Freedom of Expression

HCJ 11225/03

MK Dr Azmi Bishara

v.

1.       Attorney-General

2.       Knesset

3.       Nazareth Magistrates Court

 

 

The Supreme Court sitting as the High Court of Justice

[1 February 2006]

Before President A. Barak and Justices E. Rivlin, E. Hayut

 

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

 

Facts: In 2000 and 2001, while the petitioner was a member of the Fifteenth Knesset, he made two speeches. These speeches expressed support and approval for the Hezbollah organization, which in Israel has been declared a terrorist organization, and the petitioner was indicted for offences of supporting a terrorist organization.

In 2002, prior to the elections for the Sixteenth Knesset, applications were made to the Central Elections Committee to disqualify the candidacy of the petitioner in those elections, because of what he said in the two speeches. The Central Elections Committee disqualified the petitioner from standing for election, but this decision was set aside by the Supreme Court in Central Elections Committee for the Sixteenth Knesset v. Tibi, on the grounds that it was not convinced that the petitioner had expressed support for ‘an armed struggle of a terrorist organization against the State of Israel,’ as distinct merely from expressing support for a terrorist organization.

Meanwhile, the petitioner raised a preliminary argument in the criminal trial against him that he had substantive immunity against prosecution for the two speeches, since he made them while he was a member of the Knesset. The Nazareth Magistrates Court, which was hearing the trial, held that it would decide the question of substantive immunity after hearing the evidence in the trial. The petitioner then applied to the Supreme Court to set aside the decision of the Nazareth Magistrates Court. 

 

Held: (Majority opinion — President Barak and Justice Rivlin) Under the Immunity Law, expressions of support for ‘an armed struggle of a terrorist organization against the State of Israel’ are not protected by parliamentary immunity. This exclusion of immunity should be interpreted strictly. It does not include all expressions of support for a terrorist organization, only those that contain support for an armed struggle of a terrorist organization against the State of Israel. As the court held in Central Elections Committee for the Sixteenth Knesset v. Tibi, the petitioner’s speeches did not contain clear support for an armed struggle of a terrorist organization against the State of Israel, although they did contain support for a terrorist organization. Consequently the statutory exclusion of immunity does not apply. The petitioner’s speeches should be considered under the case law rules for excluding immunity, according to the ‘margin of natural risk’ test. Although the petitioner’s statements and the circumstances in which they were made were close to the line beyond which it would not be possible to say that they fall within the scope of the natural risk involved in carrying out the duties of a member of the Knesset, the ‘margin of natural risk’ test is satisfied in this case.

(Minority opinion —Justice Hayut) The petitioner’s two speeches are not protected by substantive immunity, since they expressed support for an armed struggle of a terrorist organization against the State of Israel. In Central Elections Committee for the Sixteenth Knesset v. Tibi the petitioner was not disqualified from standing for election to the Knesset, but the premise for considering the scope of substantive immunity is completely different from the criteria that the court adopts when considering whether to disqualify a candidate from standing for office. The question of substantive immunity naturally arises with regard to a specific case, whereas for the purpose of disqualification in elections it is necessary to show that we are speaking of dominant characteristics that are central to the activities or the statements of the prospective member of Knesset in general. Moreover, for the purpose of preventing participation in the elections, ‘convincing, clear and unambiguous evidence’ must be presented as to the purposes and acts of the candidate. By contrast, the premise for determining the scope of substantive immunity is that the facts of the indictment will be proved.

 

Petition granted by majority opinion (President Barak, Justice Rivlin), Justice Hayut dissenting.

 

Legislation cited:

Basic Law: the Knesset, ss. 7A, 7A(2), 7A(a)(1), 7A(a)(3), 7A(b), 17.

Immunity, Rights and Duties of Knesset Members Law, 5711-1951, ss. 1, 1(a1), 1(a1)(3), 2, 2A, 3, 4, 13, 13(a).

Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002.

Penal Law (Amendment no. 66), 5762-2002.

Political Parties Law, 5752-1992, ss. 2, 5, 5(2).

Prevention of Terrorism Ordinance, 5708-1948, ss. 4, 4(a), 4(b), 4(g), 8.

 

Israeli Supreme Court cases cited:

[1]      CrimApp 9516/01 Bishara v. State of Israel (unreported).

[2]      EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [2003] IsrSC 57(4) 1.

[3]      CrimA 255/68 State of Israel v. Ben-Moshe [1968] IsrSC 22(2) 427.

[4]      HCJ 620/85 Miari v. Knesset Speaker [1985] IsrSC 41(4) 169.

[5]      HCJ 1843/93 Pinhasi v. Knesset [1995] IsrSC 49(1) 661.

[6]      HCJ 5151/95 Cohen v. Attorney-General [1995] IsrSC 49(5) 245.

[7]      HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee (not yet reported).

[8]      HCJ 6163/92 Eisenberg v. Minister of Building and Housing [1993] IsrSC 47(2) 229; [1992-4] IsrLR 19.

[9]      HCJ 507/81 Abu-Hatzeira MK v. Attorney-General [1981] IsrSC 35(4) 561.

[10]    LCA 7504/95 Yassin v. Parties Registrar [1996] IsrSC 50(2) 45.

[11]    LCA 2316/96 Isaacson v. Parties Registrar [1996] IsrSC 50(2) 529.

[12]    LCA 3527/96 Axelbrod v. Property Tax Director, Hadera Region [1998] IsrSC 52(5) 385.

[13]    EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

[14]    HCJ 6271/96 Be’eri v. Attorney-General [1996] IsrSC 50(4) 425.

[15]    HCJ 588/94 Schlanger v. Attorney-General [1994] IsrSC 48(3) 40.

[16]    HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

[17]    HCJ 4723/96 Atiya v. Attorney-General [1997] IsrSC 51(3) 714.

[18]    CrimFH 8613/96 Jabarin v. State of Israel [2000] IsrSC 54(5) 193.

[19]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[20]    EA 2600/99 Erlich v. Chairman of Central Elections Committee [1999] IsrSC 53(3) 38.

[21]    HCJ 399/85 Kahane v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

[22]    CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840.

[23]    EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [1988] IsrSC 42(4) 177.

[24]    EA 2/88 Ben-Shalom v. Central Elections Committee for the Twelfth Knesset [1989] IsrSC 43(4) 221.

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

[26]    HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [2003] IsrSC 57(6) 817; [2002-3] IsrLR 311.

[27]    HCJ 1398/04 Ben-Horin v. Registrar of Amutot (not yet reported).

 

Israeli Magistrates Court cases cited:

[28]    CrimC (Naz) 1087/02 State of Israel v. Bishara (decision of 12 November 2003) (unreported).

 

American cases cited:

[29]    United States v. Carolene Products Co., 304 U.S. 144 (1938).

[30]    Jones v. Opelika, 316 U.S. 584 (1942).

 

For the petitioner — H. Jabareen, M. Dalal.

For the respondents — O. Koren, E. Gideoni.

 

 

JUDGMENT

 

 

Justice E. Hayut

The petitioner is the leader of the National Democratic Assembly party and has served as a member of the Knesset for that party since the fourteenth Knesset. While he was a member of the fifteenth Knesset, the petitioner made speeches on two different occasions outside the Knesset, one in the town of Um al-Fahem and the other in Syria. Because of what he said during these speeches, the attorney-general decided to indict him of an offence of supporting a terrorist organization, under the Prevention of Terrorism Ordinance, 5708-1948. The main question that the petition raises is whether the remarks for which the petitioner was indicted were made in the course of his duties as a member of the Knesset and whether he therefore has substantive immunity?

The facts

1.    On 9 September 2001 the first respondent submitted to the Speaker of the Knesset an application to lift the petitioner’s immunity in order to indict him in a criminal trial. The application related to the indictments which the first respondent decided to file against the petitioner. One is the indictment that is relevant to the petition before us, in which the petitioner is alleged to have committed an offence of supporting a terrorist organization on two occasions for remarks that he made during speeches that he gave outside the Knesset. The second concerns offences of aiding an unlawful departure from Israel, which were attributed to the petitioner because of his involvement in organizing trips of Israeli citizens to Syria. The second indictment has meanwhile been cancelled by the Nazareth Magistrates Court and the parties do not address it in this petition. Consequently we too will focus our deliberations on the first indictment. This indictment relates to two incidents. One is a conference that the National Democratic Assembly held on 5 June 2000 at the Al-Anis Hall in Um Al-Fahem to mark the thirty-third anniversary of the Six Day War. In the invitation to the conference, which took place approximately two weeks after the Israel Defence Forces withdrew from South Lebanon, it says that it is taking place ‘in an atmosphere of the victory of the Lebanese resistance and the liberation of South Lebanon…’. In the main speech that was given by the petitioner at the conference (hereafter — ‘the Um Al-Fahem speech’), he said, inter alia, the following:

‘The Hezbollah have won, and for the first time since 1967 we have tasted victory. Hezbollah’s right to be proud of its achievement and to humiliate Israel… Lebanon, the weakest of the Arab states, has presented a tiny model which, if we look in depth, can lead us to draw the necessary conclusions for success and victory — a clear purpose and a fierce desire to win, and preparing the essential means needed for achieving this purpose… the Hezbollah recognized the mood in the Israeli street and exploited it to the full. It made sure that its guerilla warfare was fully reported in the media, and each of its achievements had a significant effect on the morale of the people in Israel who gradually lost patience in view of the losses that they suffered from the Hezbollah’ (see para. 8 of the indictment).

The second event to which the indictment relates concerns a speech that the petitioner made in Syria approximately one year after the Um Al-Fahem speech, during a memorial service for Syrian president, Hafez Al-Assad (hereafter — ‘the Syrian speech’). At the ceremony, which was attended by Ahmad Jibril, the leader of the Popular Front for the Liberation of Palestine and Hassan Nasrallah, the leader of the Hezbollah, the petitioner said, inter alia:

‘It is no longer possible to continue without widening the margin between the possibility of total war and the fact that surrender is impossible. What characterizes the Sharon government is that after the victory of the Lebanese “resistance” which derived a benefit from this margin that Syria constantly widened, between accepting the Israeli conditions called a lasting complete peace, and the military option. This margin helped the steadfastness and persistence and heroism of the leadership and fighters of the Lebanese “resistance.” But after the victory of the “resistance” and after Geneva and after the failure of “Camp David,” the Israeli government tried to reduce this margin in order to present a choice with the formula: either acceptance of the Israeli conditions, or total war. Thus it will be impossible to continue with the third option, which is the option of the “resistance,” other than by widening this margin once again, so that people can carry out the struggle and the “resistance.” It is not possible to widen this margin other than by means of a united and effective Arab political position in the international arena, and indeed the time has now come for this’ (see para. 12 of the indictment).

Because of these remarks of the petitioner in the Um Al-Fahem speech and the Syrian speech, the indictment attributes to him two offences of supporting a terrorist organization, under s. 4(a) of the Prevention of Terrorism Ordinance, which was in force at that time but has meanwhile been repealed by the Penal Law (Amendment no. 66), 5762-2002, and also under ss. 4(b) and 4(g) of the Prevention of Terrorism Ordinance.

2.    The premise that was adopted by the first respondent with regard to the application for lifting the petitioner’s immunity was that in the circumstances of the case he did not have substantive immunity by virtue of s. 1 of the Immunity, Rights and Duties of Knesset Members Law, 5711-1951 (hereafter — ‘the Immunity Law’), since the Knesset cannot lift substantive immunity. On the basis of this premise and pursuant to the provisions of s. 13 of the Immunity Law, the first respondent sought to lift the petitioner’s procedural immunity. The Knesset Committee held two sessions in this regard, on 25 September 2001 and on 30 October 2001, during which the first respondent presented the grounds for his application, experts on constitutional law and the immunity of Knesset members were heard and the petitioner’s position was heard. Following these sessions, the Committee decided on 5 November 2001 to recommend that the Knesset should lift the petitioner’s immunity. This recommendation was discussed in the plenum of the Knesset on 6 November 2001, and following that session the Knesset decided on 7 November 2001 to adopt the Committee’s recommendation.

3.    The indictment against the petitioner was filed first in the Jerusalem Magistrates Court, but was transferred to the Nazareth Magistrates Court at the request of the petitioner (see CrimApp 9516/01 Bishara v. State of Israel [1]). In his preliminary arguments in the criminal proceeding, the petitioner raised, inter alia, the argument that he was immune from criminal liability for the statements referred to in the indictment, because of s. 1 of the Immunity Law, which gives him substantive immunity as a member of the Knesset when expressing an opinion in the course of carrying out his duties or for the purpose of carrying out his duties. The Magistrates Court was of the opinion that the decision on the question of the substantive immunity raised by the petitioner involved questions of fact that should be heard in the main proceeding, and it therefore decided not to hear the argument in the preliminary stage of the trial but to leave it to a stage after hearing the evidence (see CrimC (Naz) 1087/02 State of Israel v. Bishara (decision of 12 November 2003) [28]). Following this decision, the petitioner filed the petition before us. This petition gives rise to questions that concern the proper forum and the proper time for raising arguments concerning substantive immunity, but we do not need to decide these questions since the respondents gave notice of their consent to hold a hearing of the petition on its merits (see their statement of 1 February 2005).

To complete the factual picture, we should note another important development concerning this case. The indictment that we are discussing relates, as we have said, to two events that took place in the course of the fifteenth Knesset and it was filed on 12 November 2001, shortly after the fifteenth Knesset decided to lift the petitioner’s immunity. While the indictment was pending, the elections for the sixteenth Knesset were held, and prior to those elections the Central Elections Committee for the Sixteenth Knesset (hereafter — ‘the Elections Committee’) and this court were called upon to hear various proceedings that were initiated by certain parties with the aim of preventing the petitioner from standing as a candidate in those elections. One of the main arguments that those applicants raised in this context concerned the remarks that the petitioner made in the Um Al-Fahem speech and in the Syrian speech, as well as the indictment that was filed against him for those remarks after his immunity was lifted. The Elections Committee accepted the arguments and decided by a majority, against the dissenting view of the chairman of the Elections Committee, Justice M. Cheshin, to prevent the petitioner from standing as a candidate for the sixteenth Knesset. The Elections Committee held that the petitioner fell within the scope of the ground in s. 7A(a)(1) of the Basic Law: the Knesset, with regard to denying the existence of the State of Israel as a Jewish and democratic state, as well as the ground in s. 7A(a)(3) of that Basic Law, which concerns support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel. This decision was brought to this court for approval pursuant to s. 7A(b) of the Basic Law, and the court held, by a majority, that the decision of the Elections Committee to prevent the petitioner standing as a candidate for the sixteenth Knesset should not be approved. The court held, inter alia, that it was not convinced, to the degree of certainty required in cases of election disqualification, that the petitioner’s statements amounted to support for an armed struggle of a terrorist organization (see EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [2]). The court also held in that case that the participation of the National Democratic Assembly party in the elections for the Sixteenth Knesset should not be prevented. Following the judgment in Central Elections Committee for the Sixteenth Knesset v. Tibi [2], the National Democratic Assembly party participated in the elections, in which it won three seats, and the petitioner served as a member of the sixteenth Knesset on behalf of that party.

The arguments of the parties

4.    The main argument of the petitioner before us is that the statements attributed to him in the indictment are merely the expression of an opinion on what are clearly political issues, and that they were uttered in the course of carrying out his duties and for the purpose of carrying out his duties as a member of the Knesset. They are therefore protected, in his opinion, by substantive immunity, which cannot be lifted. The petitioner further argues that this conclusion is dictated by the purposes of substantive immunity, which are to allow the member of the Knesset to express political positions freely and to represent the public that voted for him without fear. This protection is especially warranted, in the petitioner’s opinion, when we are speaking of members of the Knesset from parties that represent minority groups, like the petitioner’s party. The petitioner further argues that in his speeches he expressed the positions of the National Democratic Assembly that are set out in the party manifesto, and these positions were approved in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] as satisfying the conditions in s. 7A of the Basic Law: the Knesset. The petitioner also complains, in the alternative, of the impropriety of the process of removing the procedural immunity. According to him, there were significant defects in the proceeding that justify its being set aside. First, the full facts were not presented to the members of the Knesset. In particular, the members of the Knesset were not informed of the fact that the police recommended that the investigation file against the petitioner should be closed, in so far as the Um Al-Fahem speech was concerned. In addition, the complete speeches of the petitioner were not brought before the members of the Knesset; they were only presented with fragments, and even these were not exact. Second, the Knesset Committee did not hold a hearing on the actual parts of the speeches that were brought before it, and it ignored the petitioner’s explanations with regard to their significance and the circumstances in which they were made. Third, the members of the Knesset did not consider all the factors that they should have considered before they voted on the proposal to lift the petitioner’s immunity, and in particular the members of the Knesset ignored the possibility that irrelevant considerations lay at the heart of the decisions of the first respondent to file an indictment against the petitioner. Fourth, the vote of the Knesset Committee, in which it decided to recommend to the Knesset that it should lift the petitioner’s immunity, was made after party consultations, and this gives rise to the suspicion that irrelevant considerations lay at the heart of the voting of at least some members of the Knesset.

5.    The respondents’ position is that the statements attributed to the petitioner fall outside the scope of substantive immunity. According to them, the provision which states that substantive immunity will apply to ‘expressing an opinion… in the course of carrying out his duties and for the purpose of carrying out his duties as a member of the Knesset’ should be interpreted in view of the basic constitutional principles of the State of Israel. This interpretation leads to the conclusion that statements whose content is support for an armed struggle of a terrorist organization against the State of Israel cannot be considered to be expressing an opinion in the course of carrying out his duties and for the purpose of carrying out his duties as a member of the Knesset, and these statements do not fall within the scope of substantive immunity. This is the case in the absence of a provision of statute that expressly provides this. In the respondents’ opinion, a democratic state does not need to allow activity, which clearly seeks to undermine its ongoing struggle against terrorism in order to protect its citizens, to benefit from substantive immunity, even if it is done under a cloak of legitimate parliamentary activity. The respondents do not dispute the importance of freedom of speech in general and of elected representatives in particular, or the importance of open and free political debate. Notwithstanding, according to them, support of an armed struggle of a terrorist organization against the state falls outside the scope of democratic debate and discussion and outside the scope of the legitimate expression of public representatives.

The respondents also are of the opinion that there were no defects in the process of lifting the immunity. According to them, the Knesset was not competent to examine the indictment on its merits, and this also means that it was not competent to examine the strength of the evidence. Consequently, the material that was presented to the Knesset was sufficient. First, the evidence on which the indictment is based was presented comprehensively to the members of the Knesset. The police recommendation to close the investigation file constitutes an internal opinion and it has no objective value nor does it constitute any evidence when examining the request of the attorney-general to lift the petitioner’s immunity. Second, the question whether substantive immunity applies to the statements that led to the indictment was considered extensively and thoroughly by the Knesset Committee. The text of the speeches that led to the filing of the indictment was submitted to the members of the Committee, and a discussion was held with regard to them. Third, the petitioner’s argument according to which irrelevant considerations lay at the basis of the attorney-general’s decision was presented to the Committee, examined on its merits and rejected by the Committee. Fourth, the petitioner did not properly prove his claim concerning the party consultations before the vote in the Knesset Committee, or his claim that these consultations, even if they took place, affected the position of the Knesset members on the merits of the issue. In view of all this the respondents request that we deny the petition.

Deliberations

Substantive immunity — the normative framework and the purposes underlying it

6.    Section 17 of the Basic Law: the Knesset provides that ‘Members of the Knesset have immunity; details shall be provided in statute.’ Thereby the Israeli legal system adopted an importance principle that is the essence of the democratic system, whereby a member of parliament has immunity from legal proceedings. Immunity is intended to ensure that a member of the Knesset can properly discharge his duties and represent the public that elected him by giving free and full expression to his opinions and outlooks, without concern or fear that this may result in a criminal conviction or a personal pecuniary liability in a civil proceeding. In CrimA 255/68 State of Israel v. Ben-Moshe [3], at p. 439, President Agranat explained the importance and purposes of the immunity granted to members of the Knesset when he said:

‘Before us we have a privilege of supreme constitutional importance, in that it is intended to guarantee that members of the legislative house of the state have freedom of opinion, expression and debate, so that they can discharge their duties, as such, without feeling fear or trepidation and without being concerned that they may have to answer for this to any person or authority; for the whole nation has a clear essential interest in the realization of this right, so that it does not suffer a major or minor violation by anyone; without it the democratic process cannot exist effectively and it will become valueless.’

Thus we see that the independence of members of the Knesset is essential for the proper functioning of a democracy. In discussing this rationale that underlies subjective immunity, President Shamgar said in HCJ 620/85 Miari v. Knesset Speaker [4], at p. 207:

‘A member of the Knesset, who cannot express himself without concern for the legal consequences of his remarks, cannot discharge his duty to the voter. The representatives of the people… have the task of conducting the political debate. The freedom of political debate requires that no restriction is placed upon the ability and right of free expression of the elected representatives.’

An additional central purpose that can be identified in the historical development of parliamentary immunity concerns the desire to preserve the separation of powers and to protect the proper activity of the legislature so that the executive authority does not intervene in it (see HCJ 1843/93 Pinhasi v. Knesset [5], at pp. 678-679; S. Nevot, The Subjective (Professional) Immunity of Knesset Members (Doctoral Thesis — Hebrew University, 1997), at pp. 147-150).

7.    There are various models of parliamentary immunity around the world. There are legal systems that give a member of parliament substantive immunity while limiting it only to the activity that is done in the parliament building itself (the United States, England, Canada, Australia, Germany and Holland). Other countries (France, Italy and Spain) do not attribute any importance to the place where the activity protected by immunity is carried out and the immunity extends both to activity carried out inside parliament and to activity outside it, provided that there is an objective-functional connection between the activity and the duties of the member of parliament. Some countries give the member of parliament immunity only for a vote or expressing an opinion and a few give immunity also for an act (for a detailed comparative discussion of the various models of substantive immunity, see Nevot, The Subjective (Professional) Immunity of Knesset Members, supra, at pp. 98-142).

The Israeli legislature adopted a broad model of substantive immunity, which is regulated in s. 1 of the Immunity Law, according to which:

‘Immunity in carrying out duties

1. (a) A member of the Knesset shall not have criminal or civil liability, and he shall be immune from any legal action, for a vote or for expressing an opinion orally or in writing, or for an act that he carried out — in the Knesset or outside it — if the vote, expressing the opinion or the act were in the course of carrying out his duties, or for the purpose of carrying out his duties, as a member of the Knesset.

     …’

From this we see that the substantive immunity of members of the Knesset extends also to acts and not merely to a vote or opinion, and it includes the activity of the member of the Knesset whether it is carried out inside the Knesset or outside it, provided that there is an objective-functional connection between this activity and his position as a member of the Knesset. This substantive immunity cannot be lifted (s. 13(a) of the law) and it continues even after the member of the Knesset leaves office (s. 1(c) of the law) (for the significance of substantive immunity and the tests concerning the scope of its application, see Miari v. Knesset Speaker [4], Pinhasi v. Knesset [5]; HCJ 5151/95 Cohen v. Attorney-General [6]; HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [7]). Alongside the substantive immunity, the Immunity Law further provides a procedural immunity. The procedural immunity, as distinct from the substantive immunity, protects a member of the Knesset from being indicted in criminal proceedings for offences that he did not commit in the course of carrying out his duties or for the purpose of carrying out his duties as a member of the Knesset. This immunity is provided in section 4 of the Immunity Law and it applies to offences that were committed while a member of the Knesset holds office and also to offences that were committed before a member of the Knesset held office, unless the Knesset decides to lift the immunity. Lifting procedural immunity is done by means of the process set out in s. 13 of the law and subject to the conditions set out therein. The Immunity Law further provides specific provisions concerning the immunity of members of the Knesset from searches, eavesdropping and arrest (see ss. 2, 2A and 3 of the Immunity Law respectively).

8.    The purposes underlying the substantive immunity that is granted to members of the Knesset, which we listed above, no matter how important and significant they may be, do not reflect absolute values. On the contrary, substantive immunity as a legal institution directly conflicts with other basic principles that lie at the heart of our legal system, such as the principle of the rule of law according to which there is no person or corporation or authority in a democracy that is above the law (see HCJ 6163/92 Eisenberg v. Minister of Building and Housing [8], at p. 274 {82}). Indeed, every person is forbidden to break the law. It is even more forbidden for a public figure, a member of the legislature, who is supposed to serve as an example and a civic standard for upholding and protecting the law. A member of the Knesset who breaks the law undermines public confidence in the organs of government. An additional basic principle that conflicts with the institution of substantive immunity is the principle of equality. This principle implies, inter alia, the outlook that everyone is equal before the law and also the outlook that every act of legislation is intended to realize the principle of equality, and not to conflict with it (see HCJ 507/81 Abu-Hatzeira MK v. Attorney-General [9], at p. 585). Substantive immunity violates the principle of equality. According to it, a member of the Knesset has no criminal liability for prohibited acts for which an ordinary citizen, were he to commit them, would be held accountable.

How is it possible to reconcile the conflicts and the inconsistency between the basic principles of the legal system that are created by substantive immunity? Where should we place the boundaries of substantive immunity in order that we do not overstep the proper balance for realizing its purposes? This was discussed extensively by President Barak in Pinhasi v. Knesset [5], where he said:

‘The purpose of the immunity is to prevent a situation in which a member of the Knesset is prevented from carrying out permitted acts, because of the concern that they might marginally overstep the boundary of what is prohibited. Immunity “covers” this margin. In the balance between refraining from carrying out lawful acts that are a part of the functions of a member of the Knesset and committing unlawful acts that fall within the margin of risk of the lawful acts, the Immunity Law preferred the second alternative. Indeed, in order to preserve the independence and freedom of action of a member of the Knesset, as well as the proper functioning of the Knesset itself, the Knesset member is given substantive immunity. This immunity is given to him with regard to any unlawful act that can be regarded as an improper way of carrying out a lawful act which falls with the scope of his role as a member of the Knesset, provided that this unlawful act is sufficiently close, from a substantive viewpoint, to the role of being a member of the Knesset, so that it can be said that it is a part of it and it constitutes a part of the natural risk to which every member of the Knesset is exposed. This approach with regard to the proper balancing point ensures that substantive immunity acts as a shield against risks that are inherent and natural to the position of being a member of the Knesset, without it becoming a carte blanche for abusing the position’ (ibid. [5], at p. 686).

Thus we see that the ‘margin of natural risk’ test that was formulated by President Barak in Pinhasi v. Knesset [5], which was adopted as the decisive test for interpreting the expression ‘in the course of carrying out his duties or for the purpose of carrying out his duties’ in s. 1 of the Immunity Law (see Movement for Quality Government in Israel v. Knesset Committee [7]), tells us that the premise for substantive immunity is the rule of law (see S. Nevot, ‘The Immunity of a Member of Knesset for “Expressing an Opinion and an Act in Carrying out his Duties” — New Tests in the Case Law of the Supreme Court,’ 4 HaMishpat (1999) 61, at p. 93). Therefore, as a rule a member of the Knesset should carry out his duties within the framework of the law while taking care to uphold it. Notwithstanding, the Immunity Law gives a member of the Knesset a ‘safety net’ in those cases where he overstepped the mark in the course of carrying out his duties or for the purpose of carrying out his duties and entered the prohibited margin, provided that these fall within the scope of the natural risk of his activity as a member of Knesset. This ‘safety net’ is intended to protect the independence and freedom of action of a member of the Knesset so that he is not intimidated when voting, expressing an opinion and doing acts that are an integral part of his duties, because of a fear that he might have to stand trial for these actions. By contrast, substantive immunity is not intended to protect prohibited activity that is planned in advance, which a member of the Knesset commits by abusing his status (see Pinhasi v. Knesset [5], at p. 687). Likewise, as we shall explain below, prohibited activity of members of the Knesset that endangers democracy and seeks to undermine the foundations of the state as a Jewish and democratic state is excluded from the scope of substantive immunity. Such activity, whether it is carried out in the Knesset itself or outside the Knesset, should not be regarded, ab initio, as activity in the course of carrying out the duties of a member of Knesset or for the purpose of carrying out those duties. This approach derives from the recognition that Israeli democracy, as a defensive democracy, is entitled to lay down ‘red lines’ that a member of the Knesset may not cross and for which he will not have substantive immunity, if he crosses them.

Substantive immunity and the reciprocal relationship between it and other legislative arrangements

9.    In order to demarcate these ‘red lines,’ we should examine the institution of substantive immunity in its broad context. We should address the interaction and reciprocal relationship between substantive immunity and the provisions of s. 5 of the Political Parties Law, 5752-1992, and particularly the interaction and reciprocal relationship between substantive immunity and the provisions of s. 7A of the Basic Law: the Knesset. Indeed, holding office and acting as a member of Knesset are merely the ultimate goal of the democratic process in which the members of the Knesset are appointed to office. The beginning of this process is the registration of the party under the Political Parties Law. This registration is a necessary condition for the party competing in the elections to the Knesset (see s. 2 of the Political Parties Law). Already at this preliminary stage the legislator, in s. 5 of the Political Parties Law, establishes ‘red lines,’ which, if crossed, disqualify the party from being lawfully registered. Section 5 provides the following:

‘Restrictions upon registering a political party

5.  A political party shall not be registered if any of its purposes or acts, expressly or by implication, contains one of the following:

 

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

 

     (2) Incitement to racism;

 

(2a) Support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel;

 

(3) A reasonable ground for concluding that the political party will serve as a cloak for unlawful acts.’

A similar barrier is placed before lists of candidates for the Knesset and before a candidate for the elections to the Knesset in s. 7A of the Basic Law: the Knesset, which provides:

‘Preventing the participation of a list of candidates

7A. A list of candidates shall not participate in elections to the Knesset nor shall a person be a candidate in elections to the Knesset if the purposes or acts of the list or the acts of the person, as applicable, expressly or by implication contain one of the following:

 

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

 

     (2) Incitement to racism;

 

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

The correlation between the legislative arrangements in s. 5 of the Political Parties Law and those in s. 7A of the Basic Law: the Knesset is obvious: both of them concern the power of a political party and the power of its candidates to participate in elections; both of them violate similar freedoms and both of them are intended to protect similar values. For this reason, each of them delineates similar ‘red lines’ that a person cannot cross if he wishes to be able to serve as a member of the Knesset (see LCA 7504/95 Yassin v. Parties Registrar [10], at p. 68; LCA 2316/96 Isaacson v. Parties Registrar [11], at pp. 539-540).

10. The Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002 (hereafter — Amendment no. 29), which was enacted after the events that are the subject of the indictment in our case, also enshrined these ‘red lines’ in the Immunity Law and added to it the provision of s. 1(a1), which provides:

‘Immunity in carrying out duties

1.  …

(a1) To remove doubt, an act, including a statement, which is not incidental, of a member of the Knesset that contains one of the following shall not be regarded, for the purpose of this law, as expressing an opinion or as an act that is carried out in the course of his duties or for the purpose of his duties as a member of the Knesset:

 

(1) Denying the existence of the State of Israel as the state of the Jewish people;

 

(2) Denying the democratic character of the state;

 

(3) Incitement to racism because of colour or belonging to a race or to a national-ethnic origin;

 

(4) Support for an armed struggle of a hostile state or for acts of terrorism against the State of Israel or against Jews or Arabs because they are Jews or Arabs, in Israel or abroad.

 

…’

Does the fact that the restrictions in s. 1(a1) were only added to the Immunity law in 2002 mean that before Amendment no. 29 those restrictions did not apply with regard to limiting the scope of substantive immunity? I do not think so. In my opinion, we are dealing with a ‘clarifying amendment’ that merely reflects the legal position prior to the amendment. It should be noted that the determination that we are dealing with a ‘clarifying amendment’ does not mean that the amendment should be applied retrospectively in a literal manner. All that this determination tells us is that we should regard the amendment as important in view of the fact that it clarifies the legal position that prevailed before it, notwithstanding the position that the state presented before us in this regard (for a legislative amendment as a ‘clarifying amendment,’ see LCA 3527/96 Axelbrod v. Property Tax Director, Hadera Region [12], at p. 406; A. Barak, Legal Interpretation (vol. 2, Statutory Interpretation, 1994), at pp. 51-54). The conclusion that we are faced with a ‘clarifying amendment’ is based on several reasons: first, s. 1(a1) begins with the words ‘to remove doubt’ and this beginning constitutes a clear linguistic indication that we are dealing with a legislative amendment that was intended to clarify the legal position that prevailed before it was enacted. Second — and this is the main point — the purpose underlying the substantive immunity and the balances required for determining its scope also support the approach that we are dealing with a ‘clarifying amendment’ and that the ‘red lines’ that are provided in s. 5 of the Political Parties Law and in s. 7A of the Basic Law: the Knesset continue to accompany the candidate even after he begins to hold office as a member of Knesset. When the candidate reaches this goal, the red lines delineate the borderline of substantive immunity that is granted to him by virtue of his office. As I have already said, the institution of substantive immunity is based on the recognition that the freedom of action and expression given to the political parties and to members of the Knesset are the foundation of a functioning democracy. Nonetheless, we are not speaking of a freedom of action and a freedom of expression that are without limit. The conflict between the institution of substantive immunity and other basic values of democracy, including the rule of law and the principle of equality before the law, requires proper balances to be struck to ensure that substantive immunity does not ‘cross the line’ and undermine these principles to a greater extent that should be allowed. This is the purpose of the ‘margin of natural risk’ test that this court adopted in delineating the significance and interpretation that should be given to the expression ‘in the course of carrying out his duties and for the purpose of carrying out his duties’ in s. 1 of the Immunity Law. The same approach should be adopted, and is perhaps even more appropriate, where elected representatives overstep ‘red lines’ that concern the very existence of the state and they undermine its Jewish and democratic foundations. Indeed, the Israeli democracy is a young democracy and the rights that it grants should not be allowed to be used in order to bring about its self-destruction. The Supreme Court addressed this in Yassin v. Parties Registrar [10], when it said: ‘Democracy does not need to allow its own destruction because of its tolerance’ (ibid. [10], at p. 62), and in EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [13], at p. 310 {161}, where it said: ‘Civil rights are not a platform for national destruction.’ Therefore, there is no basis for showing tolerance towards expressions or acts of an elected representative that involve a denial of the existence of the State of Israel as a Jewish and democratic state or support for an armed struggle of a hostile state or a terrorist organization that are acting to destroy it. These principles are so basic and so essential to the existence of Israeli democracy that they should be regarded as principles that flow through the arteries of our legal system, whether they are expressly enshrined in legislation or not. The same applies to incitement to racism (see s. 5(2) of the Political Parties Law; s. 7A(2) of the Basic Law: the Knesset, and s. 1(a1)(3) of the Immunity Law). This incitement undermines the foundations of democracy and therefore it is desirable that not only should a party or a candidate be prevented from competing in elections, but also that substantive immunity should not be given to a member of the Knesset, in so far as his actions are tainted by such incitement. It should already be pointed out at this stage that the ‘red lines’ that are delineated by amendment no. 29 concerning the restrictions on granting substantive immunity are broader in so far as they concern support for an armed struggle against the State of Israel. Whereas s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset both speak of a restriction that arises because of ‘support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel,’ the restriction in s. 1(a1) of the Immunity Law speaks of ‘support for an armed struggle of a hostile state or for acts of terrorism against the State of Israel or against Jews or Arabs because they are Jews or Arabs, in Israel or abroad.’ Thus we see that, for the purpose of substantive immunity, the legislature expressed its opinion in amendment no. 29 that support for acts of terrorism of any kind whatsoever is antidemocratic to such an extent that substantive immunity should not be given for it, not only when we are speaking of an armed struggle of a terrorist organization against the State of Israel, but even when we are speaking of acts of terrorism directed against Jews or Arabs as such.

11. Support for the position that amendment no. 29 is merely a ‘clarifying amendment,’ which reflects continuity in realizing the purposes underlying s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset, can be found in the remarks uttered by President Shamgar in Miari v. Knesset Speaker [4] with regard to s. 1 of the Immunity Law before the amendment, even though in that case no decision was necessary on this issue. He said the following:

‘This argument in essence is therefore that the legislature did not merely intend to prohibit a certain type of activity before the elections, but the aforesaid s. 7A was intended to provide a selection process ab initio that would determine the appearance of the Knesset and its elected representatives after the elections, and this gives rise to the connection between what is stated in s. 7A and how the elected representative carries out his duties’ (ibid. [4], at p. 211; see also Pinhasi v. Knesset [5], at p. 690).

The approach that there is a link between the ‘red lines’ provided in s. 5 of the Political Parties Law, s. 7A of the Basic Law: the Knesset and s. 1 of the Immunity Law, which jointly express the goal of realizing the constitutional norms underlying those sections, is mentioned also in the work of Dr S. Nevot, who says:

‘It would appear that ss. 5 and 7A, on the one hand, and s. 1 of the Immunity Law, on the other hand, were intended to prevent this phenomenon. Preventing the registration of a political party and preventing its participation in elections is a preliminary stage, which is intended to select the organizations and the persons that will be allowed to take part in the institution of the legislature. After the “selection,” the institution of immunity will protect the freedom of expression of those who are chosen. The premise in this protection is that the elected representatives are only those people whose expressions and activity have been defined as legitimate. The Immunity Law is intended to complete, in this sense, the “selection” process that the legislature began in sections 5 and 7A. It is precisely the main purpose of parliamentary immunity — the one that regards the immunity as a means of protecting the legislature itself rather than the individual member of the Knesset — that requires an examination of all the arrangements that apply to the substance and character of the legislature’ (see Nevot, The Subjective (Professional) Immunity of Knesset Members, supra, at p. 233).

Thus we see that expressing an opinion or doing an act that involves a denial of the existence of the State of Israel as a Jewish and democratic state, support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel, incitement to racism or support for acts of terror against the Arab minority in Israel all are ‘beyond the pale’ in so far as carrying out the duties of a member of Knesset is concerned. With regard to expressing opinions or doing acts of this kind, we are therefore not required to examine the ‘margin of natural risk’ that was determined in Pinhasi v. Knesset [5], because we are concerned with expressions and acts that by their very type and nature cannot be considered as acts of a member of the Knesset ‘in the course of carrying out his duties or for the purpose of carrying out his duties.’

From general principles to the specific case

12. The main dispute between the parties in the case before us concerns the application of substantive immunity to the petitioner’s statements in the Um Al-Fahem speech and in the Syrian speech. According to the petitioner, the criminal proceeding that was begun against him because of these statements should be stopped because they are protected by substantive immunity under s. 1 of the Immunity Law, and therefore he has no criminal liability for them. The respondents, on the other hand, are of the opinion that we are dealing with statements that cannot be regarded as an expression of an opinion by the petitioner in the course of carrying out his duties or for the purpose of carrying out his duties as a member of Knesset.

Since we have determined that support for an armed struggle or for acts of terror against the State of Israel crosses a ‘red line’ that demarcates the limit of tolerance that Israeli democracy is prepared to show to public representatives, we should go on to examine whether the statements that lie at the heart of the indictment that was filed against the petitioner prima facie constitute support of this kind and therefore should not be subject to substantive immunity. For this purpose, we should adopt the premise that the facts of the indictment will be duly proved (see Pinhasi v. Knesset [5], at p. 674), since the judicial scrutiny that is exercised by the High Court of Justice cannot and should not enter into the question whether the elements of the offence under discussion will be proved. This task is the prerogative of the trial court before which the criminal proceeding is being conducted, and that court usually also makes the decision on the question of substantive immunity. In the present case, as we have explained above, we are considering the question of substantive immunity in consequence of the procedural agreement reached by the parties, even though the criminal proceeding has already begun. Based on the aforementioned premise, it can be said that the Um Al-Fahem speech and the Syrian speech contain a song of praise and approval for the Hezbollah organization. Since we know that this organization has been declared a terrorist organization under s. 8 of the Prevention of Terrorism Ordinance (see Yalkut Pirsumim 5749, at p. 3474), and since we also know that the Prevention of Terrorism Ordinance defines a terrorist organization as ‘an association of persons who use in its operations acts of violence that are likely to cause the death or injury of a person, or threats of such acts of violence,’ it will be difficult not to regard the statements of the petitioner as support for an armed struggle of a terrorist organization. In the arguments that the petitioner made before us, he tried to distinguish between support that he expressed for the Hezbollah organization and support for acts of violence and terrorism that, according to him, he rejects utterly, by saying inter alia that the armed struggle that the Hezbollah organization is conducting is in his opinion a legitimate struggle of guerilla fighters against an occupying army. These distinctions that the petitioner is seeking to outline with regard to his expressions, by regarding them in their overall context, are a matter for the trial court to decide within the framework of the criminal proceeding being conducted before it. From a theoretical viewpoint, I do not rule out entirely the possibility that a thin line can be drawn between support for a terrorist organization and support for an armed struggle of a terrorist organization. But in so far as the question of the petitioner’s substantive immunity is concerned, it seems to me that it is difficult not to regard the remarks of the praise and approval that he heaped on the activity of the Hezbollah organization, while referring to ‘losses that [the Jewish people] suffered from the Hezbollah’ and ‘the steadfastness and persistence and heroism of the leadership and fighters of the Lebanese “resistance”,’ as support for the armed struggle that this terrorist organization is conducting against Israel. These statements cross the ‘red line’ to which I referred and I do not think that there is any basis for giving the petitioner substantive immunity for them.

13. Notwithstanding what we have said, it is important to remember and emphasize that there is a great distance between the finding that a certain statement does not enjoy the protection of substantive immunity and a criminal conviction for that statement. This route passes three important stations at which legal and public discretion should be exercised wisely and responsibly in order to determine whether there is a basis for bringing the elected representative to trial for those statements before he is convicted in a criminal trial for them. The first station is the attorney-general, who has discretion to decide whether certain statements, even though they do not enjoy substantive immunity, justify a criminal indictment (see HCJ 6271/96 Be’eri v. Attorney-General [14]; HCJ 588/94 Schlanger v. Attorney-General [15]; see also HCJ 935/89 Ganor v. Attorney-General [16], at pp. 507-511). It should be noted that the discretion exercised by the attorney-general is not limited merely to the initial decision as to whether or not to file an indictment. There may be cases in which the attorney-general will see fit to stay criminal proceedings that have already been begun, although naturally this will happen only in exceptional and unusual circumstances that justify such a step (see HCJ 4723/96 Atiya v. Attorney-General [17], at pp. 723-725; R. Gavison, Administrative Discretion in Law Enforcement: the Power to Stay and Restart Criminal Proceedings (1991), at p. 366). The second station on the route leading to indicting an elected representative for a statement or act that is not subject to substantive immunity is the deliberations of the Knesset Committee and the decision in the plenum of the Knesset to lift procedural immunity, in which the Knesset Committee examines whether the decision of the attorney-general to file an indictment against a member of the Knesset was made lawfully or whether it was perhaps tainted by improper reasons arising from political pressure (see Movement for Quality Government in Israel v. Knesset Committee [7], at paras. 41-43). The last station on the route that we have outlined is the criminal trial itself, in which the court examines whether the elements of the offence attributed to the elected representative who is the accused have been proved and whether he should be convicted of that offence. In so far as this last station is concerned, and in so far as we are dealing with offences concerning the freedom of expression, care should be taken not to give too broad an interpretation to the scope of these offences, so that they do not excessively violate the political freedoms given to the elected representative and do not undermine his most essential ‘tools’ — speeches, articles and interviews (for difficulties raised by the broad formulation of these offences, see M. Kremnitzer, ‘The Alba case: “Clarifying the Law of Incitement to Racism”,’ 30 Hebrew Univ. L. Rev. (Mishpatim) 105 (1999), at p. 142, and see also CrimFH 8613/96 Jabarin v. State of Israel [18]).

The ramifications of the judgment in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] on the petition before us

14. The last question that should be considered in this petition is the significance of the decision made by this court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] with regard to the provisions of s. 7A of the Basic Law: the Knesset, according to which the petitioner should not be prevented from standing as a candidate for the sixteenth Knesset. It will be remembered that in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] the indictment that is the subject of this petition was before the court, since the events to which the indictment refer occurred at the time that the petitioner was a member of the fifteenth Knesset and the indictment was filed in November 2001 after the petitioner’s procedural immunity was lifted. The judgment in Central Elections Committee for the Sixteenth Knesset v. Tibi [2], which relates to the lists and candidates for the sixteenth Knesset, was therefore given while the indictment was pending (the judgment was given on 9 January 2003, and the reasons were given separately on 15 May 2003), and it includes a lengthy discussion of the statements of the petitioner that are the subject of the indictment. The reason why the court did not see fit to prevent the petitioner from standing as a candidate in the elections for the sixteenth Knesset under s. 7A of the Basic Law: the Knesset, was that there was no convincing, clear and unambiguous evidence of the kind required in a case such as this. As the court said:

‘Indeed, as we have seen… an essential condition — according to the interpretation of section 7A of the Basic Law: the Knesset in a host of cases — is that the evidence required in order to determine that the acts of Member of Knesset Bishara involve a denial of the existence of the State of Israel as a Jewish state and support for an armed struggle of terrorist organizations against it should be convincing, clear and unambiguous in their weight and strength. Only this strict standard of evidence can resolve the democratic paradox and deny one of the central rights of democracy, the right to vote and to stand for office. In placing this criterion before us, we are of the opinion that we have not been shown evidence of the weight and strength required to satisfy the required test… We have not been persuaded that there is before us convincing, clear and unambiguous evidence that Member of Knesset Bishara supports an armed struggle against the State of Israel (ibid. [2], at pp. 42-43).

Does this determination tell us that, for the purpose of granting substantive immunity to the petitioner, the limitation concerning support for an armed struggle of a terrorist organization also is not satisfied by the events that are the subject of the indictment? Section 7A(a)(3) of the Basic Law: the Knesset provides that a person shall not be a candidate in elections to the Knesset if his acts, expressly or by implication, contain ‘support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel.’ We discussed above the correlation and the close connection between the arrangement in s. 7A of the Basic Law: the Knesset and the arrangement in s. 1 of the Immunity Law, from the viewpoint of the values that these arrangements are intended to protect and from the viewpoint of the purpose that these restrictions are intended to achieve. Prima facie, it would therefore appear that once it has been determined for the purpose of s. 7A(a)(3) of the Basic Law: the Knesset that there is no basis for preventing the candidacy of the petitioner in the elections because of the statements at the heart of the indictment, it automatically follows that he also has substantive immunity under s. 1 of the Immunity Law for those statements. That is what the petitioner argued before us, while emphasizing that a different result that relies on these facts can lead to disharmony in the law. The petitioner also argued that there is no justification for restricting his actions as a representative of those members of the public who elected the National Democratic Assembly party to the Knesset, after he already satisfied the very same tests when he overcame the barrier that s. 7A of the Basic Law: the Knesset placed in his path.

15. A similar question with regard to the reciprocal relationship between the provisions of s. 5 of the Political Parties Law and the provisions of s. 7A of the Basic Law: the Knesset, arose in the past in Yassin v. Parties Registrar [10]. In that case, President Barak discussed the great similarity between the two provisions, but also emphasized the difference between them, when he said:

‘The considerations that lie at the heart of preventing the commencement of the starting phase (the registration) are not identical to the considerations that lie at the heart of preventing the completion of the final phase (the elections). The violation of values that democracy seeks to protect is far greater in the first stage than in the second stage… Within the scope of s. 7A of the Basic Law: the Knesset, it has been held that only in extreme and special cases can a list be prevented from participating in the elections; that the disqualification is the last resort; that s. 7A of the Basic Law: the Knesset should be given a strict, narrow and restrictive interpretation. This interpretive approach is desirable. It allows a very narrow scope for preventing the participation of a list in the elections. The additional power to disqualify a list that is found in s. 5 of the Political Parties Law should therefore have a very narrow field of operation. If the power to disqualify a list under s. 7A of the Basic Law: the Knesset is narrow, then the power to disqualify a list under s. 5 of the Political Parties Law is very narrow indeed, and the difference between them is narrower still’ (ibid. [10], at pp. 69-70).

According to this tiered approach towards the tests that should be applied with regard to the disqualification of a political party or a candidate from participating in the democratic process, President Barak was of the opinion that it is indeed possible that it will be decided to allow the registration of a party under the tests set out in s. 5 of the Political Parties Law, but that the same party will not be allowed to compete in the elections under s. 7A of the Basic Law: the Knesset. In his words: ‘It is possible to conceive of a party whose registration will not be disqualified, but whose participation in the elections will not be allowed’ (see Yassin v. Parties Registrar [10], at p. 68, and for a similar approach, which distinguishes between the right of a party to participate in the elections and recognizing its power to realize certain aspects of its manifesto, see HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [19], at p. 800).

Whether or not we accept this tiered approach in so far as it concerns the correlation between s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset (for a dissenting opinion, see Isaacson v. Parties Registrar [11], at pp. 539-540, and see and cf. EA 2600/99 Erlich v. Chairman of Central Elections Committee [20], at p. 47), it would appear at any rate that we should recognize the manifest difference between these provisions and the restrictions that apply to the scope of the substantive immunity provided in s. 1 of the Immunity Law. As I have said, the restrictions concerning substantive immunity originate in the arrangements in s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset, since all of these legislative arrangements have a common purpose and similar basic values that they are seeking to protect. Notwithstanding, there is a significant difference between the arrangement concerning substantive immunity and the two other arrangements. Not allowing the registration of a political party and preventing a party or any of its candidates from participating in elections irreversibly violate the basic rights of the individual. A refusal to register a political party under s. 5 of the Political Parties Law violates the freedom of political association, which expresses the right given to the individual in a democracy to decide and influence his fate in the country in which he lives. Placing a barrier before a party or its candidates that prevents them from competing in elections deals a mortal blow to the right to vote and to stand for office, which is also one of the basic rights in a democracy (see Y. Mersel, The Constitutional Status of Political Parties (2005), at pp. 49-54). These two arrangements therefore violate the freedom of political expression that is realized by the possibility given to the individual in a democracy to form an association in order to further his political views and the possibility of trying to persuade others to vote for him as a representative in parliament in order to act to realize the opinions and ideas in which he believes. The importance of political parties and the importance of the right to vote in this context were discussed by Prof. Y. Galnor when he said that ‘there is no democracy without parties and there is no true democracy when the citizen is not given a possibility of choosing between two or more parties, as well as additional opportunities for political participation’ (Y. Galnor, ‘The Political Parties Law — Its Contribution to the Political System,’ A Legal Framework for the Activity of Political Parties In Israel (The Israeli Association for Parliamentary Problems, the Knesset, 1988), at pp. 29, 30; Mersel, The Constitutional Status of Political Parties, supra, at pp. 45-48). Thus we see that a refusal to register a political party inflicts a multi-faceted violation of a spectrum of the rights that reflect political association. Less serious a violation is caused by preventing a list of a party’s candidates or one of its candidates from participating in elections, but even on this level we are concerned with a mortal blow to the political freedoms of the individual. At the lowest level of this scale, and at a considerable distance from the barriers that were established in s. 5 of the Political Parties Law and in s. 7A of the Basic Law: the Knesset, we can place the denial of substantive immunity. We are concerned with a candidate who has already been elected to the Knesset and is holding office in it as one of its members. Within the framework of this position, he has the possibility of addressing the Knesset, of tabling questions, putting forward matters for the agenda and draft laws, being a member of the Knesset committees and voting on laws. Thus the Knesset member realizes de facto his political freedoms and those of the persons who voted for him. Moreover, not granting substantive immunity is a decision that by its very nature is limited to the circumstances of a specific case that gives rise to a question of immunity, and it does not result in a sweeping denial of the rights of the Knesset member and the ways in which he may act and express himself that come with his position. An additional material difference between the arrangements in s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset derives from the fact that the violation to the freedom of expression because substantive immunity is not given to a member of the Knesset is a violation after the event for remarks that have already been made. The smaller degree of violation caused by imposing sanctions after the event in matters concerning the freedom of expression was discussed by Justice A. Barak in HCJ 399/85 Kahane v. Broadcasting Authority Management Board [21], where he emphasized that in such matters a criminal indictment after the event is preferable to prevention before it, except in cases where the illegality is ‘clear and manifest.’ As he said:

‘A prohibition ab initio prevents the actual publication and causes harm to the freedom of expression, damage that sometimes cannot be repaired in the future. By contrast, holding a criminal proceeding cannot “stop” the expression, and it allows the holding of a fair trial that will ultimately determine the liability for the publication, and thereby “slow down” the desire to make a new publication’ (ibid. [21], at p. 297; for the same approach in civil cases, see also CA 214/89 Avneri v. Shapira [22], at pp. 864-870).

With regard to the scale that we are discussing, it can be said that the restrictions in s. 5 of the Political Parties Law and in s. 7A of the Basic Law: the Knesset ab initio prevent the freedom of political expression of the individual, whereas the restrictions that limit the scope of substantive immunity apply entirely after the event, i.e., in the stage after the member of the Knesset has realized his freedom of expression and the question under consideration is whether there is a basis for allowing him to be brought to trial for it. The scale of violations in each of the arrangements that we have described — s. 5 of the Political Parties Law, s. 7A of the Basic Law: the Knesset and finally s. 1 of the Immunity Law — justifies a difference in applying the ‘red lines’ that are common to all of these arrangements. This leads to the conclusion that there can indeed be cases in which it will be decided not to prevent a party or a specific candidate from standing for election to the Knesset under s. 7A of the Basic Law: the Knesset, but the same facts may lead to the conclusion that for the purpose of substantive immunity a ‘red line’ has been crossed in such a way that there is a justification for exposing the member of the Knesset to a criminal proceeding for the opinions that he expressed or the acts that he committed.

16. Such is the case before us. In Central Elections Committee for the Sixteenth Knesset v. Tibi [2] the court addressed the strength of the violation of the political freedoms of the individual where a party or a candidate is prevented from competing in the elections to the Knesset. In emphasizing the major effect of this violation and the strict and restrictive approach that should be adopted when erecting a barrier to competing in the election under s. 7A of the Basic Law: the Knesset, the court determined a series of interpretive criteria and tests that reflect this restrictive approach, which are as follows:

‘First, considering the purposes of a list of candidates means considering “dominant characteristics that are placed in a central position among the aspirations or the activities of the list” (EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [23], at p. 187).

“The power granted in s. 7A is not designed for matters that are marginal and whose effect on ideology or policies as a whole is not significant and serious. This means phenomena… that can be described as dominant characteristics that are placed in a central position among the aspirations or activities of the list” (ibid. [23]).

We are therefore concerned with purposes that are a “dominant” goal (in the language of Justice M. Cheshin in the hearing before the Elections Committee for the Sixteenth Knesset, minutes of the meeting of the Elections Committee of 31 December 2002, at p. 612); second, the dominant and central purposes of the list — and to the same extent, the acts of a candidate for the elections within the framework of a list of candidates — are derived both from express declarations that are directly stated and also from reasonable conclusions that are clearly implied (Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [23], at p. 188); third, purposes that are of a theoretical nature are insufficient. It must be shown that the list of candidates “is acting in order to realize its purposes and to convert them from theory into practice” (ibid. [23], at p. 196; see also EA 2/88 Ben-Shalom v. Central Elections Committee for the Twelfth Knesset [24], at p. 284). There must be “activity in the field” that is intended to put the theory of the list’s purposes into practice. This activity needs to be repeated. Sporadic activity is insufficient. The activity needs to adopt a serious and extreme form of expression from the viewpoint of its intensity (see Yassin v. Parties Registrar [10], at p. 66)… Finally, the evidence proving the purposes and the acts that result in a list of candidates or a candidate not being allowed to participate in the elections to the Knesset needs to be “convincing, clear and unambiguous” (Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [23], at p. 196; Neiman v. Chairman of Elections Committee for Eleventh Knesset [13], at p. 250 {101})’ (Central Elections Committee for the Sixteenth Knesset v. Tibi [2], at p. 18).

In view of these general requirements, the court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] turned to examine whether there were grounds for disqualifying the candidacy of the petitioner from participating in the elections to the Sixteenth Knesset. This examination also included, as aforesaid, a consideration of the statements that were the basis for the indictment and that are the focus of the petition before us. Ultimately, as we have already said, the court held in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] that the evidence presented before it left room for doubt as to whether that evidence really was capable of indicating in a convincing, clear and unambiguous manner that the petitioner did indeed support an armed struggle against the State of Israel. The court further held that the doubt in this regard should operate in the petitioner’s favour. For this reason, and for other reasons concerning the other restrictions in s. 7A of the Basic Law: the Knesset, the court came to the conclusion that the petitioner should not be prevented from competing in the elections for the Sixteenth Knesset (Central Elections Committee for the Sixteenth Knesset v. Tibi [2], at pp. 40-43).

17. The premise for considering the scope of substantive immunity pursuant to s. 1 of the Immunity Law is completely different from the criteria that the court adopts when it considers whether to disqualify a candidate for the elections under s. 7A of the Basic Law: the Knesset. First, the question concerning giving substantive immunity naturally arises with regard to a specific case and there is no need to show that we are speaking of dominant characteristics that are placed in a central position among the activities or the statements of the member of the Knesset in general. Notwithstanding, it is not superfluous to point out that in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] the court held that the actions and expressions attributed to the petitioner, and especially his statements as a member of the Fifteenth Knesset in the two incidents that are the subject of the indictment, are characterized inter alia by support for an armed struggle against the State of Israel, and it also held that this purpose is placed in the centre of the petitioner’s actions, as a dominant purpose that is put into practice in recurrent activity and with great intensity. Second, for the purpose of preventing participation in the elections under s. 7A of the Basic Law: the Knesset, ‘convincing, clear and unambiguous evidence’ must be presented with regard to the purposes and acts of the candidate or the list. By contrast, the premise for the purpose of determining the scope of substantive immunity is, as aforesaid, that the facts of the indictment will indeed be proved (see Pinhasi v. Knesset [5], at p. 674). On the basis of this premise, the court should examine whether there are grounds for granting the member of the Knesset substantive immunity, or whether perhaps we are dealing prima facie with the crossing of the ‘red lines’ that underlie the legal system, for which substantive immunity should not be given.

18. I admit and do not deny that the conclusion that a member of the Knesset should not be given substantive immunity for a political speech, which is normally the natural work tool at his disposal when carrying out his duties, is not at all a simple one. But in my opinion there is no alternative in view of the fact that we are dealing with the expression of an opinion, on two occasions, that was formulated and considered in advance, and that falls in the centre of the prohibited area — support for an armed struggle of a terror organization — and a very long way beyond the ‘red line’ established by Israeli democracy to protect its very existence. Indeed, terror and democracy can be compared to fire and water; they cannot exist side by side. The fire of terror has no place in a democracy. As President Barak said in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]:

‘Democracy is based on dialogue, not on force; on persuasion, not on violence. Someone who is not prepared to abide by the “rules” of democracy himself cannot be allowed to make the argument that others should follow these rules in dealing with him’ (ibid. [2], at p. 24).

President Barak further said that:

‘Democracy is allowed… to defend itself against anyone fighting it in an armed struggle. It is one thing to aspire to change social arrangements by means of the legitimate tools that democracy makes available to a list of candidates; it is another thing to aspire to change arrangements by means of support for an armed struggle against the state’ (ibid. [2], at pp. 26-27).

19. The other reasons raised by the petitioner in the alternative, which concern the proceeding of lifting his procedural immunity, do not reveal any real ground for our intervention, and a study of the minutes of the deliberations that were held by the Knesset Committee and by the plenum show that, contrary to the arguments raised by the petition, comprehensive, objective and exhaustive deliberations were held, and no defect can be found in these.

Conclusion

20. For all of the reasons set out above, I propose to my colleagues that we deny the petition without any order for costs.

 

 

President A. Barak

I regret that I am unable to agree with the opinion of my colleague Justice E. Hayut. If my opinion is accepted, we will decide that the petitioner has substantive immunity against the indictment that was filed against him in the Nazareth Magistrates Court. My colleague laid down ‘red lines’ beyond which the laws of immunity do not apply. According to her approach, the petitioner’s case crosses these lines, and therefore the question of substantive immunity does not arise at all in his case. My opinion is different. In my opinion, the petitioner does not cross these lines and also succeeds in falling within the scope of substantive immunity. I will discuss each of these two aspects separately.

Amendment 29 of the Immunity Law

1.    I am in agreement with my colleague to a large extent. I accept three of her main findings in her opinion. First, I accept that the Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002 (hereafter — ‘Amendment no. 29), which provides, inter alia, that a statement of a member of the Knesset that contains support for an armed struggle of a terror organization should not be regarded as an expression of an opinion that is made by a member of the Knesset in the course of carrying out his duties or for the purpose of carrying out his duties, is a ‘clarifying amendment,’ i.e., that it is declarative. It reflects the legal position that also prevailed before the amendment. This amendment enshrines in the Immunity, Rights and Duties of Knesset Members Law (hereafter — ‘the Immunity Law’) similar restrictions to the restrictions imposed upon the registration of political parties (s. 5 of the Political Parties Law, 5752-1992) and the participation of candidates and lists in elections to the Knesset (s. 7A of the Basic Law: the Knesset). These restrictions determine the ‘red lines,’ in the language of my colleague, which a member of the Knesset should not cross. A member of the Knesset who crosses these lines should not be regarded to have acted in the course of carrying out his duties or for the purpose of carrying out his duties. Second, I accept my colleague’s position, which I also expressed in Pinhasi v. Knesset [5], that for the purpose of analyzing a claim of immunity we start with the premise that the facts of the indictment will be duly proved (see Pinhasi v. Knesset [5], at p. 674). Third, I accept the position of my colleague that there is a difference between the burden of proof required for disqualification of a list from competing in the elections and the burden of proof required in order to hold that a certain expression does not fall within the scope of substantive immunity. This distinction derives from the fact that preventing someone ab initio from competing in the elections involves a much more severe violation of political freedoms than the violation caused to these freedoms as a result of depriving a member of the Knesset of substantive immunity. But accepting these three premises does not lead to my colleague’s conclusion.

2.    The petitioner before us is charged with an offence of support for a terrorist organization (in the form of uttering statements of praise and approval). Amendment no. 29 provides that support for an armed struggle of a terrorist organization is what falls outside the limits of substantive immunity. The two are not entirely identical. Amendment no. 29 does not provide that all support or every utterance of statements of praise and approval for a terrorist organization falls outside the scope of substantive immunity. Therefore, even though I accept that Amendment no. 29 is a clarifying amendment, and even if I assume, as we should assume at this stage, that the indictment against the petitioner will be proved, this is still insufficient for deciding the question whether or not the petitioner has substantive immunity against this indictment. In order to decide this question, we must ascertain whether the petitioner’s statements amount to support for an armed struggle of a terrorist organization. Prima facie, the proper stage for ascertaining this is the stage of the preliminary arguments within the framework of the criminal proceeding before the trial court. Within the framework of this proceeding, the parties may raise arguments and present evidence on the question whether the statements of the petitioner amount to support for an armed struggle of a terrorist argument or not, and the court can give its determination on the question of substantive immunity on the basis of the arguments and evidence so presented. My opinion therefore is that this question should be determined at the stage of the preliminary arguments in the Nazareth Magistrates Court. But since the Nazareth Magistrates Court decided not to determine this question, and since the parties before us agreed that we should consider and decide the question on its merits, we will therefore consider it and decide it on the basis of the arguments and the evidence brought before us.

3.    Is it possible to regard the statements of the petitioner as containing support for an armed struggle of a terrorist organization? If the answer to this question is yes, our deliberations will end with the conclusion that the remarks of the petitioner fall within the scope of the prohibition provided in Amendment no. 29, and therefore the petitioner does not have substantive immunity. If the answer to this question is no, our conclusion will be that Amendment no. 29 does not apply to the case before us, and we shall be required to examine whether the statements of the petitioner are protected by substantive immunity in accordance with the tests that we usually apply in this regard. Do the remarks of the petitioner amount to support for an armed struggle of a terrorist organization? This is not the first time that this question has arisen before us. This question was considered in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]. That case considered, inter alia, the decision of the Central Elections Committee for the Sixteenth Knesset to prevent the petitioner and the list led by him from participating in the elections. That decision was based on two grounds. First, the Elections Committee was of the opinion that the petitioner satisfied the ground provided in s. 7A(a)(1) of the Basic Law: the Knesset, which concerns the disqualification of the candidacy of a person in the elections, if his acts involve a denial of the existence of the State of Israel as a Jewish state. Second, and this is the main issue in our case, it decided that the petitioner satisfied the ground provided in s. 7A(a)(3) of the Basic Law, which concerns the disqualification of the candidacy of a person in the elections, if his acts involve support for an armed struggle of a terrorist organization against the State of Israel. The main evidence on which the conclusion of the Elections Committee was based with regard to the second ground was the statements of the petitioner in the Um Al-Fahem speech and the Syrian speech, which are the statements that lie at the heart of the indictment that is the focus of this petition.

4.    These decisions of the Elections Committee were submitted for our approval pursuant to s. 7(a) of the Basic Law. We decided, by a majority, that the decision of the Elections Committee should not be approved. We held that we were not persuaded, to the degree of certainty required in cases of election disqualification, that the statements of the petitioner amounted to support for an armed struggle of a terrorist organization. I discussed in that case the distinction between general support and support for an armed struggle of a terrorist organization:

‘Does Knesset Member Bishara support an armed struggle of a hostile state or of a terrorist organization against the State of Israel? It should be noted that the question before us is not whether Knesset Member Bishara supports a terrorist organization. This question is the focus of the criminal proceeding that is being conducted against him, and we will express no opinion on this matter. The question before us is whether Knesset Member Bishara supports an armed struggle of a terrorist organization. As we have seen, the argument of Knesset Member Bishara is that his liberal-democratic outlook implies opposition to violence and an armed struggle. According to his approach, it is possible to oppose what he calls “occupation” without adopting an armed struggle. Therefore he opposes any harm to civilians’ (Central Elections Committee for the Sixteenth Knesset v. Tibi [2], at p. 42).

It should be noted that the chairman of the Elections Committee for the Sixteenth Knesset, Justice M. Cheshin, correctly distinguished between the two, and held that support for a terrorist organization does not amount to support for an armed struggle of a terrorist organization. His position was that the remarks of the petitioner did not amount to support for an armed struggle of a terrorist organization. The following is how we presented the position of Justice M. Cheshin in Central Elections Committee for the Sixteenth Knesset v. Tibi:

‘Justice M. Cheshin also explained that support for a terrorist organization does not constitute a ground for disqualification, and that it is necessary to prove support for an armed struggle of a terrorist organization against Israel (at p. 602 of the minutes). Support should naturally be a daily phenomenon for a specific terrorist organization (at p. 603 of the minutes). Justice M. Cheshin presented his position according to which, in order to disqualify a person or a list of candidates from participating in the elections, it must be shown that the ground for disqualification is ‘a dominant phenomenon… absolute denial of the state, absolute racism, absolute support for a terror organization as if I were a member of Hamas… or Hezbollah (at p. 661 of the minutes). Finally, Justice M. Cheshin presented his position that, after a study of all of the material, it did not appear that absolute support for an armed struggle… was proven in this matter (ibid.). Justice M. Cheshin pointed out that “I think that Israeli democracy is a strong democracy… we can also tolerate exceptions, even if they are extreme” (at p. 661 of the minutes). Against this background, Justice M. Cheshin reached the conclusion that there was no basis for preventing the participation of Knesset Member Bishara in the elections to the Knesset’ (ibid. [2], at p. 39).

This was also our conclusion in Central Elections Committee for the Sixteenth Knesset v. Tibi:

‘We are of the opinion that we have not been shown evidence of the weight and strength required to satisfy the required test… We have not been persuaded that there is before us convincing, clear and unambiguous evidence that Member of Knesset Bishara supports an armed struggle against the State of Israel’ (ibid. [2], at p. 43).

5.    The distinction between general support for a terrorist organization, by way of uttering statements of praise, and support for an armed struggle of a terrorist organization is not merely a semantic distinction. It is implied by the express language of the law. It is also implied by its purpose. This distinction reflects the attempt of the legislature to balance the desire to protect the foundations of the state against the desire to protect basic political freedoms such as the right to vote and to stand for office (in so far as s. 7A of the Basic Law is concerned) and the freedom of parliamentary expression (in so far as Amendment no. 29 is concerned). Admittedly, I accept that there is a difference between the burden of proof required for the purpose of disqualifying a list from participating in the elections and the burden of proof required for determining that a certain expression is not protected by substantive immunity. This difference derives from the fact that preventing someone from standing for office in the elections is a more serious and prospective violation of political freedoms than the violation of those freedoms that is brought about as a result of a determination that a certain expression is not protected by substantive immunity, which is a more limited violation in its scope and is applied retrospectively. Notwithstanding, the extent of this difference should not be exaggerated. The distance between convincing, clear and unambiguous evidence (which is required for the red line of which my colleague speaks) and the evidence required in order to deny substantive immunity (within the framework of a criminal proceeding) is not great at all.

6.    My opinion is that the respondents have not proved before us, within the framework of considering the issue of substantive immunity as a preliminary argument in the criminal trial — just as they did not prove in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] — that the remarks of the petitioner contain support for an armed struggle of a terrorist organization (as distinct from support for a terror organization by way of uttering statements of praise and approval). Admittedly, had the hearing of this question taken place before the trial court, the respondents could have presented additional evidence that supports their position. The petitioner could also have added to the evidence and arguments that were heard by the Central Elections Committee and by this court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]. But this was not done. The evidence before us is merely certain extracts from the speeches made by the petitioner. This evidence was fully presented before us in Central Elections Committee for the Sixteenth Knesset v. Tibi [2], and nothing has been added to it. There is also nothing new in the arguments of the parties. In the case before us I have not been persuaded that the statements of the petitioner can be regarded as containing support for an armed struggle of a terror organization, to the degree of proof required for determining that they cross those ‘red lines’ beyond which there is no substantive immunity. In Central Elections Committee for the Sixteenth Knesset v. Tibi [2] we held:

‘We have not been persuaded that there is before us convincing, clear and unambiguous evidence that Member of Knesset Bishara supports an armed struggle against the State of Israel. In this matter also, we should not ignore the extensive material that was submitted to us. Notwithstanding, it is insufficient to satisfy the critical “mass” of evidence that is required in this regard. Indeed, we do not deny that we have some doubt in our minds. But this doubt should work — in a democracy that seeks freedom and liberty — in favour of the freedom to vote and stand for office’ (ibid. [2], at p. 43).

In the petition before us — which is being considered within the framework of the criminal proceeding — I have also not been persuaded that the petitioner supports an armed struggle against Israel. The petitioner was not examined on this matter in the trial court. No evidence was brought in this regard beyond what was before this court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]. In these circumstances — notwithstanding the difference in the level of proof — I am of the opinion that there are grounds for reaching a similar conclusion.

7.    Thus we see that even though I accept my colleague’s position that Amendment no. 29 of the Immunity Law is a declarative amendment, and even if we assume, as we should in a petition of the kind before us, that the indictment against the petitioner will be proved, this will not be sufficient to lead to the conclusion that the remarks of the petitioner amount to support for an armed struggle of a terrorist organization. Therefore, this will be insufficient for reaching the conclusion that Amendment no. 29 applies in our case. Admittedly, this will lead us to the conclusion that the petitioner committed an offence of uttering statements of praise and approval for a terrorist organization. But this offence does not fall within the express limitations that are imposed on substantive immunity in Amendment no. 29. We are dealing in this context with an ‘ordinary’ offence that is subject to the tests developed in the case law of this court concerning the scope of substantive immunity. I will now turn to examine these tests.

Section 1(a) of the Immunity Law

8.    Does the petitioner have substantive immunity with regard to his statements? Were the petitioner’s statements that are before us made ‘in the course of carrying out his duties or for the purpose of carrying out his duties as a member of the Knesset’? The expression ‘in the course of carrying out his duties or for the purpose of carrying out his duties as a member of the Knesset’ in s. 1(a) of the Immunity Law should be given the meaning that realizes its purpose. My colleague discussed extensively the normative framework of substantive immunity and the purposes underlying it. I agree with those remarks. As my colleague says, substantive immunity is intended, first and foremost, ‘to ensure that a member of the Knesset can properly discharge his duties and represent the public that elected him by giving free and full expression to his opinions and outlooks, without concern or fear’ (para. 6 of my colleague’s opinion). This immunity was not given to members of the Knesset for their own benefit. It is not a sovereign privilege that the member of the Knesset enjoys by virtue of his exalted position. Substantive immunity is given to members of the Knesset in order to guarantee essential public interests. First, this immunity is essential in order to guarantee the right of all citizens to full and effective political representation. Substantive immunity protects the right of all citizens to have their opinions and outlooks heard, through their elected representatives, in the various frameworks of public debate in general, and in parliament in particular. This protection is essential mainly for citizens who are members of minority groups in society. In this sense, substantive immunity also furthers civil equality, in that it protects even the right of members of minority groups in society to full and effective political representation, and it protects them by protecting the member of the Knesset, who represents their interests and their opinions, against the power of the majority. Second, substantive immunity is essential in order to guarantee a free marketplace of ideas and opinions. Here too this immunity is especially important when we are speaking of opinions and ideas that are offensive or outrageous, and it is especially required for elected representatives who express opinions that are regarded by most of the public as such. Indeed, ‘freedom of expression is also the freedom to express dangerous, offensive and perverse opinions, from which the public recoils and which the public hates’ (Kahane v. Broadcasting Authority Management Board [21], at p. 279). Third, following from the aforesaid, substantive immunity is essential in order to guarantee the democratic character of the government. Thus we see, as my colleague says, the purposes underlying substantive immunity are of different kinds. They are intended to protect basic political freedoms. They are intended to allow the proper functioning of the legislature. They express a desire to ensure the independence and the freedom of action of members of the Knesset. They are intended to strengthen democracy. On the other hand, we should not ignore the other (general) purposes of the Immunity Law. Like every other law, it is intended to realize the rule of law — including the rule of law among the members of the legislature — and equality before the law. How should these conflicts be resolved? The proper balancing point between these purposes is the balancing point that is reflected in the ‘margin of natural risk’ test that my colleague discussed. A member of the Knesset will have substantive immunity only in those cases in which the unlawful act falls within the scope of the margin of risk that the lawful activity as a member of the Knesset naturally creates (see Pinhasi v. Knesset [5], at pp. 686-687).

9.    My opinion is that the ‘margin of natural risk’ test is satisfied in the circumstances before us. I did not reach this conclusion lightly, and it is not an obvious one. Admittedly, in my opinion we are dealing with a ‘difficult case’ for applying the margin of natural risk test. Admittedly, the statements of the petitioner and the circumstances in which they were made are, in my opinion, close to the line beyond which it would not be possible to say that they fall within the scope of the natural risk involved in carrying out the duties of a member of the Knesset. Notwithstanding, my opinion is that in the circumstances of the case, and in view of the other relevant circumstances of this case, the proper conclusion is that the natural risk test is satisfied by the petitioner before us. This position of mine is based on three reasons. First, the statements attributed to Knesset Member Bishara were made in political speeches that he made. The speeches dealt with broad political subjects. These speeches were long ones and many things were said in them. Inter alia, they included the remarks that are attributed to the petitioner in the indictment. It cannot be said that these remarks were the main part of the speeches. It cannot be said, and the respondents did not even argue this before us, that the main purpose of these speeches was to express support for a terrorist organization. The statements made in this context constitute merely a part of all the remarks made by the petitioner. Second, the offence with which the petitioner is charged is an offence that relates to the freedom of expression. This fact is also important when determining the limits of the ‘margin of natural risk,’ in view of the centrality of speeches in carrying out the duties of a member of the Knesset. Third, in view of the broad language in which offences concerned with the freedom of speech — such as defamation, incitement, rebellion and making statements of praise for a terrorist organization — are usually couched, there is a concern that if members of the Knesset will be exposed to these criminal indictments, this will reduce their ability to express themselves without fear, even in cases where their remarks do not constitute a criminal offence. This result will seriously harm the freedom of parliamentary expression and the basic political freedoms associated therewith.

10. In my opinion in Pinhasi v. Knesset [5], I expressly addressed the question of political speeches and the offences associated with them, such as defamation, incitement and rebellion. I discussed how the purpose of substantive immunity is to guarantee that a member of the Knesset will not be prevented from expressing his opinion on public issues merely because of the concern that he may overstep the boundary in certain cases between what is permitted and what is forbidden. In this regard, I made the following remarks:

‘Membership of the Knesset gives the members of the Knesset immunity for prohibited actions that fall within the scope of “professional risks.” Someone who is in the business of making speeches has a high probability of being caught violating prohibitions concerning defamation or incitement. Substantive immunity was intended to give him immunity within the limits of this risk… the purpose of this substantive immunity is to allow the member of the Knesset to express his opinion freely, without him being prevented from making lawful remarks that his position requires him to make, merely because of the fear that he may make an unfortunate statement, and he may be carried away in making permitted and lawful remarks into prohibited and unlawful ones’ (ibid. [5]).

Indeed, offences that concern the freedom of expression are by their very nature an integral part of the role of a member of the Knesset. Political expression — speeches, articles and interviews — are the main tools of the member of Knesset. It is through political expression that a member of the Knesset is able to express his outlook and the outlook of the people who voted for him on public matters. This is the main role of the member of Knesset. A member of Knesset who speaks on political issues is carrying out his main parliamentary activity. Protecting a member of the Knesset in this activity is the main purpose of substantive immunity. Whoever engages in political expression as a main part of his job is inevitably in great danger of falling foul of the prohibitions concerning the freedom of speech, such as incitement, rebellion and uttering statements of praise for a terror organization. There are two combined reasons for this. First, because of the broad and comprehensive language of these criminal prohibitions (concerning the broad and comprehensive language of the prohibition against incitement, see, for example, CrimA 2831/95 Alba v. State of Israel [25]). The offence with which the petitioner is charged is a very broad one. Section 4 of the Prevention of Terrorism Ordinance, with which the petitioner is charged, provides that:

‘Supporting a terrorist organization

4. A person —

     …

     (b) who publishes, in writing or orally, words of praise or approval for, or a call to help or support, a terrorist organization; or’

 

     …

 

     (g) who commits an act that contains an expression of identification with a terrorist organization or approval for it, by raising a flag, displaying a symbol or slogan or by uttering an anthem or slogan, or any act of similar expression that clearly displays such identification or approval, all of which in a public place or in such a manner that persons who are present in a public place can see or hear such an expression of identification or approval;

 

     shall be charged with an offence…’.

According to Professor Kremnitzer:

‘The difficulty is that the expressions “praise,” “encouragement” and “approval” are very broad… Does a statement that “Had it not been for the ‘Intifadeh,’ the Oslo agreement would not have been made’ not constitute approval for acts of violence? Is a description of discrimination against the Arab minority and the difficulty or impossibility of making a significant change in this area not amount to an encouragement of violence? Does a description of the means of oppression adopted in the occupied territories, together with harsh and frank criticism of them, not amount to such encouragement? Is historical research that indicates that in certain situations it is not possible to direct the attention of the majority to the distress of the minority other than by resorting to violence not encouragement to violence? Does speaking of a connection between the acts of the government and acts of terrorism not encourage terror? We are speaking of statements that lie at the centre of the area protected by freedom of speech’ (‘The Alba Case: “Clarifying the Laws of Incitement to Racism”,’ 30 Hebrew Univ. L. Rev. (Mishpatim) 105 (1999), at p. 142).

Second, members of the Knesset frequently speak on confrontational matters, in a manner that may be seen as provocative and outrageous by some members of society. This is particularly true in Israeli society (see. E. Benvenisti, ‘Regulating the Freedom of Expression in a Polarized Society,’ 30 Hebrew Univ. L. Rev. (Mishpatim) 29 (1999)). It is true with regard to the offence of incitement. It is also true with regard to the offence of uttering statements of praise and approval for a terrorist organization. It is natural to say that in view of the petitioner’s views, the manifesto of his party, and the outlooks of the people who elected him, the petitioner will find himself expressing opinions on the question of the Arab-Israel dispute, with its various aspects. These positions are likely to be regarded as provocative and outrageous by a large part of society. Here too there is a great danger that his remarks will be interpreted as statements of praise and approval for a terrorist organization. There is also a risk that in certain cases his remarks will overstep the mark and will in fact actually constitute statements of praise and approval for a terrorist organization. But we should not, because of these risks, prevent the petitioner from carrying out his duties and from realizing his public mission. Substantive immunity is intended to give him the defence that is required for this purpose. My opinion, therefore, is that the fact that political statements are a main tool of a member of the Knesset, the controversial context in which the petitioner often speaks in the course of carrying out his duties, and the general and all-inclusive language of the criminal prohibition concerning statements of praise and approval for a terrorist organization all lead to the conclusion that taking a risk by making remarks that amount to statements of praise and approval for a terrorist organization is also a ‘professional risk’ of a member of the Knesset, and that statements of this kind are therefore in the ‘margin of risk’ that parliamentary activity naturally creates. Therefore, statements of this kind will, as a rule, be protected by substantive immunity, provided they were not made by abusing substantive immunity.

11. My conclusion is therefore that the offence of support for a terrorist organization was committed by the petitioner — if it was indeed committed, which we are assuming for the purpose of this petition — as an integral part of the legitimate activity of expressing an opinion on political issues, and as an ancillary or secondary issue thereto. It follows that in my opinion the petitioner has substantive immunity with regard to the statements for which the indictment was filed.

Summary

12. In view of my conclusion that the petitioner has substantive immunity against being indicted for the statements that he made, there is no further need to discuss the arguments concerning the proceedings that led to the lifting of procedural immunity.

13. Finally, I would point out that I have not held in my opinion that the statements of the petitioner are desirable ones. Quite the contrary, the assumption that I have made was that in his statements the petitioner committed a criminal offence of support for a terrorist organization. Indeed, the petitioner’s remarks are problematic, and they are very offensive to the ear. But I have found that they were uttered by the petitioner in the course of carrying out his duties, and for the purpose of carrying out his duties, as a member of the Knesset. We should protect and defend the ability of members of the Knesset to carry out their duties without fear and trepidation. Substantive immunity is intended to provide this protection, which is a public interest of the first degree. This protection is essential for the existence of basic political freedoms. It is essential for the existence of Israeli democracy.

If my opinion is heard, we will grant the petition, hold that the petitioner has substantive immunity that cannot be lifted, and therefore we will make the order nisi absolute, in the sense that the criminal proceedings that are taking place against the petitioner will be cancelled.

 

 

Justice E. Rivlin

1.    I have studied the opinions of my colleagues, President A. Bark and Justice E. Hayut. My colleague the president is of the opinion that the petitioner has substantive immunity for the statements that are the subject of the indictment against him. My colleague Justice Hayut is of the opinion that the petitioner’s case does not fall within the scope of substantive immunity. I agree with the conclusion of my colleague the president. In my opinion too the statements of the petitioner fall within the scope of substantive immunity. But I would like to add the following remarks in this regard.

My colleagues disagree with regard to a fundamental issue: does the case of the petitioner go beyond the ‘red lines’ of substantive immunity, so that there is no longer any need or basis to adopt the balancing tests laid down in case law, including the ‘natural risk test,’ which is the opinion of my colleague Justice E. Hayut, or, despite the difficulty raised by this case, should it too ultimately be decided by the balancing tests that have been laid down in the case law of this court over the years with regard to the question of immunity, which is the opinion of my colleague the president? A decision on this issue, in one direction or the other, requires an examination of the significance of Amendment no. 29 of the Immunity Law (the Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002 (hereafter — ‘Amendment no. 29)). But this decision derives, so it would seem, also from an ethical outlook on the proper way in which a democracy, and Israeli democracy in particular, should contend with statements of the kind uttered by the petitioner. Both with regard to the statutory question — the effect of Amendment no. 29 — and with regard to the ethical question I find myself in agreement with my colleague the president, for his reasons and for reasons of my own.

2.    The indictment that was filed against the petitioner attributes to him offences arising from statements that he made. It concerns, as my colleagues explained in their opinions, two speeches that the petitioner made, for which he was indicted on two offences of support for a terrorist organization, pursuant to ss. 4(a), 4(b) and 4(g) of the Prevention of Terrorism Ordinance, 5708-1948.  The question whether the petitioner’s statements are protected by substantive immunity follows from the question whether they were made ‘in the course of carrying out his duties, or for the purpose of carrying out his duties, as a member of the Knesset’ (s. 1 of the Immunity, Rights and Duties of Knesset Members Law, 5711-1951). This is not a simple question. The petitioner, a member of the Knesset in Israel, uttered in his speeches remarks that are outrageous to most of the public in Israel. Because of his shocking remarks, an indictment was filed against him, and this attributes to him offences of support for a terror organization, and the remarks are far more serious since they were made by a member of the house of representatives of the State of Israel. But one important matter confronts us from the outset: the petitioner before us was allowed by us to compete for a seat in the Knesset, and he was indeed elected to hold office in it; the statements for which we are being asked to deny him immunity are the very same statements that were before us when we allowed him to compete in the elections. In my opinion, one case is dependent on the other. This is the position at the outset, and we will return to it later.

3.    Every society, and especially a democracy, is required to determine its credo with regard to the question of how to realize the values underlying it, without endangering those selfsame values and its very existence. This determination is a difficult one. It requires a delicate balance, which sometimes involves a considerable amount of uncertainty in its application. Section 5 of the Political Parties Law, 5752-1992, and s. 7A of the Basic Law: the Knesset, as they have been interpreted in the case law of this court, seek to determine such a balance. These sections determine that someone who takes part in the democratic process must commit himself to the rules of democracy. Indeed, democracy — so we have been taught — is entitled to protect itself against those who seek to destroy it. ‘In order to prove its viability, democracy does not need to commit suicide’ (per President A. Barak in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]). These sections also enshrine another fundamental principle, which is unique to the State of Israel, namely that it is the state of the Jewish people. ‘There are many democratic states. Only one of them is Jewish. Indeed, the reason for the existence of the State of Israel is that it is a Jewish state’ (ibid. [2], per President Barak). In addition to these principles there are the prohibitions against incitement and support for an armed struggle against Israel, and all of these combine in order to limit the right to register a political party and the right to take a part in the elections to the Knesset.

But case law with regard to the implementation of these sections — and we are referring mainly to case law concerning s. 7A of the Basic Law: the Knesset — reflects the great complexity of life and the fact that the statutory provision concerning the boundaries of democracy do not resolve all of the complexities. Time and again this court has considered the cases of persons, political parties and list of candidates who challenged these boundaries, stepped on the borderline and sometimes crossed over it. The court, and with good reason, consistently maintained the delicate balance between all of the considerations. In following this path, the court sought to uphold, in so far as possible, the right to vote and to stand for office, which is a ‘constitutional right of the first degree’ (Welner v. Chairman of Israeli Labour Party [19], at p. 800). Because of this approach, the court adopted a restrictive interpretation of s. 7A of the Basic Law: the Knesset, and it held that the section should only be applied in extreme circumstances. To this end, various interpretive criteria were laid down, and these were summarized in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] in the following terms:

‘First, considering the purposes of a list of candidates means considering “dominant characteristics that are placed in a central position among the aspirations or the activities of the list”…

“The power granted in s. 7A is not designed for matters that are marginal and whose effect on ideology or policies as a whole is not significant and serious. This means phenomena… that can be described as dominant characteristics that are placed in a central position among the aspirations or activities of the list”…

We are therefore concerned with purposes that are a “dominant” goal… second, the dominant and central purposes of the list — and to the same extent, the acts of a candidate for the elections within the framework of a list of candidates — are derived both from express declarations that are directly stated and also from reasonable conclusions that are clearly implied… third, purposes that are of a theoretical nature are insufficient. It must be shown that the list of candidates “is acting in order to realize its purposes and to convert them from theory into practice”… There must be “activity in the field” that is intended to put the theory of the list’s purposes into practice. This activity needs to be repeated. Sporadic activity is insufficient. The activity needs to adopt a serious and extreme form of expression from the viewpoint of its intensity… Indeed, democracy does not take action against someone who does not take action against it. This is a defensive democracy, which does not prevent participation in the elections of a list of candidates merely because of the purposes of the list, but it defends itself against acts that are directed against it. Finally, the evidence proving the purposes and the acts that result in a list of candidates or a candidate not being allowed to participate in the elections to the Knesset needs to be “convincing, clear and unambiguous”…’ (references omitted).

4.    The broad approach, which seeks to uphold basic freedoms in so far as possible, does not necessarily conflict with the outlook of defensive democracy. On the contrary, it arises from precisely the same ideological outlook. The free marketplace of ideas in general, and its expression in the house of elected representatives in particular, is essential for preserving democracy. Limiting the possibility of voting and standing for office in the Knesset, and thereby expressing opinions and outlooks, was not intended to suppress — and certainly not to veto — opinions and outlooks. On the contrary, participation in the democratic process often prevents anti-democratic activity; and the freedom of expression, which is the main tool that is given to members of the Knesset when carrying out their duties, is frequently the antithesis of violence, outbreaks of hostility or the feeling of persecution and discrimination. This was discussed by Justice Barak in Kahane v. Broadcasting Authority Management Board [21]:

‘Another aspect of the case for democracy concerns the important contribution of the freedom of expression to social stability, and consequently also to democracy… By virtue of freedom of expression social pressure finds its expression in negotiation, and not in action. The release of social pressure finds expression on the peaceful path of expression rather than on the violent path of action. Society, which often sits idly by and does not foresee hidden troubles, prepares itself for future troubles, when it becomes aware of the dangers that the freedom of expression brings out into the open.’

If a person is prevented from speaking out, this may lead to undermining the barrier that holds him back from resorting to violence. Again, broad freedom must not become a recipe for destruction. Limits must be set, but it is not for no reason that we have over the years set the limits with care and sensitivity, in the belief that usually a problematic statement is better than a problematic action, and defensive democracy often defends itself well if it allows the strident voices in it to be heard, so that they become known and, where necessary, will be required to give an accounting in the marketplace of statements and opinions. Indeed, the remedy for speech is to reply with speech, and the remedy for support of an opinion is to give support to a contrary opinion. This position reflects the basic commitment of the Israeli public to the values of democracy (see also E. Benvenisti, ‘Regulating the Freedom of Expression in a Polarized Society,’ 30 Hebrew Univ. L. Rev. (Mishpatim) 29 (1999), at p. 38).

5.    Even the petitioner, despite the problematic remarks in his two speeches under discussion, and additional remarks that he has made over the years, clears the barrier of s. 7A of the Basic Law: the Knesset, even if it is by a narrow margin. The Supreme Court, by a majority, allowed him to participate in the elections, even though the statements in this case, for which the indictment that is before us today had already been filed, were before it. This court held then, inter alia, that in view of the interpretive criteria that apply to the implementation of the aforesaid s. 7A, it could not be said that there was a sufficient factual basis for holding that the petitioner in his statements expressed support for an armed struggle of a terrorist organization. Therefore, it was found that the petitioner did not satisfy this ground of disqualification (or any other grounds of disqualification). Now the same statements and what is de facto the same ground of disqualification are before us. But the framework is different; now we are concerned with substantive immunity.

6.    The question of the connection between preventing participation in the elections under s. 7A of the Basic Law: the Knesset (and s. 5 of the Political Parties Law) on the one hand and substantive immunity on the other has engaged the court in the past, but no firm determination was made. In Miari v. Knesset Speaker [4], Justice Ben-Porat held that substantive immunity should not be interpreted as giving ‘a green light to acts that inherently conflict with loyalty to the existence of the state’ (ibid. [4], at pp. 225-229). Justice Shamgar left this question undecided, when he said that:

‘The essence of the argument may be that when s. 7A was enacted, the acts described therein became inconsistent with the actions of a member of Knesset and in any case they cannot be regarded as actions that are done in the course of carrying out his duties or for the purpose of carrying out his duties. What is stated in s. 7A is intended to create a distinction between legitimate parliamentary activity and acts of the kind described in the aforesaid provision of statute, as if it said that it does not permit circumstances in which such purposes or such acts are a part of the parliamentary activities in which a member of the Knesset participates. Prima facie the provisions of s. 7A address the stage before the elections, i.e., the provisions address an earlier constitutional stage. But it can be assumed that it will be argued that the restrictions provided in s. 7A (and they are without doubt restrictions in comparison to full freedom of speech) have, by their very nature and in view of the logical ramifications of the aforesaid provision of state, transcendent consequences in that they directly imply what can be considered, according to our constitutional outlook, as a permitted or a prohibited act in the parliamentary sphere. Moreover, it can also be argued that s. 7A addresses a list of candidates rather than an individual member of Knesset as such; but the answer to this is that from what is required of a list of candidates we can derive by means of an analogy the implications for the individual member of the Knesset’ (ibid. [4], at p. 211).

In Pinhasi v. Knesset [5], President Barak also left undecided the question ‘whether substantive immunity applies to offences that directly concern actions or purposes that prevent a list of candidates from participating in the elections to the Knesset’ (ibid. [5], at p. 690). All of this was before Amendment no. 29. Now the connection is enshrined in statute, in s. 1(a1) of the Immunity Law, which provides the following:

‘Immunity in carrying out duties

1.  …

(a1) To remove doubt, an act, including a statement, which is not incidental, of a member of the Knesset that contains one of the following shall not be regarded, for the purpose of this law, as expressing an opinion or as an act that is carried out in the course of his duties or for the purpose of his duties as a member of the Knesset:

 

(1) Denying the existence of the State of Israel as the state of the Jewish people;

 

(2) Denying the democratic character of the state;

 

(3) Incitement to racism because of colour or belonging to a race or to a national-ethnic origin;

 

(4) Support for an armed struggle of a hostile state or for acts of terrorism against the State of Israel or against Jews or Arabs because they are Jews or Arabs, in Israel or abroad.

 

…’

This strengthened the connection between the grounds for disqualification concerning actually competing in the elections and the grounds for denying substantive immunity. But this is not the end of the matter, since, as we have already seen, in so far as s. 7A of the Basic Law: the Knesset is concerned, the grounds for disqualification do not stand on their own; they are accompanied by all the interpretive criteria that derive from the necessary balance between the relevant considerations. Is the Immunity Law free of all or some of those interpretive criteria? Should we ignore these balancing criteria and the balancing tests laid down in case law with regard to substantive immunity (and especially the margin of natural risk test) when we apply the provisions of s. 1(a1) of the Immunity Law? Moreover, are incidents that occurred before Amendment no. 29 — even if we assume that it is a clarifying amendment — also exempt from the balancing applied by judicial discretion where an indictment of the kind filed against the petitioner is filed against a member of Knesset? I am of the opinion that if we answer yes to all of these questions, an excessive disparity will be created between the criteria that have been laid down with regard to preventing participation in the elections and the criteria required for denying substantive immunity.

7.    My colleague Justice E. Hayut cites the remarks of S. Nevot in her book The Subjective (Professional) Immunity of Knesset Members (Doctoral Thesis — Hebrew University, 1997), and these should be cited once more:

‘It would appear that ss. 5 and 7A, on the one hand, and s. 1 of the Immunity Law, on the other hand, were intended to prevent this phenomenon. Preventing the registration of a political party and preventing its participation in elections is a preliminary stage, which is intended to select the organizations and the persons that will be allowed to take part in the institution of the legislature. After the “selection,” the institution of immunity will protect the freedom of expression of those who are chosen. The premise in this protection is that the elected representatives are only those people whose expressions and activity have been defined as legitimate’ (emphasis supplied).

Thus we see that after the selection process the institution of substantive immunity will protect the freedom of expression of those persons who were elected, on the assumption that if they are elected, this was after their statements were found not to have crossed the line beyond which the statement should have been prevented ab initio rather than dealing with it by means of denouncing it from the podium of the Knesset. This is, of course, pertinent in our case too, since denying the petitioner immunity is being sought for the very same statements that were already examined and that were not found to be sufficient to prevent him from being elected to the Knesset. In the same vein, see the remarks of President A. Barak in Kahane v. Broadcasting Authority Management Board [21]:

‘This approach of mine, which applies freedom of expression also to the “exceptional” statement that is racist, applies especially to freedom of expression of a political party that participates in parliamentary life. The petitioners were permitted to participate in the elections. More than twenty thousand persons voted for them. How is it possible, in a democracy, to allow an organization to participate in the elections but to prevent it from expressing its opinions after the elections?’

My conclusion is therefore that the correlation between the grounds for disqualification and the grounds for denying immunity, and the continuous purpose that this correlation seeks to serve, are the two sides of the coin; on the one hand, if an act or a statement constitute a ground for disqualifying a list or a candidate from standing for office for the Knesset, pursuant to s. 7A, then this has, in the words of President Shamgar in Miari v. Knesset Speaker [4], ‘transcendent consequences,’ i.e., a direct ramification ‘on what can be considered, according to our constitutional outlook, as a permitted or a prohibited act in the parliamentary sphere,’ and therefore the act or expression will not be protected by substantive immunity. But on the other hand, if it is found that there is no sufficient ground for preventing the possibility of being elected to the Knesset, it will be difficult for us to ignore this conclusion when we examine the question of immunity for the same statements and on the same grounds. Allowing someone to compete in the elections implies de facto a predetermination of the margin of parliamentary activity that is not prohibited in our democracy. Activity within this margin while holding office in the Knesset will be considered in most cases as activity of a member of Knesset that is carried out in the course of carrying out his duties and for the purpose of carrying out his duties. It is not easy to eject from the back door someone who was allowed in through the front door. Obviously, if the member of the Knesset departs from the scope of that margin, and severs the connection between the declarations and purposes that were approved and his de facto actions, then the connection between the approval to compete in the elections and the protection provided by immunity is also severed. In such a case, removing the immunity will also not deter the colleagues of that member of the Knesset, and his replacement where necessary, from acting within the framework of that permitted margin. Indeed, when the whole margin lies on the borders of what is permitted, any deviation, even if small, is likely to remove the protection of immunity. But such an additional step was not taken in our case. The statements in the original case are the very same statements that are the basis for the indictment today.

8.    It should be emphasized that I am not of the opinion that there is a real disparity — a ‘considerable’ distance’ in the words of my colleague Justice Hayut — between refusing the right ab initio to participate in the elections and denying substantive immunity. My colleague is of the opinion that even though all of the arrangements — those in s. 5 of the Political Parties Law, s. 7A of the Basic Law: the Knesset and s. 1(a1) of the Immunity Law — were intended to realize a common purpose and to protect common basic values, there is a material difference between the first two and the third. My colleague discusses the great importance of the right to register a political party and to compete in the elections, a right that, when denied, irreversibly violates basic rights of the individual, namely the right to vote and to stand for election and the freedom of expression. By contrast, according to her, denying substantive immunity does not involve such a serious violation. As she says:

‘We are concerned with a candidate who has already been elected to the Knesset and is holding office in it as one of its members. Within the framework of this position, he has the possibility of addressing the Knesset, of tabling questions, putting forward matters for the agenda and draft laws, being a member of the Knesset committees and voting on laws… not granting substantive immunity is a decision that by its very nature is limited to the circumstances of a specific case that gives rise to a question of immunity, and it does not result in a sweeping denial of the rights of the Knesset member and the ways in which he may act and express himself that come with his position… the violation to the freedom of expression because substantive immunity is not given to a member of the Knesset is a violation after the event for remarks that have already been made’ (at para. 15).

My colleague goes on to say:

‘With regard to the scale that we are discussing, it can be said that the restrictions in s. 5 of the Political Parties Law and in s. 7A of the Basic Law: the Knesset ab initio prevent the freedom of political expression of the individual, whereas the restrictions that limit the scope of substantive immunity apply entirely after the event, i.e., in the stage after the member of the Knesset has realized his freedom of expression…’ (ibid.)

My approach is different. I am of the opinion that if we were indeed speaking here merely of a violation after the event that is limited to the circumstances of a specific case, there would be no need for the institution of substantive immunity, which violates, as my colleague Justice Hayut clearly explained, the rule of law and equality before the law. The whole essence and logic of the institution of immunity derives from the assumption that indicting a member of the Knesset in a criminal trial for an act or expression in the course of carrying out his duties may cause much more extensive harm in the future. Substantive immunity is intended to guarantee that a member of the Knesset can carry out his duties without fear and express his opinions and outlooks, which are the opinions and outlooks of the people who voted for him:

‘Immunity is intended to ensure that a member of the Knesset can properly discharge his duties and represent the public that elected him by giving free and full expression to his opinions and outlooks, without concern or fear that this may result in a criminal conviction or a personal pecuniary liability in a civil proceeding’ (the remarks of my colleague Justice Hayut in her opinion, at para. 6).

Similarly:

‘A member of the Knesset who cannot express himself without fear of the legal consequences of his remarks cannot discharge his duty to the voter… the freedom of political debate demands that no restriction is placed on the ability of elected representatives to express themselves freely’ (per President Shamgar in Miari v. Knesset Speaker [4], at p. 207).

We are therefore speaking here of a barrier that prevents free speech; of the fear of the cooling effect, which often causes as much harm as the ab initio freezing effect and which will undermine the ability of members of the Knesset to take part in the political debate. Only this understanding, of the future wide-ranging effects that may result from indicting a member of the Knesset can explain the ‘constitutional importance of the first degree’ that is attributed to substantive immunity, and the outlook that ‘the whole nation has a clear essential interest in the realization of this right, so that it does not suffer a major or minor violation by anyone’ (per President Agranat in State of Israel v. Ben-Moshe [3], at p. 439). Indeed, if a member of the Knesset is concerned that he might be indicted if he expresses the opinions of his party and the people who voted for him, of what value is the possibility of addressing the Knesset, of tabling questions and draft laws and taking part in voting?

9.    My colleagues cite the case law rule that was laid down in Pinhasi v. Knesset [5], according to which ‘for the purpose of analyzing a claim of immunity, we adopt the premise that the facts of the indictment will be duly proved.’ This is indeed the case law rule, but ultimately, as we have said, we should ensure that the disparity between the criteria for examining the right to compete in the elections — a right that can only be denied under strict conditions, including the need for ‘convincing, clear and unambiguous evidence’ — and the criteria for examining the question of immunity is not greater that what is required by the nature of the matter. This is the case today, and it is certainly the case with regard to an incident that occurred prior to Amendment no. 29, which my colleague Justice Hayut agrees does not apply ‘retrospectively in a literal manner,’ even if it is a clarifying amendment. In the absence of appropriate balancing tests, a situation may be created in which the combination of the rule in Pinhasi v. Knesset [5] and Amendment no. 29 will lead to the result that administrative discretion in filing an indictment for certain offences — such as the offence attributed to the petitioner — will also determine the question of immunity, without the matter being subject to any real judicial scrutiny. It is undesirable that this should happen (cf. Benvenisti, ‘Regulating the Freedom of Expression in a Polarized Society,’ supra, at p. 65). Amendment no. 29 was not intended to rule out the possibility of exercising judicial scrutiny, just as the aforesaid s. 7A did not deprive the court of the possibility of exercising judicial scrutiny that takes into account the basic principles of the legal system.

10. Indeed, the legislature had its say when it enacted the provisions included in s. 1(a1) of the Immunity Law within the framework of Amendment no. 29. But even this amendment does not raise an impenetrable barrier against judicial scrutiny, which should be stronger precisely when a question arises with regard to human rights. A similar need has also been recognized in other legal systems. The United States Supreme Court long ago restricted the scope of judicial review over economic legislation, but it emphasized from the outset, albeit cautiously, that there might be a greater tendency to intervene — or, in other words, it would determine a narrower scope for operation for the presumption of constitutionality — when legislation appears on its face to be within the scope of the specific prohibitions stated in the amendments to the constitution, and especially those concerning the prohibition against violating basic human rights (see footnote 4 of Justice Stone’s opinion in United States v. Carolene Products Co. [29]). The court in that case specifically mentioned, from the viewpoint of how ‘exacting’ the judicial scrutiny should be, the cases in which the legislation restricts those political processes that in themselves are supposed to serve as a barrier against undesirable legislation or where the legislation is directed against a particular religion or against identifiable and insular minorities. This footnote spread its wings and took up a position at the front of the stage, where it has served as an anchor for later case law concerning human rights. The protection of the freedom of expression has become greater there when it is invoked by minorities seeking equality, since naturally the majority has greater power to express its opinions. The logic that guided the Supreme Court in the United States is clear. In Israel, the margin of deference that we will show to the actions of the other branches will take into account out basic constitutional principles, which, for example, include property rights, and our outlook with regard to balancing all the considerations that are relevant when exercising judicial scrutiny (see also HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [26]). In any case, we should recognize the special importance of judicial scrutiny in those cases where basic human rights are under discussion. Here it is important for judicial scrutiny to be exercised fully. This can be done if it succeeds in not wasting its legal and social resources, which derive from public confidence, where the margin of deference is greater (see Movement for Quality Government in Israel v. Prime Minister [26]). This is the case in general, and it is particularly so when we are speaking of immunity that concerns the freedom of expression, and in our case this is not any expression, but political expression; and not any political expression, but political expression of a member of Knesset; and not any member of Knesset, but a representative of a minority group. Substantive immunity is intended, first and foremost, to ensure the effective representation in the Knesset of the various sectors of the population, so that their voices are heard and are not precluded from public debate in the State of Israel, in so far as this is possible within the limitations of a democracy; an additional purpose of immunity is to protect the Knesset and its members against interference and harassment on the part of the executive branch (see Pinhasi v. Knesset [5], at pp. 678-679). In view of these purposes, we should maintain the distinction between the decision to file an indictment — a decision that is within the authority of the attorney-general — and the decision concerning substantive immunity. One should not automatically deduce that there is no substantive immunity from the mere filing of the indictment for the offence that is attributed to the petitioner, not even in view of the ruling in Pinhasi v. Knesset [5]. The mere filing of the indictment against the petitioner does not erect a barrier that prevents judicial scrutiny with regard to the limits of the immunity.

11. My colleague the president follows this path, and presents in his opinion a balancing test for the purpose of applying Amendment no. 29. He does this before he comes to the margin of natural risk criterion, which applies, according to him, to cases that do not fall within the scope of that amendment. Thus, the president holds that —

‘The distance between convincing, clear and unambiguous evidence (which is required for the red line of which my colleague speaks) and the evidence required in order to deny substantive immunity (within the framework of a criminal proceeding) is not great at all’ (at para. 5 of his opinion).

This balancing criterion is sufficient, in our case, to lead to the conclusion that even when we take Amendment no. 29 into account, there is no statutory basis for holding that the petitioner does not have substantive immunity.

Indeed, the distinction outlined by the president between uttering statements of praise and approval for a terrorist organization and actual support for an armed struggle against the State of Israel, appeared already in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] and was supported by a majority of the justices. This distinction allowed the petitioner to compete in the elections to the Knesset (for a similar distinction, see HCJ 1398/04 Ben-Horin v. Registrar of Amutot [27]). We do not deny that the distinction is not an easy one, and already in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] there was doubt in this regard. But in so far as there is a doubt, it is better to ‘err’ on the side of freedom of speech, as Justice Stone said in Jones v. Opelika [30]:

‘If this court is to err in evaluating claims that freedom of speech, freedom of the press, and freedom of religion have been invaded, far better that it err in being over protective of these precious rights.’

Ultimately it was found in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] that the evidence could not support the ground of disqualification that refers specifically and expressly to support for an armed struggle. The same conclusion, on the basis of the same evidence, has been reached by my colleague President A. Barak in our case as well, and I agree with this conclusion.

12. The question remains whether, in view of the balancing tests laid down in the case law of this court, the remarks made by the petitioner fall outside the scope of substantive immunity. In this regard, I see very great importance in the fact that we are dealing with offences that revolve entirely around statements. Indeed, the interests that immunity is intended to realize — mainly the right to effective political representation and to participation in public debate, the principle concerning the existence of a free marketplace of ideas and opinions and the purpose of maintaining a democratic process — are realized first and foremost by means of the political statements of a member of the Knesset. Free expression of opinions is the heart and soul of substantive immunity. ‘Someone who is in the business of making speeches has a high probability of being caught violating prohibitions concerning defamation or incitement. Substantive immunity was intended to give him immunity within the limits of this risk’ (per President A. Barak in Pinhasi v. Knesset [5]). The combination between the broad scope of application of the offences concerning the freedom of expression and the nature of the duties of a member of Knesset, to express his opinion in public and sometime differ from the opinion of the majority in harsh terms, places the member of Knesset — and especially one who belongs to minority sectors of the population — in an inherent risk of falling into the scope of the offences. All of this shows that immunity against indictment, where we are concerned with offences of speech, should be very broad.

13. In Pinhasi v. Knesset [5], the president held that the margin of natural risk applies to those actions that ‘… are so related and integral to his duties that there exists a concern that if the member of the Knesset will be required to account for these illegal actions, this will directly affect his ability to discharge his duties according to law and will restrict them’ (ibid. [5], at p. 690). Offences that only concern speech fall, as a rule, within the margin of natural risk. If a member of the Knesset is required to account for them, this may create a dangerous cooling effect.

With regard to activity of a different kind, such, for example, as a false entry in corporate documents, it has been held that it does not fall within the natural risk of the activity of a member of the Knesset, since ‘there is no concern that if criminal liability is imposed on a member of Knesset who signs these accounts in the knowledge that his declaration is false, and with a fraudulent intention, he will refrain from preparing these accounts lawfully’ (ibid. [5], at p. 692). This is not the case with offences involving speech, such as offences of incitement and even uttering statements of praise and approval for a terrorist organization. Thus, for example, a member of Knesset, and not necessarily a member of Knesset who comes from the Arab minority, may express an opinion that a violent act that was directed against the State of Israel led to political consequences for which the perpetrators of the act hoped. Such a statements does not need to be motivated by identifying with the action or support for it, but it may arise from the speaker’s subjective perception of reality. No one disputes that the remarks of the petitioner depart prima facie from the scope of such a statement. But the fear is that if the petitioner is not permitted to say what he said, notwithstanding the seriousness of his statement and notwithstanding the fact that it lies on the borderline of immunity, this will lead to excessive restraint, which will result in an excessive restriction on the limits of debate. I am therefore of the opinion that the petitioner’s remarks lie within the margin of natural risk.

The result is that I agree with the conclusion of my colleague President A. Barak that the petitioner has substantive immunity against being brought to trial for the offences which are the subject of the indictment that was filed against him.

 

 

Petition granted by majority opinion (President Barak and Justice Rivlin), Justice Hayut dissenting.

3 Shevat 5766.

1 February 2006.

 

 

 

 

 

Petition granted.

21 Kislev 5767.

12 December 2006.

            H.C.J  187/54

 

           

HALIMA SULIMAN BARRIYA

v.

THE KADI1) OF THE SHARIA MOSLEM COURT, ACRE (SHEIKH MUSSA-T-TABARI)

 AND ANOTHER

 

           

In the Supreme Court sitting as the High Court of Justice.

[July 19, 1955]

Before Olshan P., Goitein J., and Berinson J.

 

 

Moslem religious courts - Non-interference by High Court of Justice in procedure of religious courts - Moslem Law - Guardianship of minors - Women's Equal Rights Law, 1951 - Civil and Religious law.

 

            An application was made to a Moslem Religious Court by the aunt of three minor children to be appointed their guardian. The applicant's deceased brother, the father of the children, had directed before his death that the mother of the children should be their guardian. After his death the mother had remarried and the aunt, relying upon Moslem law, had taken the children into her care and had prevented them from remaining with their mother.

           

            In the course of the proceedings before the Moslem Religious Court the mother submitted (inter alia) that she was entitled to the guardianship by virtue of s. 3 of the Women's Equal Rights Law 2. The Moslem Religious judge (the Kadi) decided to deal with the legal arguments only after hearing and considering the evidence in the case. The mother believing that the Kadi had in effect already decided to apply Moslem religious law and to disregard the Women's Equal Rights Law applied for an order staying or setting aside the proceedings in the religious court.

           

            Held per Olshan P. : There was nothing in the record of the proceedings before the religious court to show that that court intended to disregard the civil law and rely only upon the religious law, and the order in which the religious court decided to proceed with the case was a matter of procedure with which the High Court would not interfere.

           

            per Goitein and Berinson JJ. : If in the event it is seen that the religious court confined itself to the Sharia 1) law and refused to take into account the civil law regarding equal rights for women, then it would be acting without jurisdiction and the High Court would come to the aid of the petitioner. The present petition was premature as there was nothing to show that the Kadi intended to disregard the civil law.

           

Darweesh and Angel for the petitioner.

No appearance for the first respondent.

Hawari for the second respondent.

Bar-Or, Deputy State Attorney, for the Attorney-General.

 

            OLSHAN P. This is the return to an order nisi, dated December 26, 1954, calling upon the first respondent to show cause why he should not be restrained from continuing the proceedings in the claim of the second respondent in File 26/54 of the Sharia Court2), or why an order should not be made setting those proceedings aside.

           

            The petitioner is the mother of three minor children, a son and two daughters. Her husband died six or seven years ago. The second respondent is the petitioner's sister-in-law, a sister of her deceased husband, and an aunt of the children. On October 14, 1954, the petitioner married her present husband and thereafter, in the language of the petitioner, "the second respondent took energetic steps to take from her the guardianship of the children" and "she succeeded by intimidation and persuasion in keeping them with her, and in preventing them from remaining with the petitioner".

           

            The second respondent applied to the first respondent to be appointed as guardian of the children alleging, inter alia, that her deceased brother had directed before his death that she should be the guardian of his children. The second respondent was represented before the Kadi by Mr. Hawari. The petitioner was not represented by counsel, but she was assisted by Mr. Darweesh as amicus curiae.

           

            We have been furnished with a copy of the record of the proceedings before the Kadi, the clarity and arrangement of which are to be commended.

           

            The record shows that:

(a)   The second respondent based her claim to be appointed guardian upon the allegation that the petitioner had married a second husband and had left the three children with the second respondent.

 

(b)   The petitioner submitted in support of her claim that she was entitled to the guardianship of her children. relying upon section 3 of the Women's Equal Rights Law, 1951. That section provides that the father and mother are the guardians of their children, and that upon the death of one of them the surviving parent continues as guardian unless the interests of the children require the appointment of some other person. The petitioner submitted that this section binds all religious courts and that the interests of the children required that she should continue to be their guardian.

 

(c)   Counsel for the second respondent submitted that the court should apply the religious law, according to which that person should be nominated who had been appointed as guardian by the father before his death. Counsel requested the first respondent to decide upon the preliminary points before hearing witnesses.

 

(d)   The first respondent decided that the sections of the Sharia Law relied upon by counsel for the second respondent should be considered after the hearing of evidence to determine whether the second respondent had in first been nominated as guardian, and that he would then deal with "the Sharia and legal aspects of the case."

 

(e)   At the second hearing, after the above decision had been given, witnesses were heard and the hearing adjourned for the purpose of examining the evidence taken, and determining to what extent the various witnesses had been consistent with each other. At that stage the petitioner applied to this court and the order nisi was issued.

 

            Counsel for the petitioner submitted before us that in view of the arguments advanced before the Kadi by counsel for the second respondent the decision referred to above must be regarded as a finding by the first respondent on the point argued before him, that is to say, that it is the religious law which must be considered and even preferred, and that the Women's Equal Rights Law must be disregarded. In view of this finding, he submits, the order nisi should be made absolute.

 

            Counsel for the petitioner also submits that the Sharia Law discriminates against the wife in this case and that the decision of the Kadi, therefore, in so far as it seeks to apply the Sharia Law, is in conflict with section 1 of the Women's Equal Rights Law which provides:

           

            "A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect".

           

            Counsel for the petitioner also submits that the decision referred to is in conflict with section 3 of the same law.

           

            It appears from the record that counsel for the second respondent did submit before the Kadi that the religious law is to be applied in matters of personal status, and pointed out that according to the law, in his opinion, a mother who has married a second husband is not to remain guardian, since the children may not be permitted to live under one roof with the second husband, who is unrelated to them. It follows, although he did not say this expresly, that the first respondent was being asked to disregard the Women's Equal Rights Law.

           

            Relying upon a book of the Sharia Law regarding the question of the guardianship of children, counsel tried to show that that law does not discriminate against the wife in the present case. He also submitted that the decision of the court should not be regarded as a decision that the Women's Equal Rights Law is not to be applied, and that since the first respondent has not yet given his ruling on the point, the present application is based upon mere apprehension and is accordingly premature.

           

            Mr. Bar-Or did not deal with the question of the remedy that the submission of counsel for the second respondent that the order nisi should be discharged.

           

            Mr. Bar-Or did not deal with the question of the remedy that might be available in the event of a religious court deciding the case without taking into account the provisions of the Women's Equal Rights Law. He confined his submissions to the specific matter before us.

 

            He submitted that the decision referred to is not a ruling on a point of law, as was submitted by counsel for the petitioner. Since the present petition is not one concerning the assumption by a court of the power to deal with a matter beyond its jurisdiction, this court cannot issue an order restraining the continuation of the proceedings.

           

            An additional submission of Mr. Bar-Or was that even if the decision referred to could be regarded as a ruling not to apply the Women's Equal Rights Law, even then this would be a decision on the merits of a case within the jurisdiction of the religious court, and if that decision was based upon an error in the interpretation of the law which governed the matter, the remedy was an appeal to the Religious Court of Appeals.

           

            The matter before the Kadi, Mr. Bar-Or submits, is one relating to the guardianship of children which, in accordance with the Palestine Order in Council, is within the exclusive jurisdiction of the religious court. It is therefore clear that there is here no matter of jurisdiction in respect of which an injunction could be issued. All the more so is this the case when the Kadi has only decided to postpone "the consideration of the Sharia and legal aspects" (and he emphasises the word "legal") until after the hearing of the witnesses. How can counsel for the petitioner know that when the Kadi reaches the stage of considering the "Sharia and legal aspects" of the problem, he will decide not to have regard to the interests of the children, in accordance with the provisions of section 3(b) of the Women's Equal Rights Law? 1)

           

            I agree with the submissions of counsel for the Attorney-General, and those of counsel for the second respondent which he made before us (but not with those advanced by him before the Kadi).

           

            We are not called upon to deal with the problem of whether the Sharia Law discriminates against women in matters of guardianship. In the present case there is no attempt to discriminate between a man and a woman, the matter dealt with in section 1 of the Women's Equal Rights Law, for the question that arises here is which of two women is to be guardian of the children.

           

            As far as section 3 of the statute referred to is concerned there is no doubt that it binds all courts and tribunals, even in cases where the application of the religious law would lead to different results. Section 7 of the statute is quite unequivocal, the only case which forms an exception to the rule and where it is permissible to depart from the provisions of section 3 is where the parties are of the age of eighteen years or more and have voluntarily agreed before the court that the litigation between them shall be conducted in accordance with the laws of the community to which they belong.

           

            I do not accept the interpretation placed by counsel for the petitioner upon the decision of the first respondent. The clear meaning of that decision is that the truth of the contention of the second respondent in regard to her having been selected by her deceased brother as guardian of the children must be investigated first. Should it be proved that this contention is incorrect, there will be no need to consider the legal questions raised by counsel for the second respondent, but if it should appear that there is substance in this contention, then the Kadi will deal with "the Sharia and legal aspects of the case." That is to say, the Kadi will then give his opinion upon the legal submissions of counsel for the second respondent based upon the Sharia Law, and also upon the legal submissions of the applicant based upon the secular law. The question of procedure is one for the religious court, and is not a matter with which this court will interfere.

           

            In my opinion that is the proper interpretation of the decision of the Kadi and if that be so it will be seen that the complaint of the applicant narrows down to this, namely, that the Kadi should first have decided the legal question before him, and if he had reached the correct conclusion, he would have been relieved of the necessity of hearing witnesses. This is a matter of procedure, and each religious court proceeds according to its own rules. This is not a matter, as I have said, in which we should interfere.

           

            I may add that it was counsel for the second respondent who requested that a decision on the preliminary points be given first and the Kadi did not accede to this request. This shows that the meaning of the decision referred to accords with the interpretation I have just given.

           

            The petition should, therefore, be dismissed, and the order nisi discharged. Should the decision of the religious court conflict with the Women's Equal Rights Law, questions will arise that are not before us in these proceedings.

 

            In regard to costs, I think that the bringing of this petition was caused to some extent by the submissions of counsel for the second respondent before the Kadi, upon which he did not rely before us.

           

I think it right that each party should pay its own costs.

 

GOITEIN J. I agree with the President that the order nisi should be discharged and I do so for two reasons. (a) In my opinion the application is premature. At present there is no hint in the record of the religious court that the Kadi intends to disregard the provisions of the Women's Equal Rights Law, 1951. It is true that counsel for one of the parties who appeared before him requested him to disregard this law, but there is no evidence whatever before us to show that the Kadi intends to accede to this request. (b) The Women's Equal Rights Law does not confer upon a mother an unappealable right to the guardianship of her children. Section 3(b) of the Law leaves the matter within the discretion of the competent court or tribunal "with the interests of the children as the sole consideration." It follows that every civil and religious court will regard the mother as the natural guardian of her children until it is proved that the interests of the child demand that the mother should cease to be the guardian.

 

            The above considerations give rise to two problems. (a) Suppose the religious law does not recognise that it is in the interests of the children that the mother should be their guardian, is the religious court then free to decide that the interests of the children demand that they should not remain under the guardianship of their mother? (b) Assuming the religious law is inconsistent with the Women's Equal Rights Law, yet the religious court decides in accordance with the religious law and its judgment is confirmed by the Religious Court of Appeals, may this court interfere?

           

            The first question was raised in argument before us. Moslem religious law, it would seem, does not regard it as in the interests of the children that their mother should remain their guardian after she has married a second time. May the religious court decide in accordance with the religious law? It seems to me that the answer is to be found in section 3(b) of the Women's Equal Rights Law, which provides:

 

"The provisions of sub-section (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interests of the children as the sole consideration."

           

            The emphasis is upon the word "sole" - that is to say, the test is objective and judges, when dealing with this subject, are to disregard the theoretical presumptions of the religious law as to what constitutes the interests of the children in a particular situation.

           

            It was not argued before us that if the father take a second wife he ceases, according to Moslem law, to be the natural guardian of his children. If his guardianship continues in such a case, then it seems to me that there is discrimination here against the mother by reason of her being a woman. A religious court, therefore, is not entitled to remove the children from the guardianship of their mother and to hand them to their aunt - as in the case before us - relying upon a law which discriminates against a woman by reason of her being a woman. However, as I have already said, there is no proof before us that the Kadi intends to deal with this problem without regard to the Women's Equal Rights Law.

           

            The second question is more difficult and no clear answer to it is to be found in the law of Israel. It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not interfere with judgments of the religious courts unless they have acted without jurisdiction, or in cases where there has been a denial of natural justice, or in exceptional cases which call for our intervention for the administration of justice. It has therefore been held that this court will not turn itself into a court of appeal from judgments of the religious courts. That is to say, if those courts err in their interpretation of the law or disregard a particular statute, this court has no power to correct the mistake. The only remedy is an appeal to the religious court of appeals, and if that court also errs, its judgment stands. What then will be the fate of a judgment of a religious court in which it is clearly stated, or the text of which makes it clear, that the court disregarded the provisions of a particular statute - in this case the Women's Equal Rights Law, 1951? The answer, in my opinion, is to be found in Sections 1 and 7 of that Law. Section 1 provides:

 

"A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect."

           

Section 7 provides:

 

            "All courts shall act in accordance with this Law..."

           

            In the light of these sections, we say that the acts of any court which are contrary to the Law are of no effect, for the Women's Equal Rights Law restricted and confined the power of the religious courts to act in accordance with the religious law, as they had been doing before this statute was passed. The answer, therefore, to the question asked above is that when it appears on the face of a judgment that the court has failed to take notice of a law of the State, and that judgment is presented for execution, execution may be refused upon the ground that the religious court, in deciding as it did, exceeded its powers.

           

            It has been submitted before us that a shrewd judge in a religious court will be able to find a way of concealing the fact that he decided otherwise than in accordance with the laws of the State, and that it will then be impossible to invalidate his judgment in any civil court whatever. In my view there is no serious danger of a complainant being unable to establish upon the basis of which law the court gave its decision. If it emerges from proceedings, or from the record, that the religious court intentionally disregarded the laws of the State then this court as the High Court of Justice will restrain execution of the judgment. In the present case, as I have already said, there is no reason for us to suspect that the Kadi will not decide in accordance with the law as it stands, and there is therefore no reason for us to interfere.

           

            For these reasons I agree with the learned President that the order nisi should be discharged.

           

BERINSON J. I also agree that the order nisi be discharged for the reasons given by Mr. Justice Goitein, and I wish only to add a few words to clarify my attitude on one of the grounds advanced by him.

 

            Mr. Justice Goitein asks what would become of a judgment of a religious court when it is clear that that court disregarded the provisions of a particular statute such as, in this case, the Women's Equal Rights Law, 1951. His reply is that when it appears on the face of the judgment that the judges disregarded a law of the State, execution of the judgment may be refused upon the basis that the religious court, in deciding as it did, exceeded its powers. With this I agree, but it seems to me, with all respect, that this answer does not exhaust the matter, for in addition to attacking the judgment before the execution authorities, there are other ways of attacking an invalid judgment, given without proper authority. I assume that my colleague cited this method of setting aside the judgment before the execution authorities only as an example, as one of the ways, and did not intend to exclude others. As far as I am concerned, my view is that the ways of invalidating a judgment - such as the one here discussed - of a religious court, are no different or more restricted that those which are ordinarily open to an interested party for upsetting a judgment given by an inferior tribunal without authority. I will explain myself by reference to the facts of the petition before us. The subject of the dispute between the petitioner and the second respondent is the petitioner's guardianship of the three children who are now living with the second respondent, who is in possession of their property and administers it on their behalf. All that the second respondent seeks to obtain in the Sharia Court is the legal confirmation of this state of affairs. Let us assume that the Sharia Court issues an order of guardianship as applied for by the second respondent, basing itself upon the principles of the religious law, and totally disregards the Women's Equal Rights Law, that is to say, that it issues a judgment in excess of its powers. The second respondent need not present that judgment for execution for it merely confirms an existing state of affairs. Does it follow from this that every alternative legal method of invalidating this judgment is denied to the petitioner? An application could be made to this court for certiorari, contesting the validity of the judgment which was given in excess of authority. Again, an application for a writ of habeas corpus, directing the return of the children to her possession as their natural guardian in accordance with the Women's Equal Rights Law, could be lodged. It is beyond all doubt that these ways are not closed to the petitioner. In the result, I am of opinion that the judgment of a religious court given In excess of its powers by reason of its being in conflict with the provisions of a secular law which binds the court, may be invalidated in the same way as any other judgment of an inferior tribunal given in excess of its powers.

 

Order nisi discharged.

Judgment given on July 19, 1955.

 

1) Judge of Moslem Religious Court.

2) Women's Equal Rights Law, 1951, s. 3:

Equality in respect of guardianship.

3.         (a)         Both parents are the natural guardians of their children; where one parent dies, the survivor shall be the natural guardian.

(b)        The provisions of subsection (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interest of the children as the sole consideration.

1) Moslem religious law.

2) Moslem Religious Court

1) For text of s. 3(b) see supra p. 429.

HCJ 316/03

 

1.  Muhammad Bakri

2.  Forum of Documentary Producers

v.

1.  Israel Film Council

2.  Ministry of Science, Culture and Sport

3.  Yitzhak Busidan (father of the late Amit Busidan)

4.  Leah Berr (mother of the late Dror Berr)

5.  Pninah Yaskov (widow of the late Avner Yaskov)

6.  Eva Meislish (mother of the late Dani Shmuel Meisliash)

7.  Solomon and Simcha Azuri (parents of the late Eyal Azuri)

8.  David Zimmerman (father of the late Eyal Zimmerman)

9.  Amnon Chava (father of the late Menashe Chava)

10.      Rosaline and Salomon Ezra (parents of the late Gad Ezra)

11.      Aryeh and Tziporah Weiss (parents of the late Shmuel Weiss)

12.      Rina and Mark Rabinson (parents of the late Matanyah Rabinson)

13.      Simcha and Pninah Melik (parents of the late Gedaliah Melik)

14.      Gadi and Bernice Ya’akov (parents of the late Avihu Ya’akov)

15.       Michal Arazi (mother of the late Tiran Arazi)

16.      Shlomo Alshochat (father of the late Ronen Alshochat)

17.      Mazal, Ami and Chagai Tal (parents and brother of the late Roey Tal)

18.      Dr. David Tzangan

19.      Zev Iluz

20.      Barak Alfi

21.      Baruch Bachar

22.      Avraham Gal

23.      Ron Teicher

24.      Yisrael Kaspi

25.      Rafi Lederman

26.      Sagi Marak

27.      Eli Proz

28.      Guy Friedman

29.      Aryeh Kadosh

30.      Amichai Kadron

31.      Avner Kinnal

32.      Maron Shtteter

 

 

The Supreme Court Sitting as the High Court of Justice

 [November 11, 2003]

Before Justices D. Dorner, A. Procaccia, and A. Grunis

 

Petition for an Order Nisi.

 

Facts: After IDF operations against the terror infrastructure in Jenin in April 2002 (“Operation Defensive Wall”), petitioner 1 filmed the responses of local Palestinians and edited them into the film “Jenin, Jenin.” After advance screenings, both domestically and abroad, and in anticipation of the film’s domestic commercial screening, petitioner requested the approval of the Israel Film Council. The Council denied its approval. Petitioners claim that this decision violates their constitutional rights and Israeli administrative law.

 

Held:. The Court held that freedom of speech constitutes one of the fundamental principles of a democratic society. Even so, the freedom of speech is not an absolute right and, under certain conditions, it may be infringed. The Court decided that, under the circumstances, the decision of the Israel Film Council unlawfully infringed the constitutional rights of the petitioners.

 

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty

 

Statutes Cited:

Film Ordinance of 1927

 

Israeli Supreme Court Cases Cited:

[1]HCJ 73/53, Kol Ha’am v. Minister of the Interior, IsrSC 7 871

[2]FH 9/11, Israel Electric v. Ha’aretz Publishing, IsrSC 32(3) 337

[3]HCJ 9723/01, Levi v. Dep’t of Foreign Worker Permits, Director of Industry and Services, IsrSC 57(2) 87

[4]HCJ 399/85 Kahane v. The Board of the Broadcasting Authority, IsrSC 41(3) 255

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

[6]HCJ 806/88 Universal City Studios v. Israel Film and Theater Council, IsrSC43(2) 22

[7]HCJ 7144/01 Gush Shalom v. The Broadcasting Authority, IsrSC 56(2) 887

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

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

[10]HCJ 2137/98 Elias v. Chairman of the Board of the Broadcasting Authority (unreported decision)

[11]CA 214/89 Avneri v. Shapira, IsrSC 43(3) 840

[12]HCJ 4804/94 Station Film v. Israel Film Council, IsrSC 50(5) 661

[13]HCJ 14/86 La’or v. Israel Film and Theater Council, IsrSC 41(1) 421

[14]F. HCJ 4466/94 Nosyabe v. Minister of Finance, IsrSC 49(4) 68

[15]HCJ 7852/98 Arutzie Zahav v. Minister of Communications, IsrSC 53(5) 423

[16]HCJ 4644/00 Yaforah v. The Second Television and Radio Authority, IsrSC 54(4) 178

[17]HCJ 4541/94 Miller v. Minister of Defense, IsrSC 49(4) 94

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

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

[20]HCJ 1715/97 Indoor v. The Mayor of Jerusalem, IsrSC 57(2) 157

[21]HCJ 606/93 Kidum Yezumot v. The Broadcast Authority, IsrSC 48(2) 1

[22]HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections for the Sixteenth Knesset, IsrSC 57(2) 62

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

[24]EA 2/84 Neiman v. The Central Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225

[25]CrimA 697/98 Sorotzkin v. The State of Israel, IsrSC 52(3) 289

[26]HCJ 206/61 Israeli Communist Party v. The Mayor of Jerusalem, IsrSC 15 1723

[27]HCJ 807/78 Ein Gal v. The Israel Film and Theater Council, IsrSC 33(1) 274

[28]HCJ 146/59 Cohen v. Minister of the Interior, IsrSC 14 283

[29]HCJ 381/66 The Attorney-General v. The Israel Film and Theater Council, IsrSC 20(4) 757

[30]HCJ 7128/96 Temple Mount Faithful v. The Government of Israel, IsrSC51(2) 509

[31]HCJ 953/89 Indoor v. Mayor of Jerusalem, IsrSC 45(4) 683

[32]HCJ 351/72 Keinan v. The Film and Theater Council, IsrSC 26(2) 811

 

Australian Cases Cited:

[33]Tobin v. Jones (2003) FCAFC 137

[34]Archbishop of Melbourne v. The Council of Trustees of the National Gallery of Victoria (1997) 96 A CRIM R 575

 

United States Cases Cited:

[35]Abrams v. United States, 250 U.S. 616 (1919)

[36]Whitney v. California, 274 U.S. 357 (1927)

[37]Dennis v. United States, 341 U.S. 494 (1951)

[38]Cohen v. California, 403 U.S. 15 (1971)

[39]Stromberg v. California, 283 U.S. 359 (1931)

[40]Terminiello v. Chicago, 337 U.S. 1 (1949)

[41]Virginia v. Black, 123 S.Ct. 1536 (2003)

[42]Collin v. Smith, 578 F.2d 1197 (1978)

[43]Smith v. Collin, 439 U.S. 916 (1978)

[44]Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

[45]Street v. New York, 394 U.S. 576 (1969)

[46]Schenk v. United States, 249 U.S. 47 (1919)

 

English Cases Cited:

[47]Verrall v. Gt. Yarmouth B.C. [1981] Q.B. 202 (C.A.)

[48]Derbyshire CC v. Times Newspapers Ltd [1993] 1 All E.R. 1011 (H.L.)

[49]Hector v. A-G of Antigua and Barbuda [1990] 2 All E.R. 103 (P.C.)

[50]R. v. Home Secretary, ex parte Brind [1991] 1 A.C. 696

 

Israeli Articles Cited:

[51]Mordechai Kremnitzer, The Boundaries if Freedom of Expression, The Seventh Eye 26-27 (January-February 1996).

[52]D. Stattman, Offense to Religious Feelings, in Multiculturalism in a Jewish and Democratic State: A Book in Memory of Ariel Rosen-Tzvi 133 (1988)

 

Foreign Books Cited

[53]M.B. Nimmer, On Freedom of Speech (1992)

[54]D. Feldman, Civil Liberties and Human Rights in England and Wales (1993)

[55]M. Chesterman, Freedom of Speech in Australian Law – A Delicate Plant (2000)

[56]A.M. Dershowitz, Shouting Fire – Civil Liberties in a Turbulent Age (2002)

 

Miscellaneous

[57]8(2) Halsbury, The Laws of England (4th ed., 1996)

[58]P. Lahav, Freedom of Expression During National Security Crises (1973)

 

Jewish Law Sources Cited:

[59]Maimonides, Laws of Torah Study, Ch. 1,2

[60]Babylonian Talmud, Tractate Nedarim 81b

[61]Babylonian Talmud, Tractate Eruvin 13b

 

 

For petitioner—Avigdor Feldman

For respondents 1 and 2—Dina Zilber

For respondents 3-17—Ilan Bombach; Yariv Ronen

Respondents 18, 24 and 25 argued pro se.

 

JUDGMENT

 

Justice D. Dorner

 

With intelligence shall man distinguish between the true and the false.

 

Maimonides, Guide to the Perplexed,

I:2 [59]

 

Facts, Proceedings and Arguments

 

1.   On Passover eve, March 27, 2002, there was a terror attack at the Park Hotel in Netanya. A terrorist entered the hotel dining room—filled with almost 250 women, men and children in the middle of the Passover feast—and detonated a bomb that he had strapped to his body. The dining room was destroyed. Nineteen guests were killed on the spot. Eleven died later. One hundred and sixty were injured.

Two days later, the Israeli Defense Forces (“IDF”) began “Operation Defensive Wall.”  The operation was intended to uproot the terrorist infrastructure responsible for the unprecedented wave of terror attacks that had struck Israel. On April 3, 2002, IDF forces entered the Jenin refugee camp, which served as a central base for organizing terror attacks, and from which many suicide bombers had been sent to commit such attacks all over Israel.

After the civilian population was warned to evacuate, IDF forces engaged in intense house-to-house combat. This was one of the IDF’s most difficult battles in the area. Soldiers were fired on from every direction, booby traps were placed in their way, bombs were detonated around them. Armed Palestinians hid among civilians, a few thousand of which remained in the camp when the fighting began. These armed men fought from civilian homes and from civilian facilities. The IDF attempted to avoid injuring civilians. It did not make use of jets or artillery. Tanks and military helicopters, however, were utilized. After a force of reserve soldiers was ambushed, leaving thirteen soldiers dead, it was decided that bulldozers would be used to destroy the houses used in the course of combat. During the battle, 23 IDF soldiers were killed and about 60 were wounded.  According to IDF data, the Palestinians suffered 52 dead, half of whom were civilians. Serious damage was caused to property.

2.    During the warfare and for several days following, journalists were forbidden from entering the camp. It was only possible to learn of what had occurred by seeing the battlefield itself, and from testimony of the people involved. This media blackout contributed to the conflict regarding the events.

 

The report of Human Rights Watch, for example, claimed that severe violations of human rights had occurred in the camp, including mass detentions, the denial of medical assistance to the wounded, and the destruction of civilian property. Nevertheless, the report repudiated the claim—which had spread among the local Palestinian population and around the world—that the IDF had slaughtered the residents of the camps and carried out systematic executions. Amnesty International and the Secretary General of the United Nations released findings similar to those of Human Rights Watch. In response, the IDF released a report that emphasized the restraint it had displayed and its efforts to prevent injury to civilians, despite the harm that these efforts may have caused to its soldiers. The report underscored that medical and humanitarian assistance was offered to the residents of the camp, even during the course of warfare itself. It also claimed that at least half of the Palestinian dead were fighters in terror organizations. 

 

3.  It is clear that the traumatic experiences of the Jenin refugee camp impressed themselves upon the minds of the IDF soldiers who fought there, their families, and upon the minds of the residents of the camp. The events attained mythic stature among Palestinians, and this influenced the way in which the events were subsequently portrayed. After armed combat came to an end, the struggle for public opinion began, both in Israel and abroad.

 

4.    Petitioner 1, a resident of the village of Baana in the Galilee, entered the refugee camp, at the end of April 2002, accompanied by a film crew.  He filmed the reactions of Palestinian residents to the events, and edited them into the film “Jenin Jenin.” From the outset, petitioner declared that he did not attempt to present the Israeli position or present a balanced portrayal of the events. His goal was to present the Palestinian story.

 

Advance screenings of the film were shown in Tel Aviv and Jerusalem, and the film was screened in foreign countries as well. In anticipation of its commercial screening in Israel, the film was submitted, as required by the Film Ordinance of 1927, for approval to the Israel Film Council. The Council, which was then subject to the Ministry of Science, Culture and Sport, held hearings concerning the film on November 18, 2002 and December 23, 2002.

 

The film left a difficult impression upon the Council members.  One asserted that it was a “repulsive propaganda film,” “every second of which oozes venom.” See The Meeting Protocol, November 18, 2002, at 4. Council member Yechiel Guttman even stated that “the sins of the Gestapo in the concentration camps will seem as white as snow in light of the description of IDF activities in the movie.” Id. at 2.

 

A majority of Council members decided that the film should not be approved for screening. A minority of dissenting Council members suggested that the screening be permitted, but that it either be accompanied by slides presented by an IDF spokesman, or that it be permitted exclusively for viewers 18 and older. The Council, in a letter to the petitioner, listed the following reasons for its decision:

 

1.           It is a distorted presentation of the events, under cover of documentary truth, which may mislead the public.

 

2.           It is a propaganda film that presents a one-sided version of events, the position of a side that Israel is currently in a state of war with. It is not appropriate that the Council should aid and approve this screening.

 

3.           It is a film which severely offends the feelings of the public which may mistakenly think that IDF soldiers regularly and systematically commit war crimes, and this is completely at odds with the truth and the facts uncovered by investigations of the IDF and international bodies.

 

4.           The presentation of the events borders on incitement, even to the point of delegitimizing the existence of the State of Israel.

 

5.           The fundamental principles of a democracy—a democracy that does not wish to commit suicide—demands that we refrain from approving the screening of the film.

 

5.    The petition before us is directed against the decision of the Council.  An order interim was issued on January 10, 2003.  In the petition, petitioners claim that the decision is unreasonable and that it unlawfully violates their freedom of expression. They also claimed that the Council cannot base its decisions upon political considerations or upon its belief that the film is based on untruths. As such, they assert, the Council did not have the authority to make the decision, and that it took inappropriate considerations into account. Petitioners further claim that the ordinance under which the Council acted is unconstitutional.

 

6.    The State laid out its position in a lengthy and detailed response. It asserts that the film is false and callously distorts the truth. In its own words: “The one and only truth is otherwise.” This truth, in the opinion of the State, is clearly reflected by the description of the events in reports by the IDF, as well as by information presented by international and even Palestinian bodies. 

 

The State is of the opinion that the film must be censored, due to the danger that it poses to the public order and the offense it causes to feelings of the public. The State claims that the film contains incitement: its content may move some viewers to engage in violent activity. Second, the State claims that the film will weaken Israel’s international standing during this difficult time of war, and may even delegitimize the existence of the State. Third, the State claims that the film, being full of untruths, deceives the public and offends its feelings.

 

7.    In the hearing which took place on March 20, 2003, the parties elaborated upon their claims. We decided to allow the families of the IDF soldiers who fell in battle, as well as a group of soldiers who participated in the fighting, to join as additional respondents to the petition. These parties had claimed that the State did not properly represent their positions. We listened to all their words, and thoroughly read all their written submissions. These additional respondents claimed that the film causes severe damage to the reputation of serving IDF soldiers as well as to the reputation of those that fell in battle. In heart-wrenching testimony, they described their feelings of frustration and pain, feelings that they endure because they are being attacked and slandered for actions that they did not commit.

 

8.  A number of weeks after the State submitted its response, petitioners’ counsel informed us of the existence of a film called “The Road to Jenin.” The film, by the French director Pierre Rehov, was produced to challenge the content of petitioners’ film. It contests specific segments of “Jenin Jenin,” emphasizing the perspective of the IDF soldiers and the families of the fallen. Petitioners requested that an interim order be issued to prevent the broadcast of that film on the television program Mabat Sheni. We did not find reason to prevent the broadcast. We should note, however, that while many can view “The Road to Jenin” which, as stated, challenges the content of the film “Jenin Jenin,” the public’s ability to view the latter is significantly limited in light of the decision of the Israel Film Council.

 

We viewed both films, the film “Jenin Jenin” which was submitted by the State, and the film “The Road to Jenin,” which was submitted by the petitioners.

 

The Normative Framework

 

9.  The Council’s decision to prohibit the screening of the film infringes the freedom of expression of its producer, and of others whose opinions the film gives voice to. As is well known, the freedom of expression is one of the fundamental principles of our democracy. Our judgments, long ago, recognized it as a “superior right,” even acknowledging that it serves as a basis for other rights. See the famous words of Justice Shimon Agranat in HCJ 73/53 Kol Ha’am v. Minister of the Interior, at 876-78 [1]. 

 

The meaning of freedom of expression is, first and foremost, that the government may not restrict the voicing and hearing of opinions in public, and it must prevent others from infringing the right. See FH 9/77 Israel Electric v. Ha’aretz Publishing, [2] at 343. In the words of my colleague, Justice Ayala Procaccia in HCJ 9723/01 Levi v. Dep’t of Foreign Worker Permits, Director of Industry and Services, [3] at 94, “[t]he freedom of expression is not only the freedom to express opinions, to write and to present, but also the right to see and to hear.”

 

Freedom of expression is not an absolute right.  In certain cases, the law allows that it be infringed. We must distinguish between the very principle of freedom of expression—which extends to all forms of expression, and to all of the means which may be used for conveying expression—and between the degree of protection, which may only be partial. See, e.g., HCJ 399/85 Kahane v. The Board of the Broadcasting Authority, [4] at 283; HCJ 6126/94 Senesh v. Broadcasting Authority, [5] at 830-31; HCJ 806/88 Universal City Studios v. Israel Film and Theater Council, [6] at 34-35; HCJ 7144/01 Gush Shalom v. The Broadcasting Authority, [7] at 890-91.

 

The fact that expression may be offensive, rude, or grating cannot serve as a reason not to protect it. This was noted by Justice Mazza in HCJ 2888/97 Novick v. The Second Television and Radio Authority, [8] at 201:

 

Freedom of expression was not only intended to protect accepted and popular opinions, expressed under peaceful conditions, but also—and this is the central test of the freedom of expression—deviant, infuriating, and exasperating opinions, expressed after difficult events, in a callous and offensive fashion.

 

Also appropriate in this regard are the words of the English judge, Lord Denning.

 

Freedom of speech [is] amongst our most precious freedoms. Freedom of speech means freedom not only for the views of which you approve, but also freedom for the views you most heartily disapprove.

Verrall v. Great Yarmouth Borough Council, [1981] Q.B. 202, at 216 [47]. The mere fact that an expression is false does not constitute a cause for the removal of protection. This is in contrast to the manner it is expressed, such as being racist. The use of such a manner of expression—regardless of its content—violates a statutory prohibition and constitutes a cause for the restriction of that expression. See Crim. A. 2831/95 Alba v. The State of Israel, [9] at 320; Mordechai Kremnitzer, The Boundaries if Freedom of Expression, The Seventh Eye 26-27 (January-February 1996) [51].

Indeed, it has been established that “regarding the freedom of expression, we do not concern ourselves with the truth of the expression.” Universal, [6] at 33. To permit the restriction of false expression would allow the authorities the power to distinguish between the true and the false, to decide what is appropriate to be voiced and what is not, and the power to substitute its own decisions for the decisions of the free market of ideas.  “Freedom of expression also includes the freedom to present facts and interpret them, even if many are certain that the presentation is erroneous and the interpretation deceiving.” HCJ 2137/98 Elias v. Chairman of the Board of the Broadcasting Authority (unpublished decision) [10]. See also Senesh, [5] at 830; CA 214/89 Avneri v. Shapira, [11] at 857-58; HCJ 4804/94 Station Film v. Israel Film Council, [12] at 676; HCJ 14/86 La’or v. Israel Film and Theater Council, [13] at 433; Kahane, [4] at 281. As stated by Justice Oliver Wendell Holmes, of the United States Supreme Court:

 

But when men have realized that time has upset many fighting faiths, they may come to believe, even more than they believe the very foundations of their own conduct, that 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…

Abrams v. United States, 250 U.S. 616, 630 (1919) [35]. The words of Justice Louis Brandeis are also appropriate in this regard:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process 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. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.

Whitney v. California, 274 U.S. 357, 377 (1927) [36].

     Another reason for protecting the freedom of expression includes protecting the speaker’s right to self-realization, and the need to preserve public order, especially by allowing for the release of the “social steam” by those who hold minority views. Imposing a prohibition against false expression may contribute to the accumulation of this “steam,” which may lead to violent eruption.  As stated by Justice William Douglas:

 

Free speech has occupied an exalted position because of the high service it has given our society, its protection is essential to the very existence of a democracy. The airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain new adherence...

 

Dennis v. United States, 341 U.S. 494 (1950) [37].

 

10.  The “limitations clause” in section 8 of the Basic Law: Human Rights and Dignity sets the legal standard for using administrative authority to infringe the freedom of expression. See, e.g., F. HCJ 4466/94 Nosyabe v. Minister of Finance, [14] at 87; HCJ 7852/98 Arutzei Zahav v. Minister of Communications, [15] at 429; Yaforah v. The Second Television and Radio Authority, [16] at 182. This is the case whether freedom of expression is enshrined, fully or partially, in the right to human dignity established by the Basic Law—in which case section 8 is directly applicable—or whether freedom of expression is not enshrined in the right to human dignity—in which case the limitations clause will apply either by analogy or due to general administrative law. See HCJ 41/94 Miller v. Minister of Defense, [17] at 138; HCJ 5016/96 Horev v. Minister of Transportation, [18] at 43.

 

The limitations clause permits the violation of a right only where the authority to violate that right is granted by statute, if the violation is consistent with the values of the State of Israel, and if the violation has an appropriate purpose and is not disproportionate. Proportionality is measured by three tests. The “suitability test” ensures that the measure which violates the right is suited to the purpose of the violation. The “minimal violation” test confirms that the measures taken are those which violate the right least. The “relativity test” ensures that the benefits of the violation bear a reasonable relation to its costs. These tests weigh the purpose of the violation against the injury done to the person whose rights are infringed.

 

In addition to the proportionality tests, the courts, even before the advent of the Basic Laws, had developed balancing equations. These equations were intended to analyze the probability that expression would harm the public interest. See HCJ 6226/01 Indoor v. The Mayor of Jerusalem, [20] at 164. As is well known, injury to the public must be nearly certain in order to justify infringing the freedom of expression. See Kol Ha’am, [1] at 888.

 

Nevertheless, these probability standards are not applicable where expression results in injury to feelings. In such cases, we must examine the “force” of the offense. See the words of Justice Eliezer Goldberg in Universal, [6] at 41, as well as my opinion in Kidum, at 14. We must determine whether the intensity of the injury is beyond that which is tolerated in a democratic society, which has a high “level of tolerance.”  In the words of President Aharon Barak:

 

[O]nly severe offenses to feelings warrant curtailing the freedom of expression and creation.  Thus, a democratic society must arrive at a “level of tolerance” for offending feelings. Only where the degree of offensiveness exceeds this “level of tolerance” can restrictions on the freedom of expression and creation be justified in a democratic society… The tolerance threshold is particularly high in the context of limitations on the freedom of speech and creation.

 

Senesh, [5] at 836-37, 839. See also Kidum, [21] at 16; Yafora, [16] at 183.

 

Lawfulness of the Council’s Decision

 

11.  After having found that the Council’s decision infringes the petitioners’ freedom of expression, we must examine whether this infringement meets the conditions of the limitations clause. The first condition is that a freedom may only be infringed “pursuant to statute, or pursuant to the explicit authorization of a statute.”  In the matter at hand, the decision was made pursuant to the grant of authority to the Council contained in section 4(1) of the Ordinance, which provides:

 

No projection film may be presented unless it has been approved for presentation and marked by the Council. 

 

Petitioners, however, claim that the Ordinance itself is unconstitutional. As such, it cannot be considered a “statute” that can grant authority to infringe the freedom of expression. In light of my conclusion that the decision of the Council does not fulfill other requirements of the limitations clause—that it has no appropriate purpose and that it is not proportionate—we leave the claim of constitutionality open. We will also leave open the question of whether the decision is consistent with the values of the State of Israel as a Jewish and democratic state.

 

At the same time, it should be noted that the decision of the Council can harm the democratic process. Within the bounds of the democratic process, the way to choose between different paths is by allowing all political expression, and not by obstructing certain paths. My colleague, Justice Ayala Procaccia, has noted:

 

In a democracy, the freedom of speech…requires both the freedom to express ideas that shape public opinion, as well as the freedom to receive such ideas. 

 

HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections for the Sixteenth Knesset, [22] at 72. See also Kol Ha’am, [1] at 877, as well as the words of Justice Meir Shamgar in HCJ 1/81 Shiran v. The Broadcasting Authority, [23] at 377.

 

These ideas concerning pluralism with regard to ideas and worldviews are also supported by the Jewish values of the State of Israel. According to the Talmud, “[b]oth these and these are the words of God.” Babylonian Talmud, Tractate Eruvin, 13b [61]. See also the words of Vice-President Menachem Elon in EA 2/84 Neiman v. Central Elections Committee for the Eleventh Knesset, [24] at 294.

 

Appropriate Purpose

 

12.  The decision of the Council has a clear purpose: exposing the truth. The central rationale in which it grounded the decision, and which was later adopted by the State as the basis for its position here, is that the film, which is allegedly deceitful and distorts the truth, will remain, if its screening is not prohibited, a disgrace for all of history. This can be seen from the protocols of the Council meetings, from the reasoning of the decision, and from the response of the State to the petition here. In its decision, the Council wished to protect the public by disallowing false expression and permitting, as the only available expression, what respondents believe to be the truth.

 

The Council, however, like every other government body, has no monopoly over the truth.  It was not granted the authority to expose the truth by silencing expression that members of the Council consider to be lies. In general, revelation of the truth in a free and open society is a prerogative given to the public, which is exposed to a spectrum of opinions and expression, even false expression. As stated by Justice John Harlan of the United States Supreme Court:

 

The Constitutional right of free expression is powerful medicine in a society as diverse and populous as our. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.

Cohen v. California, 403 U.S. 15, 26 (1971) [38].

When we are dealing with expression whose truth is disputed, the freedom of expression has special significance if that expression has important political implications. This is the case here, where the political intentions and factual claims of the film are virtually undistinguishable. As we have already noted, the petitioner did not even attempt to present a balanced picture of the events in the film. His goal was simply to express the Palestinian story. The Council does not have the authority to restrict expression that is principally ideological or political, simply because the government, part of the public, or even a majority of it, disagrees with the views expressed.

 

       In Britain, where similar questions have arisen, the House of Lords has ruled that political expression can not be restricted unless such restrictions are necessary to protect against violence or obscene content. See, e.g., Derbyshire County Council v. Times Newspapers Ltd. [1993] 1 All E.R. 1011 [48]. In Hector v. Attorney-General of Antigua and Barbuda, [1990] 2 All E.R. 103, 106 [49], Lord Bridge stated that any attempt to limit criticism of governmental authorities “amounts to political censorship of the most insidious and objectionable kind.”

      In addition, the Council’s composition and the framework of its proceedings are not suitable for deciding factual matters. A court of law, for example, has the authority to issue restraining orders in suits concerning libel, and in this context, often rules on factual findings in order to decide the conflict before it. The Council, in contrast, is not competent to rule whether the content of a documentary film is true or false. As such, it seems only logical that it does not have the authority to make such decisions.

In its decision to expose the truth, the Council exceeded the limits of its authority and acted upon inappropriate considerations. As such, its infringement of the freedom of expression was not motivated by an appropriate purpose.

 

Proportionality

 

13.  As stated, a proportionate decision is one that satisfies the “suitability,” “minimal violation” and “relativity” tests. In my opinion, the Council’s decision does not meet these tests.

 

14.  The “suitability” test. The Council believed that prohibiting the screening of the film, and ensuring that the public is not exposed to it, would reduce the danger it posed to public order. In this regard, it is appropriate to note that it is doubtful whether infringing the freedom of expression is an effective means of promoting public security. Rather, it is possible that the public peace may actually be ensured by permitting free speech. The United States Supreme Court discussed the relationship between free expression and public order in Whitney, [36] at 375-76:

 

[T]he path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; …the fitting remedy for evil counsels is good ones.

See also Stromberg v. California, 283 U.S 359, 369 (1931) [39].

 

Whatever the case, it is clear that the means chosen by the Council—prohibiting the commercial screening of the film in Israel—does not reduce the public’s accessibility to the expression, but rather achieves the opposite. The Council members knew that their decision would create public debate and that their decision would probably be brought before the examination of this Court, with all of the attendant consequences regarding the exposure of the film. Mr. Guttman, a member of the Council, stated: “I have no doubt… that if we agree to take this decision, we will be back in the headlines again.” See The Meeting Protocol, November 18, 2002. Another Council member, Dr. Menachem Horowitz, added that “[t]he problem is that I believe that a prohibition will give the film much more publicity.” Id., at 4.  And, indeed, subsequent to the Council’s decision, both the film and its producer became the focus of public debates and a subject for news articles. After being censored, “Jenin, Jenin” was transformed into a symbol.  Clearly, this was not the Council’s intention.

 

Moreover, the Council’s decision affects only the narrow area of commercial cinema in Israel. The Council does not have the authority to prohibit screenings in foreign countries or alternate means of viewing the film, such as television broadcasts, home cinemas, or the internet, where a person can purchase the film for $30. It is reasonable to expect that these alternative means will be able satisfy commercial demand for the film, which may now increase due to the media commotion created by the decision. 

 

It may even be possible that the prohibition itself will raise the suspicion that there is some truth to the film; otherwise, why would the Council feel the need to prevent its screening?  The means chosen by the Council did not promote the goal that it was intended to achieve, and may even have achieved the opposite.

 

15.  The “minimal violation” test.  Prohibiting the screening of a film is not the only means available to the Council. Section 6(2) of the Ordinance provides:

 

The Council may allow the presentation of any film of part of a film…either under specified conditions or absent any conditions, and it may refrain from so allowing the presentation of the film.

 

As such, the Council could have made use of a less blunt instrument. It could have, for example, limited the film to viewers of a certain age, preceded the film with a warning, instructed that certain segments be struck, or limited the hours for its viewing. Without expressing an opinion with regard to the lawfulness of these means or their suitability to the case before us, it is clear that they grant the Council a spectrum of possible actions. During its discussions, the possibility was raised of supplementing the film with commentary. From the protocol, however, it seems that the Council did not hold a serious discussion concerning such alternate means. The Council was mistaken in not doing so. An absolute prohibition against the screening of a film is the most drastic action which the Council is authorized to take. It must be a measure of last resort. Compare the words of Justice Aharon Barak in Universal, [6] at 35 and the words of Justice Eliahu Mazza in Crim. A. 697/98 Sosotzkin v. The  State of Israel, [25] at 308.

 

16.  The “relativity” test:  The damage caused by the Council’s decision is greater than its benefit. The viewing public is not forced to view the film against its will. This is not a case of a captive audience. The viewers will reach the cinema of their own free choice, pay to view the film with their own money, and it is reasonable that they will even prepare themselves for it mentally. In comparison, this viewing public has more choice than viewers of “The Road to Jenin.” That film was televised on a public television station during primetime. Indeed, the extent of the forced exposure to expression is one of the factors—although it is not always a decisive factor—in determining whether expression can be restricted. See Kidum, [21] at 16. This was already noted by Prof. Nimmer:

 

The presence or absence of a captive audience is a relevant factor which should be taken into account in reaching a proper accommodation between given speech and anti speech interests. It is useful in drawing an appropriate definitional balance.

M.B. Nimmer, On Freedom of Speech 1-40 (1992) [53].

Second, there is no doubt that the film injures the feelings of many members of the public, including the feelings of the soldiers who participated in the battle and their families, especially the parents, spouses and siblings of the fallen, including respondents 3-32. However, it should not be said that this injury, with all of its pain and anguish, is not within the bounds of that which is tolerated in our democratic society. An open, democratic society, which upholds the freedom of expression, certain in the feeling that this advances society and does not threaten it, is willing to bear offense, even substantial offense to the feelings of the public, in the name of the freedom of expression. The words of Justice Douglas are appropriate in this regard:

 

A function of free speech… is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech though not absolute… is nevertheless protected against censorship or punishment…

Terminiello v. Chicago, 337 U.S. 1, 4 (1949) [40].

In protecting freedom of expression we ruled that, for example, posting notices that used especially sharp and severe language to condemn government policy should be allowed. See HCJ 206/61 Israeli Communist Party v. The Mayor of Jerusalem [26]. We ruled that the screening of a film that could, by its portrayal of the character of Jesus, offend Christian viewers, should be allowed. See Universal [6]. We held that the television broadcast of an allegedly biased documentary, which presented the events which preceded the assassination of the Prime Minister Yitzchak Rabin, should be allowed. Novick. We also decided that the hanging of notices, which used rude and insulting language to condemn the head of the opposition, MK Yossi Sarid, should be allowed. Indoor [20]. An especially high level of protection for the freedom of expression was established in La’or [13], despite the fact that the play at issue there, “Ephraim Goes Back to the Army,” which compared the military government in the area to the Nazis, offended feelings in an extreme manner. In all those cases, the Court ruled that, despite clear injury to the sensitivities of the public, freedom of expression demanded that the offensive expression not be prohibited. Such is the case, in my opinion, in the matter at hand as well.

 

Respondents wish to rely on HCJ 807/78 Ein Gal v. Israel Film and Theater Council [27], where we approved the decision of the Israel Film and Theater Council to ban the screening of a documentary film. The film claimed that the Arabs of Israel were expelled from their land by the Jews. The Council prohibited the film, reasoning that it was false and prejudiced, disgraced the State of Israel, weakened its position in the world, and could incite to violence. Since this judgment was handed down in 1979, however, times have changed, and so has the law. In light of the development of the law since then, this ruling can no longer stand. In any case, I am of the opinion that Israeli society is now able to deal with such expressions. 

 

The pain and anguish of the families, of the soldiers, of the relatives of the fallen, is understandable. Allowing the screening of the film does not ignore this pain, and is not intended to reduce the esteem for their sacrifices. Nor does this decision impress the film with our seal of approval. It would be fitting if the respondents would focus their energies, as they have in fact done, and with success, within the ambit of the freedom of expression. 

 

There is no way to escape the conclusion that the decision not to allow the screening of the film unlawfully infringes the freedom of expression of the petitioners.

 

17.  In his famous 1644 essay, “Aeropagitica: A Speech for the Liberty of Unlicensed Printing, to the Parliament of England,” the English philosopher, John Milton wrote, regarding the freedom of printed speech:

 

Let [the Truth] and Falsehood grapple; Who ever knew Truth put to the worse, in a free and open encounter? …For who knows not that Truth is strong, next to the Almighty? She needs no policies, nor stratagems, nor licensings to make her victorious… Give her but room, and do not bind her…

The film “Jenin, Jenin” should be permitted to be screened in theaters, and the viewing public should be allowed to judge it for themselves. The order nisi should be made absolute, the decision of the Council should be reversed, and the screening of the film should be allowed. Respondents 1 and 2 shall pay petitioners’ expenses, in the amount of 15,000 NIS.

 

Justice A. Procaccia

 

I concur with the opinion of my colleague, Justice Dorner. Due to the significance of the matter, I wish to add the following comments.

 

The Council’s Reasons for Censoring the Film

 

1.    The decision of the Israel Film Council to prohibit the commercial screening of the film “Jenin, Jenin” is based upon three main reasons.

 

First, the Council asserted that the film distorted the events of the battle. This, under the cover of documentary truth, may deceive the public. Furthermore, the Council saw the film as a propaganda film made by a body with which the state is at war.

 

Second, the Council saw the manner in which the events are presented in the film as constituting incitement, to the point that the film delegitimizes the existence of the State of Israel.

 

Third, the Council believed that screening the film, in presenting IDF soldiers as responsible for war crimes, could seriously offend the feelings of the public. This belief took into consideration the temporal proximity between the film and the events that it purported to portray.

 

2.    In her opinion, my colleague, Justice Dorner, emphasizes the first of the Council’s three reasons—the false presentation of the events of the battle at Jenin. I agree that issues of truth in expression, including artistic productions, cannot usually constitute a cause for the restriction of freedom of expression, as this freedom is a primary, constitutional right. The view that freedom of expression is a broad, fundamental right—to the extent that it applies to even false and distorted expression—has been established in our constitutional jurisprudence for quite some time. Falsehoods should not be confronted by suppression. Rather, freedom of expression should serve as a means to present the truth and to challenge such falsehoods in the free and open market of ideas. In the free flow of information, opinions, ideas and values, the truth will ultimately prevail over lies. Such confrontation characterizes free life in a democratic society. All of the means of communication—the print media, film, theater and all of the channels of national and international media—may take part in this confrontation. Some of these means were even utilized in this case, such as when a new film was made which presented the events from the perspective of the Israeli soldiers who fought in the battles. The ability to respond, by presenting all the data and facts, substantially mitigated the possible harmful effects which “Jenin, Jenin” could have had as a propaganda film, and assuaged worries that it would interfere with the public order. 

 

The Council’s second reason—that the presentation of the events borders on incitement and delegitimizes the existence of the State—should also be rejected. The film is intended for the general public in Israel. The fear that the film will incite the public, or part of the public, to deny the State’s right to exist is far-fetched and has no basis in proven fact.

 

Injury to the Feelings of the Public

 

3.   In my opinion, however, the Council’s third reason—severe offense to the sensitivities of the public—requires special examination. It constitutes the crux of the matter, where the clashing values come into conflict. Can the suppression of a film, which portrays Israeli soldiers as systematically committing war crimes in Jenin, be justified? The film seriously offends the feelings of the public, a public which completely rejects the ideas of the film, sees it as in absolute conflict with the truth, and rebels against the attempt to undermine the images of Israel as a society founded upon moral values and respect for human life. In my opinion, the question is whether such substantial offense to the feelings of the public justifies prohibiting the screening of the film, or whether, the decision of the Council being unreasonable, there is a cause for our intervention.

 

4.    In their response to the petition, respondents asserted that the IDF’s activities in Jenin were forced upon the State of Israel as a response to the terror attacks that climaxed in March of 2002. During these attacks, hundreds of Israeli citizens were killed and thousands were wounded. The IDF was forced to enter centers of terrorist activity, including Jenin, in which a terrorist infrastructure of unprecedented extent had been operating. Fierce battles were fought in the camp, and these resulted in the deaths of 23 Israeli soldiers. Terrorists laid dozens of booby traps and explosive devices, and endangered the civilian population by exploiting women and children and abusing humanitarian concerns, such as ambulances, for terrorist causes.

 

5.    According to the film, the IDF carried out a massacre in Jenin and attempted to cover it up by hiding the bodies. IDF soldiers, so it claims, intentionally harmed women, children, the elderly and the handicapped. The camp was shelled by aircraft and artillery, and this caused extensive injury to people and property. The director of the hospital, Dr. Abu Raali, claims that the hospital was shelled and that the IDF intentionally cut off the hospital’s water and electricity. A 75 year old man tells, through bitter tears, of how he was removed from his bed in the middle of the night, shot in the hand and, after being unable to obey the commands of the soldiers, shot again in the foot. The film shows Palestinian detainees tied up and lying on the ground, while an armed personnel carrier moves towards them. The film, through the juxtaposition of photographs, verbal segments, and interviews, creates the impression that tanks and armed personnel carriers ran over the detainees. One of those interviewed tells of a child, Monir Washichi, who was hit by a gunshot in the chest and died after soldiers prevented him from going to the hospital. The film also relates that a youth named Abu Jandal was bound by IDF soldiers and shot twice in the head. It also claims that IDF soldiers used children to rip holes through walls and destroy buildings, and that some children were later executed by the soldiers. The film claims that the IDF demolished buildings even as residents remained inside.

 

6.    These allegations are harsh. They become even harsher when presented visually through the use of, as is claimed, deceptive pictures and interviews with people who seem to be telling their allegedly personal stories, either as witnesses to the events or as direct victims. Respondents, to counter the message presented by the film, assert that the IDF operations were characterized by an effort to reduce, as much as humanly possible, the harm caused to civilians and property. In adherence to this policy, certain military operations—such as the use of aircraft and artillery—that may have brought about the rapid conclusion of the mission while also reducing the danger to the soldiers, were not employed. There was, say the respondents, no massacre at Jenin. The claims presented by the Palestinian leadership have been refuted, proven to be groundless by international bodies. According to accurate data, 52 Palestinains were killed, most of whom participated in the battles against the IDF.

 

As per the claims regarding the hospital, terrorists barricaded themselves within it, endangering the safety of the patients. Despite this, IDF soldiers, pursuant to their orders, were careful not to enter the hospital or damage it, not to target it, and to allow its continued operation. They even supplied it with generators, water, electricity, and oxygen. The IDF made an effort to treat the wounded and the sick. Two hundred and fifty seven wounded were transferred to the hospital in the city of Jenin; sixty were transferred to hospitals in Israel. The words of the elderly man in the film are absolutely groundless: the Israeli doctor who treated the man testified to this—not a single Palestinian was run over by a military vehicle, no one was wounded by Israeli armored personnel carriers. The boy described as Monir Washichi was, in fact, a 19-year-old Hamas fighter who was killed in battle. The claim that Abu Jandal was shot from short range by IDF soldiers is completely groundless. There is no basis to the claim that IDF soldiers used children and intentionally harmed them. In fact, the terrorists employed children to distribute explosives and conduct observations. Private houses were destroyed and property was damaged, but not to the extent alleged by Palestinians. The damage to the houses was necessary due to the fact that terrorists made use of the houses, shooting from them and endangering the local population and its property. Some of the houses were even rigged with explosives. Bulldozers were indeed used to destroy houses and to subdue the terrorists. This, however, was only done, in order to minimize the danger to innocent civilians, after allowing sufficient time for those inside to exit.

 

7.  The film, as described above, is offensive to the feelings of many members of the Israeli public. The allegedly documentary presentation of the operations of the IDF—portraying them as war crimes—provokes difficult emotional reactions in three circles of the public. First, the inner circle of soldiers who participated in the operation, who closely experienced the horrors of battle, and the tragedy of losing their comrades in arms. Second, the circle of bereaved families who lost those dear to them in battle. Third, large parts of the public who relate to those events that are significant to the life of the State and society, who identify with the feelings of the Israeli side regarding the battle in Jenin, the portrayal of the IDF, and the loss of soldiers in combat.

 

All of these circles feel themselves committed to basic standards of humanity and respect for human life, even during war against the enemy. They are certain that the IDF adhered to fundamental—even more than fundamental—humanitarian standards. They are convinced that the IDF made use of combat measures that reduced the chances of injury to civilians, even as this increased the chances of harm to soldiers and slowed down military progress. They think that these combat methods contributed to the loss of the lives of Israeli soldiers. In light of this, attributing war crimes to the IDF soldiers who fought in Jenin is an extraordinarily offensive act. The intensity of the offense is only increased by the fact that the pain of loss is still fresh. The offense is intensified by the reality that the country continues to confront terrorist attacks. The film is offensive to the individual soldier, who fought in combat and endangered his life, while remaining committed to humanitarian values. It is offensive to the entire army, which is guided by these values. It is painful for the grieving families. It is offensive to the Israeli public, which deeply identifies with the existence of the State, and is dedicated to the moral, humane values it represents.

 

8.  What are the limits of the freedom of expression—in this case, the freedom of cinematic production—where such expression causes offense to the feelings of the public? Here, the offense is caused by the accusation that the army engaged in inhumane military activities, an accusation that points an accusing finger directly at the moral and ideological image of the Israeli public. Does such offense justify restricting expression?  What are the limits of the freedom of expression when the offense is caused during times of national crisis, or during war?  This is the question before us.

 

The Authority of the Council

 

9. The Council, pursuant to the Film Ordinance, may prohibit the screening of a film. Section 4(1) of the Ordinance provides that “[n]o projection film may be presented unless it has been approved for presentation and marked by the Council.” In other words, no film may be screened unless it receives a permit from the Council. The Ordinance does not establish standards for the Council’s discretion. Like any government authority, however, the Council is bound by limitations, which may be ascertained from the language and purposes of the legislation which established it. We have ruled that the Council must act within the strict bounds of the goal for which it was established, as they may be ascertained from the Ordinance. Its principal purpose is to prevent the presentation of films which may disturb the public order. Compare HCJ 14/86 La’or v. Israel Film and Theater Council, [13] at 430. “Public order,” in this regard, was broadly interpreted as including “disturbing the public order, whether this disturbance is the result of a criminal act, the result of an immoral act, or any other act which offends the feelings of the public and its safety.” (emphasis added).  See also HCJ 146/58 Cohen v. Minister of the Interior [28]; HCJ 381/66 The Attorney-General v. Israel Film and Theater Council [29]. In the words of Justice Zamir in HCJ 7128/96 Temple Mount Faithful v. The Government of Israel, [30] at 522:

 

The feelings of the public, including religious sensitivities, are an aspect of public order.

 

See also HCJ 399/85 Kahane v. Board of the Broadcasting Authority, [4]  at 295; La’or, [13] at 430.

 

“Disturbing the public order” is a broad concept, which also takes account of offense to the sensitivities of the public. Thus, when the Council decides whether to permit or prohibit the screening of a film, it must place, on the one hand, the principle of freedom of expression, which reflects a fundamental right with constitutional weight and, on the other hand, other values which the Council is responsible for preserving, and which are included in the need to protect public safety and public order. Whether a film is true or not, or whether a film has artistic value, are not considerations which the Council must balance against the freedom of expression. On the other hand, fear of offending the feelings of the public by screening a highly offensive film may be an important consideration in balancing between the relevant values.

 

In exercising its discretion, the Council acts as an independent authority and, generally, this Court will not substitute its own discretion for that of the Council. Nevertheless, in making its decision, the Council must act reasonably, while evaluating the relevant considerations and balancing between them appropriately.  In so doing, the Council must adhere to standards established by law, as these standards have been interpreted by the courts. HCJ 953/89 Indoor v. Mayor of Jerusalem, [31] at 693; HCJ 4804/94 Station Film v. Israel Film Council, [12] at 685. The purpose of our judicial review is to examine whether the Council relied upon relevant considerations and whether its decision properly balanced the conflicting values.

 

In deciding that screening the film “Jenin, Jenin” would be highly offensive to the sensitivities of the public, and thus prohibiting its screening, did the Council act within its authority? Did it act reasonably, pursuant to the standards established by law and the decisions of the courts?  This is the question at hand.

 

Freedom of Expression v. Offense to the Sensitivities of the Public

 

10.  In exercising its discretion, the Council must balance between the value of freedom of expression and the conflicting value of preserving the public order. In this case, the latter value finds definite form in the need to protect the feelings of the public. The standards that bind the decisions of the Council are deeply rooted in our caselaw and should be applied, in their spirit, to the case at hand. The general principle is the freedom of expression. It is a fundamental value in the accepted view of human rights in Israel.  It is derived from the democratic nature of the country, by the method of our elections, and from the right to vote and be voted for. It is a consequence of the freedom to voice ideas, opinions, and facts, whether true or distorted, and to see, hear and absorb them. It is derived from the right to criticize the government. This freedom applies to messages expressed through any means of artistic work, regardless of its nature, content, quality, or truth. Thus, “freedom of expression is the freedom of the artist to open and close her heart, spread her wings and liberate her thoughts.” La’or, [13] at 433 (Barak, J.). This includes the freedom to produce a work which bears a political message, whether it be true or  false, as offensive as it may be. HCJ 6126/94 Senesh v. The Broadcasting Authority, [5] at 676.  In a democratic process, the way to deal with an offensive message is not by prohibiting it, but rather by wielding the freedom of expression to react to it and present the truth.  In this way—in the undisturbed free flow of opinions and ideas—the truth, by challenging the false, shall find its place.

 

11.  The freedom of expression is not absolute. It may conflict with values that must be protected in order to ensure the vitality of any society. The need to preserve public order, in the broad sense of the term, is one of society’s fundamental values. If it is not protected, the foundation of the State and democracy may be damaged. When there is a conflict between the freedom of expression and the value of preserving public order, a decision must be made between these two values. The conflicting values must be balanced against each other. This balancing, according to our constitutional approach, takes into account the significance of each value in light of the circumstances. The importance of the freedom of expression must be evaluated in light of the expression at issue in the specific case. Similarly, there are various values included within the term “public order,” and their weight may also vary. Thus, the conflicting values are balanced while attributing the proper weight to each of them, according to their nature and the context.

 

12.  Protecting the sensitivities of the public is part of the concept of public safety and public order.  HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Elections Board for the Sixteenth Knesset, [22] at 73; HCJ 5016/96 Horev v. Minister of Transportation, [18] at 34-35; D. Stattman, Offense to Religious Feelings, in Multiculturalism in a Jewish and Democratic State: A Book in Memory of Ariel Rosen-Tzvi 133 (1988) [52]. The value is important to both the individual and to society in general. Protecting sensitivities is as necessary as protecting persons or property. It protects one’s spiritual property, one’s cultural and moral values, against harm.  It is intended to protect one from the desecration of all that is dear to him.

 

Protecting the sensitivities of the public is important, even if the offense causes no more than pain or anger. Even so, the force of an offense is not only connected to its content, but also to its timing. Offense during times of peace and calm is not similar to offense during times of war. The severity of the offense is affected by the social climate and by the circumstances of the time. The effect of an offense during national emergencies may even extend beyond causing pain or anger. It may cause irreparable damage to a society's morale. This may affect its ability to carry out tasks of existential importance. Under such circumstances, offense to the feelings of the public may have broader social ramifications, which may lead to a need to protect it more.

 

Balancing

 

13.  Freedom of expression means the freedom to express views, ideas, opinions, and facts, whatever their content. This freedom may offend the feelings of the public, and thus, disturb the public order.  Both the freedom of expression and the need to protect the feelings of the public are fundamental values in our legal system. In order to balance the two, we must first take into account the type of expression at issue. Second, the offense to the sensitivities of the public should be evaluated on two levels. We must take into account both the severity of the offense and the probability of its occurrence. Temple Mount Faithful, [30] at 522. With regard to the severity of the offense, the freedom of expression will yield to the sensitivities of the public only where the offense is acute, serious, and severe. La’or, [13] at 435; HCJ 251/72 Kinan v. Isreal Film and Theater Council [32]. As to the probability of the offense, it must reach near certainty.  HCJ 806/88 Universal City Studios v. Israel Film and Theater Council [6].

 

In light of the importance of the freedom of expression, it will be restricted only when we are faced with an offense whose intensity is beyond the level of tolerance which persons in a democratic society must accept. Senesh, [5] at 839. Such offenses include only those that “shake the very foundations of mutual tolerance,” that touch the deepest foundations of our existence, that undermine such basic axioms that it may harm the nation, and where it is difficult or impossible to react against. The level of tolerance is not a fixed constant. This level may change from liberty to liberty and from value to value. Temple Mount Faithful, [30] at 521. Tolerance for the freedom of expression, as such, should stand at a high level. Only cases of exceptional offenses will justify such a restriction of freedom of expression. Otherwise, the freedom will be emptied of meaning.

 

In HCJ 2888/97 Novick v. The Second Television and Radio Authority [8], this Court, as per the opinion of Justice Mazza, employed an even stricter standard:

The content of the expression must be so severe, and the expected offense so incurable, that failing to prohibit it will raise a substantial and present danger to the public order. 

Id, at 202. Thus, in general, the freedom of expression will prevail over the value of protecting the feelings of the public. Only an incurable offense to sensitivities, which may lead to a substantial disturbance of the peace, will justify restrictions on expression.

14.  A similar constitutional approach is accepted in western democracies. As a rule, the United States does not recognize offense to the feelings of the public as a cause for limiting the freedom of expression. As Justice Holmes stated in 1919:

The hallmark of the protection of free speech is to allow “free trade of ideas,” even ideas that the overwhelming majority of people might find distasteful or discomforting.

Abrams v. United States, 250 U.S. 616, 630 (1919) [35]. In Collin v.  Smith, 578 F.2d 1197 (1978) [42], known as the Skokie case, the court did allow the prohibition of a neo-Nazi parade which had been planned to be held in a Chicago suburb in which a large number of Holocaust survivors resided. In spite of the contempt that the court expressed for the goals and methods of the group, it held that the United States Constitution did not allow content-based restrictions of speech. Expression could only be restricted in cases of obscenity, “fighting words,” or “imminent danger of a grave substantive evil.” Id. at 1202. Offense to feelings did not constitute a cause to restrict expression unless it violated the right to privacy or intruded upon a “captive audience.”  Id. at 1206.  The court stated that:

[o]ur constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation that distinguishes life in this country from life under the Third Reich.

Id. at 1201. In Collin, the Supreme Court denied certiorari. Smith v. Collin, 439 U.S. 916 (1978) [43]. Compare also Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) [44]; Street v. New York, 394 U.S. 576 (1969) [45]. The Supreme Court of the United States maintained this position throughout the years, as expressed in the recent case of Virginia v. Black, 123 S. Ct. 1536 (2003) [41]. In that case, the Court held a Virginia state law that prohibited the burning of crosses to be overly broad and therefore unconstitutional. The Court stated that offense to the feelings of those exposed to the burning crosses was not cause to restrict expression, so long as it was not “inherently likely to provoke a violent reaction.” As Justice O’Connor wrote:

 

It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, "the lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot's hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law.

Id., at 1551.

In England, the heavy weight of freedom of expression has been recognized, together with the understanding that there are public interests that may justify the restriction of speech. See 8(2) Halsbury's Laws of England 104 (1996) [57]; Feldman, Civil Liberties and Human Rights in England and Wales 560 (1993) [54].

In Australia, the freedom of expression is seen as a means of achieving social goals, such as advancing democratic discourse, rather than as an end in and of itself. Australian caselaw tends towards allowing restrictions on the freedom of expression where the offense concerns race, skin color, or ethnic origin. Toben v. Jones, (2003) 199 A.L.R. 1 [33]. Offense to religious feelings, grave as it may be, did not constitute a cause for restricting the freedom of expression. In Archbishop of Melbourne v. The Council of Trustees of the National Gallery of Victoria, (1997) 96 A. Crim. R. 575 [34], the court did not prohibit the presentation of a work of art that humiliated Jesus by presenting him while immersed in urine.

Offense During Times of Emergency and National Crisis

15.  Times of war or national crisis grant greater weight to the public interest in preserving public order, when that value stands in conflict with the freedom of expression. In such situations, the value of protecting the sensitivities of the public also receives special weight. This may tilt the balance between the conflicting values, transforming the value of public order into the senior interest.  However, even under such circumstances, any restriction on the freedom of expression must be proportionate. It may not exceed that which is necessary to ensure public order.

In this regard, we recall the words of Justice Agranat in HCJ 73/53 Kol Ha’am, [1] at 880:

During critical periods, when the country is in a state of war or other crisis, the matter should be decided in favor of national security. Of course, this depends on the circumstances of each case.

Times of national crisis may lead to a genuine need to restrict the freedom of expression in order to protect the public order. Even in the United States, the cradle of individual liberties, freedom of expression was restricted when the state was involved in military activities and the expression could have harmed military discipline. In Schenk v. United States, 249 U.S. 47, 52 (1919) [46], the United States Supreme Court, as per the opinion of Justice Holmes, stated that:

When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.

In such circumstances, the standard for restricting the freedom of expression is:

Clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

In Abrams v. United States, 250 U.S. 616 (1919) [35], Justice Holmes, this time as a minority, emphasized:

Only the emergency that makes it immediately dangerous to leave the correction of evil counsel to time warrants making any exception to the sweeping command “Congress shall make no law…abridging the freedom of speech.”

A decade later, Justice Brandeis strengthened these doctrines in Whitney v. California, 274 U.S. 357 (1927) [36]. For an analysis of the restriction of the freedom of expression during times of national crisis in the United States, see the doctoral dissertation of Professor Pninah Lahav, Freedom of Expression During National Security Crises (1973) [58].

In England, courts have recognized the constitutionality of restricting radio and television broadcasts, when these related to the struggle between England and Northern Ireland. In R v. Secretary of State for the Home Department, ex parte Brind, 1 A.C. 696 (H.L. 1991) [50], the House of Lords approved the executive’s authority to restrict the live broadcast of speeches by members of Northern Ireland organizations, due to the offense they caused to feelings of the viewers, especially after terror attacks. Publication of the content of the speeches was not prohibited. However, live broadcast of the speeches was prohibited, and the restriction was recognized as reasonable and proportionate.

As such, a national crisis or emergency, such as a difficult period of armed struggle, may change the evaluation of the relative importance of the freedom of expression vis a vis the value of protecting the sensitivities of the public. Every constitutional system will change these relative weights, each in its own way.

16.  These are our standards for balancing the two values: the freedom of expression will usually be given senior status, even where this freedom is exploited to offend feelings, and even where the offense is substantial. Only in exceptional and extreme cases, where the offense is beyond the level of tolerance which should be borne in a democracy, and where the offense will substantially harm public safety and public order, will it be possible to limit the freedom of expression. States of national crisis or emergency may be included in those exceptional and extreme cases.

17.  As stated, the Council must take into account the offense to the feelings of the public. It is a relevant consideration. See Horev, [18] at 5-34.  The question is: what is the appropriate method of balancing this value against the freedom of expression, and what is the relative weight of each of these values, in light of the circumstances of the matter.

From the General to the Specific

18.  The film “Jenin, Jenin” purports to be a film that documents the battle of Jenin from the Palestinian perspective. Even if the film is one-sided, and even if it is distorted and fraudulent, our point of departure is that its producers have the right to present it, a right that is derived from freedom of expression, a right that Israel sees as fundamental. 

Against this right stands the offense which large parts of the Israeli public feel as a result of the film. We assume that the probability of such offense to the sensitivities of the public is not only a near certainty, but an absolute certainty. Even so, the question, as per our caselaw, is whether the offense is of such magnitude that the freedom of expression may be infringed.

I am of the opinion that, under the circumstances, even though the wound is grave, it is not of the severity required to restrict the freedom of speech. The injury is both broad as well as deep. Compare Temple Mount Faithful, [30] at 524-25. It is not limited to a single person or a small minority. It affects the IDF soldiers that fought in Jenin, it affects their comrades who serve in the regular and reserve forces, and it affects the grieving families of the soldiers who fell in battle. The feeling is shared by many in Israel. It is not a superficial injury, transient, and blowing over like the wind. The feeling, the reaction, is genuine and harsh. The offense is not vague, ambiguous in its direction. It relates to specific events, whose memory still scars the minds of those Israelis that took part in them. Even so, the offense does not shake the foundations of human tolerance to the extent that it threatens public order, and justifies restricting the freedom of expression. Despite the fact that the offense is related to Israel’s armed struggle against its enemies, this is not a time of emergency or national crisis that is severe enough to attribute decisive weight to the value of protecting against threats to the public order.

The Council should have considered the following issues:

19.  Fraudulent and distorted representations of IDF military activities are not isolated occurrences. They have become part and parcel of the conflict between the two nations. Dealing with the deep offense caused by false representations has become almost routine. Since the near future does not seem to promise resolution of this conflict, it should be assumed that such fraudulent expressions will continue. Restricting the freedom to screen the film signifies a willingness to recognize the ability to impose broad restrictions in the future, while unreasonably limiting the freedom of speech, whether such speech be true or false, right or wrong. Such restrictions are inappropriate.

20.  Our proximity to the events may aggravate the intensity of the offense. Between the battle in Jenin and the Council’s decision to prohibit the film, almost seven months passed. The scars of the battle, however, and the pain of the fallen soldiers and of the military operations, have not faded with time. Even so, the interim period has strengthened the public's resilience in the face of the offense caused by the film. It can now meet the film head-on, even wield means to present its own views of the truth.

21.  Despite the military operations that continue, and despite the unending terror, we do not find ourselves in a state of full-fledged war or national crisis that would require contending with immediate and serious issues of survival. The times, however stormy, reflect persistent security tensions and local military activities, processes which extend over a period of years. This reality does not justify infringement of the freedom of expression in order to protect the sensitivities of the public. These events demand a high level of tolerance from the public, even when its feelings are offended by expression, painful as that expression may be.

22.  The offended public has its own means of expression to present its account of the truth and of the facts. In fact, the film that presented the Jenin battle from the Israeli perspective took this path. The Israeli side has means of expression at its disposal. It has sources of information; the witnesses and the soldiers who took part in the battle can testify first-hand about the truth. The ability to employ such media, together with their actual use in the past, substantially reduces the offense caused by the film. It has been said before as well: the power of the Israeli public is not in the fact that it can restrict the expression of the other, but in the fact that it can convey the truth. Senesh, at 841.

23. It cannot be ignored that, aside from the medium of film, there are additional means of expression that can give voice to the issues raised by the conflict. These include the written word, newspapers, radio, and television. Prohibiting the screening of a film means singling out that specific means of expression while, at the same time, allowing other channels to remain free and open, even where they cause similar offense. “Jenin, Jenin” itself was only prohibited from being screened commercially, and the chance remains that, even with that prohibition, the public will be exposed to the film. As such, it is only natural to question the effectiveness of the Council's censorship, and these doubts only undermine the Council’s decision, especially where that decision stands against the freedom of expression.

24.  To summarize, although the film causes deep offense to much of the Israeli public, prohibiting its screening does not accord with our standards for balancing the conflicting values here. The Council’s decision is unreasonable and cannot be upheld. The film should be allowed to be screened. It should be allowed to struggle for its place in the free flow of expression.

The offense to the sensitivities of the public, harsh as it may be, does not threaten the public order. The resilience of the Israeli public is great. It has endured challenges to its survival, stubbornly preserving the dignity of its moral values. It has the internal strength to stand before these accusations, distorted and false as they may be. It is capable of responding appropriately, through other means of expression. This is true even though the pain of the events, still fresh, intensifies both the affront and the need to protest against it. These form the core of democracy: the need and the capability to deal with such challenges without restricting the freedom of expression, as well as the fundamental ideals of tolerance in a free society, even where such tolerance is not reciprocated.

The Limitations Clause of the Basic Law

25.  The constitutional principle of the freedom of expression, and our methods of balancing this freedom against other, opposing values, were developed long before the legislation of any of our Basic Laws, including the Basic Law: Human Dignity and Liberty. Even so, we make use of the standards established by those Basic Laws in order to interpret any statutory grant of authority. This is regardless of whether the statute in question was legislated before or after the passage of the Basic Law, and regardless of whether we deal with rights and freedoms which the Basic Law refers to explicitly. “This connection between the constitutional limitations clause and the entirety of our public law, including human rights not explicitly covered by the Basic Law, is entirely natural.” See Horev, [18] at 41-43 (Barak, P.)

Examining the present question in light of the conditions set out in the limitations clause of section 8 of the Basic Law: Human Dignity and Liberty, we are lead to the conclusion that we cannot let stand the Council’s decision to prohibit the film. The limitations clause sets out a framework for examining whether a specific public interest can justify restrictions on the freedom of expression. Within this framework, we must determine whether such a restriction would be appropriate in light of the values of the State of Israel as a Jewish and democratic state, whether the purpose of the restriction is proper, whether the restriction is proportionate, and whether it is narrowly tailored to achieve its goal. See Senesh, [5] at 835-36. As per the Jewish and democratic values of Israel, it may be said that we need consider not only the freedom of expression but also to the need to protect the sensitivities of the public. As such, restricting the freedom of expression is consistent with the Jewish and democratic values of the State, provided that the injury to sensitivities is extreme, and provided that it is nearly certain that such injury will occur. All this, however, is insufficient. Such restrictions must have an appropriate purpose, they must be proportionate, and they must be narrowly tailored. Here, even if the purpose behind the restriction—preventing offense to sensitivities—is proper, the scope and severity of the restriction is extreme, while the scope and severity of the offense is not. As such, the restriction does not meet the standard of proportionality. In light of this, the prohibition against the film cannot stand before our judicial review, and we must intervene in the Council's decision.

26.   I arrive at this conclusion after having examined one of the Council's rationales, the offense caused to the sensitivities of the public. But even if the collective weight of all of the Council's reasons would be placed on one side of our judicial scales, I would still come to the same conclusion. The power of these reasons, even collectively, in our present circumstances, is insufficient to parry the force of the freedom of expression. 

27. In conclusion: the authority of the censor stands only weakly before the freedom of expression. Our fundamental assumption is that the false and the fraudulent should be confronted with the good and the true, and that it is the latter that will ultimately prevail, taking its place among the rainbow of beliefs, ideals, and faiths of the free world. As in the words of Alan Dershowitz in his book, Shouting Fire (2002), [56] at 187:

The problem is that our First Amendment prohibits persuasive governmental censorship. The solution is to answer bad speech with good speech, and to have the good speech prevail in the marketplace of ideas.

For these reasons, I concur with the opinion of Justice Dorner.

Justice Grunis

 

I concur with the opinion of my colleague, Justice Dorner and with the additional reasons of my colleague,  Justice Procaccia.

HCJ 6924/98

Association for Civil Rights in Israel

v

1.  State of Israel

2.  Minister of National Infrastructures

3.  Minister of Finance

 

The Supreme Court sitting as the High Court of Justice

[9 July 2001]

Before Justices M. Cheshin, I. Zamir, D. Beinisch

 

Objection to an order nisi issued March 14, 1999.

 

Facts: In this petition, the petitioner, the Association for Civil Rights in Israel, asked the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance to nullify the appointment of some of the representatives on behalf of the Government in the Israel Lands Council and to appoint in their stead, Arabs as members of the Council.

 

Held: The court analyzed the substance and applicability of the principle of equality and decided that given that the Government is to appoint an additional six representatives on its behalf as members of the Council, the order nisi is to be made absolute in the sense that the respondents are ordered to weigh, in accordance with what was detailed in the judgment, whether it is possible to appoint an additional Arab as a member in the Israel Lands Council.

 

 

Basic Laws cited:

Basic Law: Israel Lands ss. 1, 2.

Basic Law: Human Dignity and Liberty s. 1.

 

Legislation cited:

Israel Land Administration Law, 5720-1960, ss. 1, 2, 4A.

Israel Lands Law, 5720-1960.

Israel Land Administration Law (Amendment) 5755-1995, s. 5.

Government Corporations Law 5735-1975, ss. 18A, 18A1, 60A

Women’s Equality of Rights Law 5711-1951.

Equal Pay for Female and Male Employees Law, 5724-1964.

Equal Employment Opportunities Law 5748-1988, s. 2.

Authority for Advancement of Women Law, 5758-1998.

Civil Service Law (Appointments), 5719-1959, ss. 15A, 15A (b), 15A (b) (2).

National Insurance Law [Consolidated Version] 5755-1995, ss. 20, 22.

Employment Service Law, 5719-1959, s. 42.

Patient’s Rights Law 5756-1996, s. 4.

 

Draft legislation cited:

         Draft Proposal for the Israel Land Administration Law, 5720-1960 

         Draft Proposal for the Israel Land Administration Law (Amendment) (Israel Land Administration Council) 5755-1994.

         Draft Proposal for the Israel Land Administration Law (Amendment no. 3), 5758-1998.

         Draft Proposal for the Government Corporations Law (Amendment no. 13) (Appropriate Representation for the Arab Population) 5760-2000.

         Draft Civil Service Law (Appointments) (Amendment no. 11) 5760-2000.

          

Israeli Supreme Court cases cited:

[1]      HCJ 6698/95 Ka’adan v. Israel Land Administration Authority, IsrSC 54(1) 258. [2000] IsrLR 51.

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

[3]      HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, IsrSC 52(3) 630.

[4]      HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs, IsrSC 54(2) 164; [2000] IsrLR 133.

[5]      HCJ 421/71 Yaf Ora Ltd v. Broadcasting Authority, IsrSC 25(2) 741.

[6]      HCJ 2814/97 Upper Tracking Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport, IsrSC 54(3) 233.

[7]      HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv-Jaffa, IsrSC 42(2) 309.

 

Israeli books cited:

[8]      Y. Weisman, Property Law – General Part (1993).

[9]      U. Benziman, A. Manzur, Subtenants – Arabs of Israel, their Status and the Policy toward Them (1992).

[10]    I. Zamir, Administrative Power (Volume A. 1996).

 

Israeli articles cited:

[11]    D. Barak-Erez ‘A Dunam Here and a Dunam There: The Israel Lands Administration in the Vise of Interests’ Iyunei Mishpat 21 (1998) 613.

[12]    I. Zamir, M. Sobel ‘Equality before the Law,’ Mishpat U’Memshal E (2000) 165.

[13]    F. Radai, ‘As to Affirmative Action’ Mishpat U’Memshal C (1995-1996) 145.

[14]    A. Rubinstein, ‘On the Equality for Arabs in Israel’ Kiryat Hamishpat A (2001) 17.

 

Foreign books cited:

         [15] D. Kretzmer The Legal Status of the Arabs in Israel (Boulder, 1990).

 

Other:

[16]    State Comptroller – Annual Report 44 for the Year 1193 and for the Accounting Year 1992 (1994).

[17]    Declaration of the Establishment of the State of Israel.

[18]    Report of the Subcommittee as to the Status of Minorities in Civil Service and in Public Services (1989).

[19]    The Regime of the State Israel – Book of Sources (Y. Galnor, M. Hafnung eds., 1993).

 

For the petitioner – Hadas Tagari.

For the respondents – Osnat Mendel, Head of High Court of Justice Department, State Attorney’s Office.

 

 

JUDGMENT

 

Justice I. Zamir

1.    The Association for Civil Rights in Israel (hereinafter: ‘the petitioner’) asks the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance (hereinafter: ‘the respondents’) to nullify the appointment of some of the Government representatives in the Israel Lands Council and to appoint in their place, Arabs as members of the Council.

The Law

2.    The law which establishes the Israel Lands Council (hereinafter: ‘the Council’) is the Israel Land Administration Law, 5720-1960 (hereinafter: ‘the law’).  Section 3 regulates the appointment and the role of the Council in stating:

‘The Government will appoint an Israel Lands Council which will establish the land policy according to which the Administration will operate, will supervise the actions of the Administration, and will approve its budget proposal that will be established in the law’.

The composition of the Council was established in section 4A as follows:

‘4A(A) The Minister, who will be the chairperson, and members whose numbers will not be less than eighteen and not more than twenty four, which the Government will appoint, by proposal of the ministers, will serve in the Council, as detailed below:

(1)  Half of the Council members will be on behalf of the Government, and half will be on behalf of the Jewish National Fund and by its proposal;

(2) (a)  At least half of the members on behalf of the Government will be State employees, holding senior positions in the government offices connected to the matter, and the remainder will be individuals from academia and representatives of the public;

(b)  The members on behalf of the Jewish National Fund will be members of the Board of Directors, employees of the Jewish National Fund or individuals from academia; the Jewish National Fund is also permitted to propose one representative on behalf of the Jewish Agency;

(3) Members of the council who hold positions not in civil service nor in the service of the Jewish National Fund, and who in these positions have an interest in land policy (hereinafter – interest holder in land policy), will not make up more than a third of the number of the Council members, and of them no more than one half will hold positions in the agricultural sector.

(B) The Government will be given details as to the qualifications of the candidates, including their curriculum vitae, their education, their dealings in the past and present, their experience, and any other detail which is substantive and relates to the matter.

(C)  The Minister, with the approval of the Council, will appoint a substitute for the Chairperson from among its members.

(D)  Notice as to the appointment of the members of the Council will be published in the register.

 

Additional clauses in the law establish provisions as to limitations on appointing members to the Council, the period of tenure, the conclusion of the tenure, the appointment of alternates for a member of the Council, protocols in the Council and more.

The minister who today serves as the Chairperson of the Council is the Minister of National Infrastructures.

The two ministers that according to section 4A(a) of the law propose to the Government the names of the candidates for appointment to the Council are today the Minister of Finance and the Minister of National Infrastructures.

3.    The law also establishes the Israel Lands Administration (hereinafter: ‘the Administration’).  Section 2 of the law establishes that the Government will set up the Administration which will ‘administer the Israel Lands’; that it will appoint the Director of the Administration and that the Administration employees will be civil servants.  The authority of the Administration is sweeping authority that is almost not regulated by the law.  However, section 4 of the law establishes that the Director of the Administration will submit to the Council a report of the activities of the Council at least once a year, and it is clear that the Administration must act according to the policy established by the Council, and that it is subject to the supervision of the Council.  See section 3 of the law, supra, paragraph 2.

As to the Administration see HCJ 6698/95 Ka’adan v. Israel Land Administration Authority [1] (hereinafter: ‘the Ka’adan case’) at pp. 269-272.

4.    Israel Lands which are subject to administration by the Administration, were defined in the Basic Law: Israel Lands.  Section 1 of the basic law establishes that Israel Lands are ‘the lands in Israel, of the State, of the Development Authority or of the Jewish National Fund.’  This section further establishes that the ownership of Israel Lands will not be transferred, whether by sale or by any other means.  However, section 2 of the basic law, removes from the application of the prohibition types of lands and types of transactions which have been established for this purpose in the law.  Such transactions were established in the Israel Lands Law, 5720-1960.  As to the Basic Law: Israel Lands and as to Israel lands in general see Y. Weisman, Property Law – General Part [8], p. 195 and on.

In actuality, Israel Lands include more than 90% of all the lands in the State.  See Weisman in his book supra [8] at p. 193.  If so, it is clear that the land policy determined by the Council and the oversight of the Council over the Administration has enormous influence over all that relates to development of the Land both from a national and from a private aspect.  See D. Barak-Erez ‘A Dunam Here and a Dunam There: The Israel Lands Administration in the Vise of Interests’ [11].  From here it is also clear that there is great importance to the composition of the Council.

Composition of the Council

5.    The law that established the Council and the Administration in 1960 – did not state a word about the composition of the Council. How so?  As stated in the explanatory notes to the Draft Proposal for the Israel Land Administration Law, 5720-1960, at that time the covenant between the State and the Jewish National Fund (hereinafter: ‘JNF’), was about to be signed, and it contained provisions as to the Council and the Administration (hereinafter: ‘the Covenant’).  The legislator made due with the fact that the composition of the Council would be coordinated in the Covenant.  And indeed, that Covenant that was signed on November 28, 1961 and published in the Yalkut Pirsumim 5728-1968, no. 1597, arranged the composition of the Council.  According to the Covenant, the number of the members in the Council would be thirteen, and half less one would be appointed by proposal of the JNF.

Over the years the number of Council members was increased on three occasions, until it reached twenty-seven.  The number was increased, as stated by the State Comptroller, without the need for this being clarified and with the numerical relationship between members from the JNF and other members being maintained.  See State Comptroller – Annual Report 44 for the Year 1993 and for the Accounting Year 1992 [16] at pp. 224-225.

6.    The situation in fact was not satisfactory.  It raised criticism on the part of the State Comptroller.  See said Annual Report of the State Comptroller [16] at p. 221 and on.  Following the report of the State Comptroller a private Draft Law (on behalf of three members of Knesset) was submitted to the Knesset which was primarily intended to arrange the composition and the functionality of the Council:  Draft Proposal for the Israel Land Administration Law (Amendment) (Israel Land Administration Council) 5755-1994.  In the explanatory notes to the Draft Law (p. 179) it was stated:

‘The actions of the Administration in all that relates to Israel lands take place via an internal legislative body which is the Council of the Administration.  This Council operates by power of undefined arrangements, primarily internal, and in a manner which deviates from the proper order and the proper administration.

In report 44 of the State Comptroller, criticism was expressed . . .  in that report the State Comptroller revealed that in fact a majority that is connected in one way or another to the agricultural sector in actuality controls the Council and its various committees.  Indeed, the law does not relate to the need to give expression in the Council to one sector or another, but it would be preferable, if there were not in the Administration Council a majority for a specific economic group.’

On the basis of this Draft Law, the Israel Land Administration Law (Amendment) 5755-1995 (hereinafter: ‘the amending law’) was passed.  The amending law added section 4A to the law, which regulates the composition of the Council, and additional sections which related to the Council.  See supra paragraph 2.  In accordance with section 5 of the amending law, the period of tenure of the Council members ended in February 1997, and the Government was meant to appoint new members to the Council in accordance with the amending law.

7.    Looking toward the appointment of new members to the Council the petitioner, in February 1997 approached the respondents in a letter.  In the letter, it said, inter alia, as follows:

‘The actions of the Council have great impact over various sectors in the population, and in fact the composition of the Council, has to date reflected the interests of various sectors of the public.  However, this representation did not apply as to the Arab population, and as said today not even one Arab member has been included in the Council.  Therefore, we turn to you with a request that in the Council that is to be appointed there will be appropriate representation of Arab members, of appropriate professional experience and qualifications.

We are of the view that the situation that has existed to date, according to which there is no representation for the Arab population in the body that determines the policy of the Administration, is illegitimate at its core.  The Arab population which is about a fifth of the State’s population has unique interests on the subject of lands, interests which are not represented by other entities.  The principle of equality necessitates that this population will be granted appropriate representation in the Israel Lands Council.  Half of the members of the Council – twelve out of twenty four – are representatives of the government, of which at least six are senior civil servants, and the rest (up to six) are individuals from academia and representatives of the public.  This diverse composition that the law established, and in particular the membership of about six members who are individuals from academia and representatives of the public, was intended to enable flexibility in determining the composition of the Council, flexibility that would ensure proper representation for diverse publics.’

8.    On March 21 1997, the Government decided to appoint eighteen members to the Council: of them nine on behalf of the Government, all civil servants who represent various government offices, and nine on behalf of the JNF.  Among the members that were appointed there was not a single representative of the public nor was there a single Arab member.

On June 15, 1997 Dan Meridor, the then Minister of Finance wrote to the petitioner and said as follows: ‘I am of the view that there is nothing to prevent the appointment of Arab citizens to the Israel Lands Council.  Your proposal will be taken into account in my considerations, at the time of making a decision as to the inclusion of additional [members] to the Administration Council.’

In the meantime, as arises from the pleadings, five additional members have been appointed (at an unknown date), of which three are on behalf of the Government and two on behalf of the JNF, and among them there is not one Arab member.

Since the quota of members on behalf of the Government as established in section 4A of the law was filled, no available space remained for an Arab member in the Council.  ‘There is therefore no other recourse’ so wrote the legal counsel of the Ministry of National Infrastructures on July 26, 1998 to the petitioner ‘but to amend the law in order to create more spaces for representatives of the public.’

9.    On June 15, 1998, a government sponsored draft law was published which proposed to increase the maximum number of members in the Council from twenty-four to thirty: Draft Israel Land Administration Law (Amendment no. 3), 5758-1998.  In the explanatory notes to this draft law (p. 374) it was stated: ‘. . . with the goal of ensuring representation on behalf of the public in the Israel Lands Council, it is proposed to establish that the number of representatives on behalf of the Government who are civil servants will  not be greater than twelve.’

The legal counsel in the Ministry of National Infrastructures announced to the petitioner that the Minister intends to act, after the draft law becomes law, to appoint a representative from among the Arab public out of the quota of representatives of the public in the Council.

However, the draft law, although it passed a first reading in the Knesset (on July 7, 1998), was never submitted for a second or third reading, and it is impossible to know if and when it will be made into law.

The petition

10.  This being so, the petitioner filed the petition to this Court, in which it requests that the Government nullify the appointment of some of the Government representatives on the Council and appoint in their stead Arab members in a proportion which constitutes an appropriate representation of the overall Council members.

After an initial hearing on the petition the Court issued an order nisi (on March 14, 1999).  The response to the petition was submitted in two levels: the level of principle and the level of practice.  On the level of principle, the respondents claimed that the Government on whose behalf half of the members are appointed must appoint senior civil servants who will represent the government offices which have a connection to the matter and will act to implement the land policy of the Government.  Moreover, the respondents claim that even if the Government appoints representatives of the public to the Council, it is not clear that it must give ‘appropriate representation’ to the Arab population.  In any event, according to their claim, there is no need for the Court to make a determination on this question in the level of principle, as the question is standing before a resolution in the practical level.

In the practical level, the respondents gave notice that the government intends to appoint an Arab member to the Council in the near future even if the Draft Israel Land Administration Law (Amendment no. 3) (supra paragraph 9) is not passed.  In the view of the respondents, the appointment of an Arab member to the Council out of the maximum quota of six representatives of the public is an appropriate representation of the Arab population in the Council.

11.  Indeed, after a time, the Government decided (on May 14, 1998) to appoint Mr. Salah Suleiman as a representative of the public who represents the Arab sector in the Council.  However, following the request of the Attorney General to conduct a re-examination of the question of Mr. Suleiman’s political affiliation the Government decided to limit the appointment to a period of about half a year.  Later (in the month of January 2001) the Government extended the appointment for an additional half a year until the month of July 2001.

In a supplementary notice by the State Attorney’s office (from April 5, 2001) it was stated that the Attorney General directed the legal counsels from the various government offices which relate to the matter to prepare for the appointment of an Arab member to the Council, who would replace Mr. Suleiman, in the month of July, 2001.  Even at the time of the hearing it was said to the Court by the counsel for the respondents that the Government intends to appoint an Arab member to the Council when the period of tenure of Mr. Suleiman ends.

Based on what has been stated, the Court presumes that when the time comes an Arab member will be appointed as a representative of the public in the Council in the place of Mr. Suleiman.

12.  The respondents, who object to the claim that they have a legal duty to give appropriate representation to the Arab population on the Council, are of the opinion that even if there is such a duty imposed on them they have fulfilled it by appointing one Arab representative of the public to the Council.  Is this indeed so?  The question what the duty to give appropriate representation necessitates where such a duty is imposed is a difficult question.  The answer depends to a great extent on the context, including the statutory provisions, the identity of the entity, the essence of its role, and the other circumstances of the given case.  See HCJ 453/94 Israel Women’s Network v. Government of Israel (hereinafter: ‘the first Israel Women’s Network case’) at pp. 527-528.

However, be the duty to give appropriate representation what it may be, in the given case it is clear that the appointment of one Arab member as a representative of the public out of a maximum quota of six representatives of the public on the Council fulfills the duty of appropriate representation of the Arab population among the representatives of the public on the Council.

Therefore it becomes unnecessary to discuss and determine in this petition the question if indeed a duty is imposed on the respondents to give appropriate representation to the Arab population among the representatives of the public on the Council.

13.  The petitioner is not satisfied with the appointment of one Arab among the representatives of the public to the Council.  It claims that the Government has a duty to give the Arab population appropriate representation not only among the representatives of the public but in the Council in its entirety.  In the Council there are twenty four members.  One Arab member is not considered, according to its claim, appropriate representation for the Arab population which makes up about one fifth of the population in Israel.  Therefore, it requests that additional Arab members be appointed to the Council.

Indeed, the petitioner, who is aware that the law requires the appointment of half of the members of the Council on behalf of the JNF, does not ask for the appointment of Arab members on behalf of the JNF.  The explanation for this is, apparently, that the JNF is a Jewish organization which is obligated, by its articles of incorporation to purchase lands for the settlement of Jews in the land of Israel.  However, the petitioner asks for the appointment of additional Arab members on behalf of the Government in order to reach an appropriate representation of the Arab population in the Council.  It claims that such representation is necessitated by the principle of equality.

The question that is before the Court is therefore whether the principle of equality necessitates the appointment of additional Arabs as members of the Council.

Principle of equality

14.  As to the importance of the principle of equality it is no longer necessary to go on at length.  In the words of Justice M. Cheshin ‘It is a first among principles in royalty, head and shoulders above all the other principles.’ HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs (hereinafter: ‘the Second Israel Women’s Network case’) [3] at p. 650.  As to equality in general see I. Zamir, M. Sobel ‘Equality before the Law’ [12]. 

The Court has given a broad meaning to the principle of equality in a large number of decisions and has applied it to almost every type of distinction between people on the basis of irrelevant considerations.  Thus, for example, a distinction between people who seek to receive a subsidy based on the place they live or the date of application may be considered a violation of the principle of equality.  However, the original meaning of the principle of equality, and it appears that it is also the precise definition, is a narrower definition.  In this meaning, which is also accepted in other countries, the principle of equality relates to a limited list of defined grounds which can be called the classic grounds of equality, and Justice M. Cheshin calls them generic grounds of equality.  These are for example, religion, race, nationality and gender: every person is entitled to equality without distinction as to religion, race, nationality and gender.  The principle of equality in this sense, as distinguished from the broad sense, is considered in many states, and is worthy of being considered, a constitutional right.  Not without a reason did the Declaration of the Establishment of the State of Israel [17] note the obligation of the State to keep up ‘total social and political equality of rights for all its citizens without distinction as to religion, race and gender.’

Violation of the principle of equality in the narrow sense is considered particularly severe, and so said Justice M. Cheshin in the Second Israel Women’s Network case [3] (at pp. 658-659):

‘An additional example of generic discrimination [in addition to the discrimination against a woman for being a woman. I.Z.] is the discrimination against a person for the color of their skin or for their race.  Generic discrimination, as has already been said, is discrimination which mortally wounds human dignity.’

See also the Ka’adan case [1] (supra paragraph 3) at pp. 275-276.

15.  Such is also discrimination against an Arab for being an Arab, and it is the same if the discrimination is based on religion or nationhood.  It is a violation of the principle of equality in the narrow sense.  Therefore, it carries particular severity. 

The principle of equality in this sense is the soul of democracy.  Democracy demands not only one vote for one person in elections, but also equality for all at all times.  The real test for the principle of equality is anchored in the treatment of the minority: religious, national or other.  If there is no equality for the minority there is no democracy for the majority.

This is also so as relates to equality toward Arabs.  However, the difference between the question of equality toward Arabs and the question of equality toward others is not to be ignored.  Thus, for example, is the question of equality toward women.  This question is not unique to the State of Israel.  It is universal.  Discrimination against women in the State of Israel like in other states stems primarily from prejudicial opinion.  The struggle against such opinion has been taking place for some time with determination in Israel, based on broad social consensus, and it is achieving a significant amount of success.  So too, as an additional example, is the struggle for equality of people with disabilities.  This struggle, as well, takes place on a broad foundation of understanding and empathy.  These struggles do not awaken, at least in an open realm, fundamental resistance or emotional recoil.  This is not so with the question of discrimination against Arabs.  Indeed in the legal realm there is no fundamental difference between the question of equality toward the Arab population and the question of equality toward another group.  In that realm the question of equality is the question of equality toward a religious or national minority, be it what it may be.  This too is a universal question and it too has a universal answer.  The answer is that a religious or national minority, and especially such a minority, is entitled to equality.  However, in the practical realm in the State of Israel there is a special significance to the question of equality toward Arabs.  This question is connected to a complex relationship that has developed between Jews and Arabs in this country over a long period of time.  Despite this, and perhaps particularly because of this, there is a need for equality.  The equality is vital to life together.  The good of society and in the real calculation the good of every individual in society necessitate nurturing the principle of equality between Jews and Arabs.  In any event, this is the dictate of the law, and therefore it is the duty of the Court.

And President Barak said as follows in the Ka’adan case [1] (supra paragraph 3, at pp. 282).

‘The State of Israel is a Jewish state in which various minorities, including the Arab minority, live. Each of the minorities living in Israel enjoys complete equality of rights. It is true, members of the Jewish nation were granted a special key to enter home (see the Law of Return-5710-1950), but once a person is lawfully at home, he enjoys equal rights with all other household members. . .  There is, therefore, no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens. The opposite is true: equality of rights for all people in Israel, be their religion whatever it may be and be their nationality whatever it may be, is derived from the values of the State of Israel as a Jewish and democratic state.’

16.  According to the principle of equality there is, inter alia, a duty to allocate State resources in an equal manner to Arabs as to Jews. See HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [4] (hereinafter: ‘the Adalah case’).  Civil service jobs also constitute resources of the state.  These are particularly important resources, as they carry with them the possibility of impact on many issues, including on the distribution of monetary and other resources.  Therefore, the principle of equality necessitates that state jobs are allocated without discrimination between Jews and Arabs.  The meaning is that a person’s appointment to a state job is not to be prevented just because he is an Arab.

However, does this also mean that the Arab population is entitled to appropriate representation in civil service and associated entities, such as, for example, the Israel Lands Council?

The duty of appropriate representation

The principle of equality in its common meaning, both the narrow meaning and the broad meaning, does not necessitate appropriate representation.  Indeed there is a connection between the principle of equality and appropriate representation, but there is also a difference between them.  The principle of equality in its common meaning is fundamentally a passive concept: it may prohibit a person from taking into account irrelevant considerations such as religion, nationality, race or gender.  On the other hand appropriate representation is at its core an active concept: it may require a person to act to reach appropriate representation, including taking into account considerations such as religion, nationality, race or gender as a relevant consideration.

The essence of appropriate representation is expressed in the first Israel Women’s Network case [2] (supra paragraph 12).  Section 18A of the Government Corporations Law 5735-1975 stood at the center of this case.  And this is the language of the section:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of both genders.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the gender that is not properly represented at that time on the board of directors of the corporation.’

In the decision, Justice Mazza clarified that the duty established in section 18A to give proper expression to representation of both genders, is a duty of affirmative action.  Affirmative action is generally directed at correcting a social distortion that has harmed equality.  In said case it stems from the reality of sub-equality in the representation of women in boards of directors of government corporations and is directed at advancing equality between the genders on these boards of directors.  Therefore, said Justice Mazza, affirmative action, while it appears to harm equality because it preferences members of a certain group on the basis of considerations of religion, nationality, race, gender and the like, in fact is derived from the principle of equality and serves as a means to achieve equality.  As to affirmative action see F. Radai, ‘As to Affirmative Action’ [13]; Zamir and Sobel, in said article [12] at pp. 200-204.

18.  Is there a place to analogize the first Israel Women’s Network case [2] and the present case?  In this case, like in the first Israel Women’s Network case [2] the petitioner is not asking the court to direct the respondents to act in the appointment of members according to the common meaning of equality, as the petitioner is not making the claim that the Government rejected a candidate for membership in the Council because he is an Arab.  But what? The petitioner is requesting that the Court order the respondents to act in appointment of members to the Council by way of affirmative action toward the Arab population.  The Court so ordered in the first Israel Women’s Network case [2] since women had weak representation in the boards of directors of government corporations; in the petitioner’s opinion, it is to be similarly ordered in this case, since Arabs have weak representation in civil service, and included in this in the Council.

Despite this, there is no room for analogy between the first Israel Women’s Network case [2] and the present case.  In the first Israel Women’s Network case [2] a duty was imposed on affirmative action in order to advance the appropriate representation of women in an explicit statutory directive, meaning in section 18A of the Government Corporations Law.  On the other hand in the present case there is no such an explicit provision which requires appropriate representation of Arabs in the Council.  There is therefore no statute that provides a foundation for the petitioner’s claim that there is a duty to provide the Arab population appropriate representation in the Council.

19.  The petitioner claims, however, that the duty to give the Arab population appropriate representation in the Council does not require an explicit statutory directive, but it exists by power of the principle of equality.  The basis for this claim is the decision in the second Israel Women’s Network case [3] (supra paragraph 14).  How is the second Israel Women’s Network case [3] different from the first Israel Women’s Network case [2]?  In the second Israel Women’s Network case [3] the Court applied the duty of appropriate representation to women even without an explicit statutory directive.

In the second Israel Women’s Network case [3] the appointment of a deputy to the Director of the National Insurance Institute was discussed.  At that time the Director of the National Insurance Institute had eight deputies including a woman who was on vacation, apparently for the purpose of retirement.  After the position of one of the deputies was vacated the Minister of Labor and Welfare decided to appoint a certain person, a man and not a woman, to the position that was vacated, for a trial period.  The petitioner asked that this appointment be nullified and that the minister be obligated to appoint a woman to the position that was vacated in order to advance the representation of women among the Deputy Directors of the National Insurance Institute.

The Court examined statutes and case law as to the principle of equality of the genders, including the requirement of appropriate representation of women in civil service, and the applicability of statutes and case law to the management of the National Insurance Institute.  As the Court noted, at first came the Declaration of the Establishment of the State of Israel [17], which declared the obligation of the State to fulfill complete political and social equality of rights without difference as to religion, race and gender.  Later came the Women’s Equality of Rights Law 5711-1951, and statutes which required equality between the genders in the work area, including, Equal Pay for Female and Male Employees Law, 5724-1964, Equal Employment Opportunities Law 5748-1988,  and Authority for Advancement of Women Law, 5758-1998.  Alongside the statutes the Court ruled clearly that every administrative authority is required, even without a statutory provision, to fulfill the equality between genders.  Against this background Justice M. Cheshin (Ibid [3] at p. 658) said as follows:

‘Statutes we have brought and case law we have surveyed have seemed to us as points of light, and the light is the light of equality, equality for man and woman in each and every matter.  We will go from one point of light to another, and the doctrine of equality will reveal itself before us in its full glory.’

On this foundation of statutes and case law against discrimination on the basis of gender statutory provisions grew which required affirmative action in order to advance appropriate representation of women in public service.  Section 18A of the Government Corporations law requires ‘appropriate expression’ for the representation of women in the Boards of Directors of government corporations, and section 60A of this statute requires that it will also be so with certain entities (detailed in the addendum to the law) that were established by statute, such as the Council for Film Critique and the National Council for Planning and Construction.  Section 15A of the Civil Service Law (Appointments) 5719-1959, requires ‘appropriate expression’ for the representation of women ‘among the employees in civil service’.  This requirement also applies to the appointment of employees to local councils.  See ibid [3] at p. 661.  And since section 22 of the National Insurance Law [Consolidated Version] 5755-1995 establishes that appointments of employees of the Institution will be according to the rules established for appointment of civil servants, the duty of appropriate representation of women, as established in section 15A of the Civil Service Law (Appointments), also applies to the appointment of employees in the National Insurance Institute.  Justice M. Cheshin summarized the statutory provisions and said (at pp. 662-663):

‘These representation directives were not intended only to instruct about themselves.  They came to instruct about a new direction in the Israeli legal system, a direction which we have not recognized or known in the past.  A new and good wind has begun to blow among Israeli statutes. . .  We have likened legal provisions which deal with equality for women and prohibit their discrimination as points of light.  We have drawn a line between all the points of light and here a doctrine in the law of the land has revealed itself before us, a doctrine whose force goes beyond the particular legal provisions.  Joining the points of light one to its neighbor created a type of critical mass and so the doctrine was created, whose ramifications reach far. . .  all the representation directives, despite the differences between them, constitute – each to itself – a crystallization of that matter and express the same core principle.  And the principle is: the provision of appropriate representation to women and men in public bodies as a need made necessary by the principle of equality.’

However, as it turned out, the legal provisions as to appropriate representation for women, while they cover the majority of the civil service, they leave islands here and there that are not covered.   This is so, among others, in the National Insurance Institute.  Indeed the duty of appropriate representation for women, as determined in section 15A of the Civil Service Law (Appointments) applies to the appointment of employees of the Institute, as said in section 22 of the National Insurance Law [Consolidated Version]; however, ‘surprisingly’, in the words of Justice M. Cheshin, this duty does not apply to the appointment of the management of the Institute, meaning the Director, the Assistant Director, and the deputies, that according to section 20 of the law are appointed by the Minister.  See ibid [3] at pp. 646,648.  Why and how? There is no explicit or clear answer to this.  Absent a reason the answer that apparently appears is that this is none other than a happenstance omission, meaning a deficiency in the law and not negative regulation.  This being so the power of the doctrine as to appropriate representation of women in public service is great enough to fill in the blank and also apply itself to the management of the Institute for National Insurance.  And indeed this is how the Court ruled in the second Israel Women’s Network case [3].

Appropriate representation for Arabs

20.  Therefore, is there room to make an analogy between the second Israel Women's Network case [3] and the present case?  At the time the petition was filed the answer, apparently, was in the negative.  The statutory provisions and case law which required equality for women, and in particular appropriate representation in public service via affirmative action, were several fold more numerous and heavier than the statutory provisions and case law which required equality for Arabs.  The cumulative weight of the statutory provisions and case law which required equality for women gave a basis to say, as the Court said in the second Israel Women's Network case [3], that ‘a doctrine whose force goes beyond the particular legal provisions’ (Ibid, at p. 622) had been created as to appropriate representation of women in public entities.  See supra paragraph 19.  On the other hand the cumulative weight of statutory provisions and case law which required equality for Arabs was much smaller.  In this situation there was not, apparently, a basis to say that a similar doctrine was created as to the appropriate representation of Arabs in public entities.

21.  Even if this is the case, claims the petitioner, in any event there is a need for a doctrine as to appropriate representation of Arabs in public entities, as the Arab population suffers generic discrimination which violates human dignity.  The petitioner presents data: although Arabs constitute close to a fifth of the total residents in the State, the proportion of Arab employees in civil service is only approximately 4.2%; among the senior employees in civil service the proportion of Arab employees is only about 1% and there are government offices in which the proportion of Arab employees is even lower.  The petitioner relies for this matter on various sources.  See, inter alia: U. Benziman, A. Manzur, Subtenants – Arabs of Israel, their Status and the Policy toward Them [9], and in particular at pp. 142-143 as well as D. Kretzmer The Legal Status of the Arabs in Israel [15].

The respondents have not presented (apparently because they did not see a need to present from a legal standpoint) data as to the relative proportion of Arabs in civil service.  But they also did not deny the data that the petitioner presented.  Indeed, words of truth are apparent in the petitioner’s claim.  In the Report of the Subcommittee as to the Status of Minorities in Civil Service and in Public Services [18] from the year 1989 (which was appointed by the public-professional committee, known as the Koverski Committee, for overall examination of the civil service and of entities supported by the State budget) data was presented as to the relative proportion of minorities employed in eight government offices.  It was found that the proportion of minorities of the overall employees was approximately 5%, and apparently even lower.  The conclusion, as stated in the report, is ‘that the proportion of minorities employed in civil service is generally low and at times even very low’.  See select sections of this report in the book The Regime of the State of Israel – A Source Book, at p. 346.

Recently, Mr. Elyakim Rubinstein, Attorney General, wrote in a published article that ‘the representation of the Arab minority in civil service and public service is far less than their part in the population, and stands at single digit percentages only,’ and he mentioned a government decision from 1993, following a recommendation of the Koverski Committee, to advance educated Arabs at senior levels of civil service by way of creating job openings exempt from the duty of a tender: A. Rubinstein, ‘On the Equality for Arabs in Israel’ [14] at p. 21.

In the second Israel Women's Network case [3] Justice M. Cheshin stated, (at p. 664) as to the representation of women in public entities that ‘the phenomenon that appears to us is this, that the place of women is missing in public entities to a degree and in circumstances that the laws of statistics would have difficulty explaining without adding to the system the element of discrimination as well’.  Is there no place to say so as well as to the representation of Arabs in public entities?

22.  Be the answer what it may be, and be the explanation what it may be, the situation today is different from the situation that was.  It is different first and foremost because of the growing awareness as to the existing situation and the need to change the situation.  And indeed, lately there has been a change.  The change found expression in moderate improvement of representation of the Arab population in civil service, and it found striking expression in new statutes.  A few years only after the statutory provisions as to appropriate representation of women in public service – section 18A of the Government Corporations Law and section 15A of the Civil Service Law (Appointments) – were passed, the legislator came along and also applied these provisions to the appropriate representation of Arabs.  Following this the great gap that existed in legislation between the duty of equality toward women and the duty of equality toward Arabs in all that relates to representation in public entities was almost closed.  Therefore, it now needs to be examined, against the present day legal situation, if there is a basis to say that a doctrine has been created as to appropriate representation of Arabs in public service similar to the doctrine that was created, as determined in the second Israel Women's Network case [3], as to appropriate representation of women.  What arises from this examination?

23.  Most of the legal sources which require equality for women, including appropriate representation for women in public service, also require in the same breath equality, including appropriate representation, for Arabs.

One can open with the Declaration of the Establishment of the State of Israel [17] which speaks of the responsibility of the State to fulfill complete social and political equality of rights without differences as to ‘religion, race, or gender’.  Moreover, the declaration also called to Arabs in Israel, in the height of the War of Independence, to preserve the peace and take part in building the State on the basis of full and equal citizenship ‘and on the basis of appropriate representation in all its institutions, temporary and permanent’.  It is proper to emphasize: appropriate representation in all its institutions.  As has been ruled, the Declaration represents the ‘I believe’ of the State, and therefore it serves the Court as a source for statutory construction.  Moreover, section 1 of the Basic Law: Human Dignity and Liberty declares that the basic rights of a person in Israel ‘will be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel’.

Indeed, the Court has spoken in many decisions, in which it relied on the principle of equality, in one breath on equality in terms of gender and equality in terms of religion and nationality.  Thus, as one example among many, in HCJ 421/71 Yaf Ora Ltd v. Broadcasting Authority [5] at p. 743, Justice H. Cohn stated:

‘. . . it is the law (although for now still unwritten) that any discrimination on the grounds of race, gender, religion, belief, political or other view, or the like, is prohibited to any authority operating by law.’

Accordingly, the court noted the duty of the State to act with equality to Arabs, inter alia, in the allocation of resources of the State.  See lately the Adalah case [4] supra paragraph 15; HCJ 2814/97 Upper Tracking Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport [6].

24.  Similarly in legislation.  Generally it is common in legislation which requires equality to bind together the prohibition to discriminate on grounds of gender with the prohibition to discriminate on the grounds of religion, race or nationality.  See for example: Employment Service Law, 5719-1959, s. 42; Equal Employment Opportunities Law 5748-1988, s. 2; Patient’s Rights Law 5756-1996, s. 4.

25.  Most important of all, in the present matter, after the legislator saw fit to impose an obligation to advance appropriate representation of women in public service, it saw the need after a few years to impose the same duty toward Arabs.  In March 2000 a private draft law was submitted to the Knesset on this issue: Draft Proposal for the Government Corporations Law (Amendment no. 13) (Appropriate Representation for the Arab Population) 5760-2000.  In the explanatory notes of the draft law (at p. 345) it was said that ‘the number of directors from among the Arab population in Government Corporations is very low’; it was therefore proposed to add to the Government Corporations law a provision which would establish, similar to the appropriate representation of women that was established in section 18A of the law, a duty of appropriate representation for the Arab population.  On the basis of this draft proposal section 18A1 was added to the Government Corporations Law, and this is its language:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of the Arab population.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors from among the Arab population.

(c) For purposes of this section ‘the Arab population’ – includes the Druze and Circassian population’

On October 24, 2000, the Attorney General issued a guideline to the Prime Minister and cabinet members as to the implementation of this section.  See this guideline as an addendum to said article by Rubinstein [14] at p. 29.  Inter alia, the Attorney General states in the guideline as follows:

‘It cannot be denied that the said statutory amendment came against the background of a dearth of appointments from among the Arab population for roles of the said type.  This provision therefore comes to achieve a result that it is appropriate to reach for, in these entities and others, by power of basic rules of equality and fairness, even without this being anchored in Knesset legislation.’

And he concludes the guideline with a call to the Prime Minister and the members of the cabinet to fulfill the duty of appropriate representation according to this provision, inter alia, in order to prevent a ground for disqualifying the appointment.

Does the duty of appropriate representation according to this provision also apply to the Israel Lands Council?  The answer is in the negative.  The Council is not a government corporation, as it is defined in the Government Corporations Law.  Indeed according to section 60A of this law the duty of appropriate representation also applies to entities established by statute, and they are detailed in an addendum to this statute.  However the Council is not counted among the entities detailed in the addendum to the law.  The result is that section 18A1 of the law which requires appropriate representation for the Arab population, does not apply to the Council.

26.  Approximately a year ago the Government submitted the Civil Service Law (Appointments) (Amendment no. 11) 5760-2000.  In the explanatory notes to this draft proposal (at p. 496) it was said as follows:  ‘The Arab population, including the Druze population and the Circassian population in the State, although it constitutes almost a fifth of the State’s population, is represented in civil service only at the rate of about 5% of the totality of the government employees, and among the senior position holders in civil service at an even lower rate.’  Therefore, it was stated in the explanatory notes, in continuation of the legislative trend which found expression in the addition of section 18A1 to the Government Corporations Law, it is proposed to establish, in a statute, provisions as to appropriate representation in civil service for the Arab population.  On the basis of this draft proposal section 15A of the Civil Service Law (Appointments) was amended.  The language of the section today is as follows:

‘(a)  Among the employees in civil service, including all the professions and the ranks, in each office, and support unit, appropriate expression will be given, under the circumstances, for the  representation of members of both genders, of people with disabilities, and of members of the Arab population, including the Druze and Circassian (in this law – appropriate representation).

(b)  The Government will operate to advance appropriate representation among the employees in civil service in accordance with the objectives it will set, and for this purpose, inter alia –

(1)  The office or support units which relate to the matter, as well as the Civil Service Commission, each in their field, will undertake the necessary means under the circumstances which can enable and encourage appropriate representation. . .

(2)  The Government may designate job openings in which, to the extent possible, will be employed only candidates who are qualified for the job, from among a group which is entitled to appropriate representation according to the provisions of subsection (a) which is not appropriately represented, as the Government shall determine.

(3)  The Government may order, as to a job opening or a group of job openings or a rank or a group of ranks, which will be detailed in the order, and for a period that will be determined, the granting of preference to candidates from among the group that is entitled to appropriate representation according to the provisions of subsection (a) that is not represented in an appropriate manner, where they have similar qualifications to the qualifications of other candidates. . .

(c) The provisions of this section will apply to all manner of acceptance to employment and advancement in employment according to this statute, including appointment by way of a tender, employment without a tender and appointment in fact.’

The section goes on to establish provisions which do not relate to the matter discussed in the petition as to fulfilling the duty to provide appropriate representation.

27.  It is clear that section 15A of the Civil Service Law (Appointments) establishes a duty of affirmative action for the Arab population in appointments to civil service.  However, the section is not simple.  It raises various questions.  There is no need to discuss them in this petition.  In this petition it is a sufficient question whether the section requires granting appropriate representation to members of the Arab population in the Israel Lands Council.

The Civil Service Law (Appointments) regulates appointments in civil service.  However the Israel Lands Council is not part of the civil service.  Most of the members in the Council are also not civil servants, but representatives of the public or representatives of JNF.  Indeed, the Council is by its composition and its substance, a satellite body, outside of the government mechanism, similar to other public councils, investigative committees, administrative tribunals and more.  As to satellite bodies see I. Zamir, Administrative Power (Volume 1) [10] at p. 411 and on.  It appears that section 15A does not apply to satellite bodies including the Israel Lands Council.

28.  However, even if section 15A of the Civil Service Law (Appointments) does not directly apply to the Israel Lands Council, it still has indirect weight on the question whether it is appropriate to grant appropriate representation to the Arab population in the Council. As in fact, this section joins up as an additional component to a network of legal sources which oblige equal treatment of the Arab population.  See supra paragraphs 22-25.  The cumulative weight of all of these is very similar to the cumulative weight of legal sources which require equal treatment of women.  Therefore, the conclusion also has to be similar.  As to the legal sources which require equality to women, Justice M. Cheshin in the second Israel Women's Network case [3] said that these sources are similar to ‘points of light’, and that ‘Joining the points of light one to its neighbor created a type of critical mass and so the doctrine was created’ (Ibid, at p. 662) as to appropriate representation for women in public entities.  See supra paragraph 19.  Similarly, it is to be said as to legal sources which require equal treatment of Arabs: alongside the doctrine which requires granting appropriate representation to women they create a doctrine which requires granting appropriate representation to Arabs in public service.  What is the duty which stems from this doctrine?

29.  The Court gave the answer in the second Israel Women's Network case [3].  There, the Court ruled that the duty of appropriate representation of women, according to section 15A of the Civil Service Law (Appointments), applies to all the employees of the National Insurance Institute, except for members of the Institute’s management.  See supra paragraph 19.  Here, the duty of appropriate representation of women, people with disabilities, and members of the Arab population, according to that section, applies to all the employees of the Israel Lands Administration, excluding members of the Council.  There, the Court ruled that the doctrine as to appropriate representation for women also extends over the appointment of the members of the management of the National Insurance Institute.  By power of that doctrine, the Court further ruled, that there is a duty on the Minister when coming to appoint a Deputy Director of the Institute to work toward advancing the representation of women.  What does this mean?  This does not mean that there is a duty on the Minister to appoint a woman to this job.  But rather what?  In the words of Justice M. Cheshin (Ibid, at p. 671):

‘It is imposed on the Minister to fulfill his duty according to the doctrine, the duty to act in order to give appropriate representation to women: to make an effort and to diligently work toward finding suitable candidates to fill the job of deputy director in the National Insurance Institute.’

Justice M. Cheshin noted (Ibid, at p. 670) that there exists a difference between the duty to grant appropriate representation according to section 15A of the Civil Service Law (Appointments) and the duty to grant appropriate representation according to the doctrine.  What is the difference?  The duty the statute imposes in section 15A, is not just to act but to achieve a result: the result is ‘appropriate expression’ for the representation of women, of people with disabilities, and of members of the Arab population.  It is clear that a result depends on action: the authorized authority must act to achieve appropriate representation.  For this purpose the statute establishes various means, such as designating positions for employing candidates from among the group entitled to appropriate representation according to section 15A(b)(2) of the Civil Service Law (Appointments).  As long as there is not appropriate representation the authorized authority has the burden to prove that it has done all that is necessary and possible by law under the circumstances to achieve appropriate representation.

On the other hand the duty imposed based on the doctrine relates primarily to the discretion of the authorized authority.  The authority authorized to make an appointment is obligated, like any administrative authority as to any power, to consider all the relevant considerations and give each relevant consideration the appropriate weight.  Generally, religion, nationality and race are irrelevant considerations, and therefore the authorized authority is prohibited from taking them into consideration for purposes of using the power.  However, as to appointment to public service, belonging to the Arab population, is, by force of the doctrine, a relevant consideration.  Accordingly, not only is the authorized authority entitled to bring it into account, but it even is required to bring it into account as one of the relevant considerations and give it the appropriate weight.  There is no great innovation here.  The principle of equality is in any case, and without connection to the doctrine, a relevant consideration that the authorized authority must bring into account when it makes an appointment. See HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv-Jaffa [7]. And still there is innovation in the doctrine.  The innovation is in the substance of the relevant consideration.  According to the doctrine the relevant consideration says that in an appointment to public service it is not sufficient to act with equality toward an Arab candidate but it is also necessary to act with affirmative action toward an Arab candidate with the goal of providing the Arab population with appropriate representation in public service.  See Zamir and Sobel in their article [12] at pp. 200-204.  However, this consideration is still only one from among the relevant considerations.  The authority must weigh all the relevant considerations, and particularly the personal fitness of the candidate to fill the role, in order to reach the proper balance.  However, in the framework of the balancing, the candidate’s belonging to the Arab population is, as long as appropriate representation has not been achieved, a relevant consideration in the candidate’s favor.  This is the affirmative action required by the doctrine in order to fulfill the principle of equality toward the Arab population.

In fact, the difference between the duty imposed by the statute and the duty imposed by the doctrine may be hazy.  But is exists first of all in the fundamental realm, and additionally in the practical realm.  Inter alia, the provisions established in section 15A(b) of the Civil Service Law (Appointments) such as designating jobs in order to advance the appropriate representation, apply only to the duty imposed by the statute.

The present case

30.  What is the conclusion that arises from all that has been said, as to the present case.  Section 4A of the Israel Land Administration Law, establishes that the Government will appoint, by proposal of the ministers, half of the members (in fact, twelve members) in the Israel Lands Council and among them at least half (in fact six) ‘civil servants, holding senior positions in the government offices connected to the matter. . .’ see supra paragraph 2.  This authority is subject to the doctrine.  According to the doctrine it is incumbent on every minister who proposes a candidate for membership in the Council to weigh, inter alia, the need to also give appropriate representation to the Arab population in the Council and to give this consideration appropriate weight.  For this purpose the Minister must inquire whether there is among the senior office-holders in his office an Arab candidate substantively qualified for appointment as a member of the Council.  If there is such an individual, and there is no good reason to deny his candidacy or to prefer another candidate over him, it is proper to propose him for appointment as a member of the Council.

A similar duty is imposed on the Government when it receives the proposals of the Ministers for appointment of members in the Council and must decide on an appointment.  It must consider the question whether there is in these proposals to provide appropriate representation to the Arab population.  If not, it must inquire if nonetheless there is no practical possibility to find a worthy Arab candidate among the senior office-holders in the government offices which relate to the matter in order to advance the appropriate representation of the Arab population.

31.  It is a question what the duty to give appropriate representation to the Arab population in a certain entity requires, and in this case – the Council.  The answer may change depending on the circumstances of the case.  Appropriate representation is not a formal duty, but a substantive duty, that has purpose and an objective.  Therefore it is not correct to say that section 18A of the Government Corporations Law, which requires giving appropriate expression in the Boards of Directors of Government Corporations to women, requires that in every such Board of Directors the women will be half of the overall members.  But it also is not to be said that the symbolic presence of one woman is sufficient in order to fulfill the duty of appropriate expression.  The required extent of representation is dependent on the context.  See the first Israel Women's Network case [2] (supra paragraph 12), at pp. 527-528.  It is also to be said thus as to appropriate representation of the Arab population in Boards of Directors of Government Corporations, as is required by section 18A1 of the Government Corporations Law.  This section does not require that the number of Arab members in every Board of Directors of a Government Corporation will be one fifth of the overall members.  Similarly it is also to be said as to the duty to give appropriate representation in civil service whether for women, whether for members of the Arab population or for persons with disabilities.

The question of what constitutes appropriate representation in a specific entity is dependent, inter alia, on the substance of the entity, including the practical importance of the entity in terms of the group entitled to appropriate representation.  Accordingly, it appears that the importance of representation and the force of representation in the Israel Lands Council are greater as to members of the Arab population than as to, for example, people with disabilities.  The Government and the ministers that relate to the matter are to also bring this consideration into account in the process of appointing members to the Council.

32.  In the present case, the statute establishes that civil servants are not to be appointed as members in the Council unless they are ‘senior’ civil servants in the offices which relate to the matter.  The petitioner presumes that there are no such Arab employees.  The Court does not know if this presumption has a basis.  In any event, this is not sufficient to exempt the ministers who relate to the matter and the government from the duty to employ their discretion in a manner that is intended to advance, if possible, the appropriate representation of the Arab population.  If indeed it turns out that among the ‘senior’ civil servants in the government offices there is not a single Arab employee who will be qualified for appointment as a member of the Council, then this is proof of a distorted situation, which s. 15A of the Civil Service Law (Appointments) and s. 18A1 of the Government Corporations Law were intended to repair.  However, repair of the distorted is a process, and as is the way of such processes it takes time.  In such a case there is no recourse but to wait until there will be senior civil servants in the government offices which relate to the matter, as is necessitated by s. 15A of the Civil Service Law (Appointments).  The Court is not entitled to take, or order the Government to take, a short cut, in contradiction of a statutory provision.  However, according to the law the government must take the road at the appropriate speed.

If it turns out that today there is not among the senior government employees in the government offices which relate to the matter a single qualified Arab employee who is qualified to be appointed as a member of the Council, it is appropriate that the Government also consider the possibility of appointing an additional Arab from among individuals in academia and public representatives which the Government is qualified to appoint as members in the Council.

33.  The petitioner requested that the Government nullify the appointment of some of the members in the Council in order to enable the appointment of Arabs in their place in a manner that will constitute appropriate representation for the Arab population.  However, as the petitioner recently notified the Court, and the respondents affirmed, several Council members recently retired, and of the quota of twelve members who are appointed to the Council on behalf of the Government today only six members are serving in the Council.  Meaning, the Government is now authorized to appoint six additional members to the Council.  Indeed, as the respondents’ counsel notified the Court several days ago, the Minister of National Infrastructures sent the Minister of Finance a proposal for the appointment of six additional members to the Council on behalf of the Government.

The respondents’ counsel did not note in the notice who the candidates are who were proposed by the minister.  However, since the notice does not state otherwise, one would think that there is not an Arab among the candidates.  The notice also does not state that there is not among the senior office-holders in the government offices which relate to the matter an Arab who is qualified to be appointed as a member of the Council.  This being so, the ministers have a duty to consider anew the list of candidates in light of what has been said in this judgment.

Summary

34.  In summary, the Government has appointed during the time of the hearings in the petition an Arab as a representative of the public in the Israel Lands Council, and it has taken upon itself to appoint, upon the conclusion of his tenure, an Arab as a representative of the public in his place.

Now the Government is to appoint an additional six representatives on its behalf as members of the Council.  As to the appointment of these members I propose making the order nisi absolute, which orders the respondents to weigh, according to what has been stated in this judgment, if it is possible to appoint an additional Arab as a member in the Israel Lands Council.

The respondents will bear the court costs of the petitioner in a total sum of 10,000 NIS.

 

 

Justice M. Cheshin

I agree.

 

 

Justice D. Beinisch

I agree.

 

It has been decided as per the decision of Justice Zamir.

 

18 Tamuz 5761

9 July 2001

      

 

 

 

 

 

 

                                                                                    HCJ 651/03

 

Association for Civil Rights in Israel

v.                        

Chairman of the Central Elections Committee for the Sixteenth Knesset
Raam- United Arab List
Balad- National Democratic Assembly

 

The Supreme Court Sitting as the High Court of Justice

[January 21, 2003]

Before Justices T. Strasberg-Cohen, I. Englard, and A. Procaccia

 

Facts: During elections for the sixteenth Knesset, Respondent no. 1 disqualified portions of the election propaganda broadcasts of respondents nos. 2 and 3. These portions were disqualified by the Chairman because they included pictures of the Palestinian flag. Petitioner asserted that this disqualification of the portions constituted an infringement of the freedom of speech of respondents nos. 2 and 3, and an infringement of the voters' right to view political messages uncensored. The Attorney-General, as an amicus curae, asserted that petitioner did not have standing to bring his petition, as the injured respondents could have brought the petitions themselves.

Held: The Court held that petitioner did have standing as a public petitioner. The Court noted that the standing of public petitioners has been recognized in matters of a public nature that concern the rule of law, the enforcement of constitutional principles, or where intervention is necessary to repair a substantial error in government operations. In general, however, the standing of a public petitioner has not been recognized where there exists a specific individual who has been injured and also has standing. Even so, in the context of election law, the Court held that the standing of a public petitioner should be recognized even where there exists a specific individual who has standing. This extended right of standing should be recognized due to the importance of regular and proper elections to the democratic process, and due to the fact that all voters have an interest in receiving the political messages of the candidates. As to the merits of the petition, the Court held that, under the circumstances, the appearance of the Palestinian flag in the broadcasts would not cause injury to viewers. As such, the Court struck down the decision of the Chairman of the Central Elections Committee.

Israeli Supreme Court Cases Cited:

[1]HCJFH 4110/92 Hess v. Minister of Defence, IsrSC 48(2) 811

[2]HCJ 852/86 Alony v. Minster of Justice, IsrSC 41(2) 1

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

[4]HCJ 910/86 Ressler v. Ministter of Defence, IsrSC 42(2) 441

[5]HCJ 1759/94 Srozberg v. Minister of Defence, IsrSC 51(1) 625

[6]HCJ 16355/90 Jarjevski v. The Prime Minister, IsrSC 45(1) 749

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

[8]HCJ 4112/99 Adalah, The Legal Center for Arab Minority Rights in Israel v. Municipality of Tel-Aviv/Jaffa, IsrSC 56 (5) 393

[9]HCJ 2148/94 Gilbert v. Chairman of the Investigating Committee for the Examination of the Massacre in Hebron, IsrSC  48(3) 573

[10]HCJ 26/76 Bar Shalom v. Israel Lands Administration, IsrSC 31(1) 796

[11]CA 10596/02 Ness v. Likud Party, IsrSC 57(1) 769

[12]HCJ 40/70 Becker v. Minister of Defence, IsrSC 24(1) 238

[13]HCJ 231/73 Bergman v. Minister of Treasury, IsrSC 27(2) 785

[14]HCJ 148/73 Kaniel v. Minister of Justice, IsrSC 27(1) 794

[15]HCJ 549/75 Noah Films. v. The Film Review Board, IsrSC 30(1) 757

[16]HCJ 14/86 Laor v. The Film & Play Review Board, IsrSC 41(1) 421

[17]HCJ 869/92 Zweely v. Chairman of the Central Elections Committee for the Thirteenth Knesset, IsrSC 46(2) 692

[18]HCJ 212/03 Herut—The National Jewish Movement v. Chairman of the Central Elections Committee for the Sixteenth Knesset, IsrSC 57(1) 750

 

Israeli Books Cited:

[19]1 I. Zamir, The Administrative Authority, 81-83 (1996). 

[20]Z. Segel, The Right of Standing in the High Court of Justice 253 (1993

 

Petition granted.

 

On behalf of the petitioner—Dan Yakir

On behalf of respondent no. 1—Anar Helman

On behalf of respondent no. 2—Not Present

On behalf of respondent no. 3—Osama Halabi

 
JUDGMENT
Justice A. Procaccia

1.  Respondents nos. 2 and 3 are, respectively, Raam—The United Arab List [hereinafter Raam], and Balad—The National Democratic Assembly [hereinafter Balad]. Both of these respondents are parties running for election in the Sixteenth Knesset.  Respondent no. 1 is the Chairman of the Central Elections Committee. The Chairman disqualified segments of two of Raam’s and Balad’s election propaganda broadcasts which displayed the Palestinian flag. Petitioner, the Association for Civil Rights in Israel, approached this Court with a petition for the invalidation of the Chairman's decision to disqualify the broadcast segments. Petitioner requests that we allow the televising of the propaganda broadcasts in full. 

After oral arguments and viewing tapes of the broadcast, we handed down a judgment on January 21, 2003 in which we made the order nisi final, and allowed the uncensored televising of Raam’s and Balad’s propaganda broadcasts.  Due to the exigency of the issue, we decided that the reasons for our judgment would be given at a later date.  The following are the facts and the reasons for our decision,

Background

2.  The petition before us was submitted by the Association for Civil Rights in Israel against the Chairman of the Central Elections Committee. Raam and Balad were added as respondents.  Raam did not attend oral arguments.  Balad attended the arguments, supported the petition, and joined in the request for relief. 

3.  The petition concerns two election propaganda broadcasts, one produced by Raam and the other produced by Balad.  We have viewed both election broadcasts. Raam’s broadcast is devoted to the troubles of the Bedouin in the Negev.  It contrasts, through pictures, the living conditions of the Bedouin with the living conditions of the Jewish population in Israel. The final seconds of the broadcast consist of a scene of a demonstration, whose participants include Knesset Member Sanah.  In this scene, a Palestinian flag is seen waving while a number of youths make the letter “V” with their fingers.  As per the decision of respondent no. 1, the Palestinian flag was concealed by a white spot.  Aside from this, the entire broadcast was approved for broadcast. 

The Balad broadcast consists mainly of speeches made by the head of the party, Member of Knesset A. Bishara, to the voting public, and of photographs of his meetings with various officials.  At the end of the broadcast, for a split-second, a picture of the Palestinian flag appears.  Here too, the Palestinian flag was concealed by a white spot, as per respondent 1’s decision.

4.  On January 15, 2003, in response to a letter sent by the legal advisor of the Association for Civil Rights in Israel, Dan Yakir, respondent no. 1 gave the following reasons for his decision:

 

I disqualified a number of segments from election broadcasting, including those segments of which you speak in your letter. I was of the opinion, and am of that opinion still, that it was appropriate not to permit the broadcast of the flag.  We should keep in mind that the present elections are elections for the Israeli parliament and that Israel is currently in a cruel and bitter state of war, even if this does not constitute war as defined under international law.

 

The Parties’ Arguments

 

5.  Following the response of respondent no. 1, the Association for Civil Rights in Israel submitted this petition.  Its main argument is that the disqualification of the segments that display the Palestinian flag constitutes a severe infringement of Raam’s and Balad’s political freedom of speech, and upon the voting public’s right to view propaganda broadcasting.  According to petitioner, election propaganda, including propaganda broadcasting, is an integral part of any constitutional, democratic electoral process. The right to broadcast election propaganda is founded upon the freedom of speech.  This court, in its case law, has formulated an equation for balancing between the freedom of speech in election propaganda and between other public interests.  According to petitioner, in the appropriate balancing of the relevant values, there is no room to disqualify these broadcast segments. The significance of the Palestinian flag should be considered within its context.  In the case at hand, the Palestinian flag does not reflect a show of support for a terrorist organization in an armed struggle against the State of Israel. As such, there is no public interest that justifies the disqualification of the segments, and they should be seen as a part of legitimate political discourse, a discourse that should not be restricted in this case. The decision to disqualify the broadcast of the segments should be seen as unreasonable, and it should be invalidated.

 

6.  The Attorney-General, as an amicus curae, claims that the petition should be denied, both on its merits and also because the petitioner lacks standing. It was argued, in regard to the latter claim, that the petitioner is fighting a battle that is not its own, and that this provides sufficient cause to close the gates of the Court.  No one, aside from the parties running for election, has the right to broadcast election propaganda. If the decision of the Chairman of the Central Election Committee harms any of the candidates' interests in propaganda broadcasting, that candidate or party is entitled to petition for relief.  Under these circumstances, the standing of a public petitioner should not be recognized, if the injured party itself has not petitioned for relief. In this case, Raam and Balad are the political parties whose broadcast segments were disqualified.  If they believed that this decision injured their rights, they could have submitted a petition for relief.  They chose not to petition for their own reasons. The petitioner in this case suffered no injury which would entitle it to submit a petition in its own name.  It was further argued that, in general, the standing of a public petitioner is not recognized in a case where an administrative act injures the rights of a specific individual and that person refrains from petitioning the court. Such is the case before us, where only the party actually affected by the decision has standing. 

The Attorney-General also draws attention to the difficulties intrinsic to a proceeding initiated by a public petitioner and not by the true interested party. First, a petition initiated by a public petitioner may lack all the factual data necessary for a comprehensive understanding of the dispute. Second, recognizing public petitioners may generate an excess of public petitions concerning the elections.  This would draw elections issues to the Court, even though they should be dealt with in the public arena.

Regarding the merits of the petition, it was argued that the respondent’s decision is reasonable.  The Attorney-General argues that, in balancing Raam’s and Balad’s political freedom of speech against the public interest, the balance leans towards disqualifying the broadcast segments that display the Palestinian flag.  This flag is the flag of the Palestinian Authority and of the Palestine Liberation Organization [hereinafter PLO].  The Attorney-General argues that it is a symbol of the cruel terrorist war being waged by terrorist organizations against the citizens of Israel, a war which has claimed many victims. As a result of this war, the lives of thousands of families have been shattered.  The disqualification of the segments was intended to prevent certain and substantial injury to the feelings of thousands of families hurt by the terrorist war being waged by the Palestinians.  The Attorney-General adds that the respondent has broad discretion in making decisions regarding elections issues which are under his authority.  In this case, his decisions should be approved. At minimum, it should be held that they do not constitute a radical departure from the zone of reasonableness.

 

Standing

 

7.  In our case law, we have greatly extended the standing of a public petitioner in matters of a public nature that concern the rule of law, the enforcement of constitutional principles, or where intervention is necessary to repair a substantial error in government operations.  The status of the public petitioner has been recognized even where the public petitioner cannot claim to have been personally affected or harmed. See HCJFH 4110/92 Hess v. Minister of Defence [1]; HCJ 852/86 Alony v. Minster of Justice [2]; HCJ 1/81 Shiran v. The Broadcasting Authority [3]. Our approach to standing was greatly influenced by our understanding of the role of judicial review in the democratic state.  Our broad understanding of the right of standing is a part of a broader view of this Court, as not only responsible for resolving conflicts between parties, but also as responsible for the rule of law, even outside the context of resolving individual conflicts: 

 

In a democratic society, the court is responsible for preserving the rule of law.  The significance of this is that it must enforce the law with regard to the governmental authorities, and it must ensure that the government is acting lawfully.

 

See HCJ 910/86 Ressler v. Minister of Defence [4]; HCJ 1759/94 Srozberg v. Minister of Defence [5]; 1 I. Zamir, The Administrative Authority, 81-83 (1996) [19].  As such, the standing of a public petitioner was recognized in matters of general public importance concerning the rule of law and concerning matters of a constitutional nature, even where the public petitioner has no direct personal interest in the matter.  HCJ 16355/90 Jarjevski v. The Prime Minister [6]; HCJ 428/86 Barzilai v. The Government of Israel [7]. 

 

8.  Even in light of this extension of the right of standing, this Court will generally not entertain a public petition where there exists an injured party who has not approached the Court.  Where a petition attacks an administrative act which has injured the right or interest of a specific individual, and that person refrains from petitioning this Court, the Court may not recognize the public petitioner’s standing, even if the matter relates to a matter of general public importance.  This exception to standing is intended to limit the public petition to government acts where there is no relevant injured party. If such an injured party exists, the public petitioner will be considered to be intervening in a conflict not its own, and its application will be denied.  Srozberg, [5] at 631; HCJ 4112/99 Adalah, The Legal Center for Arab Minority Rights in Israel v. Municipality of Tel-Aviv/Jaffa [8]; HCJ 2148/94 Gilbert v. Chairman of the Investigating Committee for the Examination of the Massacre in Hebron [9].

It is appropriate to note that there has been criticism of limiting the standing of a public petitioner in cases where there is an injured individual with a direct and actual interest in the matter:

This limiting approach should not be maintained if the Court finds that the “public petitioner” is drawing attention to a matter of general and exceptional importance, which goes beyond the specific matter at hand.

Z. Segel, The Right of Standing in the High Court of Justice 253 (1993) [20]. This approach accords with the view that “the greater the public significance of the matter, the greater the Court’s tendency to recognize the petitioner’s right to bring the matter before the Court, even if he is an ordinary citizen.” HCJ 26/76 Bar Shalom v. Israel Lands Administration [10] (Berenson, J.).

9.  Here, Raam and Balad have a direct interest in the respondent’s decision to invalidate the segments for election broadcasting.  They did, however, not petition for relief.  The petitioner is the Association for Civil Rights in Israel. The association did not initiate this proceeding in the name of those two political parties.  Nevertheless, petitioner's standing should be recognized. 

The main reason for recognizing the petitioner's standing lies in the special nature of the matter at hand, which concerns the electoral process.  Matters concerning the electoral process are of the utmost constitutional importance. Additionally, the petitioner has standing as a representative of the interests of the voter, who has a direct interest in the electoral process, and not only as a representative of the parties whose broadcast segments were disqualified. 

10.  The standing of a public petitioner, in matters regarding the elections, should not be compared to any other matter.  The significance of the protected interest in the electoral process, and the petitioner's connection to this interest, are different from that of regular public petitions.  The electoral process is, first and foremost, concerned with guaranteeing the rights of voters and parties that wish to be elected through the democratic process.  Election laws are intended to ensure that the individual be able to realize his right to vote and be voted for, while allowing him to exercise his freedom of speech. They are also intended to preserve rules of equality, as well as the regularity and fairness of the electoral process:

The goal of election laws is, at the end of the day, none other than the translation of the wishes of the voters into the distribution of political power and seats in the Knesset.

CA 10596/02 Ness v. Likud Party, [11] at par. 11 (Barak, J.).  The object of the electoral process is to realize the fundamental right to vote and be voted for in a proper and regular process. The regularity of the electoral process is the concern of the entire public, and goes beyond the direct concern of the specific individual injured by government action.  Even in the past, when our approach to standing still restricted the right of access to the courts, a voter’s right to petition against irregularities in the electoral process was recognized. In HCJ 40/70 Becker v. Minister of Defence [12], Justice Vitkon stated:

The right to public standing developed with regard to two issues. One issue relates to the elections. The reason for this recognition is that ensuring election rights is a precondition for any democratic regime. Every voter is personally and directly harmed by disruption and lack of order in the management of the elections, and he has standing in Court, unless his right has been limited by law.

With regard to examining the merits of a public petition concerning the elections, see also HCJ 231/73 Bergman v. Minister of Treasury [13];  HCJ 148/73 Kaniel v. Minister of Justice [14]. These two cases discussed the merits of the public petitions at issue there. They did not discuss the question of a public petitioner’s standing when a specific party is injured by the government act.

11.  A voter has standing to bring a petition regarding the electoral process where his rights as a voter have been directly violated.  However, his right to standing goes further than this.  In free and democratic elections, the rights of voters are intertwined with the rights of candidates such that the violation of a candidate’s rights may affect the rights of a voter. The candidates’ freedom of speech, for example, expressed through their election propaganda, is an aspect of a voter’s right to receive information from the candidates, consider this information, and formulate their choices.  Injury to a party’s freedom of speech may not only harm the party, but also the voters who wish to hear the full spectrum of political discourse.  Unlawful restrictions on the freedom of speech are not only the concern of the candidate running for election.  They are also the concern of the voter, who requires freedom of speech to formulate his electoral preferences.  In this way, the voter’s rights are connected to the rights of the candidates running for election. A direct injury to the party may constitute an injury to the voter, and grant the latter standing to bring his concern before the courts.

 

12.  We emphasize that, even after recognizing a public petitioner’s standing in election matters, we must still examine whether his petition is founded on a solid factual basis or whether, due to the public petitioner’s distance from the conflict, it relies on vague assertions, and does not bring verified facts and data before the Court. See Gilbert [9]; Adalah [8].

13.  In the matter at hand, both Raam and Balad have a direct interest in the respondent’s decision to disqualify the broadcast segments.  Needless to say, they have the right to approach this Court requesting relief, if they believe that the decision has violated their rights. In petitioning for relief, the petitioner does not act as a substitute for these parties.  The petitioner wishes to protect not only the parties’ political freedom of speech, but also the public interest in guaranteeing the rights of the voter.  The voter has the right—a right related to freedom of speech—to both see and hear the full spectrum of political discourse.  Freedom of speech includes not only the candidate’s freedom to express his opinions, but also the voter’s freedom to know—“to see and to hear.” HCJ 549/75 Noah Films. v. The Film Review Board [15]; HCJ 14/86 Laor v. The Film & Play Review Board [16].  Here, the petitioner’s claim concerns the voter’s freedom to receive the messages of the election broadcasts without interference in their contents.  This aspect of freedom of speech grants the petitioner standing to bring the claim that this freedom has been unlawfully restricted.  This is a result of the alleged injury to the voter, and in light of the constitutional status of the right to vote and be voted for in the democratic process, and of the various aspects of the freedom of speech, which is the backbone of the electoral process:

Freedom of speech is a central and fundamental principal, important for realizing the goals of law.  This freedom touches all expression.  It has special significance regarding political expression in general, and especially regarding political expression during elections….One of the principal justifications of the freedom of speech relates to democracy.  The spirit of democracy is lost without freedom of speech… Freedom of speech ensures the exchange of ideas between members of the public, and allows them to form opinions regarding issues on the national agenda…. Only in this way will a person be able to form his own independent opinions with regard to critical issues—both social and national—whose resolution are ultimately in his hands by virtue of his right to choose the state’s institutions.

 

HCJ 869/92 Zweely v. Chairman of the Central Elections Committee for the Thirteenth Knesset, [17] at 706-07 (Barak, J.).

 

In a democratic regime, the freedom of speech during elections requires both the freedom to express ideas and the freedom to receive messages that shape public opinion.  This freedom, at the heart of the constitutional right to vote and be voted for, demands the uninterrupted flow of opinions and ideas. The claim that one's freedom of speech was violated—be it the freedom of the voter or the freedom of the candidate, be it the right to express or the right to hear, see and know—entitles the petitioner to standing, and the doors of this Court will open for him.  For a discussion of foreign countries who broadly interpret a voter’s standing regarding elections, even where the matter does not especially concern him, see Z. Segel, Standing in the High Court of Justice 44 (1993) [20].

 

Petitioner raises a significant constitutional claim concerning the freedom of expression of the parties in the election, a claim that bears on the public interest. Petitioner also represents interests beyond the interests of the two parties here.  It also represents the interests of the voting public, of which its members form a part. As such, the standing of the petitioner should be recognized, and the merits of the petition should be addressed.

 

14.  Though unnecessary to the specific issue at hand, it should be mentioned that Balad was present at oral arguments and expressed its full support of the petition.  It explained that it did not actually submit its own petition for pragmatic and administrative reasons. Such a position demonstrates a mutuality of interest between the positions of the petitioner and one of the parties who has a direct interest in the matter. This greatly diminishes the force of the state’s motion for summary dismissal.

 

Needless to say, the petitioner cannot force Balad and Raam to televise the broadcasts in full, even if the petition is granted.  It may only bring about the judicial invalidation of the limitations imposed upon those parties.

 

For the above reasons, it is appropriate that the petitioner’s standing should be recognized.

 

Respondent’s Decisions—Weighing the Conflicting Interests

 

15.  In HCJ 212/03 Herut—The National Jewish Movement v. Chairman of the Central Elections Committee for the Sixteenth Knesset  [18], this Court set out the limits of the discretion of the Chairman of the Central Elections Committee regarding permitting or disqualifying election propaganda broadcasts.  First, according to Herut, the authority of the Chairman of the Central Elections Committee extends farther than the literal language of section 2B of the Elections Law (Propaganda Methods)-1959. Second, two conflicting goals should also be taken into account by the Chairman—the realization of freedom of speech in political discourse as well as the realization of public peace, in its broad sense.  Freedom of speech is the fundamental principle of the democratic electoral process. On the other hand, there is the public interest in security, peace and public order, including protecting the feelings of members of the public.  A proper balance must be struck between these interests.  In balancing these interests, freedom of speech has the status of a constitutional value. Restrictions on the freedom of speech will only be justified if the expression at issue has the potential to injure another protected value.

 

The Scope of Intervention in the Chairman of the Central Elections Committee’s Discretion

 

16. It is well known that, in deciding whether to ratify or disqualify an election broadcast under section 15A(d) of the Propaganda Methods Law, the Chairman of the Central Elections Committee has broad discretion in balancing conflicting values. A spectrum of possible decisions may fall within the within the zone of reasonableness. This is acceptable provided that a decision of the Chairman does not fall outside the zone of reasonableness, and that the Chairman attributes the proper weight to each of the relevant considerations.  Zweely [17] at 703; Herut [18] at para. 21. 

 

From the General to the Specific

 

17.  We viewed the broadcasts of Raam and Balad, and meticulously examined their contents and the details of the segments that were disqualified.  This examination led us to the conclusion that the petition should be granted.  We have no choice but to intervene in the respondent’s decision to disqualify the broadcast segments and allow the broadcasting of the election broadcasts in full. 

 

In examining the respondent’s decision, we focus on the reasons he gave for his decisions in his response to the petition.  His principal reason was that the disqualification of the segments was intended to prevent injury to the feelings of thousands of families harmed by terrorism, victims of the activities of Palestinian terrorist organizations.

 

The Palestinian flag is indeed a symbol of the national identity of the Palestinians.  As it is the flag of the Palestinian Authority and the PLO, it may possibly be identified with hostile groups involved in terrorist activities against Israeli civilians.  Nevertheless, in order to disqualify the display of the Palestinian flag from election propaganda broadcasts, the contents of the display must have the potential to cause substantial, deep and severe injury to the feelings of members of the Israeli public who may view the broadcasts, especially to those who have been harmed by terrorist activities.  Under the proper balance, only such an injury can justify the restriction of freedom of speech in election propaganda. 

 

After viewing the broadcasts, we hold that no such injury arises from their contents.  Balad’s broadcast lasts a few minutes, during which Knesset Member Bishara speaks before an audience and is seen appearing at various events and meeting with various people.  At the end of the broadcast, the Palestinian flag appears in the background for a split-second, and vanishes immediately.   The display of the flag at the end of the broadcast, the short interval during which it is displayed, and the lack of accompanying words which are aggressive or hostile, greatly reduces the potential injury to the public. 

 

We analyze Raam’s broadcast similarly.  The broadcast is dedicated to the issues of the Bedouin in the Negev.  It presents their troubles while comparing their situation to that of the Jewish population in the area.  At the end of the broadcast, the Palestinian flag is displayed for a few short seconds during a demonstration in which the demonstrators make a "V" sign with their fingers. Here too, this display of the flag for a short time constitutes a marginal part of the broadcast—marginal with respect to the main contents of the broadcast—and is not accompanied by hostile words. As such, the impact of the flag is diluted over the duration of the broadcast.

 

In both of the broadcasts, the display of the Palestinian flag is not central.  It is only peripheral.  It is displayed at the end of the broadcasts and is seen for a split-second. The flag does seize the viewer’s attention.  Under these circumstances, the display of the flag does not have the potential to cause injury that would justify disqualification of the pictures of the flag, the limitation of candidates’ freedom of election propaganda and the limitation of voters’ freedom to absorb the full spectrum of political messages.

 

18.  It should be emphasized that the decision to disqualify should not only be measured by the extent of the injury to the party that wishes to televise the propaganda broadcast. The decision should also be measured by the public interest in televising the decision without any part of it being disqualified. Freedom of speech is the standard here. Any injury to it must stand up to the proper balancing tests. 

 

19.  Though unnecessary to resolution of the issue here, it should be mentioned that there is no factual similarity between this case and the case of Herut [18], where, against the dissenting opinion of the President, we approved the disqualification of Herut’s broadcast.  In that case, the party wished to broadcast a jingle with Arabic words to the tune of  “Hatikva.”  The jingle bordered on contempt towards the national anthem, included praise of Arafat and terrorist organizations, called for the banishment of Jews from Jaffa, Acre, Ramleh and Lod, and associated the greatness of Allah with Jerusalem and “Holy Palestine.” In the first five seconds of the broadcast, the Israeli flag was seen waving above the Knesset as it gradually changed into the Palestinian flag.  A majority of this Court found that such use of the anthem and the flag exceeded appropriate levels of tolerance and held that the decision of the Chairman of the Elections Committee to disqualify the jingle fell within the zone of reasonableness.  The extent of the expected injury to the feelings of the public from the broadcast in Herut [18] cannot be compared to the case here.  In Herut [18], the desecration of the flag and national anthem and all they represent led the majority to conclude that the broadcast could cause severe injury and could even lead to the provocation and incitement.  The presentation of the PLO flag in the broadcasts of Raam and Balad—considering the spatial and temporal placement of the flag, the length of time it is displayed and its relationship to the broadcasts in general—is not at all similar to Herut’s broadcast.  No analogy should be drawn between the two.

 

As such, we are of the opinion that Raam’s and Balad’s broadcasts should be allowed to be televised in full, without the disqualification of any segments.

 

Conclusion

 

20.  In light of the above, we are of the opinion that the order nisi should be made absolute. The election propaganda broadcasts of respondents nos. 2 and 3 should be allowed to be broadcast in full, without the disqualification of any of their segments. 

 

Justice I. Englard

I agree.

 

Justice T. Strasberg-Cohen

I concur with the opinion of my colleague, Justice A. Procaccia, both with regard to the question of the petitioner’s standing in this petition and with regard to the question of the principles and norms which we adopt to guide us in the issue at hand.  The question in any given case is the application of those norms to the facts of each case.

 

The major difference between the facts in HCJ 212/03 Herut—The National Jewish Movement v. Chairman of the Central Elections Committee for the Sixteenth Knesset [18] and the facts in the matter at hand has been clarified and explained by my colleague, and I see no reason to add to her opinion.  The same principles that guided me in both of the cases have brought me to a different conclusion in each of them.

 

Petition granted.

January 23, 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 246/81

HCJ 260/81

         

"AGUDAT DEREKH ERETZ" ET AL.

v.

BROADCASTING AUTHORITY ET AL.

 

 

 

The Supreme Court Sitting as the High Court of Justice

[July 28, 1981]

Before Landau P., Shamgar J., Ben-Porat J., Barak J. and Bejski J.

 

 

Editor's synopsis -

          The Elections (Modes of Propaganda) Law, 1959, provides free radio and television broadcasting time for each of the party lists participating in the Knesset elections. Until 1981, that Law provided that each such party shall receive 25 minutes on the radio and 10 minutes on television, and that each party represented in the outgoing Knesset shall receive an additional four minutes radio time and four minutes television time in respect of each of its members in the outgoing Knesset. An amendment of that Law in 1981 reduced the time allotted to each party participating in the election to 23 minutes on radio and eight minutes on television, while it increased the allocation of radio and television time per member of the outgoing Knesset to six minutes. The effect of this amendment was to decrease the radio and television time allocated to new party lists while it increased considerably the time allocated to the large parties represented in the outgoing Knesset. The amendment was not passed by an absolute majority of the members of the Knesset, as is required in the case of legislation that concerns elections and that deviates from the principle of equality.

         

          The Respondents appear in response to orders nisi, issued at the request of the Petitioners who argue that the amendment violates the principle of equality in elections and is therefore void, not having been enacted by the required absolute majority. The court, composed of five Justices, ruled unanimously that the order be made absolute. The five Justices delivered five separate opinions, each setting forth his reasons for the decision.

         

          The President of the court, Justice Landau, repeated his assertions in the Bergman case, supra, p. 13, to the effect that equality of opportunity in elections cannot be measured mechanically. Therefore, the substantial discrepancy in the broadcasting times allocated to the various lists under the amendment is not in and of itself determinative of the issue. Although there is a presumption in favor of the validity of legislation enacted by the Knesset, examination of the legislative history in this case reveals that at no point did the Knesset give any consideration to the impact of the amendment on the rights of new party lists, but rather, it completely disregarded this issue. In these circumstances, the presumption of validity fails and the amendment is invalid.

         

            Justice Barak thought that the amendment fails to meet the requirement of equality since it does not allow small parties and new parties the time minimally necessary to enable them to present their views before the public while it gives the large veteran parties more than such minimal time. Although he agreed that the issue could not be determined mechanically, he was of the opinion that the judge's common sense, experience and sense of expertise enable him to distinguish between the permitted and the forbidden. In this respect, the decision is no different from judicial decisions frequently made concerning the fairness and reasonableness of acts done by government officials.

           

            Justice Shamgar reaffirmed his preference for as simple and basic a standard of formal equality as is possible. Agreeing that there are circumstances and considerations which would justify deviations from such formal equality, he expressed the opinion that Basic Law: The Knesset provides for such contingencies but requires that the deviation be voted by an absolute majority of the Knesset. This approach is preferable, in his opinion, to the alternative, which waters down the concept of equality by taking into account other ideals and which results in the loss of any clear constitutional standard to serve as a guideline to the legislature.

           

            Justice Bejski thought that all that could be demanded was relative equality, not absolute equality. surveying the solutions adopted in many countries, he concluded that even relative equality entails no small amount of problems. In his opinion, the principal fault of the new Law lies in the large and unreasonable gap that it creates between the broadcasting time allocated to large existing parties and that allowed new parties. This gap violates even the relative equality required by the Basic Law and, therefore, must be approved by an absolute majority of the Knesset.

           

            Justice Ben-Porat pointed out that the allocation of equal time to each party is not a sine qua non of formal equality, since such formal equality might be achieved by means of some other criterion, such as one based on the relative sizes of the parties. The equality of opportunity to which the new parties are entitled requires allocation of time that is sufficient for their need to present their platform and special message before the viewing public in order to justify their presence in the Knesset. This standard was not met in the Amending Law.

           

Note -As indicated in the opinions, the supreme Court handed down its decision shortly after the argument but did not give its reasons at that time. The Knesset responded to this decision by re-instating the wide gaps in the allocation of broadcasting time with some slight changes. The new legislation was enacted by the required absolute majority in all three readings, all in a single day, just seventeen days after the court's decision to invalidate the Law, and was made effective retroactively in order to legalize the broadcasts that had been made under the Law that was invalidated. Only six weeks later, after the elections had taken place, did the court give the reasons for its decision. It has been suggested that had the Justices revealed their reasons earlier, perhaps the Knesset might have been more impressed by the court's high regard for the value of equality. see Klinghoffer, "Legislative Reaction to Judicial Decisions in Public Law", 18 Israel Law Review 30, 31-34 (1983). Compare, however. the legislative developments after the Rubinstein case (infra, pp. 60-62).

 

Israel cases referred to:

[1]   H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693; S.J. vol. VIII, supra p. 13.

[2]   H.C. 60/77, Ressler v. Chairman of Knesset Central Elections Committee 31P.D.(2)556.

 

American case referred to:

[3] Regents of the University of California v. Bakke 438U.S.265(1978).

 

Y. Leshem, A. Ramot for the Petitioners in H.C.246/81.

M. Corinaldi for the Petitioner in H.C.260/81.

R. Yarak, Senior Deputy State Attorney, for the Respondents.

 

JUDGMENT

 

          LANDAU P.: On May 29, 1981 the orders in these two petitions were made absolute, in these terms:

         

          We are of the opinion that for the passage of the Elections (Modes of Propaganda) (Amendment No. 6) Law, 1981, a majority of Knesset members was required in accord with the concluding portion of section 4 of Basic Law: The Knesset, and for that reason it cannot be acted upon unless its provisions are adopted by the required majority. In this sense we make absolute the order nisi in the two petitions against the Broadcasting Authority, the first Respondent. There is no order as to costs in the two petitions.

 

And these are my reasons for making the orders absolute:

 

          Sections 15 and 15A of the Elections (Modes of Propaganda) Law, 1959 (pursuant to the Elections (Modes of Propaganda) (Amendment No. 3) Law, 1969) provide that each of the parties participating in the Knesset elections shall receive for the broadcasting of election propaganda, 25 minutes on the radio and 10 minutes on television and, in addition, each of the parties represented in the outgoing Knesset shall receive 4 minutes on the radio and 4 minutes on television in respect of each of its members holding office in the outgoing Knesset.

         

          On March 16, 1981 a private bill proposed by Knesset members Ben-Meir, Virshuvsky, Hashai and Corfu was published in Reshumot (Elections (Modes of Propaganda) (Amendment No. 6) Bill, 1981). The bill proposed that section 15 of the Elections (Modes of Propaganda) Law allow with respect to the radio, a broadcasting time of 23 minutes instead of 25 minutes for each party and each candidates list and, in addition, 6 minutes for each Knesset member of each party represented in the outgoing Knesset; with respect to television it was proposed to amend section 15A so that each party and candidates list be given 8 minutes of broadcasting time instead of 10 minutes and, in addition, each party represented in the outgoing Knesset would be given 6 minutes instead of 4 minutes for each of its Knesset members. In the explanatory notes to this private bill it was said:

         

            The present version of the Law creates an unreasonable situation concerning the time allotted to a party group with one Knesset member as distinguished from the time allotted to a party group with a larger number of Knesset members.

 

The present bill is intended to temper slightly the ratio of the two time quotas but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

 

            This private bill passed the preliminary reading on March 4, 1981 and it was decided to refer it to the Constitution, Law and Justice Committee for preparation for the first reading. It passed the first reading on March 23, 1981 and the second reading on April 1, 1981, after a reservation of Knesset member Shulamit Aloni to section 2 of the bill, concerning television broadcasts, was rejected by a majority of 5 votes against 4, and thereafter the entire bill passed the third reading. The proceedings of the session do not note by what majority the bill passed each of the three readings, but it is not disputed that no more than a dozen Knesset members were present at the session of the second and third readings - a number that is far from a majority of the Knesset members.

           

            The Petitioners in the two petitions before us, "Agudat [Association] Derekh Eretz" (H.C. 246/81) and "Shorashim [Roots]..." (H.C. 260/81) -both Ottoman societies that intended to submit new candidates lists for the elections to the tenth Knesset but were not represented in the outgoing ninth Knesset - argued that the above mentioned Elections (Modes of Propaganda) (Amendment No. 6) Law, 1981 (hereinafter "the Amendment No. 6 Law") is invalid because it contradicts the requirement of equality in section 4 of Basic Law: The Knesset, and that the Amendment No. 6 Law did not pass by the required majority, that is, a majority of the Knesset members, as provided in the conclusion to section 4 of the Basic Law. Orders nisi were issued against the Broadcasting Authority and the Chairman of the Central Elections Committee for the Tenth Knesset and the Central Elections Committee itself.

           

            As in the case of Bergman v. Minister of Finance [1], which dealt with the Knesset and Local Authorities Elections (Financing, Limitation of Expenses and Audit) Law, 1969, this time, too, complex constitutional issues could have arisen concerning justiciability and the power of a later Knesset to deviate in ordinary legislation from an "entrenched" provision in a basic law adopted by an earlier Knesset. There the court refrained from dealing with these issues, and we shall act likewise this time - and in the present case we have before us an explicit written statement on behalf of the Attorney General, in paragraphs 4 and 5 of his arguments in response to the order nisi, that he does not intend to raise those issues since he wishes the court to decide on the merits of his arguments concerning the Amendment No. 6 Law, to the effect that this Law does not contravene the equality principle in section 4 of the Basic Law and, therefore, an ordinary majority was sufficient for its adoption. This was the issue upon which we deliberated in these two petitions.

 

            Before examining this question we must dispose of a procedural argument made by Mr. Yarak, who represented the Respondents in an intelligent and dignified manner as befits the weighty matter before us. He argued, in passing, that the large party groups in the outgoing Knesset should have been summoned to the hearing of these petitions since they will lose the additional broadcasting time that the Amendment No. 6 Law gives them if that Law is declared void. I do not intend to delve into the general issue of the parties to whom a petition of prime constitutional character, such as the two present petitions, should be addressed, and whether any person who might argue that the subject of a petition affects his interests should indeed be summoned to the proceedings. In any event the argument must be dismissed in the present instance because, as already mentioned, the Central Elections Committee was made party to the hearing and, therefore, the fact that these petitions are being heard before the court was brought to the attention of the party groups represented in the Committee. Anyone interested in participating in the proceedings could have applied to the court by motion to be joined as a Respondent and to make himself heard. Apparently the large party groups believed that they could depend on the representative of the Attorney-General to present an argument to the court that would adequately protect also their interests - and indeed that has been the case.

           

            Another contention made by Mr. Yarak, which must be dismissed immediately, is that the provision in section 4 of Basic Law: The Knesset, that the Knesset shall be elected by "equal ... elections ... in accordance with the Knesset Elections Law", should be read to include the Elections (Modes of Propaganda) Law. Such a construction is incongruous with the statutory language, since "the Knesset Elections Law" (in the singular) clearly refers to the Knesset Elections Law and no other Law, even if its subject is related to the Knesset elections.

           

            Mr. Leshem, on behalf of the "Derekh Eretz" Association, and Dr. Corinaldi, on behalf of the Shorashim movement, who endorsed Mr. Leshem's arguments and supplemented them, made the Bergman case [1] the point of departure for their arguments. Indeed, the two matters - the funds that the parties receive from the state treasury to finance the Knesset elections, a significant (if not the greater) part of which are spent on election propaganda, and the matter of election propaganda by way of radio and television - are closely related. In Bergman the equality principle in section 4 of Basic Law: The Knesset, was construed to extend to equality of opportunity for the lists competing in the Knesset elections, including the new candidates lists unrepresented in the outgoing Knesset. That principle should also be applied to the use of state-controlled media, which have forceful impact on the public - a captive audience to the television (this being the primary concern) which broadcasts on a single channel leaving the viewer no refuge (unless he is resolute enough to turn the set off). Two points should nevertheless be emphasized: first, the Financing Law, which Bergman held to be invalid, purported to give nothing to the new lists, whereas the Amendment No. 6 Law leaves something for the new lists (8 minutes on television and 23 minutes on the radio); second, and no less important, no one argues that equality in this matter means mechanical equality. The Bergman judgment itself intimated as much, with reference to the subject of financing ([1], p. 699):

 

... [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. ... This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. ... [A]ll agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. And all agree furthermore that the principle of equality in financing should not be applied in such a way as to encourage the submission of candidates lists that would not have formed at all were it not for the temptation that they would receive an advance against the funding. We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond, and the fact that its representatives do not participate in the election committees except as observers after publication of the list. All these restrictions inevitably derogate from absolute equality.

 

            The same applies to the election propaganda broadcasts, and perhaps even more so. The large "historical" parties that are vying with each other for primacy in the next Knesset, naturally require far more time than a newly created list so as to give an account to the voter of their actions in the near and far past and to criticize the shortcomings of their opponents. Mechanical equality of the thirty-one lists submitted in the elections for the tenth Knesset, in the allocation of equal time slots to each of them, would cause serious distortion in the sense of summa aequalitas summa iniuria. Mr. Yarak also rightly pointed out that the large parties alone are subject to a special statutory limitation, since their leaders may not appear in the frame of the general television broadcasts even if they take part in events that are suitable material for coverage as daily news. If the large parties insisted on their full quota and every other list also received an equal time allocation, one can easily imagine the flood of verbiage that would descend on the public to a degree that renders all of this propaganda valueless to the stupefied viewers drowning in the spate of colorful propaganda sent forth by thirty-one lists. That, clearly, would fail to realize the lofty idea of equality before the law, but rather would create a caricature of the democratic process of elections.

 

            It follows, necessarily, that the equality mentioned in section 4 of the Basic Law, as applied to election propaganda, need only be substantive equality with due consideration given to the factors that distinguish a new list from a large party, and even a new list from an existing small party. But where should the permitted line be drawn upon these considerations? It is pointless to seek an exact formula for guidance in this matter. All that can be said is that the equality principle in this sense is violated when a new list is wholly denied a fair opportunity to present itself and its platform to the public. All agree that they may not be silenced nor denied a right of appearance, free of charge, on the electronic media. But what is the minimal time required for that purpose, below which their appearance before the viewer becomes substantially ineffective?

           

            At first I was of the opinion that we would find guidance in this matter from the Elections (Confirmation of Validity of Laws) Law, 1969. This Law, which was enacted, as will be recalled, as a result of the Bergman decision [1], provided "for the removal of doubt" that the provisions in the election Laws are valid for the purpose of any Law and any matter from the date of their coming into force, and "election Laws" also include the Modes of Propaganda Law in its version at the time the above Confirmation Law came into effect. I thought that this Confirmation Law set the line of equality as regards broadcasting time in accord with the provisions of sections 15 and 15A in their original version, the validity of which was confirmed in that Law. It should be noted here that in the Knesset debate on the Elections (Modes of Propaganda) (Amendment No. 3), Law, which introduced the original arrangement, the then chairman of the Constitution, Law and Justice Committee, Knesset member Moshe Una, voiced the opinion that the time allotted to the small parties and to the lists appearing for the first time was insufficient for them to present their concerns in a complete manner (see D.H. 55 (5729-30) 3661, right column). I am persuaded, however, that this Law should not be referred to for guidance in resolving the issue before us. This court discussed it in the Ressler case [2]. The conclusion from the discussion there is that the Confirmation Law indeed ratified "the election Laws" mentioned therein by virtue of the absolute majority with which it was passed consonantly with the concluding portion of section 4 and section 46 of Basic Law: The Knesset. But it says nothing with respect to the question whether the validity of the election Laws or any of their provisions, that were confirmed for the removal of doubt", was in any event consistent with the equality principle in section 4, or whether they were confirmed despite their inconsistency with the equality principle.

           

            The question, therefore, remains: is the allocation of 23 minutes on the radio and, especially, of 8 minutes on television beneath the limit of tolerance? In this respect learned counsel for the Petitioners emphasized the huge gap between the time slots allotted to the large parties and those allotted to the new lists. Not only was "the poor man's lamb stolen"* from the small ones, in reducing their already meager time slots (8 minutes instead of 10), but the large ones received additional broadcasting time, beyond that which they were entitled to previously. Mr. Leshem calculated that in this way a party numbering 30 Knesset members gained 58 more minutes on television, and that the difference in percentage between such party and a new list rose from 1200% to 2350%.

 

            I admit that I was not much impressed by these calculations, for having found that mechanical equality between an existing large party and a new list is immaterial as regards broadcasting times, there is no reason to hang the decision on this or that algebraic ratio, but rather, as aforesaid, the new list must be assured of the minimal time required for effective propaganda on television and radio. Whoever wishes to invalidate a law of the Knesset bears a heavy "burden of proof', for the Knesset is presumed to have acted within the framework of section 4 of the Basic Law. As stated in the Bergman case (at p. 699):

 

              [A] Law of the Knesset is presumed to be valid as adopted. Therefore this court's primary inclination must be to uphold the law and not to strike it down, even when the argument against it is that it contradicts an "entrenched" statutory provision ...

           

            As for myself, I would be prepared to go far in accepting the decision of the Knesset, as expressed in the Amendment No. 6 Law, since we do not have any substantiated data that ten minutes (according to the original Law) is a sufficient and reasonable time for a new list's television propaganda, whereas eight minutes is less than sufficient and reasonable. Eight minutes might suffice for one person to succeed in his efforts at persuasion, whereas another would not succeed in twice that period of time - all according to the speaker and the audience.

            When does this apply? When we have some indication that the Knesset indeed considered the rights of new lists. I found no such indication in the short "legislative history" of the Amendment No. 6 Law. I have already cited above the explanatory notes to the private bill that was initiated by the four Knesset members. There the issue is presented as a matter of doing justice to the large party groups as opposed to a one-member party group. The small ones are entitled to the basic time slot of 10 minutes for the party group and 4 more minutes in respect of the personal time slot of the single Knesset member, while the large party group is entitled only to the same basic time slot and the personal time slot in respect of each of its members. Thus in the final account the Knesset member from the one-man list is entitled to a larger time slot than the individual Knesset member from the large party group. That wrong is rectified by reducing the basic time slot and enlarging the personal time slot. One could challenge this explanation on the ground that the contestants in our system of Knesset elections are the lists, and not the individual candidates on the list. But the. main shortcoming is that there is also a third side to the problem, that is, the new lists whose equality of opportunity in the elections must be preserved, as explained in the Bergman case. They are principally prejudiced by the new arrangement because their basic time slot is reduced without any increment with respect to their personal time quota. The explanatory notes totally ignore their position, advertently or otherwise. The concrete result of the new proposal, in the overall account, was to add four hours of television broadcasts with respect to the personal quota, mostly to the benefit of the large lists, against a saving of two minutes in respect of each of the lists on account of the basic quota of the party groups as such, including the new lists whose interests, it seems, were totally overlooked.

 

            This was the case throughout the debates on the bill. At the preliminary reading M.K. Yehuda Hashai repeated the explanatory notes on behalf of the proposers without any mention of the new lists. Similarly, at the first reading M.K. Hashai again explained the bill as an issue between an existing large party group and an existing one-person party group, without further ado. During the debate on this reading M.K. Shulamit Aloni, in passing, mentioned new lists together with existing small lists, but her statement evoked no response. This situation recurred at the second and third readings, when M.K. David Glass, chairman of the Constitution, Law and Justice Committee, again presented the issue without mentioning the amendment's effect on new lists. M.K. Aloni commented again on the situation of a new party group "which, in any event, is in a Procrustean bed; and here its time is reduced even more", but her words fell on deaf ears, and the proposers of the bill did not attempt in any way to discuss the matter.

           

            In view of all this I am constrained to conclude that the Amendment No. 6 Bill was presented to the Knesset, in all its readings, in complete disregard of the important issue of preserving the new lists' equality of opportunity - the issue that was raised before us in these two petitions. This issue was not given any parliamentary consideration. Therefore, it should not be considered in these petitions on the presumption that the Knesset did not deviate from the provisions of an entrenched statutory enactment - the presumption that ordinarily applies to every Law adopted by the Knesset, even by a simple majority of a small number of Knesset members who voted for it. I am of the opinion that in these circumstances the Amendment concerned constitutes a violation of the equality principle that cannot be tolerated. For this reason I voiced the opinion, together with my esteemed colleagues, that the Amendment No. 6 Law should not be acted upon unless its provisions be adopted by a majority of the Knesset members as required under section 4 of Basic Law: The Knesset.

 

            BARAK J.: The equality principle determined in section 4 of Basic Law: The Knesset does not mean merely "one man one vote" but also "equality of opportunity for the various candidates lists that compete in the Knesset elections" (in the words of Landau P. in the Bergman case ([1], at 698). This equality does not mean merely equality as between the large lists or as between the small lists or as between the lists that are represented in the outgoing Knesset. Equality of opportunity means equality of prospects and opportunity as between all the lists participating in the elections. Therefore, equality of opportunity must be attained between a large list and a small list; between a list represented in the outgoing Knesset and one unrepresented in the outgoing Knesset. The need to attain this equality raises two inherent questions: first, what are the legal standards that determine equality of opportunity among all the competing lists? second, did the Knesset adhere to these standards when it enacted the Elections (Modes of Propaganda) (Amendment No. 6) Law (hereinafter - the Amendment No. 6 Law)? I shall deal with each of these questions separately.

           

The standard with regard to equality of opportunity

 

            2. The starting premise, in my view, in determining equality of opportunity between the various lists, large and small, old and new, is that one should not adhere to a standard that equates equality with identity. Granting the same time to each list certainly results in identity ("formal equality") but does not create equality ("material equality"). The reason is that the starting positions of the various party lists are not uniform. The large, veteran list, which takes a stand on a broad range of topics, must naturally spend more time on explaining its positions, platform, personalities, acts and omissions, failures and successes, than a newly formed list which takes a stand on defined, specific topics. Therefore, to secure equality of opportunity for these two lists at the finishing point they must be given different amounts of time at the starting point. Indeed equality of opportunity is often secured by non-identical allocation of resources. In the words of Professor J. Stone ("Justice in the Slough of Equality", 29 Hastings L.J. (1978) 995, at 1012):

           

              Equal treatment can and often does mean, especially in the welfare state, treatment by a differentiating rule which yields a greater residual equality between the subjects.

           

            By varying the measure of the time allocation one can lead lists that start from unequal points to equality of opportunity at the finishing line. There is no paradox in acting differentially so as to achieve equality. Blackmun J. expressed this well in Regents of the University of California v. Bakke ([3] at 407):

           

            ... in order to treat some persons equally, we must treat them differently.

           

            Indeed, granting the rich and the poor an equal opportunity to sleep under a bridge does not create equality between the two as regards the chance of a good sleep.

           

            3. We have said that identity in allocating broadcasting times does not ensure equality of opportunity to the competing lists. How can we ensure equality of opportunity? For that one must ponder the meaning of equality of opportunity. What is the purpose of the equality that we want to achieve? In the present context it appears that equality of opportunity means equality of opportunity to compete for the voter's ballot. To maintain this equality of opportunity, two requirements must be satisfied:

           

            First, one should not allow a situation to develop in which some of the lists have adequate time to explain to the voting public their platforms, personalities and distinguishing features, while other lists do not have such adequate time. Equality of opportunity does not exist where the time at the disposal of one list allows it to present itself properly while the time at the disposal of another list does not so allow.

           

            Second, one should not allow a situation to develop in which some of the lists have time that is sufficient only to show their "identification card" to the public, while other lists have time that is not only sufficient to explain their positions but is also left over for additional use, not given to the first lists, in competing for the voter's ballot. The existence of this additional time for some of the lists creates an inequality of opportunity, since some of the lists can only explain their platforms, whereas other lists can undertake additional functions. These additional activities find external expression mostly in the fact that in the voter's consciousness, the list which does not have additional time becomes blurred and absorbed in the additional "residual" time that allows the other lists to dominate the media.

           

            It follows that in order to secure equality of opportunity in the elections each list should have at its disposal the amount of time - no more and no less - that allows it to present its platform and positions to the voting public in proper fashion. If some lists receive time that is not sufficient to present their platforms properly then, in order to secure equality of opportunity, one of two measures must be taken: either to bring about a similar "deficiency" with the other lists or to fill in the deficiency of the lists that are short. Similarly, if some lists get "additional" time beyond what is necessary for proper presentation of their platform then, in order to secure equality of opportunity, one of two measures must be taken: to give additional time to the remaining lists as well, or to abolish the additional time itself.

 

            4. One could say - and it has been argued before us - that the effect of allocating election broadcasting time according to the above-mentioned standards would be the devotion of considerable broadcasting time to the various lists. Naturally this time would come at the expense of alternative use, such as news coverage, culture and art shows, and the like. Moreover, the provision of a minimum broadcast time for each new list, might be an incentive for ephemeral lists to take part in the election process, which could in turn cause fragmentation of the political map and prevent a stable regime. These arguments are all very well, and perhaps right, but they have nothing to do with the equality principle. Whoever argues that too much time is spent on election propaganda and that it should be reduced to prevent political fragmentation etc., is not making an argument about equality, but rather about other principles that are more important in that person's eyes than the equality principle. It is true that equality is not the only principle that ought to be considered. Often an unequal effect can be justified on other grounds, such as national security, political stability, and similar considerations that appear to the person weighing them more important than the equality principle. Professor I. Berlin said in this respect ("Equality", 56 Proceedings of the Aristotelian Society (1955-56), 301, at 317):

           

            ...in considering what kind of society is desirable, or what are "sufficient reasons" for either demanding equality or, on the contrary, modifying it in specific cases, ideals other than equality conspicuously play a vital role.

           

            Therefore, if the Knesset wishes to prevent the allocation of time as required under the principle of equality, because it wants to achieve other goals that it regards as more important, it has the power to do so by modifying the principle of equality as determined in section 4 of Basic Law: The Knesset, in a legislative act that is passed by a majority of the members of the Knesset. The legitimacy of that Law would not derive from the equality principle but from the special majority that adopted the Law, despite its incompatibility with the equality principle.

           

            5. In the Bergman case, Landau P. said the following with respect to equality of opportunity:

           

            [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. ... This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer.

           

            I respectfully agree with these words, so long as it is made clear that this "retreat" from the equality principle can be maintained only if the other important principles find expression in a statute that is adopted by a majority of the Knesset members, and that otherwise the equality principle must prevail. One cannot - in logic or law -justify a deviation from the equality principle in its substantive sense on grounds of the same equality principle. Any deviation from the equality principle, whether in its "primary" sense (one man, one vote) or in its "secondary" sense (equal opportunity), must be effected in the manner determined in the Basic Law, that is, through legislation adopted by a majority of the Knesset members. Of course this relates to a significant and substantial deviation from the equality principle and not a trivial deviation.

           

Equal opportunity in the Amendment No. 6 Law

 

            6. Does the Amendment No. 6 Law secure equality of opportunity, as defined by us? It would appear that in order to answer this question one must define the standards that determine the differences and the differentiation between the various lists. According to these standards one can consider whether the allocation of time in the Amendment No. 6 Law realizes the principle of equal opportunity. Determining these standards is very difficult. Aristotle defined justice as equal treatment of equals and unequal treatment of unequals, all this being relative to the relevant difference between them. But how are we to determine such relevant difference? Is the size of the list determinative? Is the range of the issues dealt with by the list the decisive factor? These and other questions are difficult because one must take into consideration the new lists, whose size is an unknown, and who wish to compete for the voter's ballot. It seems that all agree that the standards should not merely perpetuate the existing situation, since the opportunity for change lies at the core of elections. But what are the proper standards? (See E. Katz, "Platforms and Windows: Reflections on the Role of Broadcasting in Election Campaigns", 48 Journalism Quarterly (1971) 304 at 311.)

           

            7. I have reached the conclusion that we do not need to answer these hard questions in the present case and that we can leave them open for further consideration, since whatever the proper standard may be, the time allotted to the various lists in the Amendment No. 6 Law is unable to bring about equality of opportunity. This for two reasons:

           

            First, the time slot of eight minutes allotted to the new lists for television broadcasts does not allow (all or some of) the new lists to present their position to the public in a proper way. In this respect one should bear in mind that neither new nor veteran lists can buy additional broadcasting time, and all they have - in view of the Broadcasting Authority's monopolistic status - are those same eight minutes spread over a period of one month. In my view this short time is not sufficient for (all or some of) the new lists properly to present their platform and candidates, while attempting to clarify their distinguishing features and to give a satisfactory reply to the criticism leveled against them by other lists during the course of the election broadcasts.

 

            Second - and, in my view, more important - the veteran large lists were given broadcasting time that is far longer than the minimal time required to present their positions properly. This additional time is generally used by them for ongoing response to election events, for broadcasting news items that cannot be covered in the regular news programs because of restrictions in the Elections (Modes of Propaganda) Law, and for other activities. This additional time is not given to the new lists or the small veteran lists. Indeed, it appears that the result- which is a side effect of the difference in broadcasting times - is that the public finds the new as well as the small veteran lists submerged in the large amount of time at the disposal of the large veteran lists. It appears that the impression made by the new and the small veteran lists is blurred, and that only the large veteran lists remain in the voter's consciousness. Indeed, in my research I did not find any state in the world where the gap between the time designated for new or small veteran lists and that designated for large veteran lists is as great as in Israel (see Hand, European Electoral Systems Handbook (1972) 39, 70, 107, 205).

 

            8. In light of this approach, I do not need to resolve the troublesome question whether the very fact that each new list receives the same time does not violate the equality principle, since the new lists differ in the number of their members, the range of issues that concern them and their modes of propaganda. A similar problem arose also in the Bergman case, with respect to party financing, but the available solution in that situation is that after the elections the new lists that pass the minimal percentage of votes are entitled to funding which reflects their success in the elections. Retrospectively, therefore, the funding for each new list is not identical. A similar arrangement is not possible with respect to propaganda time, because it is not an asset that can be borrowed and compensated for after the elections. It is indeed possible that the very fact that new lists take part in the elections prevents equal application of time allocation because of the special nature of the matter. If that is so, there may be no solution in this matter other than the enactment of a special Law that is passed by a majority of the Knesset members, and which allows for a suitable arrangement that is not compatible with the equality principle.

           

            9. I have expressed my opinion that the Amendment No. 6 Law contradicts the principle of equality in that it fails to grant new as well as small veteran lists the minimal time required for proper election propaganda, while it grants the large veteran lists additional time beyond the minimal requirement. One might ask what grounds there are for this conclusion? The answer is that the tools at the disposal of the judiciary in this matter are limited, and the task difficult. Ultimately one can only resort to common sense, life experience and the lawyer's expert sense. In principle this decision is no different from judicial decisions frequently made as to the reasonableness and fairness of acts done by state officials. Indeed, if we do not have the tools to decide whether a reduction in the new lists' television broadcasting time from ten to eight minutes violates the equality principle, then neither do we have the tools to decide whether a reduction to six or four or two minutes violates the equality principle. Is such a result conceivable? And if common sense, life experience and the sense of expertise can set a boundary between the forbidden and the permitted, between equal and unequal, then why should it be possible to distinguish between four and two minutes (for example) and not between ten and eight minutes (for example)? I am indeed aware that in exercising judicial discretion we are not acting in an exact scientific manner, but I fear there is no better alternative.

           

            10. I have reached the conclusion that the Amendment No. 6 Law violates the equality principle without referring at all - with respect to resolving the equality issue - to the legal situation that prevailed before the amendment under the Elections (Modes of Propaganda) Law, the validity of which was confirmed "for the removal of doubt" in the Elections (Confirmation of Validity of Laws) Law, adopted by a majority of the Knesset members. Is this the right path? Should it not be said that the legal situation in effect before the Amendment No. 6 Law, in light of its confirmation by a majority of the Knesset members in the Election (Confirmation of Validity of Laws) Law, constitutes an arrangement that is consistent with the equality principle, and therefore all that needs to be examined is whether the change effected by the Amendment No. 6 Law is substantive - and forbidden, or minor - and permitted?

           

            In my view the only issue before us concerns the relationship between the Amendment No. 6 Law and the principle of equality as determined in section 4 of Basic Law: The Knesset. We need not deal at all with the relationship between the Amendment No. 6 Law and the arrangement concerning radio and television propaganda in the Elections (Modes of Propaganda) Law, as confirmed in the Elections (Confirmation of Validity of Laws) Law. The reason is that there is no assurance that the earlier Law was not itself tainted with a violation of the equality principle. Even if that were so - and this question is not before us in any way - it is clear that one deviation from the equality principle cannot be justified by an earlier deviation from that principle. The time allocated prior to the Amendment No. 6 Law, determines a standard for the legality of the broadcasts. It does not determine a standard for equality in them. The broadcasts might be legal, even though they violate the principle of equality.

 

            11. As noted by the esteemed President, the Elections (Confirmation of Validity of Laws) Law determines that the provisions contained in the Knesset Elections Laws - including the Elections (Modes of Propaganda) Law - are valid for any purpose or matter. It follows, in my view, only that the broadcasting times determined in the Elections (Modes of Propaganda) Law (before its amendment by the Amendment No. 6 Law) are legal and valid. I am not prepared to say - without further examination - that those broadcasting times are adequate and reasonable. Moreover, I am prepared to assume that the majority of the Knesset members assumed that they were not exploiting the new lists. But I am not prepared to assume, without further examination, that the new lists were not in fact exploited. Ultimately the question before us is not whether the time allotted in the Elections (Modes of Propaganda) Law is adequate or reasonable, and whether it exploits the new lists or not. The only question before us is whether the allotted time is consistent with the equality principle. It is possible that the time is reasonable according to various criteria of reasonableness, but does not create equality according to the rules of equality. Equality and reasonableness are not one and the same thing. To give each of ten guests an identical portion of cake might be an act of equality, but it would be unreasonable if one of the guests dislikes cake. It all depends on the standard according to which equality is determined, and upon the standard according to which reasonableness is determined. These standards are not necessarily identical.

           

            12. My esteemed colleague, the President, points out that the legislative history of the Amendment No. 6 Law shows it was enacted in total disregard of the question of equal opportunity for the new lists. This legislative history is indeed instructive, and it supports my conclusion that the Amendment No. 6 Law violates the equality principle. However, I am not willing to rest the entire decision on this legislative history. I myself would have reached the same conclusion even if it transpired that Knesset members had expressed the view that the change does not affect the new lists and maintains their equality of opportunity. Ultimately the decision must be made upon analysis of the law and not upon psychoanalysis of the legislature.

           

            SHAMGAR J.: 1. Section 4 of Basic Law: The Knesset provides:

           

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

           

            This provision in the Basic Law delineates the constitutional principles that determine our electoral system. Some of these principles are an inalienable part of every democratic system of elections, since no system worthy of that title can take shape and exist without them - e. g., the principles that determine general, equal and secret elections. Other such principles are the statutory expression of a choice between alternatives that are optional in democratic regimes, e.g., the principle that determines national and proportional, as opposed to regional, elections.

           

            2. The introductory part of section 4, as cited above, also refers to the Knesset elections "in accordance with the Knesset Elections Law". These words do not serve to modify or interpret the constitutional principles with which section 4 opens, nor do they determine that anything provided in the Knesset Elections Law, as amended from time to time, automatically validates the constitutional aspects of such statutory provision as regards its compatibility with the foundations of the elections system laid down in section 4. The meaning of section 4 is that the Knesset shall be elected by general, national (etc.) elections, in accordance with the processes and specified procedures determined in the Knesset Elections Law. In addition, therefore, to the determination of principles, there is also a complementary reference to the procedural element. These two main components in the opening portion of section 4, i.e., the constitutional elements on the one hand and the referral to the particularization in the Elections Law on the other hand, are separate but cumulative substantive provisions that relate to different areas: the one, as aforesaid, to the guiding principles, and the second to their translation into concrete processes; but that translation cannot, by its very nature, override the duty to maintain the principles.

           

            The reference to the Knesset Elections Law is governed by the rule of interpretation found in section 41 of the Interpretation Ordinance [New Version], since there is no provision that limits its application with respect to basic laws, and also since there is nothing in the context or substance of the matter from which one could infer otherwise; that is, the above mentioned phraseology of section 4 does not, as it were, refer at any given time to the Knesset Elections Law in its current form, as opposed to the said Elections Law in its version at the time that Basic Law: The Knesset was enacted. There is nothing, therefore, in the wording of the section that limits the phrase "in accordance with the Knesset Elections Law" to any initial version. Likewise, there is nothing in the wording of the opening portion of section 4 in general, or in the phrase "in accordance with the Knesset Elections Law" in particular, that limits the effect of the closing portion of section 4, according to which any variation with respect to the constitutional elements enumerated in the opening portion of the section requires a special and specific procedure, as provided there.

           

            To summarize this point: the principles embodied in the above-mentioned section 4 are self-sustaining and independent, and constitute a binding guideline that cannot be varied by way of an amendment to the Knesset Elections Law unless the legislation is passed in the manner determined in the concluding portion of section 4. The reference to generality, nationality, equality and the other elements determines guiding principles that reflect upon the system and fashion its character. The words "in accordance with the Knesset Elections Law" refer to specific procedures, as opposed to the said principles, but one may not infer from the text of section 4 that a statutory provision in the Knesset election Laws can in itself modify those principles without having been passed by the required majority, or that such was the legislature's intention in formulating the principles and the words "in accordance with the Knesset Elections Law" in one textual sequence.

           

            3. And now we come to the principle of equality, the meaning of which has been examined by us in these petitions.

           

            According to the mode of interpretation that commends itself to me, the words "equal.. .elections" relate to formal equality, that is, to as simple and basic a standard as is possible, any deviation from which requires passage by a majority of the Knesset members. I have used the words "as is possible" because even the determination of formal equality entails no small degree of theoretical and practical problems.

           

            Equality of rights has the aura of an absolute standard, as if it concerns the result of a mathematical calculation (J. Stone, "Equal Protection and Search of Justice" [1980] Ariz.L.Rev. 1), but its actual application frequently illustrates that formal equality does not necessarily and in all circumstances coincide with the just and fair, as where equal portions are given to both needy persons and those not in need. Furthermore, the Aristotelian point of departure mentioned by my esteemed colleague, Barak J., according to which equality means equal treatment of equals and unequal treatment of unequals, still leaves open the determination of attributes and components that measure equality, and their evaluation and measurement in the concrete case. The difficulty in determining the complex of relevant attributes and components that create the "badge of entitlement" (see Stone, ibid., at 6) is not the only factor that makes it difficult to actually apply the standard of equality, and the theoretical offshoots of the problems that are formed in this area are innumerable. One ensuing question is, for instance, whether immediate equality achieves a just result, or whether there are circumstances in which equality can be achieved only by adopting measures of unequal treatment, as in the application of reverse discrimination (see, inter alia, the deliberation of this issue in the decision of the U. S. Supreme Court in the Bakke case [3], at 272).

           

            I have raised these matters to illustrate that equality, too, as a formal concept resting on a uniform and quasi-mathematical index or yardstick, is not necessarily easy to apply, but an attempt to adopt standards of substantive equality would impede tenfold a clear definition of the boundaries. Moreover, any attempt to make substantive distinctions resting on the characteristics and features of those receiving the allocation, that seek to add a dimension of justice or fairness to the mathematical distribution, will be influenced inevitably by subjective evaluations or variable normative assessments and will create a full range of possibilities with blurred and undefined lines and boundaries.

           

            4. As explained by the learned President in the Bergman case [1],

           

[T]he principle of equality has two facets: the first expression of equality concerns the right to vote, and this element is the concise translation of the rule "one man, one vote"; secondly, the element of equality also relates to the right to be elected, finding concrete expression in the right to equal opportunity of the various candidates lists competing among themselves in the elections to the Knesset.

 

            My esteemed colleague, the President, related in the Bergman case to the theoretical origins of the equality principle that finds expression in our electoral system, and referred in this respect to the elementary principle of equality for all before the law, which is, according to him, at the very essence of our entire constitutional regime.

           

            The learned President, proceeding to analyze the concrete forms that the equality principle ought to take in relation to elections, distinguished between equality before the law in its simple classic meaning and equality as expressed in the right to be elected (ibid., at 699):

           

[A]s we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. ... [A]ll agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. ... We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond... All these restrictions inevitably derogate from absolute equality.

 

            It follows from these statements that sometimes there are reasons, grounded in the welfare of the democratic regime, for deviation from the absolute formal equality under which each contestant is entitled, prima facie, to the very same portion, and according to which it would be forbidden to prescribe any restriction that is not imposed at the same time on all those competing for the voter's ballot.

           

            The recognition that absolute equality must at times defer to other interests, which, too, have evolved and were fashioned in order to protect liberty and the democratic regime, is not unique to the election system practised in Israel, and the question how to divide broadcasting time among the parties while preserving the principle of equality has arisen in the case law of other democratic countries too. Thus, for example, the Constitutional Court of West Germany noted in a decision on the petition of the Free Democratic Party of Nordrein-Westphalen (BVR. 158/62 of May 30, 1962, Entscheidungen des Bundesverfassunggerichts, vol. 14, p. 121) that in light of the principle of equality in competitive opportunity, the broadcasting networks must, indeed, conduct themselves in a neutral manner with respect to the political parties, but the securement of equal opportunity need not express itself in the allocation of absolutely identical time to each party and it is possible to maintain distinctions between the broadcasting times given to the various parties for "especially important reasons". Thus the following should be considered (ibid., at 134):

           

The elections in the parliamentary democracy are not designed merely to bring about the election of a parliament that reflects as faithfully as possible the various popular opinions, but also to form at the same time a parliament that can establish a government capable of acting. In a system of proportional elections, a meticulous application of equality in rights might allow small groups with meager constituencies or organizations with specific interests to gain parliamentary representation, and thereby increase the risk of excessive party fragmentation, and also - as the experience of the Weimar constitution has taught - to make it difficult or even impossible to form a government. In the face of this state political danger the decisions of the Constitutional Court always found important reasons to empower the legislature, as an extraordinary measure in narrowly defined and specific areas, to digress from the principle of formal equal rights while consolidating the details of the right to vote. This explains, for example, why there are no constitutional grounds for complaint against a provision in the elections law which fixes a reasonable minimum percentage of votes for representation.

 

            For these reasons, the constitutional court there was of the opinion that different parties could be granted broadcasting times of varying durations for election propaganda, taking into account to a certain degree their present strengths (cf. the same court's decision in 2 BVR 7/57, at vol. 9, p. 100).

 

            The above remarks indicate that the search for absolute formal equality is subordinate to other decisive factors that outweigh it. My esteemed colleague, the President, said as much in the Bergman case ([1] at 699):

           

            [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. There is no better example of this classic meaning than the rule of "one man one vote". This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it "clashes with other important principles" to which it must defer.

           

            The other important principles are, for example, principles of fairness and justice (see Stone's above-mentioned article) or the aspiration to safeguard the existence of a democratic regime that has the power to survive.

           

            5. The theoretical question that arises in this context is whether, contrary to the opinion expressed in paragraph 3 above, the concept of equality should be regarded as a broad concept that extends beyond its plain formal sense to include an entire range of circumstances in which full equality is not maintained for various, seemingly justified, reasons; or, whether the concept of equality should not be given a flexible meaning, amenable to the influences of other constitutional or state needs. In other words, are we to say that equality is preserved even when we do not meticulously maintain the principle of full formal equality, but the deviation from perfect equality is done on justifiable grounds rooted in the existential interest of the democratic regime? The alternative, as we said before, is not to distort the plain sense of the principle of equality, but to acknowledge that deviations from that principle are allowed if effected in the way provided in the conclusion to section 4 of the Basic Law - when it appears just and fair to do so, or if there are grounds to do so for the maintenance of a stable democratic regime, such as those mentioned by the esteemed President in the Bergman case [1] or by the German Constitutional Court, as described above.

           

            I am aware that those who prefer the method of broad and flexible construction to its alternative, do so because in constitutional parlance it appears to preserve the equality principle. A contrary view is that the concept of equality is distorted if the mantle of equality is thrown over circumstances which are not such. Furthermore, the effect would be to negate the existence of any clear standard for determining the border posts of equality. Mathematical or simple formal equality could be quite clear, for instance, if it found expression in the allocation to each party of equal and identical broadcast time. Needless to say, such equality is neither reasonable nor just, especially in a country in which 31 lists are competing in the Knesset elections.

 

            If one decides to determine an unequal standard, one that is anchored only in general evaluations as to what is just and fair, it is better to admit clearly that it is just or even necessary, as explained above, to deviate from the equality principle. When the Elections (Modes of Propaganda) Law has provided up to now that each party receives 10 minutes for television broadcasts and 4 extra minutes for each Knesset member, it means that a party with one Knesset member has a total of 14 broadcasting minutes whereas a new party has 10 broadcasting minutes. The result is inequality which might indeed be justified on the merits but still remains an instance of formal inequality between those competing for the voter's ballot, although there is good reason for its creation and actual perpetuation.

           

            Awareness of the fact that circumstances create inequality would require legislative action in accordance with the concluding part of section 4 and would also alert the legislature to the nature of the action required from it.

           

            In light of the text of section 4, caution in making constitutional changes will be promoted if the point of departure is absolute equality and any variation requires a legislative process as befits an entrenched statutory provision; that is to say, it is effected with awareness of the substance of the act and, consequently, with due consideration to the justification for such measure. If, on the other hand, one adopts a flexible method, under which deviations from equality are still named as equality so long as the court considers the deviation to be reasonable, then one loses any useful constitutional standard to serve as an a priori guideline for the legislature.

           

            As mentioned above, until now each party had 10 broadcasting minutes and 4 additional minutes for each Knesset member, and thus the difference was between 14 minutes for a single Knesset member and 10 minutes for a new list that did not yet have a Knesset member. The statute amending the Elections (Modes of Propaganda) Law, discussed here, varied the times, allotting to a new list only 8 minutes and a list with one Knesset member 6 additional minutes for that member. The question is, therefore, where to draw the line between the reasonable, that can still be regarded as within the range of substantive equality, and the unreasonable, which goes beyond substantive equality. Will 9 minutes suffice to maintain equality, or perhaps, only the existing quota of 10 minutes sanctify the circumstances and stamp them with equality? The difficulty is compounded when we consider the radio broadcasts. Each list was entitled to 25 minutes, and now that time has been reduced to 23 minutes. Where is the line beyond which substantive equality is absent, and what standard can be applied in a way that is clear, open and understandable to every citizen now, and also when the statute is amended next time?

 

          6.(a) As explained above, I accept the idea that there are times when fairness, justice and even the democratic regime's existence necessitate deviation from absolute equality, be it by determining a blocking percentage, by requiring a bond, or by distinguishing in terms of broadcasting time between a body that has already taken part in elections and has passed the test, and a newly established list. The determination of a non-identical standard, or the deference of equality to more important values, as mentioned in the Bergman case, must be done consciously and expressly as a variation on the principle of full equality, that is, in the manner prescribed in the concluding part of section 4 of the Basic Law. We will thus preserve constitutional clarity, which is important inter alia because of the educational element it embodies and addresses to the general public. It is good that the citizen know when a deviation from the equality principle has been effected, and its purpose. In my view it is preferable not to blur the concept of equality with numerical manipulations that rest, ultimately, only on the intuition of the person making the calculations and that lead to a dead end in which there is no clear standard, open and known in advance.

         

          (b) The previous deviations from the principle of equality, as in effect at the time the Knesset adopted the Elections (Modes of Propaganda) (Amendment No. 6) Law, and which also failed to give identical and equal times to all the lists, were confirmed, albeit retrospectively, in the manner prescribed in section 4 of the Basic Law, by the Elections (Confirmation of Validity of Laws) Law.

         

          The adoption of the 1969 statute established that the deviation from absolute equality was effected lawfully and in accord with the course designated in our Basic Law. On the other hand, it did not give a stamp of full and perfect equality to the existing time distribution, as prescribed in sections 15 and 15A of the Elections (Modes of Propaganda) Law, until the enactment of Amendment No. 6.

         

          Any further variation of the provisions regarding broadcasting times, that would derogate in any way from the rights granted to the various lists under the prevailing law and widen the deviation from the principle of full formal equality, required a vote in accord with the concluding part of section 4 of the Basic Law, which must be read, naturally, together with section 46 of the Basic Law.

         

          Since it transpired that the Elections (Modes of Propaganda) (Amendment No. 6) Law was not passed by the majority required under section 4 of the Basic Law, I decided to concur in the decision of May 29, 1981, as cited in full in the opinion of my esteemed colleague, the President.

         

            BEJSKI J.: 1. The attempt to formulate principles for the notion of "equality" in our instant context, raises difficult problems of the kind of squaring a circle. Apparently all agree that for this purpose no schematic-arithmetic equality is envisaged, such as according equal broadcasting time to each of the lists appealing to the voter. Even though this simplistic construction would follow strictly from a prima facie reading, yet, having regard to the subject-matter, no greater inequality could be created than would result from such a construction. For that reason it was rejected in the Bergman case [1], and the Petitioners in the present case do not urge it either. But that in no way facilitates the search for other principles that would lead to an appropriate construction, with due consideration given to the range of diverse aspects that the democratic regime weighs in order to grant every list or candidate an equal opportunity to take part in parliamentary life. This objective itself exists and is expressly sanctioned, but the aspiration to attain it requires the erection of barriers to prevent over-fragmentation of power concentrations as a result of ephemeral lists - whether or not they pass the blocking percentage, which would make it difficult to form a government and to maintain orderly parliamentary life. At the same time one must consider budgetary problems entailed in realizing the objective, the sum of broadcasting hours that can be allotted, and also the citizen who must forgo viewing and listening to other programs that interest him in favour of propaganda broadcasts on the same, single, television channel.

 

            2.But the truth is that already at the basic point of departure there is a lack of equality between the lists represented in the legislature and the new ones seeking to gain representation. The former are more or less known and familiar to most of the voting public, for better or for worse, from their activity in the legislature before the elections; all the media provide ongoing coverage of such activities over the years of the Knesset term. Not so with respect to the new list, which for the first time addresses the voter, who usually knows nothing about it. As regards equality of opportunity, one might claim with a degree of logic that a list of this kind needs not only the minimum time it requires to present its platform and creed, but also time in order to challenge the parties represented in the Knesset in a debate on its advantages over the veteran parties, which would obviously also include criticizing their past activities, emphasizing their faults, and so on. As regards equality of opportunity, therefore, the new lists are in an inferior position from the very start of the contest, and the disadvantage grows with the difference in the allotted time. I doubt whether the inequality in the allocation of broadcasting time as between the veteran or large lists and the new ones, can be justified on the ground that the former need more time to explain their acts and omissions during their term in office. It appears to me that as much time is required to challenge the acts and omissions of the large and veteran parties and to call them to account, which is, after all, the only chance to persuade the voter to prefer a new, as-yet-unknown list to the others. One cannot, therefore, deny that the differentiation in allotted broadcasting times is also a differentiation in equality of opportunity. While the new list consumes its small time quota merely to introduce itself, the large list has abundant, ten-fold time, both to defend and justify itself and to attack and discredit other lists, and the small list might become lost in the extra verbiage and photography of the large lists to the extent that its presence is not felt at all. From this point of view, the explanatory notes to the bill of the Elections (Modes of Propaganda) (Amendment No. 6) Law are not at all persuasive and, in fact, underline the inequality of opportunity. It is said there:

 

            The present Bill is intended to temper slightly the ratio of the two time quotas, but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

           

            This commentary is possibly pertinent and meaningful with respect to regional elections or in a presidential regime, where a single candidate opposes a single candidate. But in proportional elections, such as ours, the contestants are the lists and not the persons who comprise them, and the equality that is aspired to relate to the lists inter se. A 30-member list in the outgoing Knesset still has only one common platform, and its presentation does not require 30 times longer than the platform of a one-person party group. Likewise with respect to the acts and omissions that the individual member of the party group wishes to explain and attribute to the group. It is not the individual in the large party group who is running for election but a political party, a list, a party group; that is why any attempt to equate the single candidate with the individual in a large party group does not promote equality, but has the opposite effect.

           

            3. Counsel for the litigants brought to our attention the situation in various countries in which the principle of equality in elections is a cornerstone of the parliamentary democracy. In some of these, the arrangements regarding broadcasting times are determined by legislation, and in others the arrangement is reached through a parliamentary committee, or even by means of an agreement between the political parties on the one hand and the broadcasting authority on the other. Obviously, one should not adopt any specific system from a given country, and it is even hard to draw analogies, because in each country the relevant arrangement, whether legislated or otherwise established, evolved from its particular political history and parliamentary tradition and is adapted to them. One cannot compare a state which has constituency elections - and usually a small number of candidates lists - to a state with a different elections system and a larger number of political parties. As for us, the circumstances, background and tradition are essentially different: we are blessed with more than 30 lists at the starting line; the television, which is apparently the focus of the main battle, broadcasts on only one channel. And there is no possibility to purchase radio and television broadcasting times beyond those allocated under the law.

           

            Although one cannot draw analogies or copy a system from another state, it is interesting to note that most countries practise a system of relative equality which gives a clear advantage to parties represented in the outgoing parliament. The mode of time distribution - even between the represented parties, whose strength is known - is not necessarily arithmetic and proportional. In other words, the quest for this relative equality is the lesser of evils, and the relativity is determined (whether through legislation or other means) in accord with local considerations that appear to ensure reasonable opportunity for all participants in the elections.

           

            In England, where there is no legislation on the subject, the arrangement is made before the elections between the broadcasting networks and the principal parties, and the main allotment of time goes to the parties represented in Parliament, some time being allotted to other groups as well. For instance, in the 1966 elections the Liberal party had an 11.2% representation in the outgoing Parliament and was allotted 35 minutes of television and 30 minutes of radio time, whereas the Labour party, with a 44.4% parliamentary representation and the Conservative party with 43.4%, received one hour on television and 55 minutes on the radio. All the remaining groups were allotted 5 minutes on radio and television. In this case the relativity was effected clearly in favor of the small Liberal party.

           

            In the U.S.A. where the broadcasting and television networks are private and cannot be compelled to offer their services to the political parties, section 315 of the Federal Communications Act provides that if any network allows a candidate for public office to use its station, it must allow the same to other candidates for the same office under the same conditions. This provision appears to reflect absolute equality. but it is doubtful whether that is the effect in practice - because only candidates who are backed by parties capable of bearing the heavy expense of buying broadcasting time would benefit from this equality right.

 

            In Italy the broadcasting time is distributed by a parliamentary committee with each party and the government receiving a uniform basic time, while the large parties are allotted additional time in proportion to their size. In the Federal Republic of Germany the broadcasting time is divided among the parties represented in the parliament, and as can be gleaned from the decision of the German Constitutional Court of 30 May 1962, which has been mentioned by my esteemed colleague, Shamgar J. (2 BVR 158/62), the internal distribution was not proportionate to the parliamentary representation. The Constitutional Court did not regard this as a shortcoming affecting equality of opportunity. Only since the 1965 elections has the television broadcasting time been divided under an agreement between the parties represented in the parliament on the basis of their representative strength.

           

            In Holland the broadcasting time is divided equally among all the parties and groups represented in the parliament.

           

            In France the matter was statutorily arranged in 1966, and the broadcasting time is divided among the parties and groups represented in the Conseil d'Etat, without taking into account the Senate's composition. Without dwelling on the details of the arrangement, which has its origin in a presidential regime, the practical result was that in the elections at the time the majority ruling party gained 36.26% of the votes and received the same broadcasting time as all the remaining opposition groups which gained 63.7% of the votes (taken from Ch. Debbash, Traite du Droit de la Radiodifusion Radio et Television (Paris, 1967); Ch. Debbash, "Le droit a l'entenne a propos de l'organisation de la campagne electorale" (Chronique III, BBC Handbook 1963; 1967).

           

            4. These particulars are not mentioned for analogy, but to illustrate that although the principle of equal opportunity is avowed in each of the states mentioned - and there is no doubt that it is their genuine objective to maintain democracy and orderly parliamentary life in their countries - there are no common principles for a solution that satisfies the wishes of all the groups taking part in the election campaign. Absolute equality is clearly not the solution, as Debbash points out, supra:

           

            To give the same broadcasting right to a party that embraces several million voters and a group of a few visionaries creates a wrong exercise of equality. As already said elsewhere, on the authority of the Conseil d'Etat, one cannot treat equally persons or groups that are situated differently. Absolute equality would contradict the democratic principle, whereas relative equality satisfies it.

           

            Relative equality also entails no small amount of problems, and suffice it to point to the many differences between the various solutions reached in the various states. The only common denominator that can be pointed to is the sincere will to grant a reasonable opportunity to all the groups seeking to participate in the elections, while granting advantages to those that have already proven themselves in parliamentary life, yet safeguarding at the same time its orderly functioning. However, the means to achieving these purposes are different and removed from one another.

           

            5. I do not believe that we can formulate guidelines as to where the limits should be drawn. Is the allocation of 10 broadcasting minutes for a small party within the range of reasonable equal opportunity, and would a reduction of 2 minutes constitute an intolerable infraction? What about a further cut in the few remaining minutes? In the present case, however, we are not called upon to answer these difficult questions.

 

            Even if the times determined in the original statute transgressed the limits of relative equality, they were nevertheless determined in a statute adopted by a special majority of the Knesset, as required under section 4 of Basic Law: The Knesset. The Elections (Modes of Propaganda) (Amendment No. 6) Law introduces change on two points: in reducing the basic broadcasting times for the parties and candidates lists from 25 to 23 minutes on the radio, and from 10 to 8 minutes on television, and in allotting an additional 2 minutes on both media to every party represented in the outgoing Knesset, in respect of each of its Knesset members. As for myself, I regard the main violation of equality in the second part of the provision, which creates a large and unreasonable differentiation, beyond what is acceptable. As regards the broadcasting time at their disposal, even previously the small and new lists were in a Procrustean bed in competing with the large parties. I, for one, was indeed impressed by Dr. Leshem's calculations with respect to the gap created in favor of a 30-member party as against a new list, and I view this as a conspicuous violation of the relative equality established under the original statute, to the extent that even the relative equality of opportunity is eroded and violated. And since I too am convinced that this violates equality, a special majority was required under section 4 of Basic Law: The Knesset.

           

            For these reasons I agreed to the absolute orders made on May 29, 1981.

           

            BEN-PORAT J.: Although at the time I had no hesitation in concurring in the result we reached unanimously, I must admit that I deliberated much before deciding upon the meaning of the equality principle in section 4 of Basic Law: The Knesset. There is much reason, with all due respect, in the approach of my esteemed colleague, Shamgar J. , that it concerns formal equality grounded in an a quasiarithmetic, basic, uniform, and absolute standard, and that whenever important principles justify deviation from such equality only a special majority, as required under section 4, can determine the solution that is acceptable to it. Formal equality that allocates identical time to each list can probably be justified, materially speaking, in only one case: when a state is electing for the first time its Knesset members according to an election system of competing lists. I said "probably" because there is always a theoretical possibility that the parties in the outgoing Knesset are all equal in strength and there are no new lists. But, identical time for each party group and list is not a conditio sine qua non for the existence of formal equality, since one can determine a yardstick or uniform indicator of another kind, such as a progressive time measure in accord with the relative size of the parties. This too is a quasi-arithmetic calculation that can be regarded as formal equality and perhaps even material (on condition that it is based on a reasonable coefficient and initial allotment). By extending the equality principle in this way, it is also possible to reconcile my view with the ruling given in the Bergman case [1], by Landau J.- as he then was, today the honorable President of this court. It was stressed there, rightly and justly so (at p. 698) that "[this equality] must ... find expression in equality of opportunity" among both the existing parties and the various candidates lists competing in the Knesset elections. Likewise, it was stressed there - and it is also acceptable to me - that "the parties should not be put in an absolutely equal position by allocating funds equally without considering each party's size...". In short, equality that finds expression in equal time allocation to each party and list regardless of its size, is inherently incompatible with the decisive principle that is equality of prospects or (I would prefer to say) opportunity. In applying a progressive standard as suggested above, one comes across an initial difficulty, which is the existence of new lists that should not be deterred from testing their strength, despite the legitimate wish to prevent their excessive proliferation. As said in the Bergman case (at 699), the prospect of a new list to become a party group in the Knesset is one of the clear identifying marks of a democratic regime, and the new list should not be put at a disadvantage vis-a-vis the old party groups. However, not knowing in advance whether a new list will pass the blocking percentage, and if it does, how many Knesset members it will elect, we lack an indicator for applying the uniform progressive measure, and this calls for a suitable independent solution by way of a special majority of the Knesset members.

 

            The Elections (Modes of Propaganda) Law (hereinafter - "the Main Law"), that was confirmed inter alia by the Elections (Confirmation of Validity of Laws) law (hereinafter - "the Confirming Law), provided an arrangement that is not based on a uniform standard, but is composed of two cumulative elements, the one fixed and the other progressive: (1) 25 minutes of propaganda broadcasting on radio and 10 on television for every party of the outgoing Knesset and every new list; (2) 4 additional minutes on radio and television for each member of a party in the outgoing Knesset. I do not believe that this complies with formal equality. It is possible that this arrangement is ultimately just and fair, but it is enough, in my opinion, to conclude that it constitutes a deviation from the equality principle (according to my construction) so as to require the sanction of a special majority. It was therefore clearly necessary, in my opinion, that the Confirming Law give effect to such arrangement. The same applies, obviously, to the Elections (Modes of Propaganda) (Amendment No. 6) Law (hereinafter - "the Amending Law") under discussion here. This latter Law reduced the broadcasting time of the parties and lists by two minutes (that is, substituted 23 for 25 minutes on radio and 8 for 10 minutes on television), and at the same time increased by two minutes the additional time for each member of the outgoing Knesset (that is, substituted 6 for 4 minutes on radio and television). The technical nature of the arrangement remains as it was, applying a twofold measure, the one static and the other progressive, but the gap in time allocation between a new list (or small party) and the large parties, has grown incomparably. If we regard the overall outcome of this situation (and not merely the difference in minutes as an isolated factor) there is no escaping the conclusion, in my opinion, that the equality principle has been violated, even if we assume (contrary to my own view) that it was preserved in the Confirming Law.

 

            Incidentally, a look at the explanatory notes to the bill of the Amending Law (which related only to the increment for each Knesset member) reveals an admission that the bill deviates from equality, although on grounds that I, with all due respect, find unacceptable. To clarify my position I shall cite the text:

           

            The present version of the Law creates an unreasonable situation concerning the time allotted to a party group with one Knesset member as distinguished from the time allotted to a party group with a larger number of Knesset members.

           

            The present bill is intended to temper slightly the ratio of the two time quotas but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

(Emphasis added -M.B.P.)

 

            This is, therefore, support for the view that the main Law deviated at the time from the principle of equality, to the disadvantage of the large parties, because an arithmetic calculation for each member shows that the time (per member) at the disposal of the small parties is longer than that for the large ones; and this "wrong" (which, in my humble opinion, is an illusory wrong) grows incrementally with the number of members belonging to the party. In our present matter it is important that the Amending Law was regarded as a partial removal of the distortion. It appears that they used a uniform measure (the time quota for each party member), that is, progressive equality which I accept as formal equality, so as to examine whether the result was just, and that they reached the conclusion that it was not so. I have said that this reasoning is unacceptable to me, because under the existing conditions the application of the said formal equality would necessarily lead to an unjust result with respect to the new lists, which were wholly overlooked, as clarified in the opinion of Landau P. The opportunity to which they are entitled, requires an allocation of time that suits their need to present to viewers and listeners the platform and special message that might justify their presence as a party group in the Knesset. I do not have the tools nor the expertise to express an opinion as to how much time is required, considering all the aspects of the problem, but the fact that the distortion as between the existing parties was also rectified at the expense of the new lists, points to a deviation from the principle of equal opportunity. It might be noted, in passing, that the total abolition of the "distortion" referred to in the explanatory notes, is possible only if the fixed time allotted to every party is entirely abolished (which is further proof that the combination of these two factors is incompatible with equality).

 

            I have not surveyed the situation in other countries, because that was done in a comprehensive and painstaking manner by my esteemed colleagues, to which I could not add much.

           

            Judgment given on July 28, 1981

 

* Samuel 12:4-Ed.