘reinforcement’ program is similar in its characteristics to the physical realms of the Neighborhood Restoration Project, and was also intended to deal with physical multi-dimensional hardship, including: external renovation of structures and development of courtyards, renovation of apartments for the elderly and assistance in expansion of apartments.  This program was implemented in a very small number of neighborhoods in the year 2000, and overall in its framework, 7.5 million NIS were allocated, of which 3.8 were allocated to the minority sector.  The program for supplementation of the development of older neighborhoods dealt with the development of the physical infrastructure in minority settlements.  This program is operated within various five-year plans which are designated for the minority sector – a five-year plan for Bedouins in the Negev (which is in preparation phases – although limited funds have already been allocated in its framework), and the multi-year plan for the Arab sector.  In the framework of these programs, the amount of 38.9 million NIS was included in the year 2000 budget of the programs division of the Ministry of Housing, for development of physical infrastructures in minority settlements, as opposed to the sum of 19.75 million NIS which are dedicated to this purpose in Jewish settlements.  According to the State’s claim, if the amounts allocated in the framework of those two programs are included in the overall calculation, it appears that the proportion of funds dedicated to advancing older neighborhoods in the minority sector in Israel reaches up to 24% (about 60 million NIS out of 260 million) – a proportion greater than the portion of the sector in the population.

In order to more accurately assess the claim of the respondents, we must distinguish between the physical side and the social side of the project.  On the physical side, if we also include in the framework of the calculation the two programs parallel to the Neighborhood Restoration Project (both of which relate only to the physical side) then it would appear that the determination is correct that the funds directed at the Arab sector in the year 2000 forms a proportion of 29% of the overall allocation directed at physical restoration in Israel (about 50 million NIS out of 174 million NIS).  This proportion is greater than the portion of the sector in the population, and therefore, on its face, there does not appear to be discrimination, but rather a goal of remedying the disadvantage.

Conversely as to the social realm the funds directed to the Arab sector in the framework of the Neighborhood Restoration Project, makes up only 13% of the total budget (12 million NIS out of 90 million) a proportion lesser than the proportion of the sector in the population.  The situation that is created indeed creates a feeling of discrimination which is particularly oppressive given that many of the Arab settlements are at the bottom of the socio-economic ranking.  We also discussed the painful situation of discrimination in funds intended for education in the Arab sector and the need to address this seriously in said HCJ EWS, which dealt, as said, with the implementation of EWS programs in the Arab sector, it was stated there:

‘In the framework of the petition there was no disputing that education in the Arab sector has been disadvantaged over many years and there was no dispute that this needs to be corrected.  From the responses submitted to us on behalf of the State we have been convinced that significant steps have been taken for the allocation of budgetary resources to the Arab sector in order to achieve the goal of equality of resources in said area in accordance with the relative proportion of the Arab population in Israel.’ (p. 240 of the judgment)

The question before us is what is the conclusion to be drawn in the framework of the petition before us as to this matter, both in relation to the petition to establish egalitarian criteria and in relation to the petition for inclusion of Arab settlements within the project.

The principle of equality in allocation of state funds

5.    It appears that it is not necessary to go back and expand on the fact that the value of equality is a basic value in our legal system, and that it stands at the basis of our democratic regime.  In light of its status the value of equality obligates the authority in the implementation of the totality of its powers.  We have noted more than once that the value of equality obligates the authority in allocation of state funds.  Such allocation must be done on an egalitarian basis and according to clear criteria.  As Justice Zamir has said in HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affair [2] at 170:

‘The principle of equality binds every public entity in the State.  First, it binds the State itself.  The principle of equality applies to all the areas in which the State operates.  It applies first and foremost to the allocation of the State’s funds.  The resources of the State, whether in land or money, as well as other resources, belong to all citizens, and all citizens are entitled to benefit from them in accordance with the principle of equality, without discrimination on the basis of religion, race, gender or other illegitimate consideration.’

And, at p. 172 as well:

‘Discrimination on the basis of religion or nationality in allocation of state funds, which is even prohibited if it is done indirectly, certainly is a fortiori prohibited when it is done directly.’(See, for example, HCJ 59/88 Tzaban v. Minister of Treasury [3] at 706; HCJ 1703/92 C.A.L. Cargo Airlines v. Prime Minister [4] at 205.)

These words are true seven-fold when it is a matter of allocation of state funds for the actualization of basic rights such as the right to education, housing, or health.

It is clear that when an authority is directed to act with equality, we are dealing with substantive equality, and not merely formal equality.  At times, in order to achieve substantive equality we must act differently toward different individuals.  Violation of the principle of equality which creates the grounds for our intervention is different treatment of individuals amongst whom there is no difference relevant to the matter at hand (see for example HCJ 1438/98 Conservative Movement v. Minister of Religious Affairs [5] paragraph 20).  In the words of Justice Zamir, discriminatory treatment is different treatment of those who belong to the same ‘equality group’ (see HCJ 3792/95 National Youth Theater v. Minister of Science and Arts [6] 281-283).  From this starting point we are to examine the question of application of the Neighborhood Restoration Project to the Arab sector.

The question of criteria

6.    The first part of the petition deals with the subject of criteria.  As said, according to the petitioners claim, social-economic egalitarian criteria are to be established for application of the project.  As is seen from the State’s response, in 1999, an inter-office commission examined the criteria for the project that were established in the 1980’s, and following this examination new and egalitarian criteria were established which the State has given notice are already in place and will serve from now on as a basis for inclusion of settlements in the framework of the project.  We have already mentioned that the criteria include both multi-dimensional social hardship and multi-dimensional physical hardship.  According to the State’s claim, the new criteria which were established are 60% based on the rankings of the COS, and 40% on additional data from various government offices.  From the State’s response it is further seen that there exists in fact an additional criterion which does not appear explicitly in the list of criteria that were presented to the court, although it influences the inclusion of neighborhoods within the framework of the physical realm of the project – and that is the criterion of granting preference to an urban neighborhood characterized by saturated construction.  In response to additional questions by the Court, it was stated by the State that this criterion is anchored in a procedure for external renovation of structures and the development of courtyards from the year 1998 (which replaced previous procedures from 1986 and 1993), which establishes that renovation of residential buildings is conditioned upon it being a structure that includes at least four residential units.  So too, it was emphasized that there are dozens of criteria and internal guidelines in each of the relevant offices which relate to specific programs operated in the framework of the project.  As is seen from the State’s response, the criteria detailed in P/4, which are, as stated, new, relate only to the inclusion of new settlements in the project, and do not apply to neighborhoods already included in the project, according to arrangements and policy that was determined years ago.

As said, criteria for distribution of budgets from the public pie must be egalitarian in nature, but beyond this, the criteria must also fulfill the other rules which apply to administrative decisions, which means that: they must be based on relevant considerations, a factual basis which reflects the relationship between the purpose for which the financial allocation was intended and the relevant facts, and they must meet tests of reasonableness. (See for example HCJ 1438/98 [5] above).  So too the criteria must be sufficiently concrete to enable their application according to objective measures to the extent possible.  (See HCJ 3792/95 [6] above, at pp. 273-274).

7.    The Neighborhood Restoration Project is in fact characterized by two levels of criteria: the first level, deals with the criteria which serve to determine which neighborhoods or settlements will be included in the project.  The second level, deals with specific and more detailed criteria which relate to the operation of certain programs which are included in the Neighborhood Restoration Project.  These criteria are of course only relevant to neighborhoods or settlements which have overcome the hurdles of the first level's criteria and are included in the project.  In this petition we are dealing with the first level of criteria, meaning: criteria which relate to the inclusion of a neighborhood or settlement within the project.  On its face it appears that the list of criteria brought to us, meets the necessary conditions for allocation of state funds.  It is a matter of criteria which are based on objective sources of information that the government has – COS data and data from various government offices, the criteria are suited to the purpose of the project and they explicitly note the relative weight of each criterion.  Therefore, ostensibly, these criteria are self-evidently egalitarian and reasonable.  However, it is worth noting, that for some reason the inter-office commission chose to draft the criteria in technical and opaque language which appears to be intelligible only to those with specialized knowledge.  It seems that it is appropriate that criteria which apply to the public be drafted in a more detailed, explicit, and clear manner.  Thus, for example, it would be appropriate to detail the content of the phrase ‘multi-dimensional hardship’ and that all the relevant quantitative variables be detailed, whether directly, or by way of reference, such that those dealing with the matter – Jewish and Arab settlements as one – will know what the standards are for allocating the project’s funds and its applicability to them.

The generalized drafting of the criteria on its own, even if it requires clarification, does not point to a flaw which justifies our intervention to nullify them; moreover, in their response to the State’s response the petitioners are not making arguments against the criteria as they were presented.  Therefore, were these criteria the only criteria for inclusion of settlements and neighborhoods in the project, it might be possible to say that the State properly addressed the first part of the petition, making what was requested superfluous.  However, it turns out that it is not so.  From the State’s response it appears that there is an additional criterion which is not included in the list of criteria of the first level – the one that determines the settlements included in the project – and it constitutes a hidden criterion which is able to influence the determination relative to the inclusion of neighborhoods in the project.  It is the criterion of saturated construction, which is anchored – according to the State’s claim – in an internal guideline which relates to the renovation of houses and courtyards – a specific guideline which relates to a specific program which belongs to the physical realm of the project.  Ostensibly, it is therefore a matter of a criterion which by its nature belongs to the second level of criteria – a criterion which relates to a specific program – which filtered through to the first level of criteria, as it was used to determine the neighborhoods which would be included in the project to at the beginning.  Using this criterion which is not counted among the criteria on the list is not proper, both due to its lack of inclusion and because of the lack of clarity as to the weight it is given as to the substance of the determination as to inclusion in the project.

8.    The petitions argue that applying a criterion which conditions implementation of the project on the existence of saturated construction, excludes their settlements from the project overall, as Arab settlements are not urban settlements that were built with saturated construction.  Lacking data as to the quality and scope of influence of this criterion among the other criteria, we cannot determine that this criterion may be an obstacle to inclusion of the Arab settlements in the framework of the project, even though it certainly may impact the scope of the inclusion of Arab settlements, many of which are not saturated construction settlements.  On the other hand, it is not to be said in a sweeping manner that saturated construction removes the Arab sector from the project in light of the existence of distressed neighborhoods in many urban cities in which there is a dense Arab population.  Despite this, the claim is correct that under the circumstances there was a flaw in the application of the criteria of saturated construction as a pre-condition to the implementation of the project.

It should be said first, that when the implementation of the project is dependent, among other things, on the physical condition of neighborhoods and structures, there is nothing wrong in principle with the fact that among other considerations which relate to the physical aspect, consideration which relate to the density of the population and the density of the construction will also be considered.  Giving preference to restorative treatment in areas of distress of high residential density which is characteristic of urban settlements constitutes a relevant and legitimate consideration.  There is also nothing wrong with the rationale that the State raised for giving preference to urban neighborhoods due to the advantage which stems from the effectiveness of the investment in crowded neighborhoods.  However, as has been said more than once in our case law, when we are dealing with equal distribution of resources it is not sufficient that the considerations for allocation are relevant considerations, but there is also significance to the weight of each of the relevant considerations.  In determining standards for budgetary allocation the totality of considerations which relate to the goal for which the financial support was intended, is to be taken into consideration.  Thus for example, the fact that the said criterion is not related at all to the social realm of the project necessitates the conclusion that in the face of the double purpose of the project – physical and social – the criterion which relates to the physical aspect of the project is not to be given determinative weight as to implementation within the social aspect.

Accordingly it can be determined that the saturated construction criterion is not to be used as a threshold criteria until this criterion is included in the list of criteria which determine the conditions for implementing the project and its relative weight, among the other criteria, its scope and concrete reference to the degree of the density of the construction, is clearly defined.  In determining the relative weight of this criterion it is to be taken into account that considerations which relate to the physical aspect of the project are not exhaustive or exclusive and the project also has the purpose of support and encouragement in the social-educational realm in distressed regions.

Therefore, as long as there is not explicit reference in the criteria for the implementation of the project to the criterion of saturated construction, and as long as its relative weight is not determined, this criterion is not to be included as a pre-condition to the implementation of the program.  Subject to the defining of the criterion which relates to saturated construction, as explained above, the establishment of the new criteria is able to address what has been sought under the first part of the petition.

Inclusion of the settlements in the first and second cluster in the project

9.    The State’s notice as to the implementation of criteria for the inclusion of new settlements in the framework of the project does not satisfy the petitioners even if they are not claiming that the criteria that were implemented are flawed.  It is the petitioners’ claim that even if from now on the inclusion of settlements in the project is done on an egalitarian basis, since it is a matter of an ongoing project, the passage of time deepens the schism between the needy settlements in the Arab sector and the settlements that are included in the project already.  They also claim in response to the supplement to the State’s answer, that despite the State’s notice that there is an intention not to include new settlements in the project, the Arab settlements which ranked in the socio-economic scale of the COS as belonging to the first and second clusters should be included in the framework of the Neighborhood Restoration Project.

This petition–to include all the settlements in the first and second cluster of the COS in the Neighborhood Restoration Project – is to be denied in the face of the formulation of the new criteria.  With the establishment of the criteria, the test for including settlements within the framework of the project is in the suitability of the settlement to said criteria, and a determination based exclusively on COS data is not longer sufficient.  However, by the nature of things, in light of the heavy weight of the COS data in the framework of the criteria, and in light of the great hardship which exists in the Arab sector, which no one disputes, it is reasonable to assume that the result of establishing the new criteria will be the inclusion of the settlements under discussion in the petition, or at least most of them, in the project.  Indeed this is the significance of applying egalitarian criteria; including settlements in which the hardship is greater before settlements whose economic-social situation is better.

However, in the face of the existence of the new criteria, the parties dispute remains; it deals with the question:  whether in the present situation as long as the Neighborhood Restoration Project exists as to settlements which were recognized in the framework of the project in the past, it is proper to add the requested Arab settlements immediately, without waiting for their gradual inclusion according to the criteria which were established.  The State argues as to this, that the request to add additional settlements to the project now, is to be denied.  In its reasoning it points to the fact that the budget for neighborhood restoration is limited in scope and since it is an ongoing project, the addition of new settlements may harm those that have already been included in the framework of the program.

10.  We accept that a change in a discriminatory policy and implementation of a new and egalitarian policy, on its own, does not justify harming those who were included in the original program.  (see as to the this: HCJ 637/89 ‘A Constitution for the State of Israel’ v. Ministry of Finance [7] at p. 207; HCJ 4906/98 ‘Am Hofshi’Association for the Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing [8] at p. 523).   The neighborhoods and settlements that were included in the past in the Neighborhood Restoration Project are distressed neighborhoods and there is no dispute that it is not appropriate to stop programs in these neighborhoods and settlements.  The petitioners note that they are not asking for this.  It is to be taken into consideration that it is a matter of ongoing programs whose implementation has already begun and it is proper to enable their completion.  Moreover, the settlements benefitting from these programs have a reliance interest that is also to be recognized for the purpose of granting additional allocation for completion of the project.  Therefore, inclusion of the Arab settlements without consideration of the limited scope of the project in its present formulation, and without consideration of the reliance interest of those benefitting from it, is not a proper solution.

As for the need to remedy the disadvantage caused to the Arab sector in this matter, the State argues that the proper way to address the situation that was created is in implementation of the government decision of October 22, 2000, to implement the multi-year program in the framework of which funds will be allocated in broad scope to development of settlements in the Arab sector and programs whose purpose overlaps with the programs included in the Neighborhood Restoration Project will also be implemented.  These designated programs are meant to be in a scope that is significantly broader than the Neighborhood Restoration Project and encompass both realms of physical infrastructure and social realms.  This response of the State does not properly address what is requested in the petition.  The multi-year plan is indeed meant to address the disadvantage that has been created over the years and to bridge the gaps of the past, but at this time, at the phase in which the multi-year plan is in today, it cannot serve as a substitute for programs operated via the Neighborhood Restoration Project.  This is for two reasons: the first, due to the absence of concrete-budgetary expression for said plans, and the second which is derived from it, that absent budgetary expression, it cannot be established whether the designated program was necessarily designated for development of a program parallel to the one included in the Neighborhood Restoration Project.  If defined programs will be established which will also have budgetary expression and which will have the ability to address the needs which today are addressed in the framework of the Neighborhood Restoration Project, it will be possible to determine that any program equal in weight will replace a similar program given within the framework of the project.  However, as long as there is no such concrete expression, the program does not create an exemption of the requirement to apply the said project to the Arab sector.

As we have described, in the situation that was created the core of the problem is in implementing the programs in the social realm and in particular in education programs.  In the petition in HCJ EWS [1] we discussed the need to establish conditions for implementation of the special programs of the Division for Education and Welfare Services in the Ministry of Education – the EWS Division – in an egalitarian manner on the Arab sector.  It was made clear that a certain part of the activity of the division which deals with advancing weak populations in Israel is conditioned on the inclusion of the settlement or neighborhood in the framework of the Neighborhood Restoration Project, and that the part of the Arab settlements in this project was very limited.  With the addition of Arab settlements to the project, over the course of the years, there has been improvement in this matter, however, the proportion of the funds granted in the framework of the Neighborhood Restoration Project in the social realm is still lower than the appropriate relative proportion in accordance with the size of the population and in accordance with its needs, which differs from the allocation of funds in the physical realm which is included in neighborhood restoration.  This is not an appropriate situation.  The State has the duty to grant education to the overall population according to egalitarian criteria, while giving equal opportunity.  When it chose to establish programs for the advancement of education in distressed strata, via the Neighborhood Restoration Project, it must maintain these programs in an egalitarian manner, and even detached from the realm of physical restoration.  As we noted, the Neighborhood Restoration Project enables separation between the physical realm and the social realm.

As said, from the State’s notice we have learned that the future of the project is being re-examined and that this re-examination will take several months.  It is to be assumed that the re-examination is nearing an end; before we point to the appropriate remedy, we will note that the petition is based on the presumption that the Neighborhood Restoration Project continues to exist and this is also the starting point of our discussion.  Accordingly, we accept the State’s claim that consequent to the ongoing character of the project which still necessitates its operation in neighborhoods included within it, and in consideration of the limited budget designated to the project today, it will not be possible include immediately all the distressed Arab neighborhoods.  However, the budgetary portion of the project which relates to social restoration is to be implemented for the appropriate settlements according to the established criteria, within a short time period.  This implementation will be done to a degree that suits the needs and hardship of the Arab sector, and in any event, in a degree that will not be less than its relative proportion in the population.

11.  In conclusion, the necessary conclusion of the above is this:

(A)  As to the first remedy, which deals with establishing egalitarian criteria, the petition was made partially extraneous in the face of the drafting of the requested criteria in 1999.  However, as said above, the criteria are to be redrafted and the criterion relating to ‘saturated construction’ and its relative weight among the rest of the criteria is to be given explicit expression within them.

 (B) The petition to include within the project all the Arab settlements which are included in the first and second clusters according to the socio-economic ranking of the COS is denied.  However, we determine that if it is not decided to end the Neighborhood Restoration Project, the objective of including new settlements in the project, on the assumption that settlements whose hardship is the greatest will be included in accordance with the criteria as they will be amended, is to be continued.  In all that relates to programs which relate to the social-educational realm of the project, they are to be given preference and to be applied to Arab settlements in a proportion which matches their needs and their hardship.  In any event, beginning with the next budget year, care is to be taken that the proportion of the budget that is designated for the Arab sector in the framework of the social-educational realm of the project is not to be less than the relative proportion of the sector in the population.

(C)  The multi-year plan for development in the Arab sector whose importance the government of Israel has recognized, and proclaimed its intention to actualize in a gradual manner, will not detract from the Neighborhood Restoration Project, unless it establishes programs of equal value which can replace the programs operated today in this realm.

The petition is therefore granted in part as to the requested criteria as said in paragraph 11(a), and is denied as to the immediate inclusion of all the settlements detailed in the petition subject to what has been detailed in paragraphs 11(b) and (c).  Under the circumstances there is no order as to expenses.

 

 

President A. Barak

I agree.

 

Justice J. Kedmi

I agree.

 

It was decided as per the opinion of Justice Beinisch.

 

12 December 2001

27 Kislev 5762